633 BAN K 
the comniiffion iffued, jive twenty-one days notice to the 
creditors of a meeting for a dividend or diftribution ; at 
which time they nni'ft produce their accounts, and verify 
them upon oath, if required: and, under (fat. 5 Geo. II. 
c. 30, by affidavit if living in the country, and ’if Qua¬ 
kers by affirmation. And then the commiffioners (hall di¬ 
rect a dividend to be made, at fo much in the pound, to 
all creditors who have before proved, or (hall then prove, 
their debts. This dividend muff be made equally, and in 
a rateable proportion, to all the creditors, according to 
the quantity of their debts ; no" regard being had to the 
quality of them. Mortgages indeed, for which the cre¬ 
ditor has a real (ecurity in his own hands, are entirely fafe, 
for the commiflion of bankrupt reaches only the equity of 
redemption. Finch. Ilcp. 466. 2 Rep. 25. So are alfo per- 
fona! debts, where the creditor has achattel'in his hands, 
as. a pledge or-pawn for the payment, or has taken: the 
debtor’s lands or goods in execution. But, othepvife, 
judgments and recognizances, (both which are debts of 
record,, and therefore at other times have a priority,) and 
alfo bonds and obligations by deed dr fpecial inftrument, 
(which are called debts by fpecialty, and are ufually next 
in order,) thefe are all put on a level with debts by mere 
fimp’le contraft, and all paid pari fiaJJ'u. 21 Jac. c. 19. 
Nay, lo far is this matter carried, that, by the exprefs pro- 
vilion of the hat. 7 Geo. I. c. 31, debts not due at the 
time of the dividend made, as bonds or notes of hand pay¬ 
able at a future day certain, Audi be proved and paid 
equally with the reft, allowing a difeount or drawback in 
proportion. Ld. Raym. 1.549. Stra. 949. 2 P. Wins. 396. 3 
WilJ. 17. And infurances and obligations upon bottomry 
or refpondentia, buna fide made by the bankrupt, though 
forfeited after the commiflion is awarded, (hall be looked 
lipon in the fame light as debts contrafted before any aft 
of bankruptcy; alfo annuity-bonds, though not forfeited 
at. the tirnp of the bankruptcy. Couip. 540. 2 Blac. R. 110 
b. And policies of infurances for life. Dougl. 1 66 . 
Within eighteen months after the commiflion iffued, a 
fpcond and final dividend (hall be made, un.lefsall the ef¬ 
fects were exhaufted by the firft. 5 Geo. II. c. 30. It is 
the duty of affignees to make a dividend as early as poffible 
after the time given by the ftatute. And, if they neglect 
to do fo,nnd keep the money in their own hands, they will 
be liable to pay intereft for it. And, if any (orpins remains 
after felling his eftates, and paying every creditor his fttjl 
debt, it (hall be reftored to the bankrupt. 13 Eliz. c. 7. 
This is a cafe which fometimes happens to men in trade, 
who involuntarily, or at lead unwarily, commit acts of 
bankruptcy, by abfeonding and the like, while their ef¬ 
fects are more than fufficient to pay their creditors. And, 
if any fufpicious or malevolent creditor will take the ad¬ 
vantage of fuch acts, and fue out a commiffion, the bank¬ 
rupt has no remedy, but mud quietly fubmit to the effefts 
of his own imprudence, except that, upon fatisfaction 
made to all the creditors, the commiflion may be fuperfe- 
ded. 2 Cha. Ca. 144. This cafe may all'o happen, when a 
knave is defirous of defrauding his creditors, and is com¬ 
pelled by a commiflion to do them that judice which other- 
wife he wanted to evade. And therefore, though the ufu¬ 
al rule is, that all intered on debts carrying intereft (hall 
ceafe from the time of ilfuing the commiffion, yet, in cafe 
of a furplus left after payment of every debt, fuch inte- 
reft fhall again revive, and be chargeable on the bankrupt, 
or his reprefentatives. 1 Ath. 244. 
Th efuperfedcas is a writ ilfuing under the great feal, to 
fuperfede the commiffion; and this writ may be iffued at 
the diferetion of the lord chancellor, when the creditors 
of the bankrupt agree to fuperfede the commiffion; or 
becaufe the party appears not to have been a trader; that 
the party had not committed an aCt of bankruptcy ; that 
the commiffion was not opened till three months after it 
iffued; or that he lias paid all his creditors. Though the 
ufual courfe is for the lord chancellor to order a feigned 
iffue to try the bankruptcy at law, yet, if it appears plain- 
'yfto have been taken out fraudulently and vexatioufly, 
R U P T» 
the court will at once fuperfede the commiffion, and or¬ 
der the petitioning creditor’s bond to be a (Signed. 1 Aik. 
128, 144, 218. 
Of the different Kinds of DEBTS, and Mode of 
Proving them. 
The feveral afts of parliament relating to bankrupts, 
being made for the relief of creditors, none but a credi¬ 
tor could at any time have taken out a commiffion; and 
now he mutt have a legal demand to the amount fpecified 
in 3 Geo. II. c. 30. But a debt in equity will in no cir- 
cumftances be a foundation for a commiflion ; therefore, 
if a legal demand is not in its own nature affignable, the 
afiignee, notwithflanding his equitable claim, cannot be a 
petitioning creditor. Forrcf 248. Ch.Ca. 191. Freem. 270. 
1 Ath. 147. 2 Viz. 407. 2 Stra. S99. 1 P. Wins. 783. It is 
generally underftood, that the commiflion muff iffue on the 
petition of fome creditor capable of claiming relief under 
it; and therefore, that, if the' debt of the petitioning cre¬ 
ditor appears to have been contracted fublequent to a fe- 
cret aft of bankruptcy committed by the trader, no‘com¬ 
miffion ought to be granted upon his petition. 2 Str. 744, 
6. 1 Atk. 73. A debt at law, notwithstanding th'e ftatute of 
limitations has incurred, will fupport a commiffion; for 
the ftatute does not extinguifh the debt, but the remedy, 
and the lead hint will revive it. 2 Black. Rep. 703. It has 
been determined, that a creditor, by notes bought in at 
10s. in the pound, was a creditor for the full Cum, and 
might take out a commiflion. 1 P. Wins. 783. A credi¬ 
tor, before the party entered into trade, may on account 
of fuch debt fue out a commiffion, but a creditor for a 
debt contracted after leaving off trade cannot. But, when 
a commiflion is (tied, thofe creditors who have become 
fuch fince the quitting trade, may come in and (hare the 
dividend with thofe who were creditors before or during 
the trading, provided they are not barred by a prior aCt of 
bankruptcy. 12 Mod. 159. Ld. Raym. 287. 1 Sid. 411. 
If a creditor has his debtor in execution, he cannot pe¬ 
tition for a commiflion of bankruptcy ; for, the body of the 
debtor being in execution, it is a fatisfaCIion of the debt, 
in point of law. Therefore, where a commiflion had if¬ 
fued on the petition of a creditor who had the bankrupt 
in execution, it was upon that account fuperfeded. 3 MR If. 
271. 1 Stra. 653. Nor has the petitioning creditor the or¬ 
dinary eleftion to fue the bankrupt at law, or come under 
the commiflion as other creditors have; for, if he was to 
eieft to proceed at law, the commiffion mud be. fuperfe¬ 
ded, which would affeft thofe creditors w ho had proved 
debts under it. 1 Atk. 134. 
Debts may be proved at any of the public meetings ap¬ 
pointed by the cominiflioners; the ufual proof is the oath 
of the creditor, which if not objefted to by the bankrupt 
himfelf, or any of thofe creditors, is generally efteemed 
fufficient; but, if any objeftion is raifed, the demand 
mu ft be farther fubftantiated by evidence. For, though 
the creditor (liould make a pofitive oath of the debt, the 
commiffioners, if they conceive themfelves to have juft 
grounds to doubt its fairnefs, ought to admit it only as a 
claim; and, if it is not made out to their fatisfaction, it 
may be rejected. 1 Atk. 71, 221. 
Upon the principle of equality among the creditors pro¬ 
ving under the- commiffion, the privilege of debtors to 
come in and prove their debts and bankrupts to be dif- 
charged therefrom, is co-extenfive and commenfurate; 
therefore a man (hall not prove a debt, and proceed in an 
aftion at law', at the fame time. However, the court will 
not abfolivtely flop him from bringing an aft ion, but put 
him to his eleftion ; and, (liould he eleft to proceed at law, 
lie will dill be allowed to prove his debt, for the purpofe 
of affenting to, or diffenting from, the certificate ; which 
permiflion is abfolutely requifite, to make his remedy at 
law of any avail, for, (liould the bankrupt procure his cer¬ 
tificate, he will be thereby difeharged from that aftion, as 
well as from all debts contrafted before the aft of bank¬ 
ruptcy. 1 Atk. 83, 119, 220. 1 P. Wms. 562. 
