PLEADING. And see SCIRE FACIAS-ACTIONS SUIT IN EQUITY. Form of a plea of a party having become bankrupt by the law of France. Pellecat v. Angell, 5 Tyrw. 945. PLEDGE. See DEPOSIT. POWER OF ATTORNEY. A creditor, at the solicitation of a certificated bankrupt,executes apower of attorney to A. B. to receive the dividends on his debt for the bankrupt's use, the bankrupt undertaking to pay the debt in full, and for that purpose giving the creditor a bill of exchange, which is, however, never paid. A second commission issues against the bankrupt, under which the assignees claim to be entitled to the dividends under the first commission, by virtue of the power of attorney.-Held, that the power of attorney was revocable by the creditor, the consideration failing for which it was given; and that the creditor, and not the assignees under the second commission, was entitled to the dividends. Ex parte Smither, re Gowett, 1 Deac. 413. PRACTICE. And see PETITION-HEARING-NoTICE-PRE-AUDIENCE. Where both the Quorum Commissioners are unable to attend to open the fiat, the Court cannot make an order that the other three Commissioners may open it; but the proper course is to annul the fiat, and take out a new one. Re Sutton, 1 Deac. 43. Where an application is made to rescind an order on the ground of irregularity, the party ought to state, in his notice of motion, what the irregularity is. Quære, whether such an application should not be by petition. Re Walker, 1 Deac. 88. One of several respondents not having been served with the petition, the Court ordered it to be re-answered, on payment of the costs of the day. Ex parte Potter, re Potter, 1 Deac. 287. PRE-AUDIENCE. Trover by assignees against the sheriff for goods. Plea, that R. J. sued out a writ of fi.fa. against the bankrupt, and that it was delivered to the sheriff before the bankruptcy, and that the sheriff seized and sold the goods, and that no docket had been struck against the bankrupt, neither had the sheriff notice of any act of bankruptcy. Replication, that the judgment was obtained against the bankrupt by cognovit in an action commenced by collusion, and that the fiat issued within two months after the seizure. Rejoinder, that the action was commenced adversely.-Held, that on these pleadings the plaintiff must begin. Scott v. Lewis, 7 Car, & P. 347. PREFERENCE. See FRAUDULENT PREFERence. PRINCIPAL AND AGENT. And see PAYMENTS. On the 3d January, the petitioner pays a sum of money to the bankrupt's agent at Edinburgh, for the purpose of being remitted to London to retire a bill; on the 4th of January the agent receives notice that his principal had stopped payment on the 2d January, and he did not therefore remit the money to London. On the 6th January the petitioner requires the agent to return the money, which he declines. On the 26th January a fiat is issued against the principal; and the assignees, in stating an account with the agent, allow 2000l. to remain in his hands on account of a counter claim he had against the bankrupt, and receive a balance from the agent.-Held, (Erskine, C. J. dissent.) that under these circumstances, the presumption was, that the assignees had received the money so paid to the bankrupt's agent, which, having been paid on a trust, and for a particular purpose which had failed, the assignees were bound to restore to the petitioner, unless they could prove the money, never actually came to their hands. Ex parte Simpson, re Maberly, 1 Deac. 47. PRIORITIES. The petitioner, who was an equitable mortgagee, discovered that the bankrupt had made other mortgages, and had given other liens on the same property, of which the legality of some, and the priority of others, were disputed by the petitioner; who prayed a sale of the property, and that the proceeds might be applied towards the reduction of his debt; and in case the other parties should come in and submit to the jurisdiction of the Court, then that the Court would settle the respective priorities of those parties and the petitioner.Held, that the Court could make no such order, unless the parties were regularly before the Court; and that it would be disadvantageous to the bankrupt's estate to make an order for the sale of the property, until the interests of the respective parties were precisely ascertained.. Under these circumstances, the petition was dismissed with costs. Ex parte Bignold, re Francis, 1 Deac. 515. PROCEEDINGS. A purchaser of the bankrupt's mortgaged property, under the usual order of sale, had filed a bill to set aside the sale for defect of title, and applied for an order that the agent to the commission should produce the proceedings under the commission at the hearing of the suit, which was opposed by the assignees, on the ground that he was a stranger to the commission; but Lord Manners held, that as he was a purchaser in the bankruptcy, he could not be considered a stranger, and granted the order. Re Sloane, 2 Molloy (Irish), 452. (Inspection of.) On a petition to reverse the adjudication, the bankrupt will not be allowed to inspect the proceedings, where he has filed no affidavit in sup port of his petition. Ex parte Whalley, re Whalley, 2 Mont. & A. 722. PRODUCTION OF DOCU MENTS. take in the condition of a bond, so as to enable the obligee to prove it. Ex parte White, 2 Mont. & A. 541. (On Bills and Notes.) A holder of the bankrupt's proAnd see PROCEEDINGS-Dividends. missory note, having a security in A party had taken an assignment his hands for the full amount, infrom the bankrupt, which he admitted dorses the note to B., but still retains before the Commissioners was in his the security. Quære, whether B. possession, and that at the time of can prove the note without deducttaking it he knew the bankrupt's ing or mentioning the security. Ex situation. Lord Manners, neverthe-parte Paramore, re Greenway, 1 Deac. less, refused to order him to produce it to the assignees for the purpose of their taking advantage of it. Re Usher, 2 Molloy (Irish), 444. PROMISSORY NOTES. PROMOTIONS, 1, 77. (Against Sureties.) 4. & B. enter into a joint promissory note for the debt of B., and A. becomes bankrupt. The payee may prove the amount of the note against the estate of A., unfettered by the rule that applies in the case of partnerships, where it must appear that there is no solvent partner, and no joint estate. Ex parte Crosfield, re Cooper, 1 Deac. 405. (On Bonds.) And see BONDS. The Court can rectify a clear mis 279. (Illegal Debts.) The bankrupt was the secretary of a coursing club, and had collected subscriptions from the members to run greyhounds:-Held, that the debt did not arise through gaming, and that the treasurer of the club might prove for the amount. parte King, re Watkins, 2 Mont, & A. 676. Ex (Against Insolvent Debtor.) Although the debt of a creditor may have been inserted in the schedule of a party who has taken the benefit of the Insolvent Act, the creditor may prove the debt under a subsequent fiat issued against the debtor. Ex parte Fenwick, re Bender, 2 Mont. & A. 681. (General Right of.) Semble, that a proof of a debt cannot be rejected by a Commissioner, merely because there are no entries in the books of the party seeking to prove. Ex parte Beasley, re Parker, 2 Mont. & A. 632. If a party proves a debt on a bill, | him to the bankrupt; but no entry and proceeds at law for the same appears in the creditor's books of the debt, the Court will issue an injunc- sale of those goods, nor does he adtion to restrain the action. Ex parte duce any evidence of the fact, beDiack, 2 Mont. & A. 675. yond his own statements. Semble, that the Commissioner was, under the circumstances, justified in rejecting the proof. Ex parte Knight, re Lewis, 1 Deac. 408. (Reduction of.) The bankrupt cannot petition to reduce a proof, except by consent. Ex parte Pownall, re Pownall, 2 Mont. A. agrees to be responsible to B. for the due payment to him by C. of 24,000l. by yearly instalments of 1200l. B. afterwards agrees to accept six joint notes of 4. & C. for 2000l., and delivers up the original agreement to C., but only one of these notes is paid.-Held, that B. could not prove under a fiat against A. the original debt of 24,000l., but only the amount of the notes remaining unpaid. Ex parte Powell, re merely on the ground of the nonLorymer, 1 Deac. 378. Where a creditor delayed proving general rule, which the Commiscompliance of the creditor with a his debt, in the belief that no dividend would be paid, an order was made that he might go in and prove, for the purpose of assenting to, or dissenting from the certificate. Er Ex parte Perring, re Campbell, 1 Deac. 266. (Rejection of.) Semble, Where Commissioners reject the proof of a debt in toto, they should not, in general, adjourn the choice of assignees, to enable the party to present a petition to prove. Ex parte Bignold, re Brereton, 1 Dea. 743; S. C. 2 Mont. & A. 654. A creditor of a bankrupt, who has absconded with his books of account, and has never surrendered to the fiat, applies to prove on two bills, one for 2001. and the other for 1281., the consideration for which the creditor alleges to be goods sold by & A. 707. is justified in rejecting a proof, Quære, whether the Commissioner sioner has adopted for his own pracof a debt, unless the books of the tice, namely, not to permit the proof party applying to prove contain satisfactory evidence of the debt. Ibid. (Transfer of.) A creditor, having reason to supsold to one of two partners were pose that the goods which he had purchased on the partnership actate, and did not discover, till seven count, proved against the joint estate, and did not discover, till seven months afterwards, that they were bought on the separate account of one of the partners.-Held, that he might transfer his proof from the joint to the separate estate. Ex parte Vining, re Bowerman, 1 Deac. 555. (Against Separate Estate.) A., B. & C. dissolve their partner ship, by B. retiring from the con- | proofs. The fresh assignees, who had been appointed under an order of the Court, petitioned, that five of the parties, who had made such fraudulent proofs, might be ordered to make good the sum abstracted by the defaulting assignee and all the other loss occasioned to the estate. cern, and assigning all his share in the partnership stock, debts and effects, to A. & C., but no notice of such assignment was given, individually, to the debtors of the partnership. A. & C. continue to carry on the trade till the death of A. A. fiat is then issued against B. & C., as surviving partners of A., when some of the debts due to the firm of the three still remain uncollected.Held, that the joint creditors of the firm of the three could not prove against the separate estates of B. & C., as the outstanding debts due to the three constituted joint property of that firm existing at the time of the bankruptcy. Ex parte Leaf, Windross, 1 Deac. 176. (Effect of.) re Semble, 1. That as there was no evidence of a general conspiracy amongst these parties to put any one fictitious debt on the proceedings, but merely a conspiracy of each individual with the petitioning creditor to prove his own fictitious debt, the Court could not make the order prayed for. 2dly. That as it did not appear that any of the parties contemplated the abstraction of the funds by the defaulting assignee, at the time of their respective proofs, the Court had no jurisdiction to order them to make good the loss experienced by his default, which was only a substantive ground of charge against him, in his character of assignee. A petitioning creditor fraudulently sues out a commission, and prevails upon twelve persons to make proofs of fictitious debts, for the purpose of carrying the choice of assignees; which object was obtained, in opposition to the bona fide creditors. These assignees are afterwards removed, but not till one of them absconds with a large sum belonging to the bankrupt's estate; and when the whole fraud is at length discovered, the proofs are ordered to be expunged, and the dividends received And see SALE-VENDOR AND PUR on them repaid. Two of the parties, however, having become insolvent, are unable to repay the dividends, and the estate in other ways sustains considerable loss by the fraudulent 3dly. That the circumstance of a party having proved a debt under a commission, merely vests in the Court a jurisdiction to the extent of the proof. Ex parte Brand, re Smith, 1 Deac. 308. PURCHASER. CHASER. On the petition of a purchaser, an injunction was granted to stop waste by the bankrupt on the purchased premises, as well as an order to put |