Actions by

Parent or
Master.

Part II. stances attending the seduction, except such as would support another action at her own suit for a breach of promise of marriage. The defendant on his part may, as in the case of adultery, prove the loose character of the girl, or the misconduct of the parent himself in voluntarily permitting an illicit connection to be Cas. 240. formed between the defendant and his daughter, which latter fact will destroy the right of action altogether.

Reddie v.

Scoolt,

Peake's

Fores v.
Wilson,

ubi sup.

Fawcet v.

Beavres, 2 Lev. 63.

The action for seducing or harbouring an apprentice or hired servant, materially differs from those for adultery, or debauching a daughter. The act of the defendant, in these latter cases, being itself illegal, no proof is required of his knowledge of the relationship which subsisted between the plaintiff and the person seduced; but to support an action for enticing or harbouring an apprentice or hired servant, it must be proved that the defendant knew at the time he committed the injury which is complained of, that the person in respect of whom the action is brought, was the apprentice or servant of the plaintiff. To sustain this action, therefore, the plaintiff must, in the first place, prove the contract between himself and the person seduced, and then either that the defendant, knowing of such contract, enticed him from the plaintiff's service, or else that the defendant harboured the servant after regular notice of his contract with the plaintiff, and a requisition to the defendant to deliver him up, or not to harbour him any longer.

CHAP. XII.

OF THE EVIDENCE IN CASES OF BANKRUPTCY,

SECTION I.

In Actions by and against the Assignees.

Ch. XII.

f. 1. Assignees of Bankrupts.

Bul. N.P.

37.

F assignees of a bankrupt bring an action of trover for the goods of the bankrupt, or assumpsit on a promise made to him before his bankruptcy, or on an implied promise to themselves as assignees afterwards, and the defendant pleads the general issue; the plaintiffs must prove not only property in the goods to support his action of trover, or the consideration to support the promise, but also the trading of the bankrupt, the act of bank-ruptcy, (q) the petitioning creditor's debt, the commission and assignment. The petitioning Abbot v creditor's debt must be proved by the same Dougl kind of evidence as would be required in an action against the bankrupt himself, and the assignment must be proved by the subscribing witness.

(q) To shew quo animo the bankrupt left his house, his declaration at the time as to his fear of an arrest may be proved; but any declaration at another time, when no act is done by him, is not evidence. Ambrose v. Clendon, Cas, temp. Hardw 267. Bateman v. Bailey, 5 T. Rep. 512.

But

Plumbe,

205.

Part II.

But in cases where the assignees themselves

Assignees of make a contract with a third person, and have Bankrupts. occasion to sue upon it, it seems to be unneVideEvans cessary for them to name themselves assignees Cowp. in the declaration, or to give evidence to prove that they fill that relation.

v. Mann,

569.

By and against Bankrupt.

Mercer v.

Wise, 3

Esp. Cas.

216.

5 Geo. II. c. 30. 1.7.

SECTION II.

In Actions by and against the Bankrupt.

WHERE a person has been found a bankrupt, and brings an action against the messenger or assignees for the goods taken, the defendant must be prepared with evidence to prove the trading, &c. as in the other case, notwithstanding the bankrupt has surrendered to his commission, and passed his examination,

But when the bankrupt is sued for any debt from which he is discharged by his certificate, and pleads such discharge, no further evidence is required on his part, than the production of the certificate allowed by the Lord Chancellor ; and the creditor may avoid it by shewing that it was obtained unfairly and by fraud, or else that there has been a concealment by the bankrupt of effects to the value of 10l. As to what shall be deemed an unfair or fraudulent obtaining of a certificate, it has been holden, that if

money

money be given either with the bankrupt's privity or without, to any one creditor to induce him to sign it,' or to withdraw a petition which he has presented against it, the certificate is void. But if the plaintiff prove an omission to account for effects amounting to 107. the bankrupt may prove that it was not wilful or fraudulent.3

of

any

a

By another clause, in the same Act of Parliament, it is enacted, "that the Act shall not give any privilege, benefit, or advantage, to any bankrupt, who shall, for or upon marriage of his children, have given, advanced, or paid, above the value of 100 l. unless he or she shall prove by his or her books fairly kept, or otherwise upon his or her oath, or (being quaker) affirmation, before the major part of the commissioners in such commission named and authorized, that he or she had at the time. thereof over and above the value so given, &c. remaining in goods, wares, debts, ready money, or other estate, real or personal, sufficient to pay and satisfy unto each and every person to whom he or she was anyways indebted, their full and entire debts; or who hath or shall have lost in any one day the sum or value of 51. or in the whole the sum or value of 1007 within the space of twelve months next preceding his, her, or their becoming bankrupt, in playing at or with cards, tables, dice, tennis,

(r) This case is mentioned in Co. B. L. 284, but no notice is there taken of this point.

bowls,

Part II. bowls, billiards, shovel-board; or in or by cock-
By and fighting, horse-races, dog-matches, or foot-
against
Bankrupt. races, or other pastimes, game, or games what-

soever; or in or by having a share or part
in the stakes, wagers, or adventures; or in or
by betting on the sides or hands of such as do
or shall play, act, ride, or run, as aforesaid;
or that within one year before he or she became
bankrupt shall have lost the sum of 100 7. by
one or more contracts for the purchase, sale,
refusal, or delivery, of any stock of any com-
pany or corporation whatsoever, or any parts
or shares of any government or public funds
or securities, where every such contract was
not to be performed within one week from the
time of making such contract, or where the
stock or other thing so bought or sold, was not
actually transferred or delivered, in pursuance
of such contract."

There appears to be a remarkable difference in the words of these two sections in the same Act of Parliament; by the first, it is expressly enacted, that the certificate shall be sufficient evidence for the defendant, and a verdict shall pass for him, "unless the plaintiff can prove that the certificate was obtained unfairly and by fraud, or unless the plaintiff shall make appear any concealment, &c." whereas by the other section it is only provided that nothing in the Act shall extend or give or grant any privilege, benefit, or advantage, to a bankrupt falling within the description contained in it.