amount of one bill only under the commission, and thereby made their election to take the benefit of the commission, not only with respect to the debt proved, but also as to the bills and debts mentioned in the declaration. Held, upon demurrer, that this plea could not be supported; first, because the proof of a debt under the commission of bankruptcy cannot be pleaded in bar to an action at law brought for the same debt; secondly, that the election of the creditor to take the benefit of the commission, is confined by the 49 G. 3. c. 121. s. 14. to the debt actually proved, and does not extend to distinct debts ejusdem generis due at the same time.

Of Discharge by Certificate in Foreign Country.-What is a discharge of a debt in the country where it is contracted, is a discharge of it every where. This principle was recognised in Hunter v. Potts, 4 T. R. 182. Hence, if a bankrupt in Ireland, obtain his certificate there, and come into England, he will be discharged by such certificate from a debt contracted in Ireland, prior to the commission. So where the defendant gave the plaintiff, at Baltimore in America, where both were resident, a bill of exchange drawn by the defendant upon a person in England, which bill was afterwards protested here for non-acceptance', and the defendant afterwards, while he was resident abroad, became a bankrupt there, and obtained a certificate of discharge by the law of that state; it was holden, that such certificate was a bar to an action here upon an implied assumpsit to pay the bill in consequence of the non-acceptance in England; Lawrence, J. observing, that when the plaintiff agreed to take the bill in question, the promise in effect was this, to pay the money in America, if it were not paid here. Then the bill having been refused acceptance here, the implied promise to pay the money arose in America, and consequently the defendant's certificate was a bar to the demand. But a discharge under a commission of bankrupt in a foreign country, is not any bar to an action for a debt contracted here with a subject of this country ". And for this purpose Ireland is considered as a foreign country. A debt contracted in England, by a trader residing in Scotland, is barred by a discharge under a sequestration issued in conformity to the 54 Geo. 3. c. 137. in like manner as debts contracted in Scotland.

Set-off. By stat. 6 G. 4. c. 16. s. 50. where there has been

k Ballantine v. Golding, Co. B. L. 5th edit. p. 499.

1 Potter v. Brown, 5 East's R. 124.

m Smith v. Buchanan, 1 East's R. 6. n Lewis v. Owen, 4 B. and A. 654. o Sidaway v. Hay, 3 B. and C. 12.

mutual credit given by the bankrupt and any other person, or where there are mutual debts between the bankrupt and any other person, the commissioners shall state the account between them, and one debt or demand may be set against another, notwithstanding any prior act of bankruptcy, committed by such bankrupt, before the credit given to, or the debt contracted by him; and what shall appear due on either side on the balance of such account, and no more, shall be claimed or paid on either side respectively; and every debt or demand hereby made proveable against the estate of the bankrupt, may also be set-off against such estate; provided that the person claiming the benefit of such set-off, had not, when such credit was given, notice of an act of bankruptcy by such bankrupt committed.

The corresponding section, stat. 5 G. 2. c. 30. s. 28. varied from the foregoing, the language thereof being, "mutual credit, or mutual debts," &c. at any time before such person became a bankrupt. The 50th section of Geo. 4. c. 16. gives a right of set-off in the case of " mutual credit up to the time of issuing the commission." It has been holden, that the term mutual credit is not confined to pecuniary demands, liquidated at the time, but that it extends to cases where the creditor has been entrusted with that which might become productive of value. J. S. being desirous of making a shipment for his own risk and advantage, but not in his own name, represented to the merchants, through whom the shipment was to be made, that the goods were the property of A. and shipped on his account, and A. accordingly, by the desire of J. S. wrote to those merchants stating the property to be so, and directing them to insure and to advance money to J. S. on the goods, which was done. It was holden', that this was a credit given to A. by J. S. by the delivery of the goods, in its nature likely to terminate in a debt, and that therefore J. S. having subsequently become bankrupt, A. was entitled to recover the proceeds of the shipment from the merchants, and to set-off against a debt due, from the bankrupt to him, in respect of the advances, it being a case of mutual credit within the statute. A. and Co. being bankers, discounted bills of exchange for B. and gave 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

p See Tamplin v. Diggins, 2 Campb. q Sd. arg. 6 B. and C. 47, 48. N. P. C. 312. Kinder v. Butterworth, r Easum v. Cato, 5 B. and A. 861. 6 B. and C. 42. Bolland v. Nash,

8 B. and C. 105.

B. giving him credit for the bills then running. Shortly afterwards B. became a bankrupt, and the bills were dishohoured. It was holden, in an action against the bankers for the admitted balance, 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.

An insurance broker" 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 and on account 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 holden, 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 name 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

s Arbouin v. Tritton, 1 Holt, N. P. C.

408.

t Key v. Flint, 1 Moore, (C. P.) 451. 8 Taunt. 21. S. C.

u Minett v. Forester, 4 Taunt. 541. n. Goldschmidt v. Lyon, 4 Taunt. 534. Parker v. Smith, 16 East, 382. Houston v. Robertson, Holt, 88. S. P.

x Koster v. Eason, 2 M. and S. 112.

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 commisioner, 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 trad ing, 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 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 otherwise be 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. By s. 91. a similar provision is made with respect to suits in equity; and by s. 92. if the bankrupt shall not, (if he was within the

y Parker v. Beasley, 2 M. and S. 423. z See stat. 49 Geo. 3. s. 10. but now Davies v. Wilkinson, 4 Bingh, 573. repealed.

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 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. And by s. 93. if the assignees commence any action or suit, for any money so due to the bankrupt, before the time allowed as aforesaid 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.

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 holden, 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. By s. 95. all things done pursuant to the 5th Geo. 2. and hereby repealed, whereby it was enacted, that the lord chancellor should appoint a place where all matters relating to commissions of bankruptcy should be entered of record, and should appoint a person to have the custody thereof, are confirmed; and the lord chancellor is to appoint a proper person, who shall by himself or his deputy (to be approved by the lord chancellor,) enter of record all matters relating to commissions, and have the custody of the entries thereof. By s. 96. no commission, adjudication of bankruptcy, or assignment of the personal estate of the bank

a Macheath v. Coates, 4 Bingh. 34.