ing proof. also, in such a case, a right to insist that the proof of the Expungdebt shall be expunged. (1) This is upon the ground, that a discharge of the principal debtor, without the consent of the surety, discharges the surety. But the discharge of a SURETY by the creditor has not, as Where a we have seen (2), the effect of discharging the principal; surety only disnor does it operate as a discharge of the co-surety. There- charged. fore, where a promissory note made by a principal and three sureties was proved by the holder, under different commissions against two of the sureties and the principal and the holder afterwards received a composition of 4s. in the pound from the third surety, it was held, under these circumstances, that the proof against the estate of one of the other sureties should not be expunged. (3) Where the creditor, whose debt is sought to be expunged, Service of is abroad, or lives remote, an order will be made (on expunge, petition to motion) that service of the petition on his attorney (4), or where creon the agent to whom the affidavit of debt was sent, shall abroad. be deemed good service. (5) (1) Ex parte Smith, 3 Brown, 1. 1 C.B.L.155 (2) Ante, 288. (3) Ex parte Gifford, 6 Ves. 805. ditor 312 CHAP. X. OF THE ASSIGNEES. 1. Of a Provisional Assignee. 3. Of the Interest they take by the Assignment. 1. Of their general Authority, Duty, and Liability. 5. When Assignees become Bankrupt. 6. Of the removal of Assignees. Object of the ap pointment. SECTION I. Of a Provisional Assignee. By section 45 of the new statute, the commissioners may, if they think fit, immediately upon declaring the party bankrupt, and before any meeting for the choice of assignees, appoint one or more person or persons to be a provisional assignee or assignees, either of the whole, or of any part, of the bankrupt's real and personal estate. The provisional assignee is removeable at the meeting of the creditors for the choice of the regular assignees and must then, under the penalty of 2001., deliver up and assign all the estate of the bankrupt in his possession to the assignees so chosen by the creditors who will thereupon become as effectually and legally entitled to it, as if the first assignment had been made to them by the commissioners. This power is given to the commissioners, merely for the better securing of the bankrupt's property, and is not often exercised; for, in ordinary cases, it creates expense without Provisional answering any good end. But where the bankrupt is assignee. indebted to the Crown, and an extent is apprehended to issue against his property, a provisional assignment is then of essential benefit; for an extent binds the property of the bankrupt, if issued before an actual assignment (1) made by the commissioners. If, however, there is no Costs. necessity of this kind for a provisional assignment, the expense of it will not be allowed on the taxation of the petitioning creditor's bill of costs. (2) excepted. When a provisional assignment is made, the bankrupt's Copyholds copyhold property (3) (if he has any) should be excepted should be out of it, with a view of saving the expense of two fines to the lord upon surrender and admittance. For an extent does not affect copyhold property; and, therefore, the creditors will run no risk in this respect with regard to the claims of the Crown. (4) SECTION II. Of the Choice of Assignees. chosen at the second By the 61st section of the new act, the assignees are Must be directed to be chosen (5) at the SECOND of the three public meetings, (of which notice has been previously given in the Gazette in the manner stated in a former chapter (6)) (1) Queen v. Arnold, 7 Vin. 104. Rex v. Cotton, 2 Ves. 289. Rex v. Mann, 2 Str. 749. (2) Ex parte M'Williams, 1 Mad. 141. (3) See Section 64. (4) Drury v. Mann, 1 Atk. 95. (5) The 5 Ann. c. 22. s. 4. was the first act, that introduced the provision respecting the choice of the assignees by the CREDITORS; but no statute before the present one, contained any directions when (6) Ante, 141.; and see Section meeting, Choice. by what creditors. Commissioners have power to reject. Three commissioners must be present. Election must not be postponed without substantial reason. or at some adjournment of such meeting. And all creditors who have proved debts under the commission to the amount of 10l. and upwards, are entitled to vote in such choice, as well as any person duly authorized by letter of attorney (1) from any such creditor; the execution of which must be proved, either by affidavit sworn before a Master in Chancery, or by oath before the commissioners vivá voce ; and in case the creditor resides out of England, by oath before a magistrate where the party shall be residing, duly attested by a notary public, British minister, or consul. The choice is to be made by the major part in value of the creditors so entitled to vote. But the commissioners have power to reject any person so chosen, who shall appear to them unfit to be such assignee; and, upon such rejection, a new choice of another assignee must be made in his room. (2) Three commissioners should be present when the choice takes place; otherwise the election becomes invalid, and will be set aside, notwithstanding the assignment is after the election duly executed by three commissioners. (3) The choice of assignees is not to be postponed, because certain creditors, whose accounts are in an unravelled state, are not prepared to establish their proofs; for the proceedings under the commission must not on this ground is executed in London) is now held (1) The right to vote under a of attorney for himself and his copartners. Per Lord Eldon, ex parte Hodgkinson, 2 Rose, 174. (2) This power of rejection was before the new statute vested only in the Lord Chancellor. (Ex parte Shaw, 1 G. & J. 127.) The commissioners, however, had power to adjourn the choice of assignees from the day publicly appointed for that purpose, although all the creditors present concurred in the election. Ex parte Garland, 2Rose, 361. (3) Ex parte Moore, 1 G. & J. 190. be impeded; and, in general, the choice of assignees ought Choice. to proceed, however few the creditors may be who have made immediate proof. (1) The commissioners also ought not to adjourn the meeting for the purpose merely of investigating a claim, which is not sufficient to turn the choice; and where they did so upon one occasion of this kind, they were ordered, on petition, to execute the assignment forthwith to the persons who had been elected assignees ; for the choice of the creditors must be rendered effective by the immediate execution of the assignment, the better to enable the persons chosen to act for the benefit of the estate. (2) The choice, indeed, should never be postponed without a good and sufficient reason, but should be proceeded with to the best of the judgment of the commissioners, unless a petition against it has been previously presented. (3) If the commissioners, however, are satisfied When to be ad that a petition for superseding the commission will be pre- journed order. sented, with the consent of all the creditors who have proved under the debts, they are, in that case, directed by a general order (4) general to adjourn the choice to some future day, in order to give the opportunity for presenting such petition. assignee. The qualifications required to be elected an assignee are Qualificamerely, the integrity of the party, and his sufficient ability tions of to be responsible for the sums he may receive from the bankrupt's estate. It is not necessary, that he should be a creditor of the bankrupt (5), though it is usual to elect a creditor to the office. And, although a creditor, who is a party to a deed of assignment of the bankrupt's effects previous to the commission, is prevented from being petitioning creditor, and setting up that deed as an act of bankruptcy, he is nevertheless eligible as an assignee, under a commission sued out upon it by another person. (6) |