petitioning creditor in the present case could have maintained an action at law, the question is, whether a Court of equity would have restrained him; and this entirely depends upon the true construction of the 28th rule; and we think that, upon the bankrupt failing to provide the fresh surety in compliance with it, the whole amount of his shares then unpaid became due, according to his real contract, and that a Court of equity would have no power to restrain the petitioning creditor, being the indorsee of the promissory notes, from insisting upon the immediate payment of this sum, which it has been already stated exceeded the sum necessary to be a petitioning creditor's debt.

It was further contended, that, even if this were so, an action at law could only be maintained, and that no petition in bankruptcy could be presented, and for this Guthrie v. Fisk (a), was cited; but we do not think it applies. No debt was there due to the petitioning creditor at all, he was merely the secretary of the creditors; and the parliamentary power only enabling him to commence actions and suits, the Court held he had no power to issue a fiat in bankruptcy. In the present case we think the amount unpaid was a debt due to the petitioning creditor; and when the other necessary circumstances concur, a debt to the requisite amount confers upon the creditor the power to present a petition in bankruptcy as a right: Ex parte Gray.

It was also contended, that the bankrupt was a partner with the petitioning creditor in the money club, and that, therefore, there could be no petitioning creditor's debt; and for this Silver v. Barnes (b) and Jones v. Gretton (c) were cited. It is true, that in a sense and to some extent there was a partnership, or rather a joint interest, amongst the members and subscribers to the club, but it was not at all such a joint interest as disentitled the petitioning creditor to a

(a) 3 B. & C. 178. (b) 6 Bing. N. C. 180. (e) 8 Exch. 773.

1855.

HOPE

บ. MEEK.

present payment of the amount unpaid by the bankrupt, which, in our opinion, is the true test of the petitioning creditor's debt. We are, therefore, of opinion, that the petitioning creditor's debt was a true one.

The second ground upon which this rule was granted was as to the notice. The Bankrupt Law Consolidation Act (12 & 13 Vict. c. 106). sect. 133, provides, that an execution shall be valid, notwithstanding a prior act of bankruptcy, provided the person at whose suit it issues had not, at the time of the sale, notice of any prior act of bankruptcy committed by the bankrupt. As has been already stated, the notice relied on in the present case was given before the sale by the solicitors who prosecuted the petition in bankruptcy, and purported to be, and no doubt really was, on behalf of several creditors of the bankrupt; and it stated that the bankrupt had committed an act of bankruptcy, and had also executed a conveyance of all his property in trust for his creditors on the 4th of December (the day before the notice was given). The deed of conveyance was proved by the attesting witness, and put in evidence. A misapprehension, we have no doubt, exists as to the object for which this document was used. We cannot doubt but that it really was for the purpose of making good the notice, although not so understood by the learned counsel for the defendant. It was an act of bankruptcy, and a commission, fiat, or petition in bankruptcy could have been supported by it, for the petitioning creditor was one of the trustees mentioned in it; but he did not execute or assent to it, nor did the property which it purported to convey pass to him without his assent, as would be the case if it had been simply a conveyance for his benefit till he dissented.

Now, if there may have been any question as to the suffi-* ciency of the notice coming from the solicitors for the creditors only, and supposing it to have contained merely general terms, specifying no particular act of bankruptcy, the same objection certainly does not apply to that part of it which

states that a deed of conveyance of all his property had been executed by the bankrupt on the 4th of December. This intimation is surely particular enough, and, coming from the solicitors to the creditors, was quite sufficient. Where an act of bankruptcy has been in fact committed, any communication which brings to the knowledge of the execution creditor before the sale the alleged fact, that an act of bankruptcy has been committed, in a way which ought to induce him as a reasonable man to believe that the notification was true, is in our judgment a sufficient notice.

For the above reasons we think the ruling of Mr. Watson on both points was right, and that the rule ought to be discharged.

Rule discharged.

1855.

HOPE

V.

MEEK.

SIMPSON V. EGGINGTON.

Feb. 9.

THE declaration was for money had and received.—. It is a good

answer to a

Pleas, never indebted and set-off, upon which issues were plea of set-off, joined.

At the trial, before Alderson, B., at the last Stafford Summer Assizes, it appeared that the action was brought by the plaintiff as clerk to the corporation of the City of Lichfield, to recover certain monies paid to the defendant as their former clerk on account of the corporation. The defendant sought to set off a sum of 15l. 158., which he alleged to be due as a year's salary. It further appeared that one Proffit, who acted as treasurer to the corporation, had paid the defendant the above amount for his year's

that the amount bas

been paid by

a person pro

fessing to act and on account of the plaintiff, though without his authority; and that the latter ratified

as agent for

ratified the act at the time

of

The trea

surer of a cor

poration paid their clerk

(the defendant) the amount of his year's salary, both parties believing at the time that the treasurer had the authority of the corporation to make such payment; but the treasurer had no such authority, and the corporation afterwards repudiated the payment and dismissed the defendant from their service. In an action against the defendant for the recovery of certain monies paid to him on account of the corporation:-Held, that the corporation was entitled, at the trial, to ratify the act of their treasurer, and, consequently, that the defendant could not set off the amount of his salary as due to him from the corporation.

1855.

SIMPSON

V.

EGGINGTON.

salary, believing at the time that he had the authority of the corporation to make the payment on their behalf. He had however no such authority, and the corporation afterwards made a resolution by which they repudiated the payment and dismissed the defendant from their service. The defendant had treated this payment as made on behalf of the corporation, and had not returned it. In answer to the plea of set-off, the corporation now relied on this payment.

On the part of the plaintiff, it was submitted that the corporation was entitled to ratify the act of their treasurer at the time of the trial. This was disputed on behalf of the defendant. The learned Judge left the case to the jury, who found a verdict for the plaintiff for 26l. 198. 4d. disallowing the the defendant's set-off; but he reserved leave to the defendant to move to reduce the verdict by the sum of 15l. 15s. the amount of the set-off.

Keating having obtained a rule nisi accordingly,

Whateley and J. Gray shewed cause (Jan. 26), and contended that the corporation was entitled to ratify the act of the treasurer at the time they sought to do so.

Keating, in support of the rule, contended that the corporation ought to have ratified the act of their treasurer before action brought, but that instead of so doing they had repudiated it; and that therefore the money was not paid by them, and that Proffit might have maintained an action against the defendant for the recovery of the amount as for money paid under a mistake of fact.

Cur. adv. vult.

The judgment of the Court was now delivered by

PARKE, B.-The question is, whether the fifteen guineas

claimed by the defendant for wages may be set off.

The facts are, that, after the debt accrued due from the corporation to Eggington, one Proffit, who was their treasurer, and appeared to defendant to be acting with the authority of the corporation and as their agent, but in truth had no previous authority from them to pay the debt, paid the full amount to Eggington as from them; but the corporation afterwards disapproved of and determined not to repay the same to Proffit, and had disallowed it in his accounts, and had not before the suit at any time ratified such payment; but they had never communicated their disavowal to Eggington, who, down to the commencement of the suit, must have believed the debt to have been paid by the corporation.

After the commencement of the suit, when the defendant pleaded his set-off, the corporation insisted that the fifteen guineas had been paid by Proffit, and thereby may be said to have ratified the payment made by Proffit in the same way as if they had pleaded payment by way of replication to the plea of set-off.

Under these circumstances, is this payment by Proffit to be treated as a payment by the corporation to Eggington?

The general rule as to payment or satisfaction by a third person, not himself liable as a co-contractor or otherwise, has been fully considered in the cases of Jones v. Broadhurst (a), Belshaw v. Bush (b), and James v. Isaacs (c); and the result appears to be, that it is not sufficient to discharge a debtor unless it is made by the third person, as agent, for and on account of the debtor and with his prior authority or subsequent ratification.

In the first of these cases, in an elaborate judgment delivered by Mr. Justice Cresswell, the old authorities are cited, and the question whether an unauthorised payment by, and acceptance in satisfaction from, a stranger is a good

(a) 9 C. B. 193. (b) 11 C. B. 191. (c) 22 L. J., C. P., 73.

1855.

SIMPSON

V.

EGGINGTON.