surrendered (c). And the bankrupt dying either before or after the declaring a dividend sufficient to entitle him to an allowance, the right vests in his personal representative (d).

SECTION 20.

The Creditor.

Ir a creditor prove his debt, he is entitled to his proportion of the net produce of the bankrupt's estate, so far as it goes (ante, p. 309), and to interest, if there be a surplus (ante, p. 424). And the only instances of priority of debts known to the bankrupt laws are, the case of the landlord who distrains for his rent (ante, p. 119); the case of creditors who hold securities for their debts (see ante, p. 136, &c.); in the case of friendly societies (ante, p. 249): in all other cases, all creditors who prove under the fiat are entitled to equal dividends of the effects, whether their debts be by specialty or simple contract merely. (See ante, p. 309, &c.). By 6 Geo 4, c. 16, s. 8, a creditor receiving from the bankrupt, after a docket struck against him, money, satisfaction or security for more in the pound upon his debt than the other creditors, shall forfeit his debt, and return the money, security, &c. (See p. 65, ante).

But if a creditor do not prove his debt under the fiat, he is barred altogether of any remedy as against the bankrupt, if the latter obtain his certificate; but if the bankrupt be uncertificated, he may at any time have the ordinary remedies against his person or future property.

A creditor attending to prove his debt is privileged from arrest. (Ante, p. 160).

A creditor may petition in all matters relating to the bankruptcy, in which he has an interest. (Ante, p. 351). His remedy for his dividend is by petition, not action. (Ante, p. 315).

If he swear falsely to a debt, he may be indicted and convicted of perjury. (See ante, p. 31).

(c) Ex p. Whittington, Buck, 235.

(d) Ex p. Safford, 2 Glyn & J. 128.

CHAPTER II.

OF PARTNERS; AND HEREIN, OF JOINT AND SEPARATE FIATS.

FIATS against all or one or more of the partners in a firm, and the proceedings upon such fiats, shall form the subject of the present Chapter.

Act of Bankruptcy.] Those only of the partners who have actually committed acts of bankruptcy are to be deemed bankrupts. Where one of three partners in a bank, who resided at it, (the other two residing at a distance from it) ordered it to be shut up and absented himself from it, and the bank stopped payment; this was holden to be evidence of an act of bankruptcy by the resident partner only, for the shutting up of the bank, and the stopping payment, are not of themselves acts of bankruptcy (a). As to what are acts of bankruptcy, see ante, p. 48—66.

Petitioning Creditor's Debt.] None but a joint creditor can sue out a joint fiat against two or more partners of a firm; a separate creditor cannot.

But a joint creditor may sue out a separate fiat against any one of the partners of the firm indebted to him, who has committed an act of bankruptcy (b). Even one of the partners of a firm may sue out a fiat against his co-partner, if his debt have not arisen out of the partnership (c), otherwise not (d), unless upon an account settled (e). A bill given by one partner for his private debt which existed before the formation of the partnership, and without the authority of the other partner, is not a good petitioning creditor's debt to support a joint fiat against both partners (ƒ).

As to who are joint creditors, who separate, vide infra, Proof of Debts.

Fiats.] A joint fiat may be sued out against all or some of the members of a firm, or a separate fiat against one or each of them. Formerly, a joint fiat could not be sued out against some of several members of a firm; it must have been sued out against all the ostensible partners (g). But now, by stat. 6 Geo. 4, c. 16, s. 16, any creditor or creditors whose debt or debts is or are sufficient to entitle him or them to petition for a commission against all the partners of any firm, may petition for a commission against one or

(a) Mills v. Bennett, 2 M. & S. 556. by Crispe v. Perritt, Willes, 467: Er p. Crisp, 1 Atk. 134: Er p. Dewdney, 15 Ves. 499: Ex p. Ackerman, 14 Ves. 604 and see post.

(e) Windham v. Paterson, 1 Stark. 144.

(d) See Antram v. Chase, 15 East, 209.

(e) Ex p. Nokes, 1 Montague, B. L. 423.

(f) Ex p. Ansten, 1 M., D. & D. 247. (g) Allen v. Downes, Willes, 474 n.: Streatfield v. Halliday, 5 T. R. 779.

more partners of such firm; and every commission issued upon such petition shall be valid, although it does not include all the partners of the firm.

Formerly, also, if a joint commission were bad as against one partner, it was bad to all (h): but now, by stat. 6 Geo. 4, c. 16, s. 16, in every commission against two or more persons, it shall be lawful for the Lord Chancellor to supersede such commission as to one or more of such persons; and the validity of such commission shall not thereby be affected as to any person as to whom such commission is not ordered to be superseded, nor shall any such person's certificate be thereby affected. (See post, p. 458).

Where a joint fiat is thus sued out against some of the members of a firm, and another fiat is afterwards sued out against one or more of the remaining partners, the two fiats may be consolidated, thus: By stat. 6 Geo. 4, c. 16, s. 17, if, after a commission issued against two or more members of a firm, any other commission or commissions shall be issued against any other member or members of such firm, such other commission or commissions shall be directed to the commissioners to whom the first commission was directed; and immediately after the adjudication under such other commission or commissions, the commissioners shall convey and assign all the estate real and personal of such bankrupt or bankrupts to the assignees chosen in the first commission; and after such conveyance, all separate proceedings under such other commission or commissions shall be stayed, and such commission or commissions shall, without affecting the validity of the first commission, be annexed to and form part of the same; provided that the Lord Chancellor may direct that such other commission or commissions be issued to any other commissioners, or that such other commission or commissions shall proceed either separately or in conjunction with the first commission. Where a fiat was issued against two of three partners before commissioners were appointed under 1 & 2 Will. 4, c. 56, s. 14, a separate fiat against the third, after the commissioners were so appointed, must be directed to them, and not to the commissioners to whom the joint fiat was directed (i); and in the case of several partners, and a separate fiat has issued against one, the court will order a separate fiat against another member of the firm to go to the same commissioners (*).

Where the second fiat is against the partners included in the first, and against others also, it would perhaps be deemed a case within the meaning of the above section. But the statute makes no provision as to a joint fiat sued out after a separate fiat, or where the second fiat is against the same parties as the first. Two fiats against the same person cannot be in operation at the same time (); the Court of Review, upon petition, will supersede or impound the one or the other of them, leaving that one in opera

(h) Per Lord Mansfield, in Allen v. Kownes, supra: Ex p. Martin, 15 Ves.

114.

(i) Er p. Beague, 1 Mon, & A. 445; 2 Dea, & C. 747.

(k) Ex p. Blake, 1 Dea. 191; 2 Mon. & A. 481.

(7) See Warner v. Barber, 8 Taunt. 176; 2 Moore, 71; 2 Rose, 432; ante, p. 333.

tion which will be most advantageous for the creditors. Where a separate fiat issues against one partner, and a joint fiat is subsequently sued out against him and others of the firm, as the latter is usually most advantageous to the creditors, for reasons which shall be mentioned presently; if it be valid and intended to be fairly prosecuted, the court, upon petition, will annul the separate fiat at the costs of the joint estate (m), (unless there be some special reasons to the contrary (n)); as where sales have taken place (0), or the certificate of the bankrupt lay for confirmation (p) under the separate fiat; in such case the court will merely impound it, so that it may remain a subsisting fiat, and at the same time not impede the operation, or affect the validity of the joint fiat; and, if necessary, the proofs, &c. under the separate fiat will be transferred to the joint fiat (q); and where the separate fiat was prior in date, and assignees had been chosen under both fiats, and no sale had taken place under the separate fiat, the court ordered the separate fiat to be impounded, and the proof of debts under the separate fiat to be transferred to and filed with the proceedings under the joint fiat (r); but the court will not annul a separate fiat in favour of a subsequent joint fiat, on the ground that the only witness who could prove the act of bankruptcy was kept out of the way (s). (And see further as to consolidation of fiats, p. 456, post.)

Opening the Fiat, and declaring the Party a Bankrupt.] This is done in the ordinary way, as pointed out, (ante, p. 90-97, and ii. p. 6—25), whether it be a separate or joint fiat; and in case of a joint commission against two partners, against one of whom a separate commission had previously issued, the petitioning creditor under the separate commission was ordered to produce the proceedings under the separate commission, for the purpose of proving an act of bankruptcy of that partner under the joint commission (t). Besides examining into the reality of the petitioning creditor's debt, the commissioners are desired, by Ord. Apsley, 12th February, 1774, if it be a single commission, to "inquire whether the bankrupt was concerned in any and what partnership at the time of his bankruptcy; and in case the same be a joint commission, then to inquire of how long standing the partnership has been, and whether any separate commission has before issued, and be then depending, against either and which of the said partners; and that they do likewise and in all cases inquire, whether the bankrupt ever, and how long before, had obtained a certificate under any former commission, or been discharged under any other Act for the relief of insolvent debtors; and in case, upon such in

(m) Erp. Smith, 1 Glyn & J. 256: Er p. Pachelor, 2 Rose, 26: Er p. Brown, 1 V. & B. 60: Er p. Hardcastle, Cox, 397; 1 V. & B. 163: Ex p. Roberts, 1 Mad. 72.

(n) See Er p. Rowlandson, 1 Rose, 89: Er p. Barwis, 6 Ves. 601.

(0) Er p. Rowlandson, 1 Rose, 416; 2 V. & B. 172: Ei p. Rawson, 1 Rose,

423; 1 V. & B. 160: Er p. Pachelor, 2 Rose, 26.

(p) Ex p. Tobin, 1 V. & B. 308. (9) Er p. Digby, 1 Dea. 341; 2 Mon. & A. 735.

(r) Ex p. Ravenscroft, 4 Dea. 172.

(8) Ex p. Burdekin, 1 Dea. 57.

(t) Er p. Harrison, 2 Glyn & J. 135,

quiries, they have reason to apprehend that the bankrupt, in a single commission, has been concerned in any partnership, or that a separate commission has before issued against either of the bankrupts in a joint commission, or that the bankrupt has before obtained his certificate under a former commission, or been discharged by any Act for the relief of insolvent debtors, that the commissioners do proceed upon such inquiry, and to hear the evidence thereon, in the presence of the bankrupt, who is to be informed of the subject of the inquiry, and be at liberty to lay evidence before them relating thereto; and in case any of the matters aforesaid do appear to them, that they do at the same time of making their certificate also separately certify to the Lord Chancellor such of the aforesaid matters as they find to be true; and that they transmit such separate certificate to the secretary of bankrupts, to be laid before the Lord Chancellor, at the same time, with the other certificate." (See the form of this certificate, ii. p. 156.

Seizure of the Property by the Messenger.] This is done as in ordinary cases. (See ante, p. 98). Under a joint fiat, the messenger takes possession, not only of the partnership property, but also of the separate property of each partner. Under a separate fiat, the messenger takes possession of the separate property; in strictness, indeed, he may also put a person in possession of the partnership property; but this is seldom done, as the other partners always, either by consent, or through the intervention of the court, make arrangements for securing to the assignees the amount of so much of the joint property as they may be entitled to, namely, the bankrupt's share of the surplus of the property after payment of the joint creditors. As to what property passes under the appointment of assignees, see post, p. 451.

Proof of Debts.] As to joint fiats: by Ord. Loughb., 8th March, 1794, it is ordered that the commissioners in a joint commission against two or more bankrupts shall be at liberty, at any meeting or meetings for the proof of debts under such commission, to admit the proof of any separate debt or separate debts of any one or more of such bankrupts, under such joint commission; and such separate creditors shall be at liberty to assent to or dissent from the allowance of the certificate of the bankrupt or bankrupts of whom they shall be separate creditors. It has been holden, that the creditors of a firm of three partners may prove their debts under a commission against another firm, consisting of these three partners and others, within the meaning of this order (u).

Separate debts are those for which the creditor can have his remedy at law, not against the whole firm, but against that partner only who contracted them; joint debts are those for which an action, if brought, must be brought against all the partners constituting the firm. Where a joint action is commenced against three, and two of them are outlawed, this does not make the debt a sepa

(u) Ex p. Worthington, 3 Mad. 26: Er p. Wylie, 2 Rose, 393: see Er p. Clegg, 2 Cox, 372.