An actual indorsement and delivery of the bill of lading is not essen tial to defeat the right of stoppage. The property may be transferred by the consignee under circumstances equivalent to an indorsement. Dick v. Lumsden, Peake, 189.; Davis v. Reynolds, 4 Camp. 267.

The rights of the parties may depend upon the state of things when the bill of lading was signed and indorsed; thus, where the consignor was indebted to the consignee on the balance of accounts, including bills of exchange, still running, accepted by the consignee for him, it was held that goods shipped on account of this balance could not be stopped by the consignor upon the consignee becoming insolvent before the bills were paid. Vertue v. Jewell, 4 Camp. 31.

While the goods remain in the hands of the vendor's agent, the right to stop them, on the insolvency of the vendee, may also be divested in other ways. Thus, where goods in the hands of a warehouseman were sold, and the vendor gave a delivery order to the purchaser, which he lodged with the warehouseman, who transferred the goods in his books into the purchaser's name, this was held to be equivalent to an executed delivery, and to divest the vendor's right; and that as to a parcel of the goods which had not been transferred, the delivery order alone was sufficient to divest the right. Harman v. Anderson, 2 Camp. 243. So where goods are lodged in dock, the indorsement of the dock warrant for a valuable consideration will divest the vendor's right; Spear v. Travers, 4 Camp. 251.; Zwinger v. Samuda, 7 Taunt. 265.; and the delivery of the warrant is sufficient without any transfer being made in the books of the dock company. Keyser v. Suse, Gow, 58. So where a warehouseman sold goods, and received warehouse rent from the purchaser, Lord Ellenborough ruled that this put an end to the right to stop, as much as if the goods had been removed to the purchaser's own warehouse. Hurry v. Mangles, 1 Camp. 452. So the change of mark from A. to B. on bales of goods in a warehouse was held to operate as an actual delivery of the goods. Lord Ellenborough, C. J., in Stoveld v. Hughes, 14 East, 308.; Swanwick v. Sothern, 9 A. & E. 895.

But where any thing is to be previously done on the part of the seller to ascertain the amount of the price, or to ascertain and perfect the specific subject of the sale (such as weighing the goods, &c.) an order for delivery may be countermanded before such previous act be done; Abbott, 379.; and the vendor may consequently stop the goods. Withers v. Lyss, 4 Camp. 237., S. C. Holt, N. P. C.; Shepley v. Davis, 5 Taunt. 617.; Busk v. Davis, 2 M. & S. 397.

Statute of Limitations.] Where the possession was originally legal, the statute runs from the demand and refusal, and no previous demand and refusal will be presumed. Topham v. Braddick, 1 Taunt. 577., per Lawrence, J. But it seems that the defendant might, under this plea, show a previous conversion more than six years ago. A jury, however, will not be directed to presume one from equivocal evidence, as from an earlier demand by the plaintiff; for this would be setting up the defendant's own wrong to defeat the action. Philpott v. Kelley, 3 A. & E. 106. Where indeed there has been no such conversion as to disable the defendant from restoring the chattel, the detention seems to be a continuing wrong, for which trover will probably lie after any

demand and refusal to re-deliver it. The action of detinue is, at all events, free from this difficulty.

Damages.] Where the defendant wrongfully detained from the plaintiff a bill for 1600/., and got 8007. upon it, yet the plaintiff is entitled to the full amount as damages. Alsager v. Close, 10 M. & W. 576. In trover for a guarantee, the plaintiff is entitled to the sum recoverable on it by him though mutilated by the defendant; and, if unstamped, the expense of stamping must be deducted. M'Leod v. M'Ghie, 2 M. &

G. 326.

Trover for coals: The action was brought to try the right to the mines, which had been worked by the defendant, and turned on the effect of an old deed. Parke B. directed the jury that if there was fraud or negligence in the defendant, they might give the full value of the coal without deduction for expenses, &c.; but if he acted honestly in a belief that he was entitled to the mines, the proper damages would be the value, as if the coal field had been bought by the defendant from the plaintiff. The jury gave for damages a certain sum per acre on the latter estimate, and the direction was acquiesced in by the plaintiff's counsel. Wood v. Morewood, 3 Q. B. 440 (n).

Although the defendant cannot, under the general issue, object that another part owner of the goods has not been joined as plaintiff, so as to defeat the action; see Bloxam v. Hubbard, 5 East, 420.; yet he may give that fact in evidence in order to reduce the plaintiff's damages to the amount of his own share. Nelthorpe v. Dorrington, 2 Lev. 113. If the defendant only pleads that he did not convert the goods, he cannot cross-examine the plaintiff's witnesses to show, in mitigation of damages, that the goods really belonged to a third person. Finch v. Blount, 7 C. & P. 478. Whether, in an action by a rightful executor against an executor de son tort, the latter may prove, in mitigation of damages, that he has paid the debts of the deceased, see post, tit. Actions by Executors.

Though a conversion cannot be purged, yet the defendant may show, in mitigation of damages, that he has returned the goods. Countess of Rutland's case, 1 Rol. Ab. 5. Special damages may be recovered in this action, if laid in the declaration. Davis v. Oswell, 7 C. & P. 804. Where defendant, a sheriff who held goods taken in execution, delivered them to the plaintiffs, assignees of a bankrupt, after trover brought against him by the plaintiffs, and the plaintiffs accepted them without condition, it was held that they could not recover more than nominal damages; at all events not without alleging special damage. Moon v. Raphael, 2 New Ca. 310.

EVIDENCE IN ACTIONS BY AND AGAINST
PARTICULAR PERSONS.

ACTIONS BY ASSIGNEES OF BANKRUPTS. In an action by the assignees of a bankrupt, the plaintiffs may be called upon to prove the bankruptcy, and the plaintiffs' title to sue.

The principal statute now in force respecting bankrupts is 6 Geo. 4. c. 16.; but material alterations in the law and practice in bankruptcy, and in the constitution of the bankruptcy courts, are contained in stats. 1 & 2 W. 4. c. 56., and 5 & 6 Vict. c. 122. Most of the cases under the following heads were decided upon the old statutes of bankruptcy, but they will be generally found equally applicable to the present state of the law.

Strict proof of title of assignees - what constitutes.] Whenever assignees are required to give strict proof of their title, they must be prepared with evidence, 1, Of the petitioning creditor's debt; 2, Of the trading; 3, Of the act of bankruptcy; 4, Of the commission or fiat; and 5, Of the assignment or appointment of the assignees.

Evidence of petitioning creditor's debt- nature and date of] The petitioning creditor's debt is to be proved in the same manner as in an action against the bankrupt himself. Abbot v. Plumbe, 1 Doug. 217. Where the debt arose on a bond, an acknowledgment of the debt by the obligor was held not to supersede the necessity of calling the attesting witness. S. C. Ib. But as the admission of the party is now held to dispense with proof of a written document, this case is perhaps questionable. See antè, p. 38.

It must appear that the debt was in existence at the time of the act of bankruptcy. Clarke v. Askew, 1 Stark. 458 (n). ́ So where the petitioning creditor's debt arises on a promissory note dated before the bankruptcy, the note, it has been said, must be proved to have existed prior to the act of bankruptcy; for the date is not even primâ facie evidence of that fact; 2 Stark. Ev. 161. ; where a contrary decision in Taylor v. Kinloch, 1 Stark. 175. is said to be erroneous. In Wright v. Lainson, 2 M. & W. 739., it was held that an I. O. U., bearing date before the bankruptcy of a trader, constituted no evidence of a petitioning creditor's debt without some proof that it was in existence before the bankruptcy; and this appears to be now settled. See the judgment in Anderson v. Weston, 6 New Ca. 296. 301.; and the observations of Lord Abinger and Alderson B., in Doe v. Milburn, 2 M. § W. 859, 860. But where a note was proved to be in existence before the docket was struck, and bore date on the face of it before the act of bankruptcy, this was considered primâ facie proof that the note was in existence before the act of bankruptcy. Obbard v. Betham, M. & M. 486.; see also antè, p. 20. So, if it can be shown that, about

the date of the bill, goods were sold of corresponding amount. Cowie v. Harris, M. & M. 141. Where the petitioning creditor is the indorsee of a bill, the indorsement must be proved to have been made before the commission (or fiat) issued; and the date of the bill affords no presumption as to the time of the indorsement. Rose v. Rowcroft, 4 Camp. 245. But the indorsement may be after the act of bankruptcy. Glaister v. Hewer, 7 T. R. 498. If the debt be proved to have existed before the act of bankruptcy, its continued existence up to the act will be presumed; Jackson v. Irwin, 2 Camp. 50.; unless there have been intermediate transactions tending to defeat the presumption. Gresly v. Price, 2 C. & P. 48.

It must appear that the debt was contracted while the party was a trader, or, if contracted before, was subsisting while he was a trader. Meggot v. Mills, 1 Ld. Raym. 286.; Bailie v. Grant, 9 Bing. 121. Where a person contracted a debt, and afterwards became a trader, and, the debt still remaining unpaid, he went out of trade, and afterwards committed an act of bankruptcy, a commission, founded on this debt and act of bankruptcy, was held to be valid. Baillie v. Grant, 1 Clark & F. 238. If there was a petitioning creditor's debt at the time of the act of bankruptcy on which a commission might have issued, and there was a petitioning creditor's debt still existing at the time of the commission, it does not signify what happened in the interim as to the payment of the first debt; the balance throughout continuing sufficient for a petitioning creditor's debt. Shaw v. Harvey, M. & M. 526.

Taking a security of a higher nature, after the act of bankruptcy, for a debt of an inferior nature contracted before, will not prevent the original debt being a good petitioning creditor's debt. Ambrose v. Clendon, 2 Stra. 1042. Nor will the fact that the debtor has become insolvent, and included the debt in his schedule. Jellis v. Mountford, 4 B. & A. 256.; Ex parte, Shuttleworth, 2 Glyn. & J. 68. And a debt upon an attorney's bill, not signed and delivered according to the statute, is sufficient. Ex parte Sutton, 11 Ves. 163.; Ex parte Howell, 1 Rose, 312. But a verdict for damages in an action for breach of promise of marriage does not, before judgment, constitute a debt. Ex parte Charles, 14 East, 197. And where the debtor is taken in execution, there is no good debt to support a commission. Cohen v. Cunningham, 8 T. R. 123. Taxed costs upon a judgment as in case of a nonsuit under a rule of court, do not constitute a good petitioning creditor's debt; being recoverable only by attachment. Ex parte Stevenson, Mon. & Mac. 263. The debt must be a legal one; therefore a promissory note made in violation of the statutes for the protection of the Bank of England cannot be proved; Ex parte Randleson, Mon. & Mac. 86.; and consequently cannot form a petitioning creditor's debt. In case of a partnership, an account rendered and balance struck will support a commission; and where A. advanced 2007. to B. to set up trade, and it was agreed that A. should have one-eighth of the profits, it was held that this advance formed a good petitioning creditor's debt. Ex parte Notley, Mont. & Ayr. 46.

Where there is only one petitioning creditor, there must be a debt to him separately, for which he alone might maintain an action at law; and therefore a commission cannot be supported on the petition of one of two partners, to whom a joint debt is due. Buckland v. Newsame,

Where the petitioning creditor is assignee of another bankrupt, and the debt is due to him in that character, and his title comes incidentally in question, strict evidence of his title as assignee must be given; Doe v. Liston, 4 Taunt. 741.; but where, in an action by such assignee, no notice to dispute had been given under the statute, the depositions under the commission were held evidence of debt due to the petitioning creditor in the character in which he claimed it, and no other evidence of the first bankruptcy was in such case necessary. Skaife v. Howard, 2 B. & C. 560. So where the petitioning creditor's debt was due to him as executor, proof of probate would not be necessary under such circumstances. Per Abbott, C. J., ib. See also Muskett v.

Drummond, 10 B. & C. 153.

Where a new petitioning creditor's debt has been substituted under 6 Geo. 4. c. 16. s. 18., it is sufficient to prove the petition to the Chancellor for the substitution, the Chancellor's order referring the sufficiency of the debt to the commissioner, and the finding of the commissioner thereon. It is not necessary to produce the Chancellor's order confirming such finding. Batchelor v. Vyse, 1 M. & Rob. 331.

Evidence of petitioning creditor's debt, amount of.] The debt of the petitioning creditor must amount, if it is to one creditor or one firm, to 501.; if to two, to 70l.; if to more, to 100.; 5 & 6 Vict. c. 122. s. 9. 100/. in notes, bought at 10s. in the pound, is a sufficient petitioning creditor's debt to the larger amount. Ex parte Lee, 1 P. Wms 782. Where a creditor to the amount of 112. after notice of an act of bankruptcy received 50l., it was held that, as that payment was void, there was still a good petitioning creditor's debt. Mann v. Shepherd, 6 T. R. 79.; 1 Buck, 283.

Evidence of petitioning creditor's debt — admission of bankrupt.] The admissions of the bankrupt himself are frequently given in evidence to establish the petitioning creditor's debt. Thus an entry in the bankrupt's books; Watts v. Thorpe, 1 Camp. 376.; or an account signed by him, charging himself, Hoare v. Coryton, 4 Taunt. 560.; is sufficient evidence of the debt, provided it be shown that the entry, or account, was made before the act of bankruptcy. An admission by the bankrupt of the debt, made after the act of bankruptcy but before the issuing of the commission, is not evidence. Smallcombe v. Bruges, M'Clel. 48., S. C. 13 Price, 136. But where the debt was founded on a bill of exchange of which the bankrupt was drawer, it was held that the bankrupt's declaration, made after the act of bankruptcy and before the commission, that the bill would not be paid, was admissible evidence to supply the proof of notice. Brett v. Levett, 13 East, 213.

Evidence of petitioning creditor's debt - bills of exchange, and debts due on credit.] As a bill of exchange is a debt from the date of it as against the drawer, it is a sufficient petitioning creditor's debt, though not indorsed to the creditor till after an act of bankruptcy. Macarty v. Barrow, 2 Stra. 949.; Glaister v. Hewer, 7 T. R. 498. But if the creditor be indorsee, it must appear that the bill was indorsed to him before the commission issued. Rose v. Rowcroft, 4 Camp. 245.;