dend should be paid on that proof, till the question is Debts and determined. (1) creditors. A creditor, who has not proved, is not entitled to ex- Disability by not amine the petitioning creditor before the commissioners. (3) proving. When a creditor applies to prove, though he is not Creditor bound to criminate himself, he is nevertheless bound to bound to answer the answer all the lawful enquiries of the commissioners, re- commisspecting his claim upon the bankrupt. (3) Therefore, sioner's where a creditor was charged by the bankrupt with the enquiries. receipt of several sums of money,-and refused, upon his examination before the commissioners, any disclosure as to the receipt and application of them, the Lord Chancellor would not allow him to prove his debt under the commission, as it was necessary that he should, in the first place, discharge himself of the sums of money traced to his hands. (4) creditor A specialty creditor has the same right under the bank- Right of ruptcy of the heir of his debtor, as if the heir had not specialty become bankrupt; and may, therefore, follow the real against a assets of his debtor, or their specific produce, in the hands bankrupt of the assignees. (5) heir. A creditor, who proves his debt, is not thereby estopped As to from disputing the validity of the commission in an action estoppel of proof. at law, or from applying to have it superseded. (6) to contri Creditors, who come in under the commission, are liable But liable to contribute, in proportion to the amount of their debts, to all the lawful expences of the assignees in recovering the bankrupt's property; and there is no difference, in this respect, between creditors who prove by affidavit, and those who prove in person. (7) But no creditor, being out of England, and proving by affidavit, is liable to pay any contribution on account of his debt. (8) Debts and creditors. may ap Lord Chancellor. As an appeal lies to the Lord Chancellor, on petition, from every determination of the commissioners, - if a creCreditor ditor, therefore, upon his proof being rejected by them, peal to the considers himself aggrieved, his proper course is to petition the Chancellor to be admitted to prove. (1) But he cannot petition to prove a larger debt, than what he offered to prove before the commissioners. (2) Under special circumstances, however, a creditor may petition to prove in the first instance, without tendering his proof previously to the commissioners (3); though such an application should not in general be made, until the commissioners have rejected the proof. (4) If the commissioners also have improperly admitted proof of a debt, redress must be sought by the assignees, by petition, and not by bill. (5) Punish ment for perjury. The new statute to be con strued fa vourably for creditors. If any creditor, or other person, wilfully and corruptly swears falsely (6) in any deposition or affidavit, or (being a Quaker) makes a false affirmation, he is liable to be prosecuted for perjury. The present statute declares, that it is to be construed beneficially for creditors (7), in conformity with an opinion formerly expressed by Lord Mansfield, as to the interpretation of the former bankrupt laws; namely, that they should receive a construction favourable for creditors, and the suppression of fraud. (1) Clarke v. Capron, 2 Ves. 666. (5) C. B. L. 150. (6) Section 94. Formerly, be sides the punishment for perjury, he was liable to pay double the sum sworn to, or affirmed to be due, to be divided amongst the bankrupt's creditors. See 5 G. 2. c. 30. s. 29. Holmes v. Walsh, 7 T. R. 458. (7) 1 Burr. 474. SECTION II. Of the Creditor's Election to sue the Bankrupt, or to prove his Debt. A creditor, by proving his debt under the commission, Former was not formerly concluded to have made an absolute practice. election, not to proceed at law against the bankrupt; though the Lord Chancellor would, on application, put him to his election, either to come in under the commission, or to proceed with his action. Some refined distinctions, too, appear to have been drawn in the different cases (which are somewhat at variance with each other), as to the particular period of putting him to his election— whether before, or after, a dividend was declared-or whether there should not, at the least, be funds in the hands of the assignees sufficient to make a dividend. (1) If the creditor elected to proceed with his action, he was still allowed to prove his debt, for the purpose of assenting to, or dissenting from, the certificate; as the certificate would, of course, operate to the discharge of the bankrupt from that action, as well as all his debts contracted before the act of bankruptcy. (2) A petitioning creditor, however, Petitionwas always held to have determined his election; for if he ing crehad been permitted to proceed at law, after taking out the commission, the commission itself must have been superseded,-which would have affected all the creditors who had proved debts under it. (3) ditor. But now, by Section 59. of the new act, (which adopts Creditor the provisions of the 49 Geo. 3. c. 121. s. 14.) any creditor, must now relinquish who has brought an action, or instituted a suit, against the an action, bankrupt, in respect of a demand prior to the bankruptcy, before (1) C. B. L. 134. (2) Ex parte Dorvilliers, 1 Atk. 221. Ex parte Lindsay, Ibid. 220. Ex parte Capot, Ibid. 219. (3) Ex parte Wilson, 1 Atk. 152. Ex parte Ward, Ibid. 153. Ex proof. Election. Proof deemed an election. or which might have been proved as a debt under the commission, is not permitted to prove, or to have any claim entered upon the proceedings, unless he relinquishes the action or suit. (1) And in case the bankrupt is de tained in prison at the suit of such creditor, the latter must then give a sufficient authority in writing for his discharge. The proving, or claiming, a debt under the commission, is also deemed an election by the creditor, to take the benefit of the commission with respect to the debt so proved, or claimed. The creditor, however, is protected from any liability to pay the costs of the action or suit so relinquished, either to the bankrupt, or his assignees. Where the action is a joint one against the bankrupt and another person, the relinquishment of it against the bankrupt will not affect the action, as to such other person. If the commission should be afterwards superseded, the creditor may sion superthen proceed in the action against the bankrupt, as if seded, cre- he had not elected (2)— and, if the action was a bailable ditor not to be one, may arrest the defendant de novo, if he has not put in or perfected bail, — and if bail has been put in or per fected, he may then proceed against the bail. Where the action a joint one. Where commis pre judiced. Two cases This section embraces, though it does not expressly of proof. provide for, two distinct cases of proof,-the one, where an ACTION has been brought before the debt is proved, — and the other, where the debt is proved previously to the commencement of any action. With respect to the first case, viz. where the action is brought before the proof, the words of the statute are very general, and seem to amount to an absolute prohibition from proving any debt, without relinquishing the action pending, whether brought in re Where action brought before, and after proof. (1) It was the practice, however, of the commissioners for some time before the 49 G. 3. c. 121. to insist upon this relinquishment on the part of the creditor. Ex parte Botterill, 1 Atk. 109. 1 C. B. L. 130. Ex parte Wilkinson, 1 Atk. 85.; and see Ex parte Woolley, (2) Before this provision in the statute, if the creditor had the bankrupt in execution, and had elected to come in under the commission, he could not retake him, if the commission was afterwards superseded. spect of the debt offered to be proved, or of any other. Election. As to the other case of proof, viz. where the action is brought after the proof of the debt, the enactment amounts only to a declaration of the legal effect of such proof or claim, which is confined to the debt so proved or claimed. Where a creditor, therefore, has two distinct demands Where against the bankrupt, for one of which he brings an action the action before against him before the bankruptcy, and then proves the other proof. under the commission, the proof of this debt is an election Petition to prove to relinquish the action for the other, and to come in as a cre- an elecditor for both debts under the commission. (1) And where tion. the creditor, instead of proving, presents merely a petition to be admitted to prove one of his demands, he is equally estopped from continuing his proceedings at law against the bankrupt for the other (2); for the presentation of such a petition is as much a pledge to prove, as entering a claim would be, and operates in itself as an election to come in under the commission. (3) So, where a creditor obtained an order for an enquiry before the commissioners, and before the order was drawn up took out execution upon a judgment then pending against the bankrupt, the Lord Chancellor ordered the goods to be restored, and put in the same situation as they were at the time of the order, declaring, that a creditor obtaining an order at his own instance should not be suffered to take out execution, without first applying to set that order aside, or procuring the leave of the Court. (4) So, if one creditor accepts an assignment from another of a debt proved, he is substan- signment (1) Ex parte Dickson, 1 Rose, 98. Before the 49 G. 3. c. 121., where a creditor had two demands against the bankrupt of a different nature, he might prove one under the commission, without relinquishing an action pending for the other; and his election to come in under the commission as to one debt, did not compel him to make it as to both. Ex parte Crinsoz, 1 Bro. 270. (2) Ex parte Hardenburgh, (3) Ex parte Blaydes, 1 G. & J. 179. Ex parte Irving, Buck. 423. Ex parte Lord, Ibid. (4) Ex parte Bozannet, 1 Rose, 181. So obtain ing any order; or an as of a debt |