rupt, there was a sufficient consideration; a debt was created to the bankrupt which was transferred to the assignees by the statute; and this was evidence of a promise to the assig nees so as to entitle them to this demand, standing in the place of the bankrupt.

The plaintiffs, in their original writ, described themselves as assignees of A., and also as assignees of B., there not being any joint commission against the two, and declared in several counts for goods sold and delivered by both the bankrupts, and also for goods sold by each of the bankrupts. A verdict was found for the plaintiffs, and the damages were assessed severally on the separate counts. On a motion in arrest of judgment, the court were of opinion that the assignees might recover as much as the bankrupts themselves might jointly have recovered; therefore as the damages were assessed severally, they might enter up their judgment on the count for the joint demand (41).

Agreeably to this determination, where the plaintiffs sued as assignees of A. and B., and also as assignees of C., for a joint demand due to all the bankrupts, the declaration was holden good on motion in arrest of judgment.

Actions against Assignees.-Formerly when a dividend was declared, it was considered that a right of action against the assignees accrued to every creditor for his proportion, and it was holden that assumpsit might be maintained against the assignees of a bankrupt by a creditor for his share of a dividend, under an order of the commissioners (42); and in such action the proceedings before the commissioners were conclusive evidence of the debt (43), and the assignees could not set off a debt due from the plaintiff, for the sum proved

o Hancock v. Haywood, 3 T. R. 433. recognized by Ld. Ellenborough C. J. in De Cosson v. Vaughau, 10 East, 65.

p Streatfield v. Halliday, 3 T. R. 779. q Brown v. Bullen, Doug. 407. per Kenyon C. J. 6 T. R. 549. S. P.

(41) If the verdict had been entered generally, the judgment must have been arrested; because the court were clearly of opinion that the counts for the separate demands were improperly joined.

(42) After a debt is liquidated before the commissioners, it cannot be litigated, but by an application to the great seal. Per Cur. Doug. 409.

(43) The only way to question the proof of the debt taken by the commissioners is by petition to the chancellor. Per Lord Mansfield C. J. Doug. 408. ́

must be taken to be the balance due; but now, by stat. 49 G. 3. c. 121. s. 12. no action shall be brought by any creditor who has proved any debt under any commission of baukrupt, against the assignees of the estate of such bankrupt, for the amount of any dividend declared by the commissioners: but in cases of refusal by the assignees to pay such dividend, the creditor entitled to the same may petition the Ld. Chancellor, Ld. Keeper, or Lords Commissioners for the custody of the Great Seal, who, on hearing such petition, may not only order the payment of such dividend, but also in all cases in which it shall appear that the justice of the case shall require it, may order payment of interest for the time that such dividend shall have been withheld, and of the costs of the application.

A certificated bankrupt cannot maintain assumpsit' against his assignees for his allowance under stat. 5 G. 2. c. 30. s. 7. (his estate having paid 10s. in the pound) if it appear that his certificate was not allowed before payment of the dividends.

VII. Of Actions by the Bankrupt.

AN uncertificated bankrupt has a special property in goods acquired by himself after his bankruptcy, and may maintain trover for them against strangers.

So if an order for the delivery of goods, belonging to A., but in the possession of B., be given by A. to an uncertificated bankrupt, in payment of a debt due from A. to the bankrupt after his bankruptcy, and B. refuses to deliver the goods, the bankrupt may maintain trover against him (44).

In cases of this kind, however, the bankrupt can recover only where the assignees do not interfere", for the general assignment of personal property by the commissioners in

r Groome v. Potts, 6 T. R. 548. s Webb v. Fox, 7 T. R. 391.

t Fowler v. Down, 1 Bos. & Pul. 44.
u Kitchen v. Bartsch, 7 East's R. 53.

(44) These cases proceeded on this ground, that an uncertificated bankrupt has a special property in the goods in his possession, subsequent to the bankruptcy; but notwithstanding these decisions, to assumpsit by several partners, the defendant may plead in bar the bankruptcy of one of them. Eckhardt and others v. Wilson, 8 T. R. 140.

the first instance passes all the future acquired as well as present personal property, and a second assignment of personal property coming to the bankrupt is not necessary; consequently the superior title of the assignees must prevail where they come forward, and assert it.

To an action on a promissory note, and for money lent, the defendant pleaded that the plaintiff was an uncertificated bankrupt, whose effects had been duly assigned by the commissioners under a general assignment, comprehending in terms the future as well as present personal property of the plaintiff, and that the assignees had required the defendant to pay to them the money claimed by the plaintiff. Replication, that the causes of action had accrued after the plaintiff became bankrupt, and that the defendant, at the time of the contract, treated with the plaintiff as a person capable of receiving credit in that behalf, and that the commissioners had not at any time since assigned to the assignees, or any other person, the promissory note or money mentioned to be lent. On demurrer, it was holden, that the replication was bad for the reasons before mentioned.

An uncertificated bankrupt may maintain an action for work and labour done after his bankruptcy (45).

Where a commission of bankrupt is taken out fraudulently or maliciously, the chancellor may under the stat, 5 Geo. 2. c. 30. s. 23. assign the bond (given by the petitioning creditor) to the bankrupt, so as to enable him to recover the whole penalty of the bond. N. The assignment

x Kitchen v. Bartsch, 7 East's R. 53. y Chippendale v. Tomlinson, Co. B. L. 5th edit. p. 431.

z Smith v. Broomhead, 7 T. R. 300.

(45) So for work and labour, and materials found, incident and necessary to the labour, Silk v. Osborne, 1 Esp. N. P. C. 140. So for money lent and advanced, as it will be presumed that the money may have been earned by his labour, Evans v. Brown, 1 Esp. N. P. C. 170.

Lord Ellenborough C. J. speaking of Chippendale v. Tomlinson, and the cases which have been decided on its authority, said*, that the hardship of the case might perhaps have warped the opinion of the judges, when the evil might have been better remedied by statute, but now there was an inveterate practice of above twenty years in support of that series of cases.

* In Kitchen ▼. Bartsch, 7 East's R. 62.

of the bond by the chancellor is conclusive evidence of the fraud or malice in an action brought on such bond, and it is not necessary to state in the declaration that the com mission was fraudulently or maliciously sued out.

See further on this point, Smithy v. Edmondson, 3 East's R. 22.

VIII. Of the Pleadings.

66

1. Of the general Plea of Bankruptcy under Stat. 5 Geo. 2. c. 30. s. 7.-By stat. 5. Geo. 2. c. 30. s. 7. If any bank"rupt is afterwards impleaded for any debt due before such "time as he became a bankrupt, he may plead in general, "that the cause of such action or suit accrued before such "time as he became a bankrupt, and may give the special "matter in evidence; and the certificate and allowance "thereof shall be sufficient evidence of the trading, bank"ruptcy, commission, and other matters precedent to such "certificate, and a verdict shall thereupon be given for "the defendant, unless the plaintiff can prove the cer"tificate obtained unfairly, and by fraud, or can make appear any concealment by the bankrupt to the value of 10." This general plea of bankruptcy, if pleaded in the Court of King's Bench, does not require the signature of counsel; but by the practice of the Common Pleas it ought to be signed by a serjeant, otherwise it may be treated as a nullity.

46

It is sufficient for the defendant under the preceding statute to pursue the words of it, and to aver, that the cause of action accrued before he became a bankrupt; without averring, that the defendant had conformed according to the bankrupt statutes, or that the defendant became a bankrupt before the commencement of the suit.

By a certificate obtained under a joint commission, separate as well as joint debts are discharged. In like manner, by a certificate obtained under a separate commission, joint debts, as well as separate debts, are discharged. Formerly, indeed, doubts were entertained whether a certificate under

a Leigh q. t. v. Monteiro, 6 T. R. 496.
b Pitcher v. Martin, 3 Bos. & Pul. 171.
c Willan v. Giordani, Co. B. L. 5th
edit. p. 518. in which Paris v. Salk-
eld, 2 Wils. 139 was overruled.
d Tower v. Cameron, 6 East's R. 413.

e

Howard v. Poole, Str. 995. Dav. 431. S. C. Wickes v. Strahan, Str. 1157. S. P. Horsey's case, 3 P. Wms. 23.

f Exp. Yale, 3 P. Wms. 24. n.

a separate commission, against one partner, would not discharge the other partner; and, therefore, it was held necessary to provide against such discharge by stat. 10 Ann. c. 15. by the 3d section of which it is enacted and declared, "that partners, joint obligors, and joint contractors, with a bankrupt who has been discharged, shall remain liable, as if the bankrupt had never been discharged.

This general plea of bankruptcy may be supported by evidence of a certificate allowed after bill filed, and before plea pleaded, the cause of action having accrued before the bankruptcy; but the certificate cannot be given in evidence under the general issue, for the debt still exists, and as the certificate only operates as a special discharge from it under the statute, the defendant must avail himself of this discharge in manner prescribed by the statute.

But the certificate will operate as a discharge of such debts only as are due at the time when the act of bankruptcy is committed (46). Debts proveable under the commission, and debts to be discharged by the certificate, are convertible terms, and debts not due at the time of the act of bankruptcy, except in the cases specially provided for by particular statutes, are not affected by the commission.

Hence where a debt accrues after an act of bankruptcy and before the issuing of the commission, the bankrupt will 'remain liable, although he has obtained his certificate, and cannot avail himself of the general plea of bankruptcy.

But if the acceptor of a bill of exchange not due become bankrupt', and the endorser be afterwards obliged to take up the bill on account of non-payment by the acceptor, he may prove the amount under the commission; and consequently if the acceptor afterwards obtain his certificate, he will be discharged from the debt.

Before the stat. 49 Geo. 3. c. 121. a debt for which a per

Harris v. James, 9 East, 92.
Gowland v. Warren, 1 Camp. N. P.
C. 363.

i Bamford v. Burrell, 2 Bos. & Pul. 1.

k S. C.

1 Joseph v. Orme, Bos. & Pul. N. R. 180.

(46) But if an action be commenced against a bankrupt after the bankruptcy, for a debt due before the bankruptcy, and a verdict found for the plaintiff, and afterwards the bankrupt obtains his certificate; the costs of such action, as well as the original debt, are proveable under the commission. Willet v. Pringle, 2 Bos. & Pul. N. R. 190.