And though the bankrupt may have committed an act of bankruptcy before he became a party to the bill or note, it will not (11) invalidate a commission of bankruptcy issued on the petition of the holder, (12) or prevent his proving the amount under a commission, provided, in the former case, there is a subsequent act of bankruptcy sufficient to support the commission, (13) and in the latter that he had become such party before the (14) date of the commission;

(11) By 46 G. 3. c. 135. § 5. it is enacted, "That no commission of bankrupt that shall be hereafter issued, shall be avoided or defeated by reason of any act of bankruptcy having been committed by the person or any of the persons against whom such commission shall have issued, prior to the contracting the debt of the creditor or any of the creditors upon whose petition such commission shall have issued, if such petitioning creditor had not any notice of such act of bankruptcy at the time when the debt to him was contracted; but that such commission of bankrupt, and all the proceedings under the same shall be valid and effectual to all intents and purposes, notwithstanding that such prior act or acts of bankruptcy shall have been committed by such bankrupt.”

(12) By 46 G. 3. c. 135. § 2. it is enacted, "That in all cases of commissions of bankrupt hereafter to be issued, all and every person and persons with whom the bankrupt shall have really and bonâ fide contracted any debt or debts before the date and suing forth of such commission, which, if contracted before any act of bankruptcy committed, might have been proved under such commission, shall, notwithstanding any prior act of bankruptcy may have been committed by the bankrupt, be admitted to prove such debt or debts, and to stand, and be a creditor under such commission, to all intents and purposes whatever, in like manner, as if no such prior act of bankruptcy had been committed by such bankrupt, provided such creditor or creditors had not, at the time of such debt or debts being contracted, any notice of any prior act of bankruptcy by such bankrupt committed."

(13) E. Moss v. Smith, 1 Campb. N. P. C. 489. To an action against the sheriff for a false return of nulla bona to a writ of fi. fa. issued against David Moss's goods, the defence was the bankruptcy of D. M. before the delivery of the writ. On the 8th of December, 1807, he committed an act of bankruptcy; on which a commission issued, founded on a debt contracted for goods sold on a credit which did not expire until the 11th of December. On the 29th his goods were taken under the fi. fa.; but the execution was withdrawn on notice of the bankruptcy. Lord Ellenborough held that the commission could not be supported, as the petitioning creditor's debt was not due when the act of bankruptcy was committed; and that it was not a case within 46 G. 3. c. 135. Verdict for the plaintiff. And on motion afterwards for a new trial, the court refused a rule. And per Lord Ellenborough, the grievance which that statute meant to remedy was the practice of upsetting commissions of bankrupt, by unexpectedly proving an act of bankruptcy prior to that relied upon by the assignees.

(14) See 46 G. 3. c. 135. § 2. supra. note (12).

and in each, that the holder had not any (15) notice of a prior act of bankruptcy.

If an endorser of a bill or note be obliged, in consequence of the bankruptcy of an antecedent party to pay it, he (16) may prove the amount under his commission, though he did not make the payment until after the commission issued. And though the endorsement were lent merely to give credit to the bill or note, (17) he may prove it independently of 49 G. 3. c. 121. § 8., unless the bankrupt were the person to whom such endorsement was lent.

(15). See 46 G. 3. c. 135. § 2 and 5. ante, p. 294. note (12). and p. 294. note (11).

(16) Joseph v. Orme, 2 New Rep. 180. The plaintiff being holder of a bill accepted by the defendant, endorsed it for a valuable consideration to Adams. Before the maturity of the bill, a commission of bankruptcy issued against the defendant: and the plaintiff was afterwards obliged to pay the bill to Adams, and now sued the defendant as acceptor. The defendant having received his certificate, obtained a rule nisi to enter an exoneretur on the bail piece; and after cause shewn, the court held that the plaintiff might have proved the bill under the commission, and therefore made the rule absolute.

(17) Ex parte Brymer, Cooke, B. L. 165. To enable Scott and Pearson to raise money, Forsyth drew three bills on Wilkins, which the latter accepted, dated the 28th of May, 1787, for £800 each, payable three months after date; two to the order of Span, and the third to the order of the drawer, which last was endorsed in blank by the drawer. They were then sent to Scott and Pearson, and by them to Span, who endorsed them, got them discounted, and remitted the money to Scott and Pearson. Before the bills became due Scott and Wilkins became bankrupt; Span was afterwards obliged to take up the bills, and was admitted to prove under Wilkins's commission; and on a petition to have that proof expunged, the chancellor said, the debt accrued by the acceptance, and Span became a holder in a fair way. Petition dismissed. And on a second petition for a rehearing, the chancellor continued of the same opinion.

Houle v. Baxter, 3 East's Rep. 177. The defendant, a retail silversmith, ordered goods of Capper, a working silversmith, and to enable him to obtain silver for the order, accepted a bill drawn on him by Capper; and to increase the credit of the bill, Capper prevailed on the plaintiff to lend his endorsement. Capper then passed the bill to Abud, who supplied the silver of which the goods were made and delivered to the defendant. On the 7th of November, 1796, the defendant became bankrupt, and afterwards obtained his certificate. On the 24th of December, 1796, the day before the bill became due, the plaintiff took it up from Abud, and now sued the defendant as acceptor. A verdict was found for the plaintiff subject to the opinion of the court. And Grose J., who delivered the opinion of the court, said, that here the plaintiff never became surety to the defendant; his demand arises solely on the bill, and there was nothing to prevent his proving it under the commission. The bankrutcy and certificate is therefore a bar. Nonsuit entered.

If the bankrupt were the person to whom the endorsement was lent, in which case the endorser is a mere surety, he will be entitled under 49 G. 3. c. 121 § 8. on taking up the bill or note to stand in the place of the holder, if he had proved under the commission, and to prove himself, if the holder had not, provided in such case he had not notice, when he lent his endorsement, that the person to whom he lent it had committed any act of bankruptcy or become insolvent, or stopped payment.

And a surety has this right, though he did not become surety until after the principal had committed an act of bankruptcy.

The issuing of a commission, though such commission may afterwards be superseded (18) will be deemed such notice.

(18) By 49 Geo. 3. c. 121. § 8. it is enacted, That in all cases of commissions of bankrupt already issued, under which no dividend has yet been made, or under which the creditors, who have not proved, can receive a dividend equally in proportion to their respective debts without disturbing any dividend already made, and in all cases of commissions of bankrupts hereafter to be issued, where at the time of issuing the commission any person shall be surety for or be liable for any debt of the bankrupt, it shall be lawful for such surety or person liable, if he shall have paid the debt, or any part thereof in discharge of the whole debt, although he may have paid the same after the commission shall have issued, and the creditor shall have proved his debt under the commission, to stand in the place of the creditor as to the dividends upon such proof; and when the creditor shall not have proved under the commission, it shall be lawful for such surety, or person liable, to prove his demand in respect of such payment as a debt under the commission, not disturbing the former dividends, and to receive a dividend or dividends proportionably with the other creditors taking the benefit of such commission, notwithstanding such person may have become surety or liable for the debt of the bankrupt after an act of bankruptcy had been committed by such bankrupt, provided that such person had not at the time when he became such surety, or when he so became liable for the debt of such bankrupt, notice of any act of bankruptcy by such bankrupt committed, or that he was insolvent, or had stopped payment; provided always, that the issuing a commission of bankrupt, although such commission shall afterwards be superseded, shall be deemed such notice; and every person against whom any such commission of bankrupt has been or shall be awarded, and who has obtained or shall obtain his certificate, shall be discharged of all demands at the suit of every such person having so paid, or being hereby enabled to prove as afore-. said, or to stand in the place of such creditor as aforesaid, with regard to his debt in respect of such suretyship or liability, in like manner to all intents and purposes as if such person had been a creditor before the bankruptcy of the bankrupt for the whole of the debt in respect of

If an acceptance for the accommodation of the drawer of a bill be given before, and renewed after, he has committed an act of bankruptcy, such renewal is a continuation of the same suretyship; and therefore if a commission of bankruptcy be issued against the drawer, and the acceptor afterterwards. pay the bill, he (19) will be entitled to prove the amount under such commission; though, before the renewal of the acceptance, he had notice of such act of bankruptcy having been committed.

Nor will the case be varied in principle, by the circumstance of the holder of the first bill, having, before the renewal (20) given time to the drawer; or by that of (21) an additional name, as that of an endorser, having been lent upon the second bill.

which he was surety or was so liable as aforesaid. Vide Stedman v. Martinnant, next note. For the law before this act, vide Snaith v. Gale, 7 Term Rep. 364.

(19) Stedman v. Martinnant, 13 East's Rep. 127., and vide S. C. 12 East's Rep. 664. On 5th of January, 1807, the plaintiff accepted a bill for the accommodation of the defendant, the drawer, which became due on the 19th of March, when it was dishonored. On the 18th of March, 1807, a docket was struck against the defendant, and on the 21st a commission of bankrupt was issued, which was superseded on the 15th of April. A meeting of the defendant's creditors was then held, when time was given to pay his debts by instalments. On the 9th of June, 1807, the plaintiff accepted a second bill for the defendant, in order to take up the former one, for the same sum with the addition of interest and stamp: and the endorsement of a third person was lent as an additional security, which was required by the holders of the former bill, On the 6th of August, 1807, a valid commission was issued against the defendant, founded on an act of bankruptcy committed in the preceding March. The second bill became due on the 12th of September, 1807, when the plaintiff paid it. The first dividend under the commission was declared and made on the 6th of August, 1808. On the 4th of September, 1809, the defendant obtained his certificate. In an action for money paid, and the bankruptcy and certificate pleaded, a verdict was found for the plaintiff subject to the opinion of the court, as to whether the certificate were a discharge. The court (Le Blanc J. absente) held that the second acceptance was a continuation of the same suretyship, which was created by the first; and that as such suretyship commenced before any act of bankruptcy committed, and consequently before the plaintiff could have any notice of such act, the plaintiff might, by 49 G. 3. c. 121. § 8., have proved his demand under the commission, and there fore the certificate was a bar. Postea to the defendant.

(20) Vide Stedman v. Martinnant, supra, n. (19). It must be presumed that the holder was ignorant of the bills having been accepted for the accommodation of the drawer. Vide Laxton v. Feat, ante, p. 224. note (20).

(21) Vide Stedinan v. Martinnant, supra, n. (19).

Counter acceptances are good mutual considerations for such acceptances.

Therefore if two traders exchange acceptances and afterwards become bankrupt, each (22) may prove the other's acceptances under his commission.

Though the acceptances of neither be due at the time of such bankruptcy.

Especially where each has (23) engaged to pay his own acceptances.

And if one be obliged to pay the acceptances of both,

(22) Rolfe v. Caslon, 2 H. Blackst. 570. Rolfe and Caslon drew two bills of the same tenor and date on each other, and each accepted the other's bill, neither having effects of the other in his hands. Twenty days before the bills were due Caslon became bankrupt. He had endorsed the bill which Rolfe had accepted in part satisfaction of a larger debt, and the creditor proved his whole debt; Rolfe paid the difference of the bill he accepted, allowing for the dividend, and now sued Caslon on his acceptance and for money paid; Caslon pleaded his bankruptcy. Verdict for the plaintiff, with liberty to the defendant to move to set it aside. On motion accordingly and rule nisi, it was urged for the plaintiff that this acceptance could not have been proved under the commission, because it created no debt to Rolfe, unless he paid the bill which Caslon drew; and at the time of the bankruptcy it was uncertain and contingent whether he would pay such bill; but the court was clear that the mutual acceptances constituted a debt on each side; and that the defendant's acceptance might have been proved under the commission, and that therefore the certificate was a bar. Rule absolute. Vide also Buckler v. Buttevant, post, p. 299. note (25). (23) Cowley v. Dunlop, 7 Term Rep. 565. The Peters and Dunlops exchanged acceptances to the amount of £3000 and upwards, under an agreement that each should provide for their own acceptances. Both houses became bankrupt, and obtained their certificates. The Peters paid part of their acceptances, and their assignees paid dividends upon the rest, and also upon Dunlop's acceptances. Dunlop's acceptances were also proved under Dunlop's commission, and a dividend paid thereon. The Peters' assignees having paid considerably more than the Peters' proportion upon the bills, brought an action for money paid against the Dunlops; the question was, whether their bankruptcy was a bar. After two arguments, the court was divided: Lawrence and Grose, Js. thought it was, because the assignees had no claim in respect of the Peters' acceptances, inasmuch as by the agreement they were to provide for them; and the claim on the acceptances of the Dunlops was barred by the certificate, because at the time of the bankruptcy, they were debita solvenda in futuro; Rolfe v. Caslon: and the assignees had no better claim than if the Peters had been holders at the time of the bankruptcy. Ashhurst J. thought it no bar, because the Peters were to be considered as sureties. Lord Kenyon thought the Peters could not be remitted to their original right as drawers, because the bills had been already proved and a dividend paid under the Dunlops' commission.