756 Former practice as to proof upon the trial. CHAP. XIX. OF THE EVIDENCE REQUIRED TO SUPPORT THE COMMISSION SECTION 1. Where Notice is given to dispute the Com mission. 2. Where a Party is not entitled to give such Notice. 3. Where no Notice is given. 4. Where no Proof of the Title of the Assignees is necessary. 5. As to the Admissibility of the Depositions and Proceedings under the Commission. 6. Of the Competency of the Bankrupt and his Wife as Witnesses. 7. Of the Competency of Creditors. Ir was formerly necessary in all actions, where the assignees either as plaintiffs or defendants claimed property under the bankrupt, to prove strictly the three requisites to support the commission, viz. the trading, the act of bankruptcy, and the petitioning creditor's debt — as well as that the commission was regularly issued, and the assignment duly executed. Upon failure in proving any one of these matters, (the proof of which adds considerably to the costs of an action, and is often difficult to be established by strict rules of evidence) the assignees were nonsuited, and thus frequently prevented from recovering a just debt due to the bankrupt's estate. To provide in some measure for this evil, the 49 G. 3. c. 121. s.10, 11. enacted, that the commission and proceedings should be evidence of the petitioning creditor's debt, the trading, and act of bankruptcy, unless the other party gave notice of his intention to dispute them. But this, it seems, did not afford an effectual check to the vexatious defence so frequently set up to actions brought by assignees, notwithstanding the defendant was liable to pay the costs of forcing them to prove these several matters on the trial. The legislature has, therefore, now thought it expedient to enact, that in certain cases no such proof shall be required from the assignees; and in others, that the depositions of these matters before the commissioners shall be conclusive evidence; confining, in reality, the former general obligation of proof under the old system, to what may now be considered as excepted cases under the new. tice of in commis Thus by section 90. of the new act, it is declared, that in Enactment any action by or against an assignee-or any commissioner as to noor person acting under the warrant of the commissioners, tention to for any thing done as such commissioner, or under such dispute the warrant-no proof shall be required at the trial of the sion in petitioning creditor's debt, the trading, or act of bankruptcy, actions. unless the other party in such action shall (if defendant, at or before pleading—and, if plaintiff, before the 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 the party giving notice renders himself liable to the costs occasioned by it, if the disputed matter is proved by the other party upon the trial. By section 91., also, a similar provision is made as to In suits in suits in equity by or against the assignees, unless the equity. party in the suit shall, within ten days after rejoinder, give notice in writing to the assignees of his intention to dispute; in which case, if the assignees shall prove the matter so disputed, the costs occasioned by the notice are, in the discretion of the Court, to be paid by the party giving it. Difference between former and present enactments. When depositions made conclusive evidence. These two clauses, it will be perceived, are not (like those in the former statute (1)) confined to actions and suits by or against the assignees-but extend to those against the commissioners, or any person acting under them. There is, also, a material difference in the enactments; the former statute providing, that in case of no notice being given, "the commission, and the proceedings of the commissioners under the same, shall be evidence to be received" of the peti tioning creditor's debt, the trading, and act of bankruptcy— while the present statute declares, that "no proof shall be required at the trial" of those matters. But when the assignees sue for a debt or demand for which the bankrupt might himself have sued, the present statute takes away from the defendant all power whatever of contesting those proceedings after a certain period allowed the bankrupt to dispute the validity of the commission; for by section 92. it is declared, that if the bankrupt shall not (if he be within the United Kingdom at the issuing of the commission) within two calendar months after the adjudication-or (if out of the kingdom) then within twelve calendar months-give notice of his intent to dispute the commission, and proceed therein with due diligence, the depositions taken before the commissioners of the petitioning creditor's debt, 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. In treating of these several enactments, it is proposed to consider, first, the evidence necessary to be adduced by the assignees where the defendant is entitled to give, and does give, due notice to dispute the petitioning creditor's debt, or any of the other requisites to support the commission. Secondly, Where the defendant is not entitled to give such notice. (1) 49 G. 3. c. 121. s. 10, 11. Thirdly, Where no notice has been given by him. And lastly, to consider those cases, where the defendant is, by his own acts, wholly estopped from disputing the title of the assignees. SECTION I. Where the Defendant is entitled to give, and does give Notice to dispute the Commission. as to period li mited for notice. In all actions brought by the assignees for any debt or Difference demand, for which the bankrupt might himself have sued if he had not been bankrupt, the defendant will only be entitled to give notice to dispute the commission within the same giving periods, as those allowed the bankrupt for the same purpose; in other actions, the defendant may use his own discretion in giving such notice; but he does so in each case at the hazard of costs. The defendant, however, can only give notice in actions where the assignees, or commissioners, or the persons acting under their warrant, are parties to the action. For in an action between third persons, if the validity of a commission of bankruptcy comes incidentally into question as a ground of defence, it must be regularly proved in the former manner required by law. (1) But the statute is not limited to cases where the assignees, or the commissioners, are named as such upon the record; but extends to actions, where the opposite party knows that they make out their title, or their justification (as the case may be), under the commission. (2) For before the former statute, though the assignees might not have stated themselves to be such in the declaration, yet if they had no title to recover, except as assignees, they were held bound to prove the petitioning creditor's debt, and the other requisites to support the (1) Doe v. Liston, 4 Taunt. 741. (2) Simmonds v. Knight, 3 Camp. 251. Rowe v. Lant, Gow. 24 No notice can be given in an action between third per sons. Where no commission. (1) The statute, also, is not confined to the tice given. case where the assignees are the only defendants on the record; for if there are other co-defendants who justify as their servants, the statute equally applies. (2) But may where assignees are co-defendants. As to time of giving notice. Where defendant omils to give notice, though As to the time of giving the notice, - the statute, it will be observed, in actions at law, requires the notice on the part of the plaintiff to be given before issue joined. A notice, therefore, delivered at the time of delivering the issue with notice of trial, is clearly sufficient. (3) The notice by the defendant being required to be given at or before pleading, if he has therefore omitted to give notice before pleading, and means to dispute the several matters intending above specified, the regular course is to apply to the to dispute. Court for leave to withdraw his plea, and plead de novo with such notice; the last plea will then be considered the plea of the party to all purposes, and on notice given at the time of pleading, it will be a sufficient compliance with the statute. (4) But, without an application to the Court, he cannot regularly withdraw a plea once pleaded, and deliver it again with a notice, though the time for pleading has not even expired. (5) So in a suit in equity, the defendant has (by analogy to the practice at law) been permitted to withdraw his rejoinder, and rejoin de novo for the purpose of giving notice; but the Court require from him an affidavit, that (according to his information and belief) it is essential to the justice of the case. (6) But, as this is merely an indulgence to the defendant,—in a similar case where the witness to the act of bankruptcy was dead, the permission was only granted, upon terms of admitting the deposition of the deceased witness. (7) |