provable, when the other had been completely satisfied (a). This decision is of comparatively little importance, now that "all debts and liabilities, certain or contingent, to which the bankrupt may be liable at the date of the order of adjudication, or to which he may become subject during the continuance of the bankruptcy by reason of obligations previously incurred, [other than unliquidated damages arising otherwise than by reason of a contract or promise], shall be deemed to be debts provable in Bankruptcy (b).

A mortgagee, or his trustee in bankruptcy, is not bound to proceed in bankruptcy, even when the mortgagor is also bankrupt, but may obtain foreclosure in the ordinary way by action in the Chancery Division (c), whose jurisdiction over mortgages legal (d) or equitable (e) is not affected by the Bankruptcy Act.

Goods pledged by a factor who has become bankrupt may be redeemed by his principal, who may also set off or prove against the Factor's estate for the sum so paid, or, failing redemption, for the value of the goods (f). And if the factor improperly pledges his principal's goods together with his own, the principal may have the securities marshalled, so as to make the factor's property liable, and secure the principal by giving him a lien on the surplus (g).

A pawnee, partly secured by the pledge of a bankrupt firm, must exhaust his remedy against the joint, before proving against the separate estate of either partner (h).

(a) Exp. Hunter, 6 Ves. 94.

(b) 32 & 33 Vict., cap. 71, sec. 31. (c) Waddell v. Toleman, L.R. 9 Ch.D. 212, 38 L.T. N.S. 910, 26 W.R. 802. (d) White v. Simmons, L.R. 6 C.A. 555, 40 L.J. 689 Ch., 19 W.R. 939. (e) Re England, exp. Pannell, L.R. 6 Ch. D. 335, 37 L.T. N.S. 450, 26 W.R. 194 (in C.A.)

(f). 6 Geo. 4, cap. 94, sec. 6; 5 & 6 Vict., cap. 39, sec. 7.

(g) Exp. Alston, re Holland, L.R. 4 C.A. 168, 19 L.T. N.S. 542, 17 W.R. 266. (h) Exp. Davenport, 1 M. & D. 313; Exp. Geller, 2 Madd. 262.

If the pledge belong partly to the bankrupts, and partly to another person, the pawnee must credit the proceeds before proving, but need not do so when the third person is sole owner of the pawn (a), nor when the third person's property is a collateral security for the firm's debt (b).

Money paid into Court to abide the event of an action (c), and a garnishee order absolute (d), or nisi (e), under the Common Law Procedure Act, 1854, though the debt be not due, but only accruing due, or a charging order on shares (f), has been held to constitute a valid security in Bankruptcy; though in Ireland, very recently, such security failed, when Bankruptcy supervened before the day appointed for payment (g). The garnishee who pays into Court (h), or to the Judgment creditor, in obedience to such an order [and without notice of Bankruptcy, or an injunction restraining payment], will be protected against a claim by the trustee, whose remedy (if any), will be against the Judgment creditor to whom the debt has been paid (i). But neither money paid into Court by executors in an administration suit, and carried by them to a separate account for the judgment debtor (k), nor the

(a) Exp. Prescott, 4 D. & C. 23.

(b) Re Littler, L.R. 18 Eq. 249, 43 L.J., 73 Bk., 30 L.T. N.S. 339, 22 W.R. 567.

(c) Exp. Banner, re Keyworth, L.R. 9 C.A. 329, 43 L.J., 102 Bk., 30 L.T. N.S. 620.

(d) Emmanuel v. Bridger, L.R. 9 Q.B. 286, 43 L.J. 96 Q.B., 30 L.T. N.S. 194, 22 W.R. 404; Low v. Blakemore, L.R. 10 Q.B. 485, 44 L.J., 155 Q.B., 33 L.T. N.S. 473, 23 W.R. 836; Tapp v. Jones, L.R. 10, Q.B. 591, 44 L.J., 127 Q.B., 33 L.T. N.S. 201, 23 W.R. 694.

(e) Exp. Joselyne, ie Watt, L.R. 8 Ch. D. 327, 47 L.J. 91 Bk., 38 L.T. N.S. 661, 26 W.R. 645 (C.A.).

(f) Haly v. Barry, L.R. 3 C.A. 452.

(g) Rylands v. Reardon, L.R. 8 Ex. D. Jr. 1. See also, exp. Pillers, re Courtoys, L.R. 17 Ch. D. 653, 44 L.T. N.S. 691.

(h) Culverhouse v. Wickens, L.R. 3 C.P. 295, 37 L.J., 107 C.P., 17 L.T. N.S. 478, 16 W.R. 402.

(i) Wood v. Dunn, L.R. 2 Q.B. 73, 36 L.J., 27 Q.B., 15 L.T. N.S. 411, 15 W.R. 180 (in Ex. Ch., reversing the judgment of Q.B. in S.C.)

(k) Stevens v. Phelips, L.R. 10 C.A. 417, 44 L.J. 683 Ch., 23 W.R. 716.

surplus of a bankrupt's estate in the hands of an official assignee (a), can be attached.

An attachment from the Tolzey Court, Bristol, not followed by an order on the garnishees to pay the sum attached, will not be protected against the trustee (V).

The [pawnee or other] secured creditor must, as against the trustee in Bankruptcy, rely on his own title, and will not be allowed to benefit by the acts of other incumbrancers. Thus, if a first mortgagee gives up his security and proves for his entire debt, he puts the trustee in his place and does not thereby promote puisne mortgagees (c).

An assignment [or pledge] will be protected. if it be made to release or redeem a similar security, previously given bona fide (d). If the second pledgee makes a further advance with notice of an act of bankruptcy, he will acquire no fresh right. The pledge will be good for the amouut of the previous bona fide pawnee's debt only (e). So also, if the pledge be given to secure debts, some of which are barred by bankruptcy or insolvency (f), it will be good only for so much as is not barred, unless there were new and valuable consideration (such as an agreement to give fresh credit), for the revival of the debt (g). But creditors who have accepted a composition cannot impeach a pledge which the compounding debtor has

some

(a) Re Hunter, L.R. 8 C.P. 24, 42 L.J., 55 C.P., 27 L.T. N.S. 827, 21 W.R. 263.

(b) Exp. Greenway, re Adams, L.R. 16 Eq. 619, 42 L.J., 110 Bk., 29 L.T. N.S. 75, 21 W.R. 866.

(c) Cracknall v. Janson, L.R. 6 C.D. 735, 46 L.J. 652 Ch., 37 L.T. N.S. 118, 25 W.R. 904.

(d) Whitmore v. Claridge, 33 L.J., 87 Q.B.

(e) Exp. Harris re James, L.R. 19 Eq. 253, 44 L.J., 31 Bk., 31 L.T. N.S. 621, 23 W.R. 536.

(f) Peakman v. Harrison, L.R. 14 Eq. 484.

(g) Rimini v. Von Praagh, L.R. 8 Q.B. 1, 42 L.J., 1 Q.B., 27 L.T. N.S. 540, 21 W.R. 107.

secretly given in order to secure payment in full to a particular creditor (a).

A pawnee of negotiable instruments must produce them before voting (b). But he cannot be required to give up a pawn of whatever nature, until payment of principal, interest, and costs (c). And he may set off mutual debts between himself and the bankrupt pawnor, without relinquishing his security (d).

When a bankrupt is charged with pawning and disposing of goods with intent to defraud within the meaning of the Fraudulent Debtor's Act (e), the jury are to judge from all the circumstances, whether the bankrupt's intent was to relieve himself from his liabilities without making an honest disclosure and surrender of his property for the benefit of his creditors (ƒ). A prosecution for such offences should be ordered, not on mere suspicion (g), but where there appears to the Court to be reasonable, though not irresistible evidence to go to the Jury in support of some charge under the act (h).

A Pawnbroker is a trader subject to the bankrupt laws (i), and remains so subject if he continues to sell unredeemed pledges, though he has ceased to take in any fresh pledges (k).

(a) Exp. Burrell, re Robinson, L.R. 1 Ch. D. 537, 45 L.J., 68 Bk., 34 L.T. N.S. 198, 24 W.R. 353 (C.A.)

(b) Exp. Jones, re Carter, L.R. 17 Eq. 575, 43 L.J., 46 Bk., 30 L.T. N.S. 133, 22 W.R. 439.

(c) Re Joint Stock Discount Company, exp. Warrant Finance Company, L.R. 5 C.A. 88, 21 L.T. N.S. 626.

(d) M'Kinnon v. Armstrong, L.R. 2 A.C. 531, 36 L.T. N.S. 482 (in H.L.) (e) 32 & 33 Vict., cap. 62.

(f) Reg. v. Manser, 4 F. & F., 45; Reg. v. Radnitz, 4 F. & F., 165.
(9) Exp. Strickland, re Still, 32 L.J. 12 Bk.

(h) Exp. Stallard, L.R. 3 C.A. 408, 37 L.J., 7 Bk., 16 W.R. 469.
(i) Highman v. Molloy, 1 Atk. 205.

(k) Rawlinson v. Pearson, 5 B. & Ald. 124.

CHAPTER XVIII.

OF THE REMEDIES OF THE PARTIES TO THE CONTRACT OF PAWN.

The term "remedy" as here employed, signifies the means provided by law to vindicate and maintain (a) the rights of pawnor or pawnee, by compelling the fulfilment of his obligations by the party in default.

When the object is to recover debt, damages, or restitution of a pawn wrongfully detained from the party entitled thereto, the remedy is by action.

Metropolitan Police Magistrates have jurisdiction to make summary orders for the delivery of goods wrongfully detained within the Metropolitan Police District, not exceeding the value of £15, and not being documents of title to property of greater value than £15, provided due notice of claim has been given. The order may be unconditional, or subject to complainant's paying any debt or damages in respect whereof the detention may have been justified. An adverse order does not bar any right of action, if commenced within six months after the order (b).

When conflicting claims to the pawn or its proceeds are made upon a depositary, stakeholder, or other person having no interest in such claims, the remedy is by interpleader.

(a) Per Holt, C.J., in Ashby v. White, Ld. Raym. 938. 1 Smith's L.C. 7th edit. 251, 276.

(b) 2 & 3 Vict., cap. 71, sec. 40.