borough's Order of 26th Nov. 1798; Exp. Forster, 17 Ves. 414; 8 Ves. 318; Mont. & Ayrt. Bankr. Pract. 105.

2nd. Proof must be given of trading.-Mont. & Ayrt. Bankr. Pract. 108.

3rd. An Act of Bankruptcy must be proved.-Mont. & Ayr. Bankr. Pract. 108.

4. The first question to be considered as to whether a fiat should be opened in the country or in town is whether the bankrupt does or does not reside within the jurisdiction of the town commissioners. Their jurisdiction extends to all those parts of England for which district commissioners have not been appointed.-See, as to what parts are within the jurisdiction of the town commissioners, 1 Weekly Law Magazine, p. 367. If the Bankrupt reside within the town district, then the fiat must be a town one; if otherwise, then a country fiat. But should a large majority of the creditors of a debtor residing in the country, be resident in or near London, the court on application, supported by affidavit, would issue a town fiat. But it is said that a country fiat will not, except under very special circumstances, be allowed to issue against a London trader.-Exp. Hill, Mont. 260; Mont. & Ayr. Bank. Pract. ch. 8.

5. The Lord Chancellor has power to direct an auxiliary fiat to issue for proof of debts under £20, and for the examination of witnesses on oath, or for either of such purposes.-6 Geo. 4, c. 19, s. 20. Persons claiming debts are not witnesses entitled to an auxiliary fiat. -Exp. Kirby, Mont. & Mac. 440.

In Exp. Carter (3 Deac. & Chit. 106), an auxiliary fiat was granted to examine witnesses in London, the original fiat being worked at Portsmouth. And in Exp. Poland (4 Jurist, 468), where the original fiat was worked at Newcastle-upon-Tyne, an auxiliary fiat was granted for the examination of witnesses in London.

6. The mode of proceeding to obtain a bankrupt's certificate of conformity is as follows:-The court, acting in the prosecution of the fiat will, on the application of the bankrupt, appoint a public sitting for the allowance of his certificate, whereof, and of the purport whereof 21 days' notice must be given in the London Gazette, and to the solicitor of the assignees. At the sitting, any creditor may be heard against the allowance of such certificate, but the creditors are not required to sign such certificate. The court is to judge of any objection against allowing such certificate, and either find the bankrupt entitled thereto, and allow the same, or refuse or suspend the allowance thereof, or annex such conditions thereto as the justice of the case shall require. The Court, in order to make the certificate operative, must certify to the Court of Review that the bankrupt has made a full discovery, &c., and has conformed, &c., and the bankrupt must make oath in writing, that such certificate was obtained fairly and without fraud, and the

allowance of the certificate must then be confirmed by the Court of Review, against which confirmation any of the creditors of the bankrupt may be heard.-5 & 6 Vict., c. 122, s. 39; 1 Week. Law Mag. 68, 187, 219, 223, 255, 341; 2 Stephen's Comment. p. 203; Exp. Vardy, 6 Jur. 1126.

7. Where a fiat issues against partners, and there are joint and separate creditors and estates, joint debts must be proved against the joint estates, and separate debts against the separate estates.--Craven v. Widdows, 2 Cha. Cas. 149; Exp. Cooke, 1 P. Will. 500; Exp. Hunter, 1 Atkyns, 251; Horsey's Case, 3 P. Will. 23; Eckhart v. Wilson, 8 Term Rep. 140; Grey v. Chiswell, 9 Ves. 124; Mont. & Ayrt. Bankr. Pract. 187, 188; Exp. Birley, 2 Mont. D. & De G. 354.

The rule is inflexible whatever be the amount of the estate; and in one case Lord Eldon said that if there be only 6d. of joint estate, joint creditors are not entitled to a dividend pari passu with separate creditors. The only joint estate there was a bad debt of £9, which, being put up to auction, could not be sold.-Exp. Clay, cited Mont. & Ayrt. Bankr. Pract. 188; Exp. Peake, 2 Rose, 54; Exp. Buckingham, 4 Jur. 612. Where solvent partner is dead, Re Lomax, 1 Mont.

& Chit. 573.

Where there is no joint estate or solvent partner, proof may be made against the separate estate.-Exp. Wyke, 2 Rose, 373; Mont. & Ayrt. Bankr. Pract. 192. In Exp. Buckingham, 4 Jur. 612; 1 Mont. D. & De G. 235 S. C., it was held that the rule that a joint debt cannot be proved against the separate estate of the debtor, only applies to the case where the co-debtors are partners. But see 3 Mont. Deac. & De Gex, 95.

8. Where partners become bankrupt, and there is separate as well as joint property, and also joint and separate creditors, the commissioners are directed by order of 6th of March, 1704, to keep distinct accounts of the joint estates, and also of the separate estates; and what is found to belong to the separate estates, shall be applied, in the first place, in or towards satisfaction of the debts of the respective separate creditors; and in case there shall be any overplus of the joint estate, after all the joint creditors shall be paid and satisfied their whole demands, the shares of the bankrupts in such overplus are to be applied in or towards satisfaction of their separate creditors; in case there is any overplus of the separate estates, after all the separate creditors shall be paid and satisfied their whole demands, the overplus of such separate estates is to be carried to the account of the joint estate, and to be applied in or towards satisfaction of the joint debts.-Mont. & Ayrt. Bankr. Pract. 318; Exp. Green, 1 Deac. & Chitty, 382; Exp. Bolton, Buck, 7.

A separate creditor is not entitled to interest out of the surplus till the joint creditors are paid.-Exp. Minchin, 2 Glyn & Jam. 287;

Exp. Reeve, 9 Ves. 590; Exp. Wood, 2 Mont. Deac. & De Gex, 283; 2 Week. Law Mag. 225.

9. By the 6th Geo. 4, c. 16, s. 72, if a bankrupt, at the time he becomes bankrupt, shall, by consent of the true owner, have in his possession, order, or disposition, any goods or chattels whereof he was reputed owner, or whereof he had taken upon himself the sale, alteration, or disposition as owner, the commissioners may sell and dispose of the same for the benefit of the creditors; provided that nothing herein contained shall invalidate or affect any transfer or assignment of any ship or vessel, or any share thereof, made as a security for any debt or debts, either by way of mortgage or assignment duly registered.Greening v. Clarke, 4 Barn. & Cres. 316; Mont. & Ayrt. Bankr. Pract. 585; Com. Dig. tit. "Bankrupt;" 2 Stephen's Comment. 206; Lengard v. Messiter, 1 Barn. & Cres. 308; Townley v. Crump, 4 Adol. & Ell. 38; Edwards v. Scott, 1 Man. & Gr. 962; Exp. King, 4 Jurist, 510; Exp. Scarth, 4 Jur. 826.

10. If a trustee become bankrupt, with any property in his possession belonging to his cestui que trust, and distinguishable from the general mass of the property, it does not pass to the assignees.-Copeman v. Gallant, 1 P. Will. 314; Mace v. Cadell, Cowp. 232; Exp. Kensington, 2 Rose, 138; Mont. & Ayrt. Bankr. Pract. 604; Exp. Thomas, 5 Jur. 967; Exp. Witham, 1 Mont. Deac. & De Gex, 624.

11. If a factor, either with or without a commission del credere, become a bankrupt with any property in his possession belonging to his principal, and distinguishable from the general mass of his property, it does not pass to his assignees, and the principal is entitled to his goods in the possession of the factor, whether they be goods which he originally sent to the factor, or they have been purchased with the proceeds arising from the sale of goods originally sent.-Escot v. Milward, 7 Term Rep. 361; Scott v. Surman, Willes, 400; Tooke v. Hollingworth, 5 Term Rep. 215; Exp. Dumas, 1 Atk. 232; Mont. & Ayrt. Bankr. Pract. 596, 597.

12. By 2 & 3 Vict. c. 11, s. 12, it is enacted, that all conveyances by any bankrupt bona fide made and executed before the date, and issuing of the fiat against such bankrupt, shall be valid, notwithstanding any prior act of bankruptcy by him committed; provided the person or persons to whom such bankrupt so conveyed, had not at the time of such conveyance, notice of any prior act of bankruptcy by him committed. And by 2 & 3 Vict. c. 29, it is further enacted that all contracts, dealings and transactions by and with any bankrupt, and all executions against his lands, bona fide made and entered into or executed before the date and issuing of the fiat, shall be valid, notwithstanding any prior act of bankruptcy by him committed; provided the person or persons so dealing with the bankrupt, or on whose account such execution shall have issued, had not, at the time of such

contract, dealing, transaction, or execution, notice of any prior act of bankruptcy by him committed.-Nelstrop v. Fearisbrook, 4 Jur. 582; 8 Dowl. 746; 6 Mee. & W. 684, S. C.

13. No purchase from any bankrupt bona fide, and for valuable consideration, where the purchaser had notice at the time of such pur. chase, of an act of bankruptcy by such bankrupt committed, shall be impeached by reason thereof, unless the fiat against such bankrupt shall have been sued out within twelve calendar months after such act of bankruptcy.-6 Geo. 4, c. 16, s. 86; 2 & 3 Vict. c. 11, s. 13; Burton's Comp. s. 250.

14. A creditor holding any real or personal property as part security for his debt, must, before proving, give it up, or have it sold and prove for the balance. If he prove for the whole of his claim, he will be considered to have waived his security, and must give it up to the assignees.-Exp. Bennet, 2 Atk. 528; Exp. Egginton, Mont. 72; Exp. Downes, 18 Ves. 293; Exp. Davenport, 1 Mont. D. & De G. 313; Exp. Clarke, id. 622; 4 You. & Coll. 119.

But if the creditor have a joint security from the bankrupt and any other person, or a separate security from a third person, he may prove against the bankrupt, without a previous sale of the security.-Exp. Bennet, 2 Atk. 528; Mont. & Ayrt. Bankr. Pract. 132, 133; Exp. Sheppard, 4 Jur. 538, 1147; Exp. Davenport, 1 Mont. Deac. & De Gex, 313; Exp. Hedderley, 2 id. 8.

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