others, assignees of Wilson, v. Murray, 1 Camp. 335. Ellenborough, C. J. 1808. 68. The petitioning creditor's debt is sufficiently proved by entries in the bankrupt's books, posted by himself, before the act of bankruptcy. Watts and others, assignees, &c. v. Thorpe, 1 Camp. 376. Ellenborough, C. J. 1808. 73. The petitioning creditor is liable for the messenger's charges, and not the solicitor who immediately employs him. Hart v. White, Holt, 376. Gibbs, C. J. 1816. And see Hartup v. Jukes, 2 M. and S. 438. 74. Where, in an action by assignees, the defendant gives no notice under 49 69. Notwithstanding the 46 Geo. 3. Geo. 3. cap. 121, s. 10, of his intention cap. 135, sect. 5, it is necessary that the to dispute the petitioning creditor's petitioning creditor's debt should have debt, the debt is sufficiently proved by existed at the period of the act of bank-the deposition of the petitioning creruptcy; and it is not sufficient that it ditor himself, appearing on the face of accrued previously to the issuing of the the proceedings; though, if such notice commission. Elias Moss v. Smith, esq. had been given, he would not have been and another, Sheriff of Middlesex, 1a competent witness to support the comCampb. 489. Ellenborough, C. J. mission viva voce. Bisse and others, assignees of Stokes, v. Randall, 2 Campb. 493. Lawrence, J. Monmouth, 1810. 1808. And the court of K. B. refused a rule for a new trial. Ibid. And see Wydown's case, 14 Ves. 80, 3. Beardmore v. Shaw, 1 N. R. 263. But it is sufficient that such debt vests in the petitioning creditor before the commission is sued out. Bingley v. Maddison, Co. B. L. 24. B. R. M. 1783. ante, 58, post. 78, 79. 75. 5 Geo. 2. c. 30. s. 45. as to taxation, by a Master in Chancery, applies only to the protection of the bankrupt's estate, and not to the attorney's right against his employers. Tarn, Gent. v. Heys, 1 Stark. 278. Gibbs, C. J. 1816. 76. Costs of messenger's journey to 70. Therefore where the debt is a bill the Isle of Man, held not recoverable drawn by the bankrupt in favour of A., against petitioning creditor without a and indorsed to the petitioning creditor, special contract. Billings v. Waters, it must be shewn to have been so in-1 Stark, 363. Ellenborough, C. J. dorsed before the suing out of the com- 1816. mission. Rose and another, assignees of 77. A promissory note, bearing date Clausey, a bankrupt, v. Rowcroft, 4 before the bankruptcy, is prima facie Campb. 245. Gibbs, C. J. 1815. evidence of a debt precedent to bankruptcy. Taylor v. Kinlock, 1 Stark. 177. Ellenborough, C. J. 1816. 71. An entry in a trader's book, made some months before an act of bankruptcy, is prima facie evidence of a debt, subsisting at the time of the bankruptcy. Jackson and others, assignees of Robinson, v. Irwin and others, 2 Campb. 49. Ellenborough, C. J. 1809. Acc. Ewer v. Preston, Cases temp. Hardw. 378. And see EVIDENCE, I. (b) 78. But no letter or declaration of the bankrupt, after the bankruptcy, is admissible, in confirmation of the date. Ibid, ante, 58, 68, 69. 79. But a deposition stating the debt to be due before and at the time of the issuing of the commission is sufficient. Clark and others, assignees of Beverley, v. Askew, 1 Stark. 458. n. Bayley, J. Durham, 1816. 72. By 5 Geo. 2. cap. 30, s. 25, the petitioning creditor is made solely liable to the payment of the expenses incurred, And the court of K. B. discharged in suing out and prosecuting the com-a rule for setting aside nonsuit. Ibid. mission, until assignees are chosen. 80. Petitioning creditor is liable to Where, therefore, the petitioning cre- the messenger for necessary expenses ditor is appointed co-assignee, an action only, except by special contract. Billings for these expenses will not lie against all v. Waters, 1 Stark. 363. Ellenborough, the assignees jointly. Finchett, gent. C. J. 1816. one, &c. v. How and Jarratt, 2 Campb. 275. Ellenborough, C. J. 1809. D. COMMISSION. D. (a) Under what circumstances valid. the demise of the bankrupt against the assignees. Doe d. Hunter, et alt. v Boulcott et alt. 2 Esp, 595. Eyre, C. J. 1798. 89. But it has since been determined, 81. A commission may be supported that neither the bankrupt, nor any one on an act of bankruptcy, intelligence of claiming under him, can set up a prior which could not have reached London act of bankruptcy. on the day the commission issued. alt. 3 Esp. 219. Hopper v. Richmond, 1 Stark. 507. stone, 1800. Ellenborough, C. J. 1816. 82. An antecedent act of bankruptcy will not defeat a commission, without proof of a subsisting debt, capable of supporting a commission. Parker v. Manning, 2 Esp. 598, n. Kenyon, C. J. 1798. 83. S. P. ruled in Miles and another v. Rawlyns and another, Sheriff of Middlesex, 4 Esp. 194. Ellenborough, C. J. 1802. Mercer v. Wise et Kenyon, C. J. Maid Acc. Donovan v. Duff, 9 East, 21, 2. Rex v. Bullock, 1 Taunt. 80, 6, 94. 90. A person declared a bankrupt does not preclude himself from contesting the legality of the commission, by surrendering under it. Ibid. Acc. ex-parte Jones, 11 Ves. 409. 91. Nor by the formal words of a petition for enlarging the time for his surrender, stating that he has been duly declared a bankrupt. Ibid. 92. Secus, where he obtains his discharge out of custody in an action by a judge's order, on the ground of his And see Donovan v. Duff, 9 East, 21. 84. And it was doubted, whether even this double proof ought to be considered sufficient, without shewing a prior com- bankruptcy. mission actually sued out. Ibid. Sed vide the opinion of Eldon, C. in Rex v. Bullock, 1 Taunt. 72, 88, and 14 Ves. 452, 67. Beardmore v. Shaw, 1 N. R. 263. 85. Act of bankruptcy at Doncaster, 21st July. Commission dated 22d July. And held, that where the act is in fact prior to the commission, the time in which the news of it would reach London need not be inquired into. Hopper v. Richmond, 1 Stark. 507. Ellenborough, C. J. 1816. D. (b) By whom it may be impeached. Goldie v. Gunston and others, 4 Campb. 381. Ellenborough, C. J. 1816. 93. Semble, that on an indictment for perjury by a bankrupt, in passing his last examination, it is necessary to go into strict proof of the bankruptcy. Rex v. Punshon, 3 Campb. 96. Ellenborough, C. J. 1811. D. (c) How contested. 94. Evidence may be given to defeat the certificate, though it may indirectly have the effect of impeaching the conmission. Bateson v. Hartsink, et alt. 4 Esp. 43. Kenyon, C. J. 1801. 95. Defendant pleaded to an action at 86. Proving under the commission, the suit of assignees, before 49 Geo. 3. does not estop a creditor from impeach-cap. 121, sect. 10. Held, that the deing the commission in an action brought fendant not having applied for leave to against him by the assignees. Stewart withdraw his plea, and plead de novo, et al. assignees, v. Richman, 1 Esp. 108. could not compel the plaintiffs to prove Kenyon, C. J. 1794. the trading, &c. Wilcock, assignee of 87. S. P. Cont. per Lord Mansfield in Westmacott, v. Smith, 2 Campb. 184. Walker v. Burnell, Dongl. 305 (319) Ellenborough, C. J. 1809. and in Collins v. Forbes, 3 T. R. 322;1 96. S. P. ruled in Clarkson v. Dadds, Mansfield, C. J. S. P. acc. Hope v. Fletcher; Selw. 238.2 Campb. 184, n. Nor is it even prima facie evi-1809. dence; Rankin v. Horner, 16 East, 191. 97. The statute extends to cases 88. Proof of an antecedent act of bank-where servants of the assignees are joined ruptcy, and of a debt upon which a com-with them in the action. Gilman v. Cumission might have issued, was ruled to sins and three others, 2 Stark, 182. Baibe sufficient to support an ejectment on ley, J. 1817. 98. The notice of disputing the vali- 105. And if the notice refers only to dity of the commission, is not to be con- the act of bankruptcy, and depositions sidered as part of the defendant's case, on the file of the proceedings are read to but may be proved as soon as the assig-prove the trading and petitioning credinees attempt to make out a prima facie tor's debt, the whole of the proceedings case by producing the commission. De are not to be considered in evidence. Charme and Waine, assignee and assig- Bluck v. Thorne and another, 4 Campb. nees, v. Lane, 2 Campb. 324. Ellen- 191. Ellenborough, C. J. 1815. borough, C. J, 1809. 106. To entitle the plaintiff to inspect 99. A defendant who has pleaded other depositions, he must call for them without notice to dispute, cannot, even as part of his case. Ibid. before the time for pleading has expired, redeliver his plea with notice. He must move to withdraw his plea, and E. OPERATION OF THE ASSIGNMENT plead de novo. Poole, assignee of Lukin, v. Bell and another, 1 Stark. 328. Ellenborough, C. J. 1816. UPON PROPERTY IN THE HANDS OF E. (a) As vendee. 107. If A. deliver goods to B. upon a 100. Though the statute requires the notice by a defendant to be given "" at or before the time of his pleading to the action," yet where the defendant with-contract of sale, the property is changed draws his plea, and pleads de novo, notice given with the second plea will be sufficient. Ibid. 101. Notice by a plaintiff to dispute bankruptcy, served at the time when the issue is delivered with notice of trial, is too late. Richmond v. Heapy and another, 4 Campb. 207. Ellenborough, C. J. 1815. And see Manning's Exchequer Prac. 272. by the delivery, though the goods were obtained by B. with intent to defraud A.; therefore the latter cannot take them back after an act of bankruptcy. Milward, assignee of Gates, v. Forbes, 4 Esp. 171. Ellenborough, C. J. 1802. 108. An uncertificated bankrupt takes a shop in his own name, and orders goods in the name of his son, who lives with him: the goods are principally supplied on the guarantee of the father. 102. Where no such notice has been Held, that the son might sue the assiggiven, the bankruptcy is sufficiently nees for seizing the goods. Davis v. proved by putting in the proceedings un- Living and others, Holt, 275. Gibbs, der the commission, and shewing that C. J. 1816. they came out of the hands of the solicitor; or where the solicitor has been changed, by proving the signature of one of the commissioners. Collinson and another, assignees of Newman v. Hillear, 3 Campb. 30. Ellenborough, C. J. 1811. 103. But the court is not concluded from saying that the proceedings do not disclose a sufficient act of bankruptcy. Brown and another, assignees of Riorden v. Forrestall and another, Holt, 190. Gibbs, C. J. 1816. 104. In an action of trespass, brought by the bankrupt against his assignees for the purpose of trying the validity of the commission, this notice is necessary, although the defendants are not described as assignees on the record. Simmonds v. Knight and another, 3 Campb. 251. Ellenborough, C. J. 1812. E. (b) As indorsee. 109. A., upon false pretences, obtains a bill from B., and his assignees receive the amount. This is money had and received by the assignees to B.'s use. Harrison v. Walker and another, assignees, &c. Peake, 111. Kenyon, C. J. 1792. And see Willis y. Freeman, 12 East, 656. 110. Bills discounted by bankers, who credit the customer for the amount, after deducting the discount, pass to their assignees, although the balance of accounts was in favour of the customer. Carstairs and others, assignees of Kensington and Co. v. Bates, 3 Campb. 302. Ellenbo◄ rough, C. J. 1812. And see Tooke v. Hollingworth, 5 T. Jner, the interest of B., the dormant HARVARD E. (d) As trustee. E. (c) As reputed owner. LAW SCHOOL 117. The payees of a bill delivered it 111. Assignees cannot maintain tro-over for a valuable consideration, but for-ARY. ver for a ship of which bankrupt was got to indorse it. After the bankruptcy never the registered owner, although de- one of them indorsed the bill. The in fendant claims under the bankrupt. Tay-dorsement was held regular. Smith v. lor v. Kinloch, Stark. 177. Ellenbo- Pickering, Peake, 50. Kenyon, C. J. rough, C. J. 1816. 112. The property in goods sent by wholesale dealers to a shopkeeper, on sale or return, vests in his assignees. Livesay v. Hood and others, assignees of Almond, 2 Campb. 83. Lawrence, J. 1809. 113. S. P. Gibson v. Bray and another, 1 Holt, 556. Gibbs, C. J. 1817. See Holroyd v. Gwynne, 2 Taunt. 176, 9; Godfrey v. Furzo, 3 P. Wms. 185; Mace v. Cadell, Cowp. 233. 1791. S. P. ex-parte Greening, 13 Ves. 206+ 118. So where a bill was delivered 114. Under a fi. fa. against a trader, the sheriff (of Cumberland) makes out a warrant, directed to the trader's shop-] 119. Possession by the bankrupt, of man and another person, by whom the goods which come to his wife as admibusiness is conducted in the usual way, nistratix, where some of the next of kin but without the interference of the tra- are infants, will not vest the property in der, who, on the following day, com- the assignees. Viner, administratrix, v. mits an act of bankruptcy. This is a Cadell, 3 Esp. 88. Eldon, C. J. 1800. continuation of the possession of the 120. But if she takes a beneficial inmaster, and the goods pass to his assig-terest in the property, her own share nees. Jackson and others, assignees of passes to the assignees, who become Robinson v. Irwin and others, 2 Campb. tenants in common with her in her re48. Ellenborough, C. J. 1809. presentative capacity. Ibid. And see Horn v. Baker, 9 East, 215; Thackthwaite v. Cock, 3 Taunt. 487. 115. So where the warrant is directed to a regular officer who enters. Toussaint v. Hartop, Holt, 335. Gibbs, C. J. 1816. 121. A lease is deposited as a security, but no assignment is executed. Semble, that the equitable interest of the pledge is not of such a nature as to reduce the estate of the pledgor to a naked trust, which would not pass to his assig116. Evidence of reputed ownership nees. Doe d. Maslin, et alt. assignees of in the bankrupt may be rebutted by evi-W. Smith, v. Roe, 5 Esp. 105. Ellendence of a contrary reputation of owner-borough, C. J. 1804. ship in the true proprietor. Gurr v. And see Carpenter v. Marnel, 3 Bos. Rutton, Holt, 327. Gibbs, C. J.. 1816. and Pul. 40; Russell v. Russell, 1 Bro. N. And where the joint-stock in trade C. C. 269; Arden v. Watkins, 3 East, of A. and B. is in the possession of A. 317; ex-parte Wetherell, 11 Ves. 398, alone, who is the only ostensible part-401; ex-parte Haigh, ibid. 404; · ́er parte Finden, ibid, 405; Norris v. Wil- | 127. Secus, where the other assignees kinson, 12 Ves. 192; ex-parte Mountfort, have expressly dissented. Bristow and 14 Ves. 606; ex-parte Tayler, 16 Ves. others, assignees of Clark and Gilson, v. 434; ex-parte Langston, 17 Ves. 227; Eastman, 1 Esp. 172, 4. Kenyon, C. J. S. C. 1 Rose. 26; Williams v. Everett, 1794. 14 East, 594; ex-parte Kensington, 2 V. and B. 83. E. (e) Where no beneficial interest. 128. A release executed by one assignee, in the presence of a co-assignee, binds both. Williams v. Walsby, 4 Esp. 220. Ellenborough, C. J. 1802. Acc. Lord Lovelace's case, W. Jon. 268. Ball v. Dunsterville, 4 T. R. 313. And see Anon cited in 2 Freeman, 215. Bowyer v. Peake. 129. But if the co-assignee be absent, there must be an authority under seal. Ibid. Harrison v. Jackson, 7 T. R. 207, acc. F. (b) Actions by assignees. 122. An accommodation acceptance in the hands of the drawer does not pass to his assignees; it may therefore be indorsed by him for value after an act of bankruptcy. Wallace v. Hardacre, 1 Campb. 46. Ellenborough, C. J. 1807. Acc. Willis v. Freeman, 12 East, 656. 123. A policy of insurance effected by a trader on his own life, passes to his assignees, unless they expressly renounce their claim to it. Schondler and an130. Where a party has sold goods, other, assignees of Davis, v. Wace, 1 however much under value, his assignees Campb. 487. Ellenborough, C. J. 1808. cannot recover the difference as money 124. Where the assignees of a bank- had and received to their use. Hogg rupt termor put up the lease for sale, and others, assignees, v. Mitchell, ̃ĭ and receive a deposit from a purchaser, Stark. 241. Ellenborough, C. J. 1816. they are liable as assignees of the lease, unless they shew that the contract of sale has been rescinded. Hastings and others v. Wilson and others, Holt, 290. Gibbs, C. J. 1816. E. (f) Upon partnership property. 131. Qu. whether, after the removal of one assignee, for not accounting for monies received by him, the remaining assignee may have an action for money had and received for the amount. Wray, assignee, &c. v. Barwis, Peake, 69. Kenyon, C.J. 1791. 132. S. P. raised, and the action considered to be maintainable at nisi prius, 125. A transfer of partnership pro-and by the court, upon an application perty, after an act of bankruptcy by one for a new trial, though nothing was departner, is valid for a moiety. Whitwell cided on this point. Smith and others, and others, assignees of Stevens and Hat-assignees of Lewis and Potter, v: Jameson terley, v. Thompson, 1 Esp. 68, 72. and another, Peake, 213. Kenyon, C. Kenyon, C. J. 1793. Sed vide Ramsbottom v. Lewis, post, G. (c) 177. J. 1794. S. C. 5 T. R. 601, 3. 133. A debtor cannot resist payment on the ground that he has notice that the creditor is insolvent, and that he is consequently liable to be called upon again by the assignees, in case it should appear that an act of bankruptcy had been committed. Prickett and Carruthers, and others, assignees of Halliday, v. Down and others, 3 Campb. 131. Ellenborough, C. J. 1811. S. P. per Grant, M. R. 14 Ves. 557. Secus, of an executory contract, Reader v. Knatchbull, 5 T. R. 218 n; Partridge v. Sowerby, 3 Bos. and Pul. |