Ch. XII. s. 1. [ 336 ] assignee shall be entitled to the costs, to be taxed by the proper officer, occasioned by such notice; and such costs shall, in case the assignee shall obtain a verdict, be added to his costs; and if the other party' shall obtain a verdict, shall be set off or deducted from the costs which such other party would otherwise be entitled to receive from such assignee." It is to be observed, that the act of parliament has made the proceedings under the commission "evidence to be received" of the facts proved before the commissioners, but has not said that they shall be conclusive. It has therefore been held', that Mills v. Benthough a party who has not given notice of his in- nett, 2 M.& S. tention to dispute the facts necessary to support the commission, cannot call on the other side to give further evidence than the production of the proceedings, yet that he is not precluded from giving evidence on his part to contradict the fact so proved. 556. 3 Campb. 30. The act of parliament extends not only to those cases in which the assignees are themselves parties as plaintiffs or defendants, but also to those where the party must necessarily deduce his title under the commission; but in actions between third persons, 2 Symonds when the validity of the commission comes only . Knight, incidentally into question, the law remains the same as before the statute, and the several facts necessary to establish the bankruptcy must be proved by the ordinary evidence 3. A person who has proved his debt under the commission, is not thereby precluded from disputing the petitioning creditor's debt, or calling the same evidence as any other third person. The modes of assigning the personal and real property of the bankrupt, differ not only in form, but materially in their effects on those different species of property. In the former the commissioners merely execute the deed, and that by relation vests all property in the assignee from the time of the act of bankruptcy. A A 4 Doc dem. 4 16 East, 191. Part II. Action by or against the Assignees. Doe dem. Esdaile v. 2 M. & S. 446. Rex v.Hopper, 3 Price, 495. Vide Evans d. Mann, Cowp. 569. bankruptcy. But the freehold property of the bankrupt can be transferred only by bargain and sale enrolled in one of the king's courts of record; and though when so enrolled, it defeats all grants made after the bankruptcy, yet it vests the estate in the assignees only from the time of the enrolment, so that a demise by them in ejectment must be laid after that time. The enrolment being thus made a part of the title, the assignee must prove that as well as the execution of the deed; but the officer's endorsement, or an examined copy of it, is sufficient to prove not only the fact of enrolment, but the time it was made. But in cases where the assignees themselves make a contract with a third person, and have occasion to sue upon it, it seems to be unnecessary for them to name themselves assignees in the declaration, or to give evidence to prove that they fill that relation. Sect. 2. Action by Bankrupt. Mercer v. Wise, 3 Esp. 5 Geo. 2, c. 30, s. 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 (c), no further evidence is required on (c) When a bankrupt who has obtained his certificate is afterwards sued for any debt due before his bankruptcy, the statute Action against on his part, than the production of the certificate Ch. XII. s. 2. allowed by the Lord Chancellor; and the creditor may avoid it by showing 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 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. [ 337 ] 'Robson • Sumner v. Brady, 1 H. By another clause, in the same act of parliament, it is enacted," that the act shall not give any privi-Cathcart v. lege, benefit, or advantage, to any bankrupt, who Blackwood, shall, for or upon marriage of any of his children, Cul. B. L. 384. (d). have given, advanced, or paid, above the value of 5 Geo. II. * 1007. unless he or she shall prove by his or her books c. 30. s. 12. fairly kept, or otherwise upon his or her oath, or (being a 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 gives a general form of plea that he was discharged as a bankrupt, and that the cause of action accrued before such time as he became bankrupt. This plea concludes to the country, and on the similiter being added, all the special matter either to support or defeat the certificate may be given in evidence without further pleading on either side. Alsop v. Price, Dougl. 160. Hughes v. Morley, 1 Barn. & Ald. 22. It was for some time doubted whether this general plea was given to the defendant in cases where the certificate was not completed till after the commencement of the action, (vide Tower v. Cameron, 6 East, 413); but it is now settled that the defendant may so plead if the certificate be allowed any time before plea pleaded, though after the commencement of the suit, provided he were a bankrupt before. Harris v. Jumes, 9 East, 82. (d) This case is mentioned in Co. B. L. 284, but no notice is there taken of this point. and Part II. and above the value so given, &c. remaining in Action against goods, wares, debts, ready money, or other estate, Bankrupt. real or personal, sufficient to pay and satisfy unto each and every person to whom he or she was any ways indebted, their full and entire debts; or who hath or shall have lost in any one day the sum oi value of 57. or in the whole the sum or value of 1007. within the space of twelve months next preceding [ 338] his, her or their becoming bankrupt, in playing at or with cards, tables, dice, tennis, bowls, billiards, shovel-board; or in or by cock-fighting, horse-races, dog-matches, or foot-races, or other pastimes, game, or games whatsoever; 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 1001. by one or more contracts for the purchase, sale, refusal, or delivery, of any stock of any company 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 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 Ch. XII. s. 2. Action against Bankrupt. [ 339 ] Vide Co. B. L. 1H. Black. 29. Bateson v. Hartsink, 4 or advantage, to a bankrupt falling within the description contained in it. It has been generally supposed, that in the cases 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 last ed. 464. Lewis v. which the bankrupt has been engaged, has been Piercy, 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 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 commissioners, 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 10l. 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 (e.) The (e) This point was made in Hughes v. Morley, 1 Barn. & Ald. 22, where, as far as concerns the provision in the case of money lost at play, it was held that this clause of the act might be taken advantage of on the usual replication at Nisi Prius. As to the provision in the case of more than 100 l. given to a child in marriage, some difficulty seems to have been felt by the judges; Abbott, J. and |