Actions. Or one who ob tains a sur their in terest. had agreed with a friend of the bankrupt, for a valuable consideration, to leave such furniture in the bankrupt's thority of assignees, possession; - for an uncertificated bankrupt is not entitled to retain any property against his assignees. (1) So, where an uncertificated bankrupt sued a creditor (who had berender of come such since his bankruptcy) for seizing his effects subsequently acquired and the creditor, after a rule to plead, obtained a surrender of the interest of the assignees in the effects seized; it was held, that this was a ratification of the seizure by the assignees, and that the bankrupt could not recover. (2) And where a bankrupt before obtaining his certificate, brought an action upon a promissory note, and for money lent, a plea that the plaintiff was an uncertificated bankrupt, and that his assignees "required the defendant to pay to them" the money claimed by the plaintiff, was held good; -and a replication, that the causes of action accrued after the plaintiff became bankrupt, and that the defendant treated with the plaintiff as a person capable of receiving credit, and that the commissioners had made no new assignment of the said note and money, was held badupon the established principle, that the general assignment of the commissioners passes to the assignees all his after acquired, as well as present, property and debts. (3) When bankrupt may sue assignees for work and labour. When he may sue a creditor who re Where the assignees employ the bankrupt in carrying on his trade or manufacture for the benefit of the estate, and pay him money from time to time, it is evidence of such a contract between him and the assignees, as will enable him to recover from them a reasonable compensation for his work and labour. (4) In a case where the creditors of a bankrupt entered into a deed of composition to receive 8s. in the pound, in full discharge of their debts, and agreed to release every thing beyond that to the bankrupt, and join in a petition to the Actions. Chancellor to supersede the commission- and one of the ceives full creditors, having two distinct debts due from the bankrupt value on a (for one of which he held bills for the full amount), re- bill, after receiving a ceived his dividend of 8s. in the pound on both debts-composiand then recovered the full value of some of the bills; it tion. was held that the bankrupt, under these circumstances, was entitled to recover the money so obtained on the bills, in an action for money had and received. (1) As a debt due to a bankrupt, as trustee for another, does Bankrupt not pass under the commissioners' assignment, it has previously assigning a been held, that a bankrupt, who previous to his bank- debt, may ruptcy assigned a debt then owing to him, (and who be- sue as came, therefore, in the nature of a trustee for the person to whom the debt was assigned) might sue the debtor in his own name for the benefit of the assignee of the debt. (2) trustee. give se A bankrupt is personally liable for the costs of an action When bankrupt commenced by him, and proceeded in by the assignees liable for in his name, notwithstanding he has obtained his cer- costs. tificate. And, though the Court of Chancery will protect him from such costs, when he acts fairly, yet where he induces the assignees to pursue the action by misrepresentation, he will not be relieved. (3) Where he When resues as trustee for his assignees, and for their benefit, and quired to not for the fruits of his own personal labour, he has been curity. required to give security for costs. (4) And the Court of Common Pleas, upon one occasion of this kind, refused to grant a new trial, unless the assignees would abide by the verdict, and become responsible for the costs. (5) So, When where an uncertificated bankrupt (after being nonsuited in proceedings will an action of trespass for false imprisonment in the Court be stayed of King's Bench, on the ground of not being prepared with evidence to prove the validity of a former commission) till costs paid. Actions. When action brought against bankrupt for debt proved. When bankrupt indicted, where venue may be laid. As to evi dence. What is not a variance. the last brought a fresh action in the Common Pleas, mentioned Court ordered the proceedings to be stayed, until he paid the costs of the former action; as he ought to have been prepared with such evidence on the first trial. (1) But in another case, where a joint action was brought by two persons, one of whom was a bankrupt, and the other a prisoner in Newgate, the same Court refused to require such security; though the judgment of the Court, in this case, seems to proceed upon the consideration of the circumstance of the imprisonment of one of the plaintiffs (2), and not of the bankruptcy of the other. Where an action is brought AGAINST a bankrupt for the same debt, which a creditor has proved under the commission, the proof cannot be pleaded in bar-but the bankrupt may either apply to the Lord Chancellor to expunge the debt, or move the Court in which the action is brought to stay proceedings. (3) In assumpsit against two defendants, where one pleaded non assumpsit and bankruptcy, and the plantiff entered a nolle prosequi as to him, as to the several matters pleaded by him- and the other defendant pleaded non assumpsit; - the latter was held not discharged by the nolle prosequi. (4) On an indictment against a bankrupt for concealing his effects, the venue may be laid in any county, where the prosecutor can prove an actual concealment. (5) And, on the trial of such an indictment, a book delivered up at his last examination with other papers, on his signing a declaration that they contained a full and true disclosure and discovery of all his estate and effects, was held necessary to be produced as part of the prosecutor's case. (6) Where, upon an indictment of a bankrupt for perjury (alleged to have been committed in an affidavit sworn be (1) Crawley v. Impey, 8 Taunt. (2) Anon. 2 Taunt. 61. (4) Moravia v. Hunter, 2 M.& S. 444. Noke v. Ingham, 1 Wils. 89. (3) Rex v. Evans, 1 Russ. & R. 70. (6) Ibid. fore a commissioner of the Court of Chancery), it was Actions. alleged that the defendant preferred his petition to the Lord Chancellor, setting forth various matters, and stating that "at the several meetings before the commission," the defendant declared openly to a certain effect and upon the trial it appeared, that the statement of the petition was, that "at the several meetings before the commissioners," the defendant declared to that effect; it was held, that this was no variance, inasmuch as it was sufficient to set out in the indictment the petition in substance and effect; and that the word "commission" also was one of equivocal meaning, being used to denote, either the trust or authority exercised, or the person by whom it is exercised; and that on this occasion it sufficiently appeared, from the context of the petition as set forth in the indictment, that it was used only in the latter sense. (1) SECTION VII. Of Suits in Equity by and against an uncertificated Bankrupt. may sue Though an uncertificated bankrupt cannot, generally Where speaking, bring a bill in equity (2); yet where he has a bankrupt clear interest and the assignees refuse to sue, the Lord in name of Chancellor will, upon petition, compel them (upon an offer his assigof indemnity) to let him use their names (3); for his disability in general cases to sue is not to be acted upon, to the effect of gross injustice. (4) (1) Rex v. Dudman, 4 B. & C. 850. (2) Hammond v. Attwood, 3 Mad. 158.; and see Bowser v. Hughes, 1 Anst. 101. (3) Spragg v. Binkes, 5 Ves. 587. (4) Per Lord Eldon, Benfield v. Solomons, 9 Ves. 77. The practice, however, is stated somewhat dif ferently in Lord Redesdale's Trea- nees. Suits in equity. Where demurrer allowed, for want of neces But, where a bankrupt filed a bill against a mortgagee of estates in England and Berbice, for an account and payment of the balance to his assignees and he made his assignees defendants, charging collusion between them and the other defendants, but did not aver that there would be a surplus, nor charge a direct application to his assignees to sue;- — a demurrer was allowed for want of such allegations. (1) And, where a bill was filed by a bankrupt ground of (who had taken the benefit of an insolvent debtor's act) the proper and his assignees under that act, against the assignees proceeding under his commission and others, stating improper conbeing by petition. duct and collusion, and that all or most of the creditors sary gations. alle Where, on the Where a bill retained. under the commission were satisfied, and praying an ac count, a demurrer in this case was also allowed, on the ground that the proper mode of proceeding was by petition in bankruptcy. (2) So, where a bankrupt filed a bill against a debtor to his estate, asserting the invalidity of the commission, and charging collusion between his assignees and the debtor- a demurrer was likewise allowed, the proper course being, either to try in an action the validity of the commission, or to petition to remove the assignees. (3) Where a bill, however, was filed by an uncertificated bankrupt in the Exchequer - though the assignees were not before the Court-yet it being admitted, that the assignees had already failed in an ejectment brought by them to recover the premises in question, by not being able to prove the petitioning creditor's death, the Court re tained the bill, until proper parties should be added (if necessary), the plaintiff paying the costs of the day. (4) And where a bankrupt filed a bill against a creditor tertained, (who was prosecuting an action at law against him) without standing making his assignees parties to the suit, and stated in his Where bankrupt's suit en notwith |