1847. WEARING V. SMITH. Volume IX. the full Court must have reviewed it (a). But here the Court may at any rate deal with its own process. [Coleridge J. You are applying under the statute. Do you say you were entitled to make this motion without applying to a Judge at chambers at all?] That seems to follow from the defendant being in execution on a judgment of this Court.. Cur. adv. vult. Lord DENMAN C. J., in the same term (November 10th), delivered the judgment of the Court. This was a motion to discharge a bankrupt prisoner from execution on a judgment obtained before the prisoner obtained a confirmation of his certificate of conformity. The application was first made to my brother Erle, who, upon affidavits being produced shewing that the bankrupt had lost more than 20%. in one day by gambling, refused to order the discharge; and who, on a second application, refused to hear affidavits negativing the loss by gambling. The prisoner now applies to this Court on affidavits negativing such loss. But we think that the Court has no power to act under sect. 42 of stat. 5 & 6 Vict. c. 122., which gives the power to a single Judge only. That puts an end to the present application. We do not say so on the ground that the learned Judge has decided finally or that a second application could not be made to him, or on the merits. We simply decide that we have no jurisdiction to entertain the application. We say nothing against another application to the Judge at chambers. Rule refused. (a) Brown v. Bamford, 9 M. & W. 42. See Morris v. Manesty, 7 Q., B. 674. oral tol (9)di bawizor gopi ter a Another summons was afterwards taken out, and heard before Erle J., when affidavits were produced to negative and to establish the charge of a loss by gambling to an amount sufficient to avoid the certificate. The learned Judge ordered the summons to be dis missed with costs. Watson, in this term (a), moved to rescind the order. The application is not now for the discharge of the defendant, but to rescind the order, under which he is called upon to pay costs. The Judge had no power, under sect. 88, to treat the certificate as void; the proper mode of insisting on that section is to raise the point when the certificate is to be allowed or confirmed. If a bankrupt be arrested on mesne process for a debt proveable under the fiat, he may, by sect. 42, be discharged upon entering an appearance; and he may plead that the cause of action accrued before the bankruptcy; and the certificate and its confirmation will be sufficient evidence of all the proceedings in bankruptcy. [Patteson J. I do not understand what can have been meant by the provision as to the arrest on mesne process ['could it be intended that a party arrested under a Judge's order should be discharged on entering an appearance? Coleridge J. Do you say that, if the certificate be allowed and confirmed, and the loss by gambling be afterwards discovered, the certificate must stand good?] The certificate may in that case be avoided by the Court of Review. Under the old law, certificates were avoided upon a case being properly bertor sig f (a) January 13th. and Erle Js. Before Lord Denman C. J., Patteson, Coleridge Volume IX. 1847. WEARING V. SMITH. made out before the Court which had jurisdiction in bankruptcy; Ex parte Tallis (a), Ex parte Cawthorne (b), Ex parte Hood (c) (where it was held that the case ought to be beyond doubt), Bailey v. Vincent (d). In Ex parte Dodson (e), the Court refused to stay the certificate, because the petitioner had a remedy at law. The old law remains, except so far as it is inconsistent with stat. 5 & 6 Vict. c. 122., by sect. 2. The Court of Review may direct an issue; stat. 1 & 2 W. 4. c. 56. s. 4. The judgment creditor would have the means of enforcing the objection to the certificate on debt or scire facias on the judgment. [Patteson J. There is a case in Buck's Reports (g), where the Court refused to discharge a bankrupt from arrest without giving an opportunity to the plaintiff to shew that the certificate was fraudulently obtained.] The mode here pursued would make the litigation almost endless. Under the old law, any thing vacating the certificate might be proved under the similiter to a plea of bankruptcy concluding to the country; Hughes v. Morley (h): but only one case of gambling could be proved; Hughes v. Morley (i) at Nisi prius. Any number of such acts might be set up, to be tried on affidavits, if this mode of proceeding were allowed (k). Cur. adv. vult. (a) 1 Rose, 371. (c) 1 Gl. & Jam. 219. (b) 2 Rose, 186, (d) 5 Mad. 48, 49. (e) Buck, 225. 1 (g) Probably Nowers v. Colman, Buck, 5. See also Woolcot. Leicester, 6 Taunt. 75., mentioned in the Index to Buck's Reports,, p. 615. (h) 1 B. & Ald. 22. (i) Holt's N. P. C. 520. (k) In fact, several alleged losses by gambling were insisted upon in the present case. 1847. Lord DENMAN C. J., in this term (January 29th), Queen's Bench. delivered the judgment of the Court. In this case the defendant had applied by summons to be discharged out of custody in execution, on the ground that he had obtained his certificate in bankruptcy; stat. 5 & 6 Vict. c. 122. s. 42. This was opposed under sect. 38, on the ground that he had lost 201. at one sitting by gaming; and my brother Erle, being of opinion that that fact was proved, dismissed the summons with costs. Mr. Watson moved for a rule to rescind this order, on the ground that the production of the certificate entitled the bankrupt to his discharge, that the Court in bankruptcy had exclusive jurisdiction to try whether a certificate was void for gaming, or, if the fact was cognizable in the Courts of common law, it was so only before a jury, and not by affidavit before a Judge; and that therefore an order for discharge ought to have been made, notwithstanding the alleged gaming. We are of opinion that effect must be given, in any Court called on to act on a certificate, to the 38th section, which renders a certificate void in certain events: the Court or Judge, where the certificate is offered, must act judicially; and, if the certificate is alleged to be void, in other words to be no certificate, must decide that question; and, if the determination of it depends on a matter of fact, must ascertain that fact in the same manner as any other which may be in question before them. These principles were acted on under an analogous statute, both at Nisi Prius and in Banc, in Hughes v. Morley (a). (a) Holt's N. P. C. 520.; 1 B. & Ald. 22. WEARING SMITH. Volume IX. 1847. WEARING V. SMITH. It was said in this case that the creditor who objects to the certificate must allege a single fact for the avoidance thereof, and must confine himself to that fact. Upon this we would observe that we are not aware of any principle of law which would support this as a general rule. And the rule is refused. Rule refused (a). (a) See Clark v. Smith, 3 C. B. 982. Monday, Where goods are sold on condition that, if they are not paid for at a time specified, the owner may. resell them, and the vendee shall be answerable for any loss on resale, such sale is condi tional and not absolute. Therefore, if the vendee do not pay at the time, and the vendor resell at a loss, he cannot maintain assumpsit for goods bargained and sold, or goods sold and delivered. And the defence may be raised on Non assumpsit. (as LAMOND and Others against DAVALL. ASSUMPSIT for shares, share certificates, scrip and scrip receipts, bargained and sold, for shares, &c. before) sold and delivered, for money paid, for interest, and on an account stated. Plea: Non assumpsit. On the trial, before Erle J., at the Middlesex sittings during this term, it appeared that the plaintiffs, who were auctioneers, had sold the shares by auction to the defendant at 797., and had afterwards resold them at 63., and were now suing for the 797., under the following circumstances, as stated by Lord Denman C. J. in delivering the judgment of the Court. - "It appeared that the goods had been knocked down to the defendant at an auction by the plaintiffs that it was a condition of the sale that the goods might be resold, unless the purchase money was paid on the following day, the bidder so making default being answerable for the loss on resale: that the plaintiffs had ་། ༣༣ exercised this right, and had received 637. from a re |