The act of bankruptcy must be proved by some person who can swear to the fact from his own knowledge; if the execution of a deed constitute it, the deed must be produced and proved by the subscribing witness, or its absence accounted for, and its contents proved by the usual secondary evidence (i); unless an admission be obtained under the new rules. (See p. 400, post.) Or if it consist of imprisonment, for instance, in the custody of the marshal, the committitur must be produced; for the prison books, although evidence of the time of the commitment and discharge, are no evidence of the cause of the commitment (k). And in all cases, where the intent with which the act was done, constitutes a part of the act of bankruptcy, the intent may be proved by circumstances from which the jury may presume it, or from some admission of the bankrupt accompanying or nearly contemporaneous with it; and therefore, it has been holden, that a declaration by the bankrupt of his motives for absenting himself from his home, made upon his return, was evidence to prove the act of bankruptcy, in an action by the assignees against a debtor of the estate (1). And a declaration of the bankrupt, that he absented himself to avoid a writ against him, was held to be sufficient proof of the act of bankruptcy, without any other proof of the existence of the writ, or of the debt on which it is founded (m).

The commission or fiat is proved by the production of it; it proves itself. So, also, the production of the certificate of the appointment of assignees under the seal of the Court of Bankruptcy, is evidence of the appointment. (1 & 2 Will. 4, c. 56, s. 29, and 2 & 3 Will. 4, c. 114, s. 9, p. 398, post.) Where a fiat is lost, a new original fiat may be issued (n).

The assignment must be produced, and proved in the usual way by the attesting witness; and notwithstanding it is entered of record pursuant to the 6 Geo. 4, c. 16, s. 96 (o); but in an action by the bankrupt, where the assignment had been lost before it was entered of record, secondary evidence of its contents was admitted (p). In an action of assumpsit by assignees, for non-acceptance of shares in a public company, which the defendant had contracted to purchase of the bankrupt, the certificate of the shares without an indorsement of transfer to the assignees, was held not sufficient evidence of plaintiff's title (q).

The cause of action is proved as in ordinary cases.

It may be necessary here to observe, that the Court of Review will order its officer to attend with the proceedings in a town fiat, if necessary, or furnish examined copies to be used on a trial at law, upon the application of a party to the fiat, although his object is to invalidate the fiat; but not upon the application of an adverse

(i) Goss v. Tracy, 1 P. Wms. 189: Burnett v. Taylor, 9 Ves. 381.

(k) Salt v. Thomas, 3 B. & P. 188. (1) Bateman v. Bailey, 5 T. R. 512: Ewens v. Gold, Bul. N. P. 41.

(m) Newman v. Stretch, Mood. & M.

338.

(n) See Re Levett, p. 84, ante.

(0) Gomersale v. Serles, 2 Y. & J. 5.
(p) Giles v. Smith, 1 C., M. & R. 462.
(q) Hare v. Waring, 3 M. & W. 362.

party and a stranger to the fiat; for as against a stranger the court will protect the fiat from being defeated (r).

We have now seen the proofs necessary to sustain an action at the suit of assignees, or a defence in an action against assignees, in ordinary cases; but the recent statutes, however, have introduced many exceptions to the ordinary mode of proof, and, in some cases, have rendered any proof unnecessary.

1. The 1 & 2 Will. 4, c. 56, s. 17, gives the bankrupt a right of disputing the adjudication by the presenting a petition, or by the trial of an issue as therein mentioned, (see p. 358, ante), and if the verdict on such issue shall not be set aside, on application made to the said Court of Review, within one month after the said trial, or if the adjudication of the commissioner shall not be set aside by the said Court of Review, on the petition aforesaid, such verdict or such adjudication of the said commissioner shall, in all cases, as against the said bankrupt, and also as against the petitioning creditor, and as against any assignee to be chosen of any such bankrupt's estate and effects, and as against all persons claiming under the said assignees, and all persons indebted to the bankrupt's estate, be conclusive evidence that the party was or was not a bankrupt at the date of such adjudication; any other act, debt, or trading than the act, debt, or trading proved at such trial notwithstanding: Provided always, that an appeal shall be to the Lord Chancellor from the decision of the said Court of Review, upon matter of law or equity, or on the refusal or admission of evidence only.

2. By stat. 6 Geo. 4, c. 16, s. 92, if the bankrupt shall not (if he was within the 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 or debts, and of the trading and act or acts of bankruptcy, shall be conclusive evidence of the matters therein respectively contained, in all actions at law, or suits in equity, brought by the assignees for any debt or demand for which the bankrupt might have sustained any action or suit. This section applies to all actions which the bankrupt himself might have maintained if no bankruptcy had intervened, as there, the bankruptcy is an immaterial fact in the cause, as in the case of bills not due or goods sold upon a credit unexpired at the date of the bankruptcy; but the section will not apply if the bankruptcy is a material ingredient in the cause of action, as in the cases of fraudulent preference, where, unless the fiat is valid, there is no cause of action in any person (s); and the judge is to decide the point as to the application of this section from the

(r) Ex p. Munk, 3 Dea. & C. 233.
(s) Kitchener v. Power, 4 N. & Man.

710; 3 Adol. & E. 232.

facts of the case, and not from a strict reference to the cause of action as stated upon the record; and therefore, in an action of trover, it is immaterial that the declaration states the conversion took place after the bankruptcy (t). But it is still open to the court to consider whether the debt, trading, or act of bankruptcy, as stated in the depositions, be, in law, a sufficient petitioning creditor's debt, trading, or act of bankruptcy, within the meaning of the statute; but the objection to the sufficiency of the depositions must be made at the trial: it is too late after verdict (u); and even in a case within this section, where the assignees, in consequence of a notice to dispute, went into evidence of the trading, without adverting to the section, or relying upon the depositions, and failed in proof of the trading, they were nonsuited (x). Trover is an action for a demand within the meaning of this section (y); and where the bankrupt, before his bankruptcy, had deposited goods with another person, telling him to keep them till he, the bankrupt, wanted them back, and no demand was made till after the bankruptcy, an action of detinue by the assignees was holden to be within this section (2); and in an action by assignees, where the bankrupt, if solvent, could have sued, and the defendant within two months gave notice of intention to dispute the petitioning creditor's debt and act of bankruptcy, but the bankrupt did not give notice to dispute the commission, the depositions under the commission were held to be conclusive evidence; for the contingency upon which the application of 6 Geo. 4, c. 16, s. 92 depends, is ascertained at the expiration of the two months, and an action commenced before the expiration of that period is not exempted from its operation (a). But if the debt of the petitioning creditor is due to him as the assignee of another bankrupt, the proceedings under this latter fiat are not within this section; and therefore, in such case, in order to prove the petitioning creditor's debt, it is not sufficient to produce the proceedings of the fiat under which the petitioning creditor is assignee, but the petitioning creditor's debt, trading, and act of bankruptcy, to support the fiat under which the petitioning creditor claims, must be proved by the ordinary evidence (b). Where the depositions of the petitioning creditor's debt stated it to have arisen from a bill of exchange drawn by the bankrupt, but stated neither presentment nor notice, it was holden insufficient (c). And a deposition, stating, that the deponent saw the bankrupt execute an assignment of his effects, &c., is sufficient evidence of the act of bankruptcy, without producing the assignment (d). But if, in an action of trover by the assignees, the defendant's attorney undertakes to admit that the party “duly became bankrupt,” and

(t) Ib.; Fox v. Mahony, 2 C. & J.

325.

(u) Jacobs v. Latour, 2 Moo. & P. 201. (1) Johnson v. Piper, 2 N. & Man. 677.

(y) Robson v. Alexander, 1 Moo. & P. 448.

(2) Smith v. Woodward, 4 Car. & P. 541: but see Hare v. Waring, 3 M. &

no notice is given to dispute the fiat, the admission is conclusive of the bankruptcy, and the defendant cannot call for the proceedings, to shew from them there was no act of bankruptcy (e): also, where the deposition proves the petitioning creditor's debt, the defendant cannot give evidence that the debt is a fraudulent contrivance between the bankrupt and the petitioning creditor (ƒ). This section is not retrospective, and therefore applies to such commissions only as have been issued after the act came into operation (g). And by 2 & 3 Will. 4, c. 114, s. 7, in the event of the death of any of the witnesses deposing to the petitioning creditor's debt, trading, or act of bankruptcy, under any commission or fiat already issued, or hereafter to be issued, it shall be lawful for the assignees appointed under such commission or fiat, and for all persons claiming through or under them, or acting by or under their authority, in the cases hereafter mentioned, to produce and read in evidence, in all courts of civil judicature, and in all civil proceedings, in maintenance and support of such commission or fiat, any deposition of such deceased witness relative to such petitioning creditor's debt trading, or act of bankruptcy, which shali have been duly entered of record, pursuant to the provisions of the said recited Acts, or of this Act; and the production or reading of such depositions, or of any copy thereof, duly authenticated according to the provisions of the said recited Acts or of this Act. shall have the same effect as if the matters alleged therein had been deposed to by the same witness in such court according to the ordinary course and practice thereof: Provided always, that the before-mentioned depositions shall be read in evidence in such cases only where the party using the same shall claim, maintain, or defend some right, title, interest, claim, or demand which the bankrupt might have claimed, maintained, or defended in case no commission of bankrupt or fiat had issued, and shall not be read in evidence in any action or proceeding now pending by which the validity of any commission or fiat is or may be brought into question. In giving the depositions or other proceedings in evidence. it is sufficient that they are produced bearing the seal of the Court of Bankruptcy, without any proof. (See 2 & 3 Will. 4, c. 114, s. 9, p. 398, post).

3. By stat. 6 Geo. 4, c. 16, s. 90, in any action by or against any assignee, or in any action against any commissioner or person acting under the warrant of the commissioners, for anything done as such commissioner, or under such warrant, no proof shall be required at the trial of the petitioning creditor's debt or debts, or of the trading or act or acts 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

(e) Perring v. Tucker, 3 M. & P. 557.

(f) Young v. Timmins, 1 C. & J. 148.

(g) Key v. Cook, 2 M. & P. 720: Ko v. Goodwin, 4 Moore, 341.

shall have been given, if such assignee, commissioner, or other person 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, commissioner, or other person shall be entitled to the costs to be taxed by the proper officer occasioned by such notice, and such costs shall, if such assignee, commissioner, or other person shall obtain a verdict, be added to the costs, and if the other party shall obtain a verdict (h), shall be deducted from the costs, which such other party would otherwise be entitled to receive from such assignee, commissioner, or other person. A plea to an action by assignees, "that F. was not duly declared a bankrupt," does not operate as a notice to dispute the bankruptcy under this section (i). Where the action is by the assignees for a debt due before the bankruptcy, and notice is given to dispute the trading, &c., as the depositions are made conclusive evidence, the judge can only give a certificate for costs of producing the depositions, and not for the attorney's attendance, or for witnesses subpoenaed to establish the bankruptcy (k).

This section differs materially from a section on the same subject in one of the repealed acts (49 Geo. 3, c. 121, s. 10): there, the depositions of the petitioning creditor's debt &c., were made evidence of these facts unless notice were previously given of an intention to dispute them; here, if no such notice be given, the facts of there being a sufficient petitioning creditor's debt, trading, and act of bankruptcy, will be considered as admitted (1). It may be doubtful whether the present section is to be confined to those cases only where it appears upon the face of the record that the plaintiffs sue, or the defendants justify, as assignees under the fiat; or whether it extends to all cases where the plaintiffs or defendants are really assignees, and where, if notice had been given, they would be obliged to prove the petitioning creditor's debt, &c., in order to sustain their action or defence. Perhaps the latter; for by s. 44 of the same statute, in all actions against any person for anything done in pursuance of this Act, the defendant may plead the general issue, and give the special matter in evidence (m). It extends to the case where an assignee is sued in trover, and it appears that he claims the goods as belonging to the bankrupt (n). It extends to actions by the bankrupt against his assignees; and the bankrupt must, in such a case, give notice of his intention to dispute the petitioning creditor's debt, trading, or act of bankruptcy, even although the assignees know that the action is brought for the purpose of disputing the validity of the fiat (o); otherwise these facts will be taken as admitted; and even though the defendants produce the proceedings, and a good petitioning creditor's