proved his debt under a second commission, coupled with an act of bankruptcy prior to that on which the second commission is founded, may be set up to defeat such second commission, by a defendant in an action at the suit of the assignees under that commission. Beardmore v. Shaw, 1 Bos. and Pul. N. R. 263. See ante, p. 257. The act of bankruptcy is to be proved, and not to be presumedi. The cause of action must be proved by the assignees in the same manner as if the action had been brought by the bankrupt himself. It is impossible to lay down any rules with respect to this head of proof, which must necessarily be adapted to the nature of the demand. In trover by assignees against a sheriff or creditor, who has seized the bankrupt's goods in execution, after an act of bankruptcy, it is not necessary to prove a demand and refusalk; because the property being vested in the assignees from the time of the bankruptcy, the execution is tortious; and where a possession is gained wrongfully, a demand is not necessary. Of the Witnesses.-The bankrupt cannot be a witness to swear property in himself', or a debt due to himself, unless he has obtained his certificate, and executed a release to the assignees of his share in the surplus and the dividends: for otherwise it is manifest that he is interested; but he may prove property in, or a debt due to another. But a release and certificate cannot make the bankrupt a witness to prove his own act of bankruptcym (21). No question can be asked from the bankrupt, the object of which is to support his own bankruptcy; and it is immaterial whether such question be asked upon an examination in chief, or upon a cross-examination". It is equally improper in both cases. Nor can a bankrupt (22) be asked questions, the effect and tendency of i Per Parke, B. Ody v. Cookney, 1 Tyrwh. and Gr. 542. k Rush v. Baker, M. 8 G. 2. B. R. MSS. Bull. N. P. 41. 1 Ewens v. Gold, per Hardwicke, C. J. H. 8 G. 2. Bull. N. P. 43. m Field v. Curtis, Str. 829. n Elsom v. Brailey, C. B. London Sittings after M. T. 50 G. 3. Lawrence, J. (21) "For although the bankrupt has obtained a certificate, yet if he be not a bankrupt (as he cannot be if he has not committed an act of bankruptcy, which is the question,) his certificate and the proceedings under the commission are void." (22) In an action by the assignees of a bankrupt for money had and received, in order to establish the act of bankruptcy, the plaintiffs proved that the trader had absconded for fear of being arrested. The defendant, in order to substantiate his defence in proof, called which is to establish an antecedent act of bankruptcyo. Nor to explain an equivocal act of bankruptcy, nor to explain an act, which may defeat his commission. Nor, if a joint commission issues against two, can one, having obtained his certificate, be called to prove an act of bankruptcy committed by the other. But although the bankrupt cannot be a witness to prove his own act of bankruptcy, yet what was said by him in explanation of his own act, may be received in evidences. Hence, if he has been absent from home, a declaration by him on his return home, that he had been abroad in order to avoid creditors, is good evidence. "The rule is not confined to the precise time of the act in question; for in the foregoing case, the declaration was made the day after. The court must, in each case, considert, whether the declaration proposed to be received does or does not come within a reasonable time of the disputed act." Hence, where a trader, in embarrassed circumstances, absented himself from his house from the 16th of February until the 9th of March: upon an issue, whether he had committed an act of bankruptcy on or before the 5th of March, two letters, written by him on the 16th of January preceding, asking for time on two bills of the bankrupt. The plaintiffs offered to cross-examine him, as to the time of his first secreting himself for fear of being arrested. Norton and Ford for defendant objected, that he could not be examined to that fact; for he was not a competent witness, being interested to establish his bankruptcy; and it was settled that the plaintiffs could not produce him to prove an act of bankruptcy, though he might be examined as to collateral matter. On the part of the plaintiffs it was admitted, that he could not be produced by the plaintiff as a witness in chief to that fact, but when the defendant called him, and made him a competent witness in the cause, he submitted to his being examined, and could not prevent any question being asked his own witness. Lee, C. J.-"I think the defendant, by calling the witness, has waived all objections to his competency; and therefore he may be examined as to the time of the bankruptcy." Fletcher and Bolton, assignees of Gill, bankrupt v. Woodmas, B. R. London Sittings, M. 25 G. 2. MS. exchange, payable by him in February, were received in evidence, to show the motive of his absence". A certificated bankrupt cannot be a witness to prove any of the facts necessary to support the commission, as the petitioning creditor's debt, &c. because he is interested in upholding the commission, on the validity of which his certificate and discharge from his former debts depend (23). But to prove other matters he may, that is, when he has executed a release to his assignees of his share in the surplus and dividends. See ante, p. 263. A certificated bankrupt, under a second commission of bankruptcy, cannot be a witness for the assignees under that commission, if he has not paid 158. in the pound under it. An uncertificated bankrupt may be a witness against himself, but not for himself, that is, he may be a witness to decrease the fund, but not to increase ita. A general release by a creditor to an uncertificated bankrupt, is not sufficient to render the bankrupt a competent witness for the creditor, where the result of his testimony would give the creditor a right to prove under the commission. The creditor ought also to give a release to the assignee of all claim on the bankrupt's estate, and the bankrupt ought to release his claim to a surplus. Upon an issue out of chancery, to try whether the bankrupt had, within one year before his bankruptcy, lost five pounds in one day at gaming, a creditor of the bankrupt was called to prove the gaming; but the C. J. would not allow him to be a witness; because he would be entitled to a share out of the bankrupt's allowance forfeited by the gamingd. Upon an issue to try the validity of a commission of bankrupt, a creditor is not a competent witness to support the commission, although he does not appear to have proved under ite; but he is a competent witness to prove that the commission is not u Smith v. Cramer, 1 N. C. 585. x Per Cur. in Chapman v. Gardner, 2 H. Bl. 279. y Per Ryder, C. J. in Flower v. Herbert, London Sittings, Dec. 17, 1754. 2 H. Bl. 279. n. (a.) b Perryman v. Steggall and another, 8 Bingh. 369. c Ib. d Shuttleworth v. Bravo, Str. 507. per Pratt, C. J. Middlesex Sittings. e Adams v. Malkin, 3 Campb. 543. z Kennet v. Greenwollers, Peake's N. f In re Codd, Bankrupt, 2 Sch. and P. C. 3. per Kenyon, C. J. a Butler v. Cooke, Cowp. 70. and Walker v. Walker, there cited. Lef. 116. per Lord Redesdale. (23) The certificate may be considered also as a release, which the releasee can never be allowed as a witness to affirm. Per Ryder, C. J. in Flower v. Herbert, N. P. 2 H. Bl. 279. n. (a.) sustainable. A creditor who has released his debt to the assignees may be called to prove the act of bankruptcy, although the bankrupt is plaintiff in the action in which the commission is disputeds. A release to the assignees only is sufficient without giving one to the bankrupth. A creditor who has sold his debt is a good witness to support the commission, by proving the petitioning creditor's debt; because his interest is gonei; but the petitioning creditor is not a competent witness to shew that the commission was regularly sued out; for he enters into a bond to the chancellor, conditioned to establish the several facts upon which the validity of the commission depends, and to cause it to be effectually executed. He has therefore a direct interest in the question at issuek. But he is competent to prove the commission invalid1; and even to cut down his own debtm. A writ of supersedeas under the great seal, reciting the issuing of a commission on such a day, is prima facie evidence not only of the issuing of the commission, but also that it issued on that day". By stat. 1 and 2 W. 4. c. 56. s. 19, the chancellor, upon the reversal of any adjudication in bankruptcy, may order fiat to be annulled, and such order shall have all the force and effect of a writ of supersedeas. g Koopes v. Chapman, Peake's N. P. C. 19. per Kenyon, C. J. h Ambrose v. Clendon, Ca. Temp. Hardw. 267. i Granger v. Furlong, 2 Bl. Rep. 1273. k Green v. Jones, 2 Campb. 411. 1 Anon. cited by Lord Ellenborough, C. J. in Green v. Jones, and 1 Stark. 40. S. P. m Loyd v. Stretton, 1 Starkie, 40. Lord Ellenborough, C. J. n Gervis v. Grand Western Canal Company, 5 M. and S. 76. CHAP. VIII. BARON AND FEME. I. Of the Liability of the Husband, 1. In respect of Contracts made by the Wife be fore Coverture. 2. In respect of Contracts made by the Wife dur ing Coverture. 3. In respect of the Children of the Wife by a former Husband. II. In what Cases a Feme Covert may be considered as a Feme Sole. III. Of Actions by Husband and Wife, 1. Where the Husband and Wife must join. 2. Where the Husband must sue alone. 3. Where the Husband and Wife may join, or the Husband may sue alone, at his Election. IV. Of Actions against Husband and Wife. I. Of the Liability of the Husband, 1. In respect of Contracts made by the Wife be fore Coverture. 2. In respect of Contracts made by the Wife dur ing Coverture. 3. In respect of the Children of the Wife by a former Husband. 1. IN respect of Contracts made by the Wife before Cover ture. The husband is liable to the debts of his wife, contracted by her before the coverture, and the husband and |