and his wife, to property to which she, and he in her right, had become entitled, he will be allowed his costs as between solicitor and client. Green v. Otte, 2 Law J. Chanc. 123.

(Q) OF THE CERTIFICATE.
(a) Form.

An application being made to stay a bankrupt's certificate, on the grounds, that the day of the month and year of the signature of the creditors was not inserted at the time, and that the affidavits of the parties witnessing their signatures did not state the time of such signature, the Court refused it. Ex parte Laing, 1 G. & J. 348.

A certificate, instead of repeating the day of the month, used the word ditto, and in other places omitted the year: Held not to invalidate the certificate, as it was signed in the same year in which the commission issued. Ex parte Davis, 2 G. & J. 80.

A certificate will be sent back to the commissioners to be rectified, where only signed and sealed by one commissioner, and not attested by the solicitor to the commission, or his clerk, or the messenger, or the clerk of such commissioner, in conformity to the general order of August, 1809. Ex parte Jones, 1 G. & J. 186.

(b) Signature.

Quare-Whether persons appointed by the Court to prove and receive dividends can sign the certificate? Ex parte Shaw, 1 G. & J. 151.

If a creditor, after proving a debt under a commission, assigns it, he cannot sign the certificate without the authority of those who are entitled to the property under the assignment. Ex parte Taylor, 1 G. & J. 399.

A creditor having proved a debt, and afterwards sold and assigned it, may sign the bankrupt's certificate, after such assignment, without the consent of the assignee. Ex parte Herbert, 2 G. & J. 66; overruling Ex parte Herbert, 1 G. & J. 399.

The certificate ought not to be signed by creditors before the bankrupt has passed his last examination. Ex parte Cusse, 2 G. & J. 327.

(c) Staying.

A mortgagee may petition to stay a certificate. Ex parte Whitchurch, 2 J. & W. 548, s. c. 1 G. & J. 71.

(d) Recalling.

A clear case must be made against the bankrupt, before a certificate can be recalled. Ex parte Hood, 1 G. & J. 219.

Where a bankrupt is in the custody of a creditor, and the creditor presents a petition to prove and stay the certificate, or that the certificate be stayed until the petitioner has had sufficient time to ascertain the amount of his debt, and prove it, the bankrupt is entitled to be discharged. Ex parte Blaydes, 1 G. & J. 179.

The Court stayed a certificate on a petition being presented by a partner of the bankrupt for that purpose, until the partnership accounts could be taken; no want of due diligence being imputable to the petitioner. Ex parte Hadley, 1 G. & J. 193.

A certificate will be lodged in the bankrupt office, where the amount of a mortgage debt is disputed, until it can be properly ascertained. Ex parte Whithurch, 2 J. & W. 548.

The petitioner will have to pay the costs of his petition, where it prays that the certificate may be stayed until he has had sufficient and reasonable time to ascertain the amount of his debt, and prove it. Ex parte Blaydes, 1 G. & J. 179.

Where a commission had issued, and eight months had been suffered to elapse before the petitioner applied to prove and stay the certificate; the petition was dismissed with costs. Ex parte Smith,

1 G. & J. 195.

Where two persons had become bankrupts, and a joint certificate acquired; but one of them died before making an affidavit of conformity; the allowance as to the survivor was ordered to be advertised. Ex parte Cossart, 1 G. & J. 248.

If a petition to stay a certificate, is not served before the next petition day, the practice is, for a short petition to be presented by the bankrupt, praying that his certificate may be allowed. Ex parte Moore, 1 G. & J. 253.

An acknowledgment by a bankrupt, of having received the copy of a petition to stay his certificate, is not a waiver of personal service. Ex parte Furnival, 1 G. & J. 254.

Where an application was made to stay the certificate on the ground of concealment of property, but the property concealed had been delivered over to the assignees before the certificate was signed by the commissioners; the application was refused, but without costs. Ex parte Bryant, 1 G. & J. 205.

(e) Where void.

A loss by gaming invalidates a certificate, although the bankrupt on the same day wins more than the sum lost. The Vice Chancellor will, without an issue, decide the fact of gaming where it is not disputed. Ex parte Newman, 5 Law J. C.P. 129: S. P. 2 G. & J. 329.

(f) Effect of.

A bankrupt's certificate is no bar to an action brought against him on bills of exchange, indorsed by him to a creditor, for a debt due before the bankruptcy. Brix v. Braham, 1 Law J. C.P. 103, s. c. 1 Bing. 281, s. c. 8 B. Mo. 261.

A judgment in an action, on a bond given under the 4 Geo. 3. c. 33, by a trading member of parlia ment, obtained after the bankruptcy, though before he obtained his certificate, is not discharged. Campbell v. Jameson, 1 Bing. 320, s. c. 8 B. Mo. 281.

As creditors, by accepting the assignment of a debt proved under a commission, stand in precisely the same situation as the assignee, they cannot maintain an action against the bankrupt. Ex parte Taylor, 1 G. & J. 399.

Bankruptcy not only exonerates a guarantee from his liability on a bill of exchange, but from the costs of any action which may have been brought against his principal. Bottomley v. Wilson, 3 Stark. 148. [Abbott]

A bankrupt's certificate, before allowance, does not divest his creditors of their right to a legacy. Tudway v. Bourne, 2 Ken. 423, s. c. 2 Burr, 716.

A certificate in Ireland is no bar to an action for a debt contracted by the bankrupt in England. Shallcross v. Dysart, 2 G. & J. 87.

The principal having become a bankrupt, on the day that his certificate was allowed, his bail were fixed; but before the rising of the Court, an exoneretur was entered on the bail-piece, on payment of the costs. Lindsey's bail, 1 Law J. K.B. 84.

Where the plaintiff was surety for the bankrupt for rent, which had not become due until after the commission issued against him, and the bankrupt obtained his certificate: Held, that he was not a surety within the meaning of the 49 Geo. 3. c. 121. s. 8, which is restrained to debts, existing as debts at the time of the issuing of the commission, and that he was therefore entitled to recover the rent he had been called on to pay as such surety. M'Dougal v. Paton, 8 Taunt. 584, s. c. 2 B. Mo. 644.

The surety, under an annuity deed, may maintain an action against the principal, for the value of an annuity redeemed by him subsequently to the bankruptcy of the principal. Watkins v. Flanagan, 1 Bing. 413, s. c. 3 B. & A. 186, s. c. 8 B. Mo. 480, s. c. 13 Price, 34.

A surety under an annuity deed, who has redeemed the annuity subsequent to the commission, may proceed by action against the grantor, who has obtained his certificate, for the arrears of the annuity, and be is entitled to the benefit of the grantee's proof under the commission. Watkins v. Flanagan, 1 G. & J. 199.

Where a principal proves his debt under a commission of bankruptcy, against the person for whom the surety is bound, he does not discharge the party. And it seems doubtful, whether, when the principal has signed the certificate, he has not discharged the party. But where a bankrupt had conducted himself properly, and the surety had gone abroad immediately after the bankruptcy, the Court determined that the surety was not discharged, although the principal had signed his certificate. Langdale v. Parry, 2 Law J. K.B. 70, s. c. 2 D. & R. 337.

In an action brought by an accommodation acceptor of a bill against the drawer, after he had become bankrupt and obtained his certificate, for not providing funds, whereby the plaintiff had incurred the costs of an action, and been obliged to sell an estate to raise funds: Held, that as the right to the principal debt was barred by statute, the right to damages, which are accessary and consequent on that debt, was also barred. The 49 Geo. 3, enabling the plaintiff, as surety, to prove his demand in respect of money paid, and enacting that the bankrupt should be discharged of all demands at the suit of the surety, in regard to his debt in respect of such suretyship, makes the certificate a bar, not only to any claim for the parties' money which established the principal debt, but also to any cousequential damage arising from that debt not having been duly paid. Van Sandau v. Corsbie, 8 Taunt. 550, s. c. 2 B. Mo. 602, s. c. (Judgment affirmed,) 3 B. & A. 13.

Where a party, who had been committed for disobedience, under an order in bankruptcy, for not paying money and costs as ordered, became bankrupt and obtained his certificate, he was directed to be discharged. Ex parte Eicke, 1 G. & J. 261.

DIGEST, 1822-1828.

97

The defendant covenanted with the plaintiff for the due payment by A B, of an annual premium on a life insurance given to the plaintiff as security for a debt, and became bankrupt before the premium was due, and obtained his certificate after: Held, that he was not thereby discharged from his liability to pay such premium. Atwood v. Partridge, 5 Law J. C.P. 154, s. c. 4 Bing. 209.

Bankruptcy and certificate are no bar to an action in tort, against a broker for selling out plaintiff's stock contrary to orders. Parker v. Crole, 6 Law J. C.P. 229, s. c. 5 Bing. 63, s. c. 2 M. & P. 150.

A commission of bankrupt issued against the plaintiff in April, and on the 2d of August was superseded. A second commission issued on the 7th August, under which the plaintiff obtained his certificate, and then sued the defendants, who were the commissioners under the first commission, for an alleged wrongful imprisonment. Judgment of nonsuit was entered up by them against him in July, and he was charged in execution for the costs: Held, that as the defendants might have proved under the second commission, the plaintiff was entitled to be discharged. Holding v. Impey, 1 Bing. 189, s. c. 7 B. Mo. 614.

Verdict for defendant in July; commission of bankrupt against plaintiff in August; judgment against him, and certificate under the commission, in Michaelmas ensuing: Held, that he was liable to an execution for costs, notwithstanding 6 Geo. 4, c. 16, s. 56. Bire v. Moreau, 5 Law J. C.P. 61, s. c. 4 Bing. 57.

A bankrupt obtained his certificate on the 13th of November; the same day a fieri facias was executed on his goods: The Court refused relief on motion, but left the parties to their audita querela. Hanson v. Blakey, 6 Law J. C.P. 70, s. c. 4 Bing. 493, s. c. 1 M. & P. 261.

Where a defendant has been twice a bankrupt, and has not paid 15s. in the pound under the second commission, the Court, (unless he be in actual custody,) will not relieve him on motion, in an action against him at the suit of a creditor whose debt muy have been barred by the commission; but will leave him to his plea. Anon. 5 Law J. K.B. 212.

A second commission against a bankrupt, who has not obtained his certificate under a previous subsisting commission, is void at law. Consequently a certificate obtained under the second commission is unavailing. Hill v. Wilson, 6 Law J. K.B. 127.

(g) Bankrupt's Liability on a new Promise. Upon a debt revived by a new promise after bankruptcy, the Court will, on an arrest, discharge the debtor on common bail. Bayley v. Dillon, 2 Ken. 436, s. c. 2 Burr. 736.

A bankrupt cannot be arrested upon a subsequent promise to pay a debt due before his bankruptcy, after he has obtained his certificate. Peers v. Gad-' derer, 1 Law J. K.B. 16, s. c. 2 D. & R. 240, s. C 1 B. & C. 116.

A promise or agreement by a bankrupt to pay a debt after he has obtained his certificate, must be in writing, and signed by him, in order to comply with the terms of the statute 6 Geo. 4, c. 16, s. 131; which enacts, that a bankrupt shall not be liable on a promise to pay a debt, discharged by certificate, unless such promise be made in writing, signedby

N

98

the bankrupt, or by some person authorized by him. Hubert v. Moreau, 5 Law J. C.P. 56.

A person, after he became bankrupt, and before he had got his certificate, called at the office of his attorney, to whom he was indebted, and wrote there, the attorney not being at home, a letter promising to pay him a sum of 100l. The only signature was a flourish of the pen, which it was contended by the plaintiff formed the letter M, the initial letter of the defendant's name: Held, that if it was an M, it was not a sufficient signature under the statute 6 Geo. 4, c. 16, s. 131. Hubert v. Moreau, 2 C. & P. 528.

(R) OF A SUPERSEDEAS. (a) Causes for.

Where two of the commissioners were creditors of the bankrupt, the commission was superseded upon an ex parte application. Ex parte Matthews, 1 G. & J. 164.

Where a bill of costs (the petitioning creditor's debt) is, on a reference to the Master, reduced by taxation below the amount requisite to sustain the commission, the commission will be superseded at his expense. In re Symes, 1 Law J. Chanc. 68.

Where the act of bankruptcy consisted in the bankrupt having made a conveyance of his estate and effects, which appeared in evidence not to be drawn according to the bankrupt's intention,-The Court superseded the commission. Ea parte Norris, 1 G. & J. 233.

A delay of nine months, occasioned by the acts of the bankrupt, and with the concurrence of the creditors, is a good ground for superseding the commission; and that, though the effect of the supersedeas will be to give validity to executions issued out by judgment creditors, which would otherwise be over-reached by the commission. Ex parte Luke, 2 Law J. Chanc. 175, s. c. 1 G. & J. 361.

If a commission, issued upon an unjust motive, becomes an efficient instrument of fraud, and the bankrupt cannot be relieved from the fraud of which the commission is an instrument but by a supersedeas, the Court will interfere and supersede the commission, in order to defeat the fraud. Ex parte Bourne, 1 G. & J. 311.

Nor will it be allowed to stand, although the fraudulent purpose may be defeated without superseding the commission. Ex parte Bourne, 2 G. & J.

137.

A commission issued expressly for the purpose of putting an end to an action by the bankrupt against the petitioning creditor, will not be suffered to stand, even though an intention of working it appear. Ex parte Bourne, 2 G. & J. 137.

Whether a commission can be superseded as to one of two bankrupts, in order to give validity to a subsequent commission againt the other with a third. Ex parte Burlton, 2 G. & J. 344.

A joint commission, invalid in its concoction, may be superseded as to one of the bankrupts. Ex parte Bygrave, 2 G. & J. 391.

A bankrupt cannot, after he has obtained his certificate, petition to supersede, because he was not a trader. Ex parte Lewis, 2 G. & J. 208.

(b) Practice upon petitions to supersede. The commission cannot, after the forty-second day, be superseded, on the application of the bankrupt

before his surrender, even with consent of creditors. Ex parte Peuker, 2 G. & J. 337.

A petition for a supersedeas may be sustained at the instance of the bankrupt, where the petition is presented before the forty-second day. Ex parte Nicholas, 2 G. & J. 102.

Commission allowed to be superseded by the consent of all the creditors, where the bankruptcy has been advertised in the Gazette. Ex parte Ögilby, 1 G. & J. 250.

A separate commission being sued out against A, and a joint commission against A and B, the assig. nees having recovered a verdict in trover against C, under the first commission; the Court permitted the amount of the verdict, so brought into court, to abide the event of a petition to the Lord Chancellor, to supersede the first commission. Hodgskinson v. Travers, 1 Law J. K.B. 108, s. c. 1 B. & C. 257, s. c. 2 D. & R. 409.

Upon the petition of the bankrupt's solicitor, and all the creditors who had proved, the Court superseded the commission, though the bankrupt was abroad and had not surrendered. Ex parte Carling, 2 G. & J. S5.

(c) Effect of.

When a commission of bankrupt is superseded, the proceedings are to many purposes nullities, but may be retained by the Chancellor for safe custody, and ordered to be deposited in the bankrupt office. Ex parte Shaw, 1 Jac. 270.

(S) SUITS IN EQUITY.

A bill filed by the assignees of a bankrupt, against him, for the purpose of restraining proceedings at law commenced by him, tending to impeach the va lidity of the commission, was, on demurrer, holden insupportable, the proper course being by petition. Kirkpatrick v. Dennett, 1 G. & J. 300.

A bill in equity does not lie by the assignees of a bankrupt against a judgment creditor, and the sheriff, for monies levied under an execution upon a judgment by nil dicit,—the remedy is by petition. Mitchell v. Knott, 1 Sim. 397.

To a bill by assignees of a bankrupt against persons indebted to his estate, a plea that the suit was not instituted with the consent of the creditors, at a meeting pursuant to the 5 Geo. 2, c. 30, s. 38, was allowed. Ocklestone v. Benson, 3 Law J. Chanc. 142, s. c. 2 S. & S. 265.

But upon a bill filed before the bankruptcy of the plaintiff, a supplemental bill may be filed without the consent of creditors. Bevan v. Lewis, 2 G. & J. 245.

To a bill by assignees of a bankrupt, a plea that the suit had been instituted without the consent of the creditors, or of the commissioners, as required by the statutes 5 Geo. 2, c. 30, and 6 Geo. 4, c. 16, was allowed, chiefly on the ground of a similar plea having been allowed in the Court of Chancery, in Ocklestone v. Benson. Bozon v. Williams, 2 Y. & J. 475.

(T) ACTIONS AT LAW.

On a petition to the Vice Chancellor, praying for a change of assignees, his Honour ordered that a new assignment should be executed to the plaintiff, in which the two former assignees should join:

Held, in an action of assumpsit, that as only one of the old assignees had joined in the execution of the assignment to the plaintiff, the other being out of the kingdom, an application should have been made to the Vice Chancellor, as by his order both the former assignees were directed to execute the new assignment to the plaintiff; and it was either necessary, that such order should have been complied with, or a reason assigned and represented to the Vice Chancellor why it could not be done. Aldritt v. Kittridge, 2 Law J. C.P. 15, s. c. 6 B. Mo. 569. The 44th section of 6 Geo. 4, c. 16, which provides for the bringing of actions within three months, does not apply to actions affecting the property of the bankrupt. Frost v. Brooks, 5 Law J. K.B. 231.

Quære, whether a sheriff, who seizes and sells goods of a bankrupt before commission, but after an act of bankruptcy, without notice, is liable in trover to the assignees. Bayley J. dubitante, at Nisi Prius. Balme v. Hutton, 2 G. & J. 101.

The correctness of the bond given to the Lord Chancellor under the 13th section of the Bankrupt Act, cannot be disputed at Nisi Prius, in an action to try the validity of the commission, in the case in which it was given. Folks v. Scudder, 3 C. & P. 232. [Best]

(U) PLEADING.

A plea of bankruptcy is valid, although the commission was issued subsequent to the filing of the bill. Turner v. Robinson, 1 S. & S. 3.

To an action by the assignees of a bankrupt, the defendant cannot plead the pending of a former action, brought against him by the bankrupt, for the same cause of action. Biggs v. Cox, 4 Law J. K.B. 58, s. c. 4 B. & C. 920, s. c. 7 D. & R. 409.

A plea of puis darrein continuance of bankruptcy is sufficiently verified by an affidavit averring the plea to be true, to the best of the deponent's knowledge, information, and belief. Sharpe v. Witham,

1 M'Clel. & Y. 350.

A defendant, who has pleaded the general issue to an action, brought against him by the assignee of a bankrupt, without giving notice of his intention to dispute the bankruptcy, may obtain a judge's order for leave to withdraw such plea, and plead de novo on the notice required by the 49 Geo. 3, c. 121,

s. 10, being given. Gardner v. Slack, 6 B. Mo.

489.

A person drew a bill of exchange, payable to an uncertificated bankrupt or order. The bankrupt indorsed it, and it came into the hands of an innocent holder. The assignees did not interfere. The

holder brought an action against the drawer, who pleaded the bankruptcy of the payee and the want of consent of the assignees; but the Court held that

the plea was s v. Dale, 2 Law J. K.B. 20, s. c. 2 B. & C. 293, S. c. S D. & R. 534.

bad, and the holder recovered. Drayton

plaintiff

If the defendant plead the bankruptcy of the plaintiff in bar, he must allege as a fact, that the state that a commission issued, and that the plaintiff was a bankrupt; and it is not sufficient to under that commission was declared and adjudged

to be a bankrupt.

Such a plea should state the trading, the act of

bankruptcy, and the petitioning creditor's debt. This rule applies to the case of a defendant, in

99

England, pleading, that the plaintiff became a bankrupt in Ireland.

The omission to aver, as a fact, that the plaintiff became a bankrupt, is not cured by the plaintiff replying that he has obtained his certificate under the commission.

Whether in debt on judgment, a replication to a plea of bankruptcy in the plaintiff after the accruing of the cause of action, whereon judgment was rocovered, that plaintiff obtained his certificate before the judgment was recovered, should allege expressly that the certificate was obtained after the commission issued-quære. Guiness v. Carroll, 6 Law J. K.B. 238, s. c. 2 M. & R. 132. (V) EVIDENCE.

(a) In general.

The declarations of a party suing as assignee of a bankrupt, made before he became such, are not admissible against him. Fenwick v. Thornton, 1 M. & M. 51. [Abbott]

Declarations of the bankrupt after the act of bankruptcy, tending to shew that the commission was fraudulent: Held to have been properly admitted as part of the res gesta. Thompson v. Bridges, & Taunt. 336, s. c. 2 B. Mo. 376.

Declarations made by a bankrupt after his bankruptcy, are not admissible in evidence. Schooling v. Lee, 3 Stark. 149. [Abbott]

Books containing transactions between a creditor (to whom they belong,) and the bankrupt, are not admissible, if the former is availing himself of the benefit of the commission. Ex parte Woolley, 1 G. & J. 395.

Semble-That a letter, written by a bankrupt before the commission issued, though after the act of bankruptcy, is admissible in evidence, in support of the petitioning creditor's debt;-but, on motion, the Court granted a rule to shew cause. Sanderson v. Laferest, 1 C. & P. 46. [Burrough]

An account stated by the assignees of a bankrupt, is not supported by an admission by a defendant, that he has received money from the bankrupt after an act of bankruptcy. Stafford v. Clark, 1 C. & P. 403. [Best]

In an action by the assignees of a bankrupt, to support the act of bankruptcy, the bankrupt may allow his attorney to give in evidence privileged communications made before the bankruptcy. Merle v. More, 1 R. & M. 390. [Best]

An admission by a debtor of the right of the assignee of a bankrupt, dispenses with the necessity of giving the usual proofs in support of the commission; as where such debtor, on being applied to for payment, said, I will call and pay the money." Pope v. Monk, 2 C. & P. 112. [Abbott]

An entry in a bankrupt's ledger is evidence, though the witness, who produces it, did not make the entry himself. Hawkins v. Howard & Gibbs, 1 C. & P. 222. [Gifford]

Examinations of parties before commissioners of bankrupt, are evidence in actions against them by the assignees, unless such examinations were obtained by imposition, or under duress. Robson v. Alexander, 6 Law J. C.P. 111, s. c. 1 M. & P. 448.

In an action brought by a bankrupt's assignees, a letter written by the defendant entitled in the cause, is not such an acknowledgment of their title as as

BITUBER, DE MIS Tender it unnecessary to produce the COMMUSHDI RUĆ the subsequent proceedings. Lanse. Zerier, 3 Law J. K.B. 265.

The Hóti section of the bankrupt act, 6 Geo. 4, c. 20 with exarts, that the proceedings in bankruptcy etal but de receved in evidence, unless the same eval inte den frst entered of record, does not dispesse with prosť sé the execution of the assignment. Limers. T. bere 2 Y. &c J. 5.

Luder the Timbert, of the bankrupt act, 6 Geo. 4, 4.34. a tend *de payment made by a bankrupt more than two months before the issuing of the commisBuds, the retester having no notice of an act of bankTustry, 28 protected; and the fact of his knowing the texarupt to be in difficulties, makes no difference. As acmusica by a party in his examination before commoners of bankrupt, that he has received a w of money belonging to the bankrupt after an act of bankruptcy, is not evidence of an account stand with the assignees; and the most that an examination before the Commissioners does, is to make out a prima facie case for the assignees, that the party has so much of the bankrupt's money in Lis Lands, so as to call on him for an explanation ; but if there be no count for money had and received to the use of the assignees, they must be nonsuited. Tucker v. Barrow, 3 C. & P. 85. [Tenterden]

If one buys goods of a bankrupt under such circumstances as will entitle his assignees to maintain trover for them, such buying is in itself a conversion, and the assignees need not adduce evidence of a demand and refusal. Yates v. Carnew, 3 C. & P. 98. [Tenterden]

(b) Notice to dispute.

Where the notice of disputing the act of bankruptcy only has been given, the plaintiffs are bound to prove the petitioning creditor's debt; and, as it appeared a doubtful one on the face of the deposition, the Court would not grant a new trial on the ground of surprise. Andrews v. Mercer, 1 Law J. K.B. 78.

If assignees sue under a commission of bankrupt issued between the 2d of May, and 1st of September 1825, the formal proofs of the commission must be made out, whether notice has been given or not. Giles v. Powell, 2 C. & P. 259. [Littledale]

A notice to assignees, under the 6 Geo. 4, c. 16, 8. 90, must state what particular ingredient in the bankruptcy will be disputed-whether the trading, the act of bankruptcy, or the petitioning creditor's debt, or all of them, enumerating each. A notice that the "bankruptcy" would be disputed, was held to be too general; and not to put the assignees to proof in support of the commission. Trimley v. Unwin, 5 Law J. K.B. 218, s. c. 6 B. & C. 537.

If notice of disputing an act of bankruptcy be served on the clerk of the assignee, at his counting house, that is a good service of it. Widger v. Frowning, 2 C. & P. 523, s. c. 1 M. & M. 27. [Abbott]

In an action by the assignee of a bankrupt, a plea was delivered to the plaintiff's attorney by a clerk of the defendant's attorney, who, through mistake, omitted to deliver with it a notice to dispute the bankruptcy. A few hours after, as soon as the omission was discovered, the plea was fetched away on the pretence that there was some error in it; and,

in the ecurse of the same day, a fresh plea was delivered, accompanied by a notice: It was held, at Nisi Prius, that, although the time for pleading had not expired, the notice was not sufficient under the 90th section of the 6 Geo. 4, c. 16; but the Court of Common Pleas, under the circumstances, granted a new trial, on payment by the defendant's attorney of the costs as between attorney and client. Lavrence v. Crowder, 6 Law J. C.P. 123, s. c. 1 M. & P. 511, s. c. 3 C. & P. 230.

It cannot be considered at Nisi Prius, whether the defendant's attorney has agreed to accept a notice to dispute which had been delivered after the time mentioned in the act of parliament. Folks v. Scudder, 3 C. & P. 252. [Best]

In an action brought by the assignees, unless notice to dispute the bankruptcy has been given, not only will they not be required to adduce proof in support of the commission, but no proof will be received against it. Bernasconi v. Earl of Glengail, 6 Law J. K.B. 26, s. c. 1 M. & R. 326.

There is not any necessity for putting in the proceedings as evidence, where there is no notice to dispute the commission. Beran v. Lewis, 2 G. & J. 245.

In an action by the assignees of a bankrupt, where no notice of disputing the commission has been delivered, the depositions under the commission are not, by the 49 Geo. 3, c. 121, made conclusive evidence. Cooper v. Machin, 2 Law J. C.P. 66, s. c. 1 Bing. 426, s. c. 8 B. Mo. 536.

In an action by assignees of a bankrupt for a demand for which the bankrupt, if solvent, might sue, the depositions are conclusive evidence of the matters contained in them, unless the bankrupt, within the time prescribed by the statute 6 Geo. 4, c. 16, s. 92, gives notice of his intention to dispute the commission, although the action was commenced, and notice given by the defendant that he would dispute the act of bankruptcy, &c. within the time allowed to the bankrupt to give such notice, if the cause be not brought to trial till after that time is elapsed. Earith v. Schroder, 1 M. & M. 24. [Abbott]

Where, in an action by a person against whom a commission had issued, against his assignees, for assaulting him, and entering his house, they produced the proceedings before the commissioners, to shew that they had been appointed assignees; on which the plaintiff's counsel examined them, and raised an objection to the petitioning creditor's debt: Held, that he had no right to do so, the plaintiff having given no notice to the assignees that he intended to dispute any of the proceedings under the commission. M'Beattie v. Cooke, 5 Law J. C.P. 26, s. c. 4 Bing. 34.

If a person, who is in fact assignee of a bankrupt, be sued in trover, and it appear that he claims the goods as property belonging to the bankrupt; in making out this defence, be need not give evidence of the trading, &c. unless there has been notice of disputing the commission, although he be not, in point of form, sued as assignee. Newport v. Hollings, 3 C. & P. 223. [Vaughan]

(c) Of the Debt, Trading, and Act of Bankruptcy.

An acknowledgment by a bankrupt of the petitioning creditor's debt, in a conversation, which took place between him and a third person, after the act