1834. Ex parte SIMPSON and others. In the matter of SUDELL. case; and its being used is not conclusive as to whether the party using it be or be not a mere surety. The undertaking in this case is a direct contract of debt. There is a circumstance, no doubt, as to the mode of payment; but that no further affects the contract than as shewing how the money is to be paid. Let it be assumed that the document in question was a mere guarantee to be answerable for the debt of another, if that other did not pay; and suppose, 1st, That the contingency happened before bankruptcy. 2d, It happened after. 1st, If the contingency had occurred before the bankruptcy there could have been no difficulty; for the circumstances which had already happened shewed Lyne and Sudell to be so completely insolvent as would prove to any commissioner that they were utterly disabled from ever paying. 2d, If the contingency were after the bankruptcy. If any doubt arise whether it then would be proveable, the 135th section of the bankrupt act gives the creditors the benefit of that doubt; and certainly the construction made in this case is favourable to the creditors. The general and leading intent of the bankrupt statutes is, first, legally to distribute the assets; and, second, to release the bankrupt from all demands which depriving him of his property has disabled him from meeting. The 121st section of 6 Geo. 4, c. 16, enacts, "that every bankrupt who shall have duly surrendered, and in all things conformed himself to the laws in force concerning bankrupts at the time of issuing the commission against him, shall be discharged from all debts due by him when he became bankrupt, and from all claims and demands hereby made proveable under the commission, in case he shall obtain a certificate," &c. This section not only mentions "all debts due," but "all claims and demands hereby made proveable." What can this mean, but that some liabilities are proveable, though, not strictly debts," and though an action of " debt" would not lie at the time of the bankruptcy? 66 There are many engagements to pay money, as for the value of goods, which before the bankruptcy would not have been the subject of an action of "debt," but for which an action of assumpsit must have been brought; yet if the only reason of the necessity for the action of assumpsit, instead of debt, was that the amount was not ascertained, and the commissioners could ascertain that amount, it would constitute a debt proveable. I must not, however, be understood to lay down a general rule that all guarantees are proveable; such is not the law. I concur that this petition of re-hearing must be dismissed with costs. 1834. Ex parte and others. In the matter of SUDELL. END OF CASES IN TRINITY TERM 1834. L. C. 1831. Fauntleroy, a partner in a Ex parte BOLLAND and others, assignees. — In the matter of MARSH, GRAHAM. STRACEY, and banking-house, THIS was a petition by the assignees under the com transferred bank stock, belonging mission against Marsh and Co. to a customer, by a forged power of attorney; the pro to the account The petition stated, that Ann Keating was admitted to prove for 6,013l., for so much money had and receeds were paid ceived by the bankrupts for the use of Ann Keating. That such proof ought not to have been admitted, because the deposition of debt was defective, and the debt not proveable. of the partnership, and after wards appropriated by Faunt leroy, who was subsequently executed for other forgeries, and a commis sion issued against the other partners, rant of the transaction, but with common diligence would have known of it. Quære, Whether the customer can year That the deposition of debt was as follows: — " Ann Keating maketh oath and saith, that in or about the 1819 she was possessed of 9,000l. three per cent. reduced bank annuities, standing in her name in the books of the who were igno- Bank of England, and that the bankrupts were her bankers, and, as such, held a power of attorney from her to receive the dividends on the said stock, and which were received by them, and carried to her credit every half year; and deponent is informed and believes, from the result of searches and enquiries made by her solicitor for that purpose, that, on or about the stock under the 29th day of December 1819, a contract was made by one J. B. Simpson, as the broker for the bankrupts, for the sale of the 9,000l. three per cent, reduced bank annuities for 6,0137.; and that Henry Fauntleroy, one indebted to the of the bankrupts, attended at the bank, purporting to be authorized by deponent under a power of attorney, pretended to have been executed by deponent for that purpose; and, in pursuance of such contract, executed an instrument for the transfer of the said 9,000l. three prove for the value of the commission? An action crdered to try whether the partners were customer. See Keating v. v. Keating, post, 592. per cent. reduced annuities, by or in the name of this deponent, whereby deponent ceased to have credit for the said sum of 9,000l. in the books of the Bank of England; and that she is also informed and believes, from the result of such searches and enquiries as aforesaid, that the said sum of 6,0137. (being the money produced by the sale of the said stock, after deducting the brokerage thereon) was paid to the account of the bankrupts, at Messrs. Martins, Stone, and Co., bankers; and that, from the date of such transfer, up to the month of April 1824 inclusive, the house of Marsh, Stracey, and Co. continued to credit deponent every half year for a sum of money equivalent to the half-yearly dividends, which would have accrued due on the said sum of 9,000l. three per cent. reduced annuities, if the same had not been sold and transferred as aforesaid; and that, under the circumstances aforesaid, the said bankrupts were, at and before the date and suing forth of the said commission of bankrupt against them, and still are, justly and truly indebted to this deponent in the sum of 6,0137., being for so much money had and received by them as aforesaid on the sale of her stock." That such deposition materially varied from all the usual affidavits upon which debts are proved under commissions of bankruptcy, and did not disclose the whole facts of the case. That Ann Keating by the deposition swears, that, under the circumstances therein set forth, the said bankrupts were, at and before the date and suing forth of the said commission, and are still, justly and truly indebted to her in the sum of 6,0137.; but some material circumstances of the case are altogether omitted. 1834. Ex parte BOLLAND and others. In the matter of MARSH and others. 1834. Ex parte and others. In the matter of MARSH and others. That it is not stated in the said deposition that the supposed transfers of stock were made under a forged power of attorney; that it is not stated that the examinant held the Bank of England liable to her for the said stock and the dividends thereon, and likewise that the Bank of England had engaged to replace the stock of the said claimant, upon her proving her said alleged debt against the said bankrupts' estate, and assigning such proof to the Bank of England; that it is not stated that the Bank of England had moreover actually paid to the claimant all the dividends upon her said stock which had accrued due since the bankruptcy of Marsh, Stracey, and Co. That it is stated in the deposition, that Ann Keating was informed and believed that the contract therein mentioned was entered into by Simpson, as the broker of the bankrupts, whereas the fact is, that Simpson acted in the said sale by the order and as the broker of Fauntleroy. That such debt is not proveable, for the following amongst other reasons. Because the supposed transfer of stock was under a forged power of attorney, and in no way operated upon the interest of the owner of the stock, nor occasioned any such damage or injury as could give the owner of the stock any right to prove against the bankrupts' estate. Because Ann Keating, if she had any election, had already in fact elected to disaffirm the transaction, and claim her stock from the Bank of England, and that, in pursuance of the election, she had not only arranged with the Bank to replace her stock, but had moreover actually received from the Bank of England all the dividends upon the stock which |