f. 2. By and against Bankrupt. Vide Co. Bateson v. 43. It has been generally supposed that, in the cases Ch. XII. mentioned in the 12th section, the certificate is void, and that the defendant may be precluded from his discharge by proving the circumstances at Nisi Prius. Several instances have occurred where the nature of the gambling in which the bankrupt has been engaged, has been examined into in a court of law, in order to determine whether the certificate was not thereby avoided; and in cases within that section verdicts Hartsink, 4 Esp. Cas, have passed for the plaintiff. But perhaps it may be worth consideration, whether this clause, so differently worded as it is from the other, was meant to extend further than to give authority to the Lord Chancellor and the commissioners to refuse the allowance in the cases. mentioned in it. In one instance mentioned in that section, a mode of inquiry is pointed out, quite contrary to the rules of evidence in a court of law; if the bankrupt has given more than 100l. to either of his children, he may prove by his books fairly kept, or on his oath or affirmation before the commiffioners, that he then had sufficient to pay all his creditors; an advantage which he could never have in an action against. himself; and it should seem that, if the legislature had meant that the misconduct mentioned in that section should have the same effect as a concealment to the value of 107. they would have included those cases in the same section, and not have provided for them by a different clause couched in very different language. Part II. The statute 24 Gco. II. c. 57. s. 9. has made By and another provision in aid of the 7th section of Bankrupt. the former Act of Parliament, by enacting, that against where any persons shall swear to any fictitious debt, and shall sign the certificate in respect thereof, that in such case, unless the bankrupt shall before such time as the commissioners shall have signed the certificate, by writing by him signed and delivered to one or more of the commissioners or assignees, disclose the fraud and object to the reality of the debt, such certificate shall be null and void to all intents and purposes; and such bankrupt shall not in such case be entitled to be discharged from his debts, or to have or receive any of the benefits or allowances given by the former Act. In a case of this kind the plaintiff must be prepared to prove that the debt was fraudulent, and the bankrupt must shew that he gave the notice reBateson v. quired by the Act. Lord Kenyon held that even the petitioning creditor's debt might be impeached at Nisi Prius for the purposes of Hartsink, ubi supra. this clause. Another case, in which the effect of the certificate may be partially avoided by the creditor, is where a commission issues against a person who has been a bankrupt, or compounded with his creditors, or discharged as an insolvent debtor, and has not paid, or his estate is not in a condition to pay, fifteen shillings in the pound under the second commission. In this case his future effects continue liable, liable, and even persons who have signed his Ch.XII. maintain an action against him;' certificate may I f. 2. By and against Bankrupt. Philpot v. Cordon. 5 T. Rep. 285. Haviland v. Cook, 5 T. Rep. v. Martin, 3 195. on the defendant to prove that his estate is sufficient to pay fifteen shillings in the pound 655. under the second commission. But it is clearly Gregory settled that, if the plaintiff give any evidence to shew a probability that the estate will not produce that sum, he may maintain his action at any time, and is not obliged to wait until the expiration of the time allowed for making the dividend. The before-mentioned cases make the certificate void, or restrain the extent of its operation ab initio, but the bankrupt may by his own voluntary act also deprive himself of the benefit of it; and, therefore, if it be proved that he (s) In Bateson v. Hartsink, cited above, the plaintiff, in order to shew that the defendant had concealed to the value of 10% served the Solicitor under the commission with a subpœna duces tecum to produce the proceedings under the commission. But Lord Kenyon is reported to have said, that he was not only not bound to produce them, but that it would be criminal in him to do it. They were not his papers, but those of his clients, the assignees of the bankrupt's estate. If the plaintiff wanted them he should apply to the Lord Chancellor to have them enrolled, and then ufe a copy as evidence. Qu. Are they not the proceedings of a Court of Justice taken for the benefit of all the bankrupt's creditors? Esp. Cas. Jelps v. Ballard, 1 Bos. & P. 467. Ibid. I Williams v. Dyde, Peake, Part 11. promised to pay the debt after he had obtained By and his certificate, though no new consideration is against Bankrupt. shewn, such promise will bind him, and may be given in evidence on a count founded on the original consideration.' But in a case* where the promise was conditional to pay when he should be able, it was ruled by Gould and Heath, Justices, contrary to the opinion of Lord Loughborough, C. J. that evidence must be given of his ability, though probably his general appearance and credit would be deemed sufficient to establish this fact. N. P. 68. ford v. Saunders, 2 H. Bl. 116. As to the persons who are competent to give evidence in cases of this nature, vide ante, Part I. p. 167. By Execu sor, &c. CHAP. XIII. OF THE EVIDENCE IN ACTIONS BY AND AGAINST. SECTION I. In Actions by an Executor or Administrator. WH HEN an action is brought by an executor or administrator on a cause of action arising in the life-time of the deceased, and the defendant pleads only the general iffue thereto, f. 1. General Issue. Mearsfield 824. thereto, it is sufficient for the plaintiff to prove Ch. XIII. the same facts as must have been adduced in evidence by the testator or intestate, had the action been brought by him (t). The plaintiff need not on this issue produce the probate or v. Marsh, letters of administration to the jury, nor will the 2Ld. Ray. defendant be permitted to fhew that they do not in fact exist. To entitle himself to do this, it is necessary for the defendant to traverse their existence by the plea of ne unques executor, or ne unques administrator, and then 1 Sid.350. the very production of the probate or letters of administration is sufficient evidence on the part of the plaintiff; and they can only be avoided by the defendant for the causes which have Vide ante, 69. been already stated. But when the plaintiff sues for a wrong done Mearsfield to himself after his testator's or intestate's death, as in trover for goods converted after that time; or ejectment for lands in which the deceased had a term; the plaintiff must (unless he has himself had such an actual possession as is prima facie evidence of title) not only give evidence of the title of the deceased, but also produce the probate or letters of administration; for without this evidence he does not shew that he is entitled to the thing in dis-. (t) If the defendant plead the Statute of Limitations, and he has in fact acknowledged the debt within fix years, but after the death of the testator, the plaintiff cannot give this in evidence, unless the declaration contain counts on a promise to himself. Sarel v. Wine, 3 East. 409. v. Marsh, ubi sup. |