fied a falsehood, the truth of which the sheriff would otherwise have no opportunity of controverting. The deft. must prove the fact of his appearance by production of the record; as, the roll, showing the recognisance of bail, the filacer's book, the bail-piece, &c., according to the practice of the court in which the action is brought.

No Process against Principal.] Plt. must be prepared to prove this by production of a transcript of the writ taken from the record, and prove it by a witness, who has compared it with the original, or who has examined the copy, whilst another read the original: M'Neil v. Perchard, 1 Esp. Rep. 263; Rolf v. Dart, 2 Taunt. 52; Reid v. Margison, 1 Camp. 470.

That there was no such Process stated in Declaration against Principal.] The plt.'s evidence in support of this plea will be similar to the last. Under it deft. may take advantage of a variance: see ante, 188, post, 196.

No Affidavit.] If deft. pleads there is no affidavit of the cause of action filed, plt. should produce and prove an office copy in the usual way: see "Affidavit;" 2 Moo. 62; Webb v. Hearne, 1 B. & P. 280; Whiskard v. Wilder, 1 Burr. 330. The original affidavit must be produced, if the declaration state it to have been made by any particular person: Webb v. Hearne, 1 B. & P. 281; 2 Moo. 61.

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Debt levied on Principal.] The burden of proof on this plea lies on deft.: post, 197.

Ease and Favour.] The burden also of proof in this plea lies on deft: see post, 197. Plt. should be prepared to disprove the plea by showing the time of execution of the bonds.

Plea denying Assignment.] In proving this plea, it must be shown that the injunctions of 4 An. c. 16, s. 20, were strictly complied with: that it was done in the presence of two competent witnesses, by the sheriff, or other officer, putting his hand and seal to it. It is sufficient, therefore, if the under-sheriff does it in the name of the high-sheriff; and there is no necessity to prove his appointment, as it will be presumed that the under-sheriff has authority so to do, virtute officii, Doe d. James v. Brawn, 5 B. & A. 243; and, in the case of an assignment of a replevin-bond, it was held sufficient, though neither done by the sheriff or under-sheriff, but a person accustomed to act in the sheriff's office: Middleton v. Sandford, 4 Camp. 36. In Kelson v. Fagg, 1 Str. 60, it is stated, that the assignment could not be done by the under-sheriff's clerk; but, in a later case, where it appeared in evidence that the bond had been assigned to the plt. by one of the under-sheriff's clerks, L. Mansfield was of opinion that the seal to the assignment, being the seal of office, was sufficient to prove its validity, whoever signed it: Harris v. Ashley, 1 Selw. N. P. 586.

Sum Recoverable.] The amount which the plt. is entitled to recover is not limited to the sum sworn to and costs, but the bail are liable to pay the plt. the whole debt, for which the plt. might have had judgment against the original deft., to the full extent of the penalty in the bond: Orton v. Vincent, Cowp. 71; Mitchell v. Gibbons, 1 H. Bla. 76; Peters v. Morgan, 2 Ld. Raym. 1564; 1 East, 91, n.; Stevenson v. Cameron, 8 T. R. 29. And, it seems, that where bail are let in upon terms to try the cause, the money levied to abide the event, and the bail-bond to stand as security, the bail are not liable beyond the penalty, though the debt and costs exceed it after the trial, and the plt.'s debt would have been fully covered when the bail were first let in to try upon terms: 2 Smith, 364. Each of the bail are liable for his own costs, as well as to costs in the first action: 2 Saund. 61, n.

Evidence for Defendant.

Non est factum.] The burden of proving the bond, as we have seen, lies on the plt. If deft. has any evidence in disproof, he should adduce it; and if deft. has any other matter of defence under this plea, which we have seen may be given in evidence under it, he should adduce such evidence accordingly. If there be a variance, plt. will be nonsuited under this plea. As to evidence that the bond was taken after the returnday of writ, see post, 197, evidence under "Ease and Favour." As to evidence of alteration, ante, 76. See "Bond," " Coverture," " Lunacy," "Drunkenness."

Comperuit ad Diem.] This plea is to be tried by the record of appearance, Austen v. Fenton, i Taunt. 23; the proof of which lies on deft.: ante, 195.

No such Process as stated in Declaration issued against Principal.] Plt. must prove the process. Under this plea deft. may avail himself of any variance in the writ, and that stated in declaration: as to what a variance, ante, 188, as, if it appear that the writ alleged in the

*

declaration and that produced were returnable on different [*197] days, or in different courts, &c.: Bonfellow v. Steward, 3 Moo.

214; Baker v. Newbegin, R. & M. 93; Impey v. Taylor, 3 M. & S. 166; ante, 188. But any trifling informality or variance in the writ, as to the description of the plea. &c., or of the time or place of appearance stated in the condition of the bond, &c., will not be prejudicial: Luckett v. Plummer, 2 B. & B. 659; 5 Moo. 538, s. c.; Owen v. Nail, 6 T. R. 705; 2 Show, 51; Cro. J. 286.

Debt levied on Principal.] The deft. must in this case prove the fieri facias and levy, as stated in his plea: see "Writ;" see form of plea, 3 Chit. Pl. 980.

Ease and Favour.] If issue be taken on the due execution of the bond, under this plea, slight evidence will suffice, prima-facie, to support it: 1 Sid. 384; 1 Saund. 163, n. The deft. must support his plea

by proving the exact day the writ was returnable, and showing that the bond was executed previous to that time. In order to prove the issuing and return-day of the writ, an office-copy should be produced in evidence. It is not sufficient to produce the præcipe in the filacer's book, and to prove a notice to produce the writ, unless it be shown that search has been made at the Treasury, and that, subsequent to the return-day, the writ has been seen in the possession of the opposite party: Edmonstone v. Plaisted, 4 Esp. Rep. 160; Petersdorff on Bail, 264.

BANK NOTE.

See Index, "BANK NOTE."

BANKRUPT.

UNDER this title will be considered the pleadings and evidence-I. In actions by assignees of a bankrupt; II. In actions against assignees; III. In actions by bankrupt; IV. In actions against bankrupt.

I. ACTIONS BY ASSIGNEES.

Form of Remedy, 198.

Assumpsit, Debt, Covenant, 198-9.

Trover, Trespass, Ejectment, &c., 199-200.
Pleas, 201.

Form of Pleadings, ib.

Declaration, ib.

Plea, 203.

Precedents, ib.

Indebitatus Assumpsit, ib.
Trover, 205.

Evidence for Plaintiff, ib.

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Title to Sue, 206 to 207.

Mode of proving Title, 208.

Notice to dispute Commission, &c., ib.
Commission, ib.

Assignment, 209.

Bargain and Sale, ib.

When Depositions conclusive Evidence, ib.
Petitioning Creditor's Debt, 211 to 215.
Trading, 215 to 221.

Act of Bankruptcy, 221, &c.

* Cause of Action, 236-To recover Personal Property, ib.Debts, Choses in Action, &c., ib.-Property in Possession of Bankrupt as reputed Owner, 237-Property delivered in Contemplation of Bankruptcy, 238—Pro

perty delivered Voluntarily, without Consideration,239— Property seized under an Execution-Property stopped in Transitu, 240-Property claimed by Lien, ib. Evidence for Defendant-Disputing Title-Payments, &c. -Set-off.

Competency of Witnesses-Admissibility in Evidence of
Depositions and Proceedings, &c.

Form of Remedy.

THE assignment and bargain and sale under the Statute of Bankruptcy vests in the assignees the bankrupt's property from the act of bankruptcy, and with it also all rights and remedies which the bankrupt had in relation to it, before such act of bankruptcy, and all rights and remedies which they, as owners in their own right, should have after such act. The form of remedy, therefore, will be the same as in other cases.

Assumpsit lies by the assignees against any person who has received money which ought to be paid to them, on the ground of an implied. privity of contract; as the party receiving the money is supposed in justice to have received the same for the use of the assignees, and to have promised to pay them: Kitchen v. Campbell, 3 Wils. 307. Thus, they may maintain an action for money had and received against a banker, for money received by him, and paid over to a creditor of the bankrupt, with knowledge of the bankruptcy; but, after having recovered it from the banker, they cannot resort to the creditor; for they cannot affirm and disaffirm the same transaction: Vernon v. Hankey, 2 T. R. 113; Vernon v. Anson, ib., 287. So, an action for money had and received lies where a creditor has levied his debt by fi. fa., subsequent to the act of bankruptcy: Hitchen v. Campbell, 2 W. Bla. R. 827; 3 Wils. 304, s. c. Where the goods of a trader, after his act of bankruptcy, are taken in custody, or otherwise disposed of, without the consent of the assignees, they may waive the tort, and proceed in assumpsit for money had and received, if the goods have been sold: ib.; Boyter v. Dodsworth, 6 T. R. 681. And it has been held it lies against a deft., who took the goods of the bankrupt in execution after an act of bankruptcy, and then took the goods under a bill of sale from the sheriff, although no money was actually paid: Reed v. James, 1 Stark. 134. It lies to recover money paid by a bankrupt by way of fraudulent preference, Edmeads v. Newman, 1 B. & C. 418, 2 D. & R. 568; also, against a person who, after the arrest, and before the expiration of the limited time of imprisonment, having had notice that a commission would be sued out against the trader, sold his goods, and paid him the produce, King v. Leith, 2 T. R. 141, 3 Camp. 186; or against a creditor residing in this country, who knew of the assignment of the bankrupt's estate, Hunter v. Potts, 4 T. R. 182, 2 H. Bla. 402; or if he knew of an act of bankruptcy committed, though before an assignment,

and attached money belonging to the bankrupt: Sill v. Worswick, 1 H. Bla. 665; Harvey v. Liddeard, 1 Stark. 128. Where a bankrupt, after an act of bankruptcy, contracted with a factor, to whom he had delivered goods for sale, and who had accepted a bill upon the strength of the goods, to return the bill if he would return the goods, and he accordingly did return the bill, it was held they might adopt the contract, and recover against the factor for the non-delivery of the goods: Butler v. Carver, 2 Stark. 433. On the other hand, assignees cannot maintain an action for money had and received against a landlord, for money paid to him for rent by the bankrupt, after an act of bankruptcy, from the landlord's being about to distrain for it; for [*199] he had a legal lien *for it upon the goods in the bankrupt's possession at the time: Stevenson v. Wood, 5 Esp. Rep. 200. Nor will an action lie for money had and received against a person who was merely the bearer of the money from a third person to the bankrupt, after the act of bankruptcy, Coles v. Wright, 4 Taunt. 198; nor will it lie for money received by a creditor in payment of a bill of exchange, endorsed to him by the bankrupt after an act of bankruptcy, though trover will, Waller v. Drakeford, 1 Stark. 481; nor will it lie for the amount of India stock transferred by a trader after an act of bankruptcy, as in that case no money has, in fact, been received: Nightingal v. Devisme, 5 Burr. 2589; Arch. B. 252. And it has been held, that the assignees cannot recover for money had and received to their use, against a person who has received money from a bankrupt before his bankruptcy, it having been paid in consideration of putting off a trial for perjury, as it was held that it ought not to be considered an illegal and corrupt agreement: Harvey & or. v. Morgan, 2 Stark. 17. And, where A. deposited policies of insurance with his bankers, as security for a debt which B., a creditor afterwards obtained, upon an undertaking to settle with the underwriters, and collect for them, B. received the amount, but A. becoming bankrupt, and indebted to him in a larger sum, he refused to pay over the money, it was held, that A.'s assignee, even with the banker's consent, could not sue B. for the breach of the undertaking: Chalmers v. Page, 3 B. & A. 697.

It should be observed, that, by declaring in assumpsit, the assignees elect to affirm the contract of the bankrupt, which is made after his act of bankruptcy, such contract being only voidable or not at their election. In some cases, where the claim is not for a mere money demand, it may be more beneficial to them to disaffirm the contract, and sue for the tort: see post, 200. We have already seen, the assignees cannot affirm as well as disaffirm the same transaction, ante, 198.

Debt may be maintained by the assignees of a bankrupt, and they may sue either in the debet or detinet, as the whole of the bankrupt's property is vested in them: Winter v. Kretchman, 2 T. R. 46. So they may sue in debt on 9 Anne, c. 14, against the winner of money lost at play by the bankrupt, Brandon v. Pate, 2 H. Bla. 308, Carter v. Abbott, 1 B. & C. 444, 2 D. & R. 575; or for the penalty against a person swearing to a false oath, Holmes v. Walsh, 7 T. R. 458.