bankrupt's accommodation bill, but did not pay it until after the act of bankruptcy; held, no petitioning creditor's debt until after the payment, and therefore too late (n). So where the debt was contracted before the bankrupt had lain in prison the requisite number of days, it was held not sufficient (o). Where a bill of exchange or promissory note is given before the act of bankruptcy, it is sufficient (p); i.e., against the drawer of the bill or maker of the note respectively; but if the bill has arrived at maturity before the petition, it must have been presented, and due notice of dishonour given, Cooper v. Machin, (ante, p. 263); Brett v. Levett, infra. But the date of the bill or note is not enough without further evidence of the time of giving it, &c. (q); and so of an IO U (r). It is sufficient if the debt have accrued before the act of bankruptcy, it need not have existed in the petitioning creditor before it; as where a note was given to A. before the act of bankruptcy, and after the act of bankruptcy he endorsed it to B., and B. was held a good petitioning creditor (s); and so where the note was endorsed to the petitioning creditor after it was due, and after the act of bankruptcy (t); but the indorsement must be complete before petition (u). Where a debtor accepted a bill, leaving a blank for creditor's name as drawer, which was not filled up by creditor until commission sued out; held no good petitioning creditor's debt (x). Where the debt was of sufficient amount, but from time to time payments were made and fresh debts incurred, leaving, however, always a balance of sufficient amount up to the time of suing out the commission; held, a good petitioning creditor's debt, though the payments were sufficient, if applied in order of time, to discharge the particular balance due at the time of the act of bankruptcy (y). "But no adjudication of bankruptcy shall be deemed invalid by reason of any act of bankruptcy prior to the debt of the petitioning creditor, provided there be a sufficient act of bankruptcy subsequent to such debt." 12 & 13 Vict. c. 106, s. 88 (≈). Though not actually payable until a future Time certain.-Although the debt must be due at the time of the act of bankruptcy, it need not be actually payable at the time, for "every person who has given credit to a debtor, upon valuable consideration, for any sum payable at a certain time, which time shall not have arrived when such debtor committed an act of bankruptcy, may so peti (n) Exp. Holding, 1 GI. & J. 97. (0) Mont. & G., B. L. 18, n. (c). (p) Macarty v. Barrow, 2 Str. 949. (q) Cowie v. Harris, M. & M. 141. See post, p. 269. (r) Wright v. Lainson, 2 M. & W. 739. (s) Anon., 2 Wils. 135; Exp. Thomas, 1 Atk. 73. (t) Glaister v. Hewer, 7 T. R. 498; Exp. Wainman, Cooke, 34. (u) Rose v. Rowcroft, 4 Camp. 245. tion or join in petitioning, whether he shall have any security for such sum or not" (a). Where a promissory note purported to be payable on demand, but was in fact given and held as security for a contingent debt, which might never become due; held no good petitioning creditor's debt (b). Where bills were given for exactly the required amount, drawn by bankrupt and not due at the time of the act of bankruptcy, but due before petition, held good, notwithstanding that at the time of the act of bankruptcy, the requisite amount was not due; but only that sum minus a rebate of interest for the time the bill had to run (c). Contracted after the passing of the 24 & 25 Vict. c. 134.-The 90th section enacts that "The debt of the petitioning creditor of any debtor, not being a trader, and not being at the time a prisoner, against whom such creditor would have been entitled to obtain a vesting order in insolvency if this Act had not passed, must be a debt contracted after the passing of this Act, and the judgment debtor summons must be a summons in respect of a debt contracted or of a liability incurred after the passing of this Act" (6 August, 1861). Proof of Petitioning Creditor's Debt.-" It is an established rule that the assignees must prove the debt of the petitioning creditor by the same evidence which must have been produced in an action against the bankrupt " (d). But the same evidence is not in all cases sufficient, e. g., in the case of documents, bills, accounts, or letters, the date of which is, as a general rule, primá facie evidence of the date of execution, &c. (e). But in proving a petitioning creditor's debt, "though there may be some variations between the different decisions relating to that subject, it is now settled that some evidence besides the date is necessary to show that the instrument produced for that purpose had its existence before the act of bankruptcy took place" (f). Thus a written paper, acknowledging that a certain sum is due to the petitioning creditor, is not sufficient, unless proved, by evidence dehors the paper, to have been acknowledged by the bankrupt before the bankruptcy (g). All admissions of the bankrupt previous to the act of bankruptcy are evidence of the petitioning creditor's debt (h); so entries in his books made before the act of bankruptcy, if clear and unequivocal, (a) 24 & 25 Vict. c. 134, s. 89, a reenactment in substance of 12 & 13 Vict. c. 106, s. 91 (repealed). (b) Exp. Page, 1 Gl. & J. 100. (c) Brett v. Levett, 13 East, 213. (d) Abbott v. Plumbe, 1 Doug. 216, per Buller, J. (e) Roberts v. Bethell, 12 C. B. 778; (g) Hoare v. Coryton, 4 Taunt. 560. 136. are to be considered in the same light as parol declarations of the bankrupt, and so admissible (i), i. e., provided they be proved by other evidence than their own date to have been made before the bankruptcy (k). But no declaration or letter of the bankrupt after bankruptcy is admissible as evidence of the petitioning creditor's debt (1), on the ground, 1st, that as a bankrupt is by law incapable of affecting his estate by any act of his after bankruptcy, it would be unreasonable to allow him to produce that effect indirectly by means of an admission; and 2ndly, that the admission of such evidence would lead to fraud (m). A debt once proved to exist is presumed to continue (n). Proof of bankrupt having drawn or indorsed a bill, and of its being overdue, is not enough without showing default of payment by acceptor, and notice (0); and where a cheque is given to bankrupt as a loan, the payment of the cheque must be distinctly proved (p). Defects in the sufficiency of the Petitioning Creditor's Debt may be aided-for it is enacted, "that if, after adjudication of bankruptcy, the debt of the petitioning creditor be found by the court to be insufficient to support such adjudication, it shall be lawful for the court upon the application of any other creditor having proved any debt sufficient to support an adjudication, to order the petition for adjudication of bankruptcy to be proceeded in, and it shall by such order be deemed valid" (q). The form of the order is given, and it is held under this section, that a creditor substituted as above for the original petitioning creditor need not prove the original petitioning creditor's debt, but only his own (r). But this he must prove to be of sufficient amount, contracted before the act of bankruptcy, &c., just as the original debt must have been (s). The insufficiency meant in the above enactment extends to any original defect in the nature of the debt, and not merely to cases where the amount is found to be insufficient (t). Where the latter is the case the section applies (u). Where the debt is compounded of several, which are found to be insufficient, the debt of others may be added to make up the requisite amount (x). Where a debt was sworn as the debt of two persons, when it was (i) Watts v. Thorpe, 1 Camp. 376; S. P. admitted in Raukin v. Horner, Somerset Lent Ass., 1813. (k) Ewer v. Preston, Ca. temp. Hardw. 378; Wright v. Lainson, 2 M. & W. 739. (1) Taylor v. Kinlock, 1 Sta. 175. (m) Smallcombe v. Bruges, supra. In actions, however, by the bankrupt, his admissions made after bankruptcy are receivable against himself. Jarrett v. Leonard, 2 M. & S. 265. in fact the joint debt of themselves and others in partnership with them, another debt was substituted (y). VI. Of the Property of Bankrupts, what passes to Assignees. Upon the adjudication all the real and personal property (~) of the bankrupt, including choses in action, vests in the assignees by virtue of their appointment (a), who have the same power of recovering it, by action or otherwise, as the bankrupt himself might have had (b); and the title of the assignees "has relation back to the act of bankruptcy, which, notwithstanding the great extent to which the application of this rule has been cut down and restricted by modern enactments, still remains a fundamental rule and principle of the bankrupt laws" (c). And for this purpose the courts will take notice of the fraction of a day (d). Where, therefore, the sheriff seized the goods of a trader under an execution, and subsequently, on the same day, the trader committed an act of bankruptcy, it was held that as the sheriff had seized before the act of bankruptcy, the assignees were not entitled to recover the goods so taken (e). See ante, p. 252. Personal Property of the Bankrupt.-The 141st section of the 12 & 13 Vict. c. 106, enacts that "when any person shall have been adjudged a bankrupt, all his personal estate and effects, present and future, wheresoever the same may be found or known, and all property which he may purchase, or which may revert, descend, be devised or bequeathed (f), or come to him, before he shall have obtained his certificate, and all debts due or to be due to him wheresoever the same may be found or known, and the property, right, and interest in such debts shall become absolutely vested in the assignees for the time being, for the benefit of the creditors of the bankrupt, by virtue of their appointment; and after such appointment neither the bankrupt nor any person claiming through or under him, shall have power to recover the same, nor to make any release or discharge thereof; neither shall the same be attached as the debt of the bankrupt by any person according to the custom of the City of London, or other (y) Exp. Hall, M. & M'A. 39. (2) Leaseholds are an exception to this rule. Post, p. 281. (a) Previous to the 1 & 2 Will. IV. c. 56, an assignment or conveyance from the commissioners was necessary. (b) 12 & 13 Vict. c. 106, ss. 141, 142. (c) Per Parke, B., Cannan v. S. E. Rwy. Co., 7 Exch. 851. But as against the Crown the title of the assignees only VOL. I. dates from their appointment, "for relations which are but fictions of law do not bind the Crown." Brassey v. Dawson, 2 Str. 978. See 12 & 13 Vict. c. 106, s. 166. (d) Except as against the Crown. R. v. Edwards, 7 Exch. 32, 628. (e) Thomas v. Desanges, 2 B. & Ald. 586. See s. 73, ante, p. 238. (f) See Re the trusts of Coombe's will, 5 Jur. N. S. 784. T wise, but such assignees shall have like remedy to recover the same, in their own names, as the bankrupt himself might have had if he had not been adjudged bankrupt." From the time of the act of bankruptcy the goods of the bankrupt cease to be his, and become the property of his assignees (g), who may maintain an action of trover against the sheriff who executes a writ of fi. fa. against the bankrupt (h). Thus, if a bankrupt be part owner of a ship, and be registered as such, his share in it passes to his assignees, although the documents relating to the vessel have been deposited with a creditor who has advanced money upon them (i). So goods of the bankrupt in the possession of his factor pass to the assignee (k), subject to the factor's lien. But the above rule does not apply to goods of which the bankrupt has not the right of possession as well as the right of property, e. g., goods which he has bought or contracted to buy, but of which he has not paid or tendered the price (1). In trover for tobacco the case was this:-L. came to the plaintiffs and bought a parcel of tobacco, to be paid for in ready money this was in the morning. He left orders at his house for receiving the tobacco, and the same day went to France to absent himself from his creditors. After he was gone, the plaintiffs' servant brought the tobacco to L.'s house, but had no orders to make any demand of the money, but only to deliver the goods. The question was, whether this was a complete sale, so as to vest the property in L., or whether his bankruptcy between the sale and the delivery was such a fraud as avoided the sale by nonpayment of the money. Lord Chief-Justice Eyre held that the sale was made complete by the act of the plaintiffs, who, by delivery of the goods without demand of the money, vested the property in L. by their own assent, as a complete sale ab initio without ready money, and the plaintiffs were nonsuited (m). But it is otherwise, where the bankrupt has obtained property by fraudulent representation; as where the bankrupt, by the delivery of a forged bill of exchange to the plaintiff, procured other bills from him in exchange, the proceeds whereof the assignees had received, it was held that the plaintiff might recover the money from the assignees, as money had and received to his use (n). So where S. obtained bills of exchange from the defendant upon a fraudulent representation that a security given by him to the defendant (which was void) was an ample security, and a few days afterwards committed an act of (g) This doctrine, it must be borne in mind, is subject to the various limitations created by statute. (h) Balme v. Hutton, 9 Bingh. 471. See 8. 73, ante, p. 238. (i) Taylor v. Kinlock, 1 Sta. 175. by the assignees the property would vest in them, S. C., and they might bring trover or sue for the non-delivery. Gibson v. Carruthers, post, 275. (m) Haswell v. Hunt, 5 T. R. 231; Sinclair v. Stevenson, 2 Bingh. 517, per Best, C. J., acc. (n) Harrison v. Walker, Peake, 111. |