bank bill, that if the accounts were taken between him and the Suits in creditors, a balance would be found due to him; and the equity. bill also prayed a discovery as well as an account, and plea of payment of the balance with the usual submission, and ruptcy. also an injunction and general relief;- a plea of bankruptcy was overruled by the Vice-Chancellor-though he thought the bill went too far, to pray that the balance of the account might be paid to the plaintiff (1); and this decision was afterwards affirmed upon appeal. (2) may petition in A bankrupt will be permitted to prosecute a petition, When impeaching the debt on which the commission issued, in bankrupt formá pauperis (provided a proper case is shown), upon a certificate of counsel, that the petitioner had just cause to formû be relieved, and an affidavit that he was not worth 51. (3) pauperis. Upon the same principle, also, as that which incapaci- Bankrupt tates a bankrupt from being a plaintiff in a suit, he is in in general general protected from being sued in equity as a defendant. sued in Thus, where a bankrupt had mortgaged a copyhold estate, equity. but no bargain and sale was made to his assignees, and the mortgagee filed a bill against the bankrupt and his assignees to redeem, — a demurrer by the bankrupt was allowed, as he was not a necessary party to the bill. (4) cannot be where bill prays a dis So, the bankrupt cannot be joined as a defendant, in a suit against his assignees for the purpose of relief. (5) But Except it seems, if any discovery is sought of his acts before he became bankrupt, he may be compelled to answer to that part of the bill, for the sake of discovery, and to assist the plaintiff in obtaining proof; though, at the same time, his answer cannot be read against his assignees. (6) Therefore, where a bill was filed against a bankrupt and his assignees, (1) Lowndes v. Taylor, 2 Rose, 365. 1 Mad. 423. (2) 2 Rose, 432. (3) Ex parte Northam, 2 Ves. & B. 124. (4) Lloyd v. Lander, 5 Mad. 282. (5) Griffin v. Archer, 2 Anst. 478. Whitworth v. Davis, 1 V.& B. 545.; and see Bailey v. Vincent, 5 Mad. 48. 18 Ves. 72. (6) Mitford on Pleading, 142.; and see Glassford v. Jeffery, cit. 1 Ves. & B. 549. covery. Suits in equity. charging a fraudulent bankruptcy, for the purpose of defeating the plaintiff's execution, as well as other circumstances of fraud, and praying a discovery and injunction,—a demurrer by the bankrupt was overruled. (1) (1) King v. Martin, 2 Ves. jun. 641.; and see post, Chap. 18. s. 1. 563 CHAP. XIV. OF THE CERTIFICATE. SECT. 1. Of the Signature of the Creditors. 3. Of the Allowance by the Lord Chancellor; and 4. Of the Practice on Petitions to stay the Certificate. 5. When the Certificate is void. 6. Effect of the Certificate. 7. Of pleading the Certificate; and herein of the 8. Of discharging a certificated Bankrupt. SECTION I. Of the Signature of the Creditors. By section 122. of the new statute, it is directed that the certificate (1) shall be signed by four-fifths (2) in number and value of the creditors, who have proved debts to the (1) The 4 & 5 Ann. c. 17. s. 19. was the first statute that gave to the bankrupt the benefit of a certificate of conformity; but the power of granting it was vested in the commissioners alone; the 5 Ann. c. 22. afterwards required the consent of the creditors. The 5 G. 1. c. 24. s. 16. incorporated both these requisites, which were subsequently included in the 5G. 2. c. 30. s. 10. (2) This is the same proportion as that specified in the 5 G. 2. c. 30. s. 10. which was altered by the 4G. 3. c. 121. s. 18. to the proportion of three-fifths; an alteration, which, without any qualification as to the period of applying for the certificate, was productive in its effects of much more evil than of benefit, increasing both the number of fraudulent bankrupts and defrauded creditors. Signature by creditors. Where creditor may sign by power of attorney. Creditors required to add the to date of their sig natures. amount of 201. or upwards. But after six calendar months from the last examination of the bankrupt, it may then be signed either by three-fifths in number and value of such creditors, or by nine-tenths (1) in number only. If there happens to be a fraction in calculating the number of creditors, whose signatures are requisite, it seems that an additional creditor must sign in respect of that fraction. Thus, if seventeen creditors have proved; — as three-fifths of seventeen are equal to ten and one-fifth, and as ten would be less than three-fifths, though eleven is something more, yet eleven must sign; and so, in like manner, of every other number not exactly divisible. (2) If a creditor lives remote, or abroad, he may authorize any other person by letter of attorney to sign the certifi cate on his behalf; but the authority of the creditor in the latter case must be attested by a notary public, British minister, or consul; and every such authority and attestation (3) must be laid before the Lord Chancellor, previous to the allowance of the certificate. By a general order of Lord Eldon (4), the creditors are directed, at the time of signing the certificate to write opposite their respective names the day of the month and year on which they sign; and in all affidavits of their signatures, such day must be expressly stated. This order, however, is not so strict as not to be occasionally dispensed with, in a case of inadvertence satisfactorily explained to the Lord Chancellor. Thus, where a certificate was opposed, on the ground that some of the creditors (who had signed it) had not subscribed opposite (1) A new provision was introduced in the very short lived act of the 5 G. 4. c. 98. s. 120. by which, where there was only one opposing creditor, whose debt was of such an amount as to stop the certificate, the Lord Chancellor might, upon petition, allow it not withstanding such opposition. This enactment, however, was disap proved of by Lord Eldon, when it came into practical operation; in consequence of which, it seems to be purposely omitted in the provisions of the present statute. (2) 1 Christ. B. L. 338. (3) The letter of attorney, and the attestation, should be left at the bankrupt office. (4) 8th August, 1809. by cre ditors. to their signatures the day of the month and year-which Signature was done, in fact, by the witness who attested the signatures—and it appeared that the omission proceeded through the inadvertence of the witness, who had afterwards (but before the commissioners signed) inserted such dates, which were known to him by means of daily memorandums; Lord Eldon thought, that this afforded ground for dispensing with the strict requisition of the order. (1) entitled to The bankrupt is entitled to the inspection of the pro- Bankrupt ceedings under the commission, for the purpose of ascer- inspect taining the debts proved, with a view to solicit his creditors proceedto sign his certificate. (2) ings. should not be signed before last examin ation. The certificate should not be signed by any creditor, Certificate previous to the bankrupt passing his last examination; for that would be contrary to the meaning of the act, which says, the bankrupt is not to be discharged from his debts, until he has "in all things conformed himself to the laws in force concerning bankrupts ;" and before he passes his last examination (which is one of the principal duties required of him) it would be impossible for the commissioners, notwithstanding the consent of the creditors, to certify that the bankrupt had so conformed himself. If, therefore, the certificate is signed by any creditor before the last examination, it will be sent back by the Lord Chancellor, and must be signed afresh both by such creditor and the commissioners. (3) sign cer tificate. There is no way of compelling creditors to sign the Creditors certificate; who have the right of exercising an absolute not com pellable to discretion on the subject (4)- being under no legal, though they may sometimes be under a morai, obligation in this respect. (5) Indeed, they are often (for their own interests) too ready to afford the bankrupt that relief, which the law has, in this instance, left entirely in their hands to grant, (1) Ex parte Laing, 1 G. & J.348. (2) Ex parte Morgan, 1 G. & J. 404. (3) Ex parte Brown, 1 Rose, 176. Ex parte King, 11 Ves. 424. VOL. I. (4) Per Lord M. Robson v. Calze, (5) 18 Ves.342.; and see 11 Ves. |