the notice of two or three matters not arranged under any of the subsequent divisions. (a) First, as to the calculation of the signing creditors, according to their proportions. of creditors who ought Professor Christian has illustrated this point in his Calculation Treatise on the Bankrupt Laws; and it may be deemed excusable if the information which he has sup- to sign. plied is introduced in this place. "In calculating the number of creditors, who must sign out of the whole number who have proved, whose debts are 201. or more each, if there is a fraction, one for that fraction must sign; and if seventeen have proved, then 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 of every other number not divisible by five." (b) Speaking of the stat. 49 G. 3. c.121., he says, "The mode of reckoning the number of creditors is the same as before. Where there is a fraction, one of course must sign; for without the fraction the number would not satisfy the statute; and where a part of a man is required to sign, it is necessary that the whole should be present; as if there are four creditors, three fifths are two, and two fifths of another; three, therefore, must sign. The Court of Chancery not long ago were puzzled two or three days, whether ten or eleven out of seventeen ought to sign; three fifths of seventeen are ten, and one fifth of another. It was said by counsel, that Commissioners gave the turn of the scale in favour of the creditors. The Commissioners give the statutable (a) These Sections are more or less adverted to in a subsequent part of this Chapter. (b) 1 Chr. B. L. 338. 1 Operation of certificate not destroyed by death of weight. The certificate would be absolutely void with ten only; and it is not made worse by having four fifths of a creditor more than necessary. Money may be divided to the fraction of a farthing, but the certificate would be void without the fraction; so the whole farthing must make part of the aggregate value. (a) The decease of the bankrupt, it should seem, ought not to destroy the efficacy of his certificate as it regards his executors, for the allowance of that document by the bankrupt. Chancellor would be sufficient evidence that the party had done all in his power previous to his death to merit his discharge. A case occurred, in which, after the granting of a joint certificate by the Commissioners, one of the bankrupts died without making the usual affidavit of its having been obtained fairly and without fraud, upon which it was allowed, as the separate certificate of the survivor. (b) Joint and separate Under a joint commission there may be a joint or certificates, separate certificate; but if the joint creditors assent to the certificate of one, while they dissent to that proposed for the other, there must be a separate certificate. (c) Certificate vacated. If the commission under which the certificate has been obtained be superseded, the instrument will be vacated. So, that where a certificate was obtained under a separate commission afterwards superseded, it was held, that this certificate had fallen to the ground, as though it had never existed. (d) (a) 2 Chr. B. L. 501. This nicety is avoided by 6 G. 4. c.16. s. 123., and see 5 G. 4. c. 98. s. 120. (b) 10 Ves. jun. 51. Ex parte Currie. (c) 1 Chr. B. L. 341. (d) 10 Ves. jun. 94. Everett v. Backhouse, and see 1 Atk. 145. Ex parte Leaverland. There seems to have been some doubt whether a certificate under a second commission, pending the first, would be of any effect. It has been affirmed, that all the proceedings under such second commission would be null and void (a), which would include the certifi cate, and that in law such second commission would be good for nothing. (b) But it has been observed on the other hand, by a writer very conversant on the subject, that the judges could not treat a certificate so acquired as a nullity; for that the creditor should have removed it by petitioning the Chancellor to supersede the commission from whence it sprang (c); and the more approved practice is to supersede one of the two commissions as may best answer the ends of justice. (d) It has been observed, that a bill by an attorney for obtaining the signature of a bankrupt's certificate, must be delivered with the usual formalities prescribed by 2 G. 2. c. 23.; that is to say, a month's notice, with the usual signature. (e) (a) Cowp. 823. per Buller J. (b) 16 Ves. jun. 236. per Lord Eldon. (c) 1 Chr. B. L. 324. (d) 16 Ves. jun. 236. per Lord Eldon. See now 6 G. 4 c. 16. s. 16 & 17. In cases of a second or other commission being issued, the Lord Chancellor may direct that such commissions be proceeded in separately, or in conjunction. (e) 1 Chr. B. L. 344. Signature by the creditors. Not compellable to sign. SECT. II. Signature of Certificate.-1. By the Creditors or their It appears, from the statutes set forth in the preceding section, that the law, formerly so severe and rigid against the bankrupt, became considerably relaxed in his favour; not so much, indeed, in the first instance, from a principle of compassion towards him, as from a conviction of the insufficiency of its harsh proceedings in checking the tide of fraud and concealment. When, therefore, three parts of five creditors in number and value, whose debts are respectively not less than 20%., unite in signing and sealing the bankrupt's certificate; when, again, the Commissioners, authorized by the particular commission, certify to the Lord Chancellor, upon the same instrument, that the bankrupt has in all respects conformed himself to the provisions of the various statutes upon the subject; as soon as the certificate so signed is allowed by the Lord Chancellor, the bankrupt becomes entitled to the allowances and benefits which the legislature has permitted him to receive as a reward for his obedience. The signatures of creditors, with the discussions relative to the parties who may sign, and in whose right the acknowledgment may be made, will come first under our consideration. It is, however, to be premised, that there are no means of compelling such signatures; all creditors are left at liberty to do so or not as they think proper (a); (a) Dougl. 229. per Lord Mansfield C. J. and see 3 Ves. & B. 103. Montague, B. L. 333. and general experience has testified, that this disc retio has been commonly exercised with great forbearance and humanity. Of course, the creditor whose debt amounts to 20%., is generally capable of signing this instrument, but he must be a creditor entitled to receive a dividend; and, therefore, a party who claims under a judgment to indemnify, who, in fact, has not been damnified, cannot sign. (a) After the debt has been proved, the creditor may authorize another person to do this on his behalf. And it must be done by a special authority, for a general power to receive debts, &c. is said to be insufficient. (b) It is the opinion of Mr. Christian, that an agent cannot, merely in that capacity, be admitted to sign, but that the principal, or some one deputed by him under seal, can alone give the discharge, and he decided to this effect as a Commissioner in the case of the Durham bank. (c) It is customary for two witnesses to subscribe this power (d), and an affidavit of its due execution must be sworn by one of such witnesses (e); upon which an exhibit is indorsed or subscribed by the Commissioners with the affidavit, and the letter of attorney is then left at the bankrupt's office when the certificate is taken there. (f) It has been holden, that two creditors can (e) Ibid. 214, 215. When the creditor executes such a letter abroad, the affidavit of the subscribing witness is not required. (f) Id. 215. Who may sign. |