him immediate credit for them in his account, minus the discount. Afterwards, and whilst the bills were yet running, a balance was struck, upon which the bankers admitted money to be due to B. giving him credit for the bills then running. Shortly afterwards B. became a bankrupt, and the bills were dishonoured. It was holden, in an action against the bankers for the admitted balance, that they were entitled to set off the amount of the dishonoured bills, on the ground of its being a mutual credit within the foregoing clause. But where B. being indebted to defendant, previously to his bankruptcy, deposited a bill of exchange with the defendant, not for the satisfaction of the debt, but for the purpose of raising money thereon, and an advance was accordingly made; after the bankruptcy, the assignees tendered to the defendant the amount of the money advanced, and demanded possession of the bill, which being refused, the assignees brought trover for the bill, and it was holden", that they were entitled to recover, this not being a case of mutual credit within the statute, the bill having been deposited for a specific purpose without reference to the general account. "Mutual credit must mean mutual trust; this attempt of the defendant appears to me a gross breach of trust." Per Dallas, J. 8 Taunt. 23. In an action brought by the assignees of bankers, it was holden a, that the defendant might set off notes of such bankers taken by him after he knew that they had stopped payment, but before he knew that any of the partners constituting the banking-house had committed an act of bankruptcy. The defendant, however, cannot set off notes of such bankers taken by him after he knew that three of the four partners had committed acts of bankruptcy. "The provision with respect to mutual credit is confined to debts between the bankrupt and other parties, or to transactions necessarily ending in debts; it does not apply to a case where a cause of action arises for the non-performance of a contract. A defendant may set off a debt due to him from bankrupt for money lent, against a claim by the bankrupt's assignees on defendant for not accepting, pursuant to agreement, a bill of exchange by way of part payment for goods sold and delivered by the bankrupt to the defendant; for the demand is a mere pecuniary demand which the commissioners might have stated in account between the defendant and the bankrupt.

y Arbouin v. Tritton, 1 Holt, N. P. C. b Rose v. Sims, 1 B. & Ad. 521.

408.

z Key v. Flint, 1 Moore, (C. P.) 451.

8 Taunt. 21. S. C.

a Dixon v. Cass, 1 B. & Ad. 343.

c Gibson v. Bell, 1 N. C. 743. recognizing the principle in Sampson v. Burton, 2 Brod. & Bingh. 94.

An insurance brokerd who is indebted to the estate of a bankrupt underwriter for premiums, cannot, without a special authority, set off, against that debt, sums due from the underwriter for return of premiums. Where defendant's insurance brokers effected several policies, some in the name of their own firm, others in the name of their own firm but on account of their principals, and others in the name and on account of their principals, for which principals they acted under a del credere commission, without the knowledge of the underwriters: it was holdene, that in an action brought against them for premiums by the assignees of one of the underwriters upon these policies, who had become bankrupt, the defendants might set off losses and returns due on all such of those policies as were effected in the names of their own firm, but not on such as were effected in the names of their principals, such losses and returns having become due on those policies before the time when the bankrupt stopped payment, though they had never been adjusted by the bankrupt, but only by the other underwriters between the time of his stopping payment and committing the act of bankruptcy, on which adjustment the defendants had given their principals credit for the amount. And the principle is the same, whether the broker act under a del credere commission or not, if the policy be effected in the name of the broker and he has a lien on the goods insured.

X. Of the Evidence and Witnesses.

FORMERLY in actions brought by assignees of bankrupt, it was incumbent on them to prove, in all cases, 1. That the bankrupt was a trader. 2. The act of bankruptcy. 3. That the commission was regularly granted. 4. The assignment to the plaintiffs. 5. A right of action in the assignees. But now by stat. 6 Geo. 4. c. 16. s. 90%. it is enacted, that in any action by or against any assignee, or in any action against any commissioner, or person acting under the warrant of the commissioners, for any thing done as such commissioner, or under such warrant, no proof shall be required at the trial of the petitioning creditors' debt, or of the

d Minett v. Forester, 4 Taunt. 541. n.
Goldschmidt v. Lyon, 4 Taunt. 534.
Parker v. Smith, 16 East, 382. Hous-
ton v. Robertson, Holt, 88. S. P.
e Koster v. Eason, 2 M. & S. 112.

f Parker v. Beasley, 2 M. & S. 423.

Davies v. Wilkinson, 4 Bingh. 573. g See stat. 49 Geo. 3. s. 10. but now repealed.

trading, or act of bankruptcy respectively, unless the other party in such action shall, if defendant, at or before pleading, and if plaintiff, before issue joined, give notice in writing to such assignee, commissioner, or other person, that he intends to dispute some and which of such matters; and in case such notice shall have been given, if such assignee, &c. shall prove the matter so disputed, or the other party admit the same, the judge before whom the cause shall be tried (20) may (if he thinks fit,) grant a certificate of such proof or admission, and such assignee, &c. shall be entitled to the costs occasioned by such notice, and such costs shall, if such assignee, &c. obtain a verdict, be added to the costs, and if the other party obtain a verdict, shall be deducted from the costs which such other party would be otherwise entitled to receive. The notice to dispute must be specific, as to which of the three matters, trading, petitioning creditor's debt, or act of bankruptcy, it is intended to dispute; notice to dispute the bankruptcy will not suffice. Trimley v. Unwin, 6 B. and C. 537. Assumpsit by assignees of bankrupt against a sheriff to recover the proceeds of goods seized under a fi. fa. The defendant did not give any notice to dispute. The plaintiffs proved that an act of bankruptcy was committed before the levy; and the defendant did not prove any other act of bankruptcy. It was holden, that the plaintiffs were not bound to prove that a petitioning creditor's debt existed at the time of the act of bankruptcy on which they relied. Where the commission, adjudication, and assignment were put in, and it was proved that the plaintiff attended the commissioners, passed his accounts, and afterwards endeavoured to get his certificate signed, it was holden that, as against the plaintiff, this was sufficient evidence of the bankruptcy. By s. 91. a similar provision to that contained in s. 90. is made with respect to suits in equity; and by s. 92. if the bankrupt shall not, (if he was within the United Kingdom at the issuing of the commission,) within two calendar months after the adjudication, or (if he was out of the United Kingdom) within twelve calendar months after the adjudication, have given notice of his intention to dispute the commission, and have proceeded therein with due diligence, the depositions taken before the commissioners, at the time of or previous to the adjudication

h Per Ld. Tenterden, C. J. and Parke, J. contra per Bayley, J. and Little

dale, J. Norman v. Booth, 10 B. & C. 703.

i Crofton v. Poole, 1 B. & Ad. 568.

(20) Where cause is referred, judge before whom cause is opened cannot certify. Barthrop v. Anderton, 8 Bingh. 268.

of the petitioning creditor's debt, and of the trading and act of bankruptcy, shall be conclusive evidence of the matters therein respectively contained, in all actions or suits brought by the assignees for any debt or demand for which the bankrupt might have sustained any action or suit. It is only in actions or suits brought by his own assignees, for a debt or demand for which he might have sued, that the depositions under a commission against a person are conclusive evidence; but it is immaterial whether the cause of action arose before or after the act of bankruptcy. The depositions are conclusive in trialse at law. And by s. 93, if the assignees commence any action or suit, for any money so due to the bankrupt, before the time allowed for him to dispute the commission shall have elapsed, any defendant, in any such action or suit, shall be entitled, after notice given to the assignees to pay the same, or any part thereof, into the court in which such action or suit is brought: and all proceedings with respect to the money so paid into court shall thereupon be stayed, and after the time shall have elapsed, the assignees shall have the same paid to them out of court.

In all actions by and against assignees of a bankrupt or insolvent, the character in which the plaintiff or defendant is stated on the record to sue or be sued, shall not in any case be considered as in issuef, unless specially denied.

Where notice had not been given to dispute the commission, and with the commission the proceedings were put in, upon which there did not appear a sufficient petitioning creditor's debt; it was holdeng, that the validity of the commission could not be disputed.

By s. 94, if the commission be afterwards superseded, persons from whom the assignees have recovered, or who have, without action, bond fide delivered up possession of any real or personal estate to the assignees, or paid any debt claimed by them, are discharged from claims by the bankrupt, provided the requisite notice to try the validity of the commission had not been given. Fiats, adjudications of bankruptcy, appointments of assignees, depositions, and other proceedings must be entered of record before they can be received in evidence either at law or in equity. See stat. 2 and 3 W. 4. c. 114. s. 1, 4, 5, 7, 8; and ante, p. 185.

c Muskett v. Drummond, 10 B. and C. 159.

d Fox v. Mahoney, Tyrw. 285; 2 Cr. and J. 325; recognized in Kitchener v. Power, 3 Ad. and Ell. 232.

e Young, assignee of Ireland, v. Tim-
mins, 1 Cr. and J. 149.

f K. G. H. T. 4 W. 4. 21.
g Macbeath v. Coates, 4 Bingh. 34.

Having in the 2nd, 3rd, and 4th sections of this chapter, enumerated the different trades which render persons liable to the bankrupt law, and also the several acts of bankruptcy mentioned in the statute, it will be unnecessary to repeat them here. I shall proceed, therefore, to the examination of the third head, viz. the proof relating to the commission, only observing that, with respect to the act of bankruptcy, proof must be given that it was antecedent to the commission; but if that appear, it will be sufficient, although the act was committed so recently before the commission, and at such a distance from London, that it could not have been known in London, at the time when the commission was sued outh. Proof of the commission ought to be by shewing it under seal, [if fiat, under hand of C., M. R., V. C., or M. C., as case may be. See 1 and 2 W. 4. c. 56. s. 12.] the petition to the chancellor on which it was granted, and the debt of the petitioning creditor or creditors. It is not necessary that the particular species of trading should be set forth in the commission. A commission issued against an infant is void, and not merely voidable.

By stat. 6 G. 4. c. 16. s. 15, no commission shall be issued, unless the single debt of the creditor, or of two or more persons being partners petitioning for the same, shall amount to 1007. or upwards, or unless the debt of two creditors so petitioning shall amount to 150l. or upwards, or unless the debt of three or more creditors so petitioning, shall amount to 2007. or upwards; and every person who has given credit to any trader upon valuable consideration for any sum payable at a certain time, which time shall not have arrived, when such trader committed an act of bankruptcy, may so petition or join in petitioning as aforesaid, whether he shall have any security in writing or otherwise for such sum or not. A second commission issued against a trader before a former has been disposed of, is a nullity; inasmuch as there is nothing upon which it can operate, all the bankrupt's property being vested in the assignees under the first commission. So a third commission issued against a trader who has not paid. any dividend under a first and second commission, is a nullitym. But in these cases there must have been an assignment" under the first commission.