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fendant in an action at the suit of the assignees under that commission. Beardmore v. Shaw, 1 Bos. & Pul. N. R. 263.

4. The assignment is to be proved by the production of the deed, and proof of the execution of it by the commis

sioners.

5. The cause of action must be proved by the assignees in the same manner, as if the action had been brought by the bankrupt himself. It is impossible to lay down any rules with respect to this head of proof, which must necessarily be adapted to the nature of the demand.

In trover by assignees against a sheriff or creditor, who has seized the bankrupt's goods in execution, after an act of bankruptcy, it is not necessary to prove a demand and refusal; because the property being vested in the assignees from the time of the bankruptcy, the execution is tortious; and where a possession is gained wrongfully, a demand is not

necessary.

Of the Witnesses.-The bankrupt cannot be a witness to swear property in himself, or a debt due to himself, unless he has obtained his certificate, and executed a release to the assignees of his share in the surplus and the dividends; for otherwise it is manifest that he is interested; but he may prove property in, or a debt due to, another. It may be observed, however, that a release and certificate cannot make the bankrupt a witness to prove his own act of bankruptcy (54).

No question can be asked from the bankrupt, the object of which is to support his own bankruptcy; and it is immaterial whether such question be asked upon an examination in chief, or upon a cross examination. It is equally improper in both cases. Nor can a bankrupt(55) be asked questions, the effect and tendency of which is to establish an antecedent act of bankruptcy.

a Bull. N. P. 41.

b Rush v. Baker, M. 8 G. MSS. Bull. N. P. 41.

2. B. R.

e Elsom v. Brailey, C. B. London Sittings after M. T. 50 G. 3. Lawrence J. S. P.

* Ewens v. Gold, per Hardwicke C. J. f Wyatt v. Wilkinson, C. B. London Sittings, Chambre J. 5 Esp. N. P. C. 197.

H. 8 G. 2. Bull. N. P. 43.

d Field v. Curtis, Str. 829.

(54) "For although the bankrupt has obtained a certificate, yet if he be not a bankrupt (as he cannot be if he has not committed an act of bankruptcy, which is the question) his certificate and all the proceedings under the commission, are void."

(55) In an action by the assignees of a bankrupt for money had

Nor to explain an equivocal act of bankruptcy,

Nor, if a joint commission issues against two, can one; having obtained his certificate, be called to prove an act of bankruptcy committed by the other.

But although the bankrupt cannot be a witness to prove his own act of bankruptcy, yet what was said by him, at the time, in explanation of his own act, may be received in evidence'. Hence, if he has been absent from home, a declaration by him on his return home, that he had been abroad in order to avoid creditors, is good evidence.

A certificated bankrupt cannot be a witness to prove any of the facts necessary to support the commission, as the petitioning creditor's debt, &c. because he is interested in upholding the commission, on the validity of which his certificate and discharge from his former debts depend (56). But to prove other matters he may, that is, when he has executed a release to his assignees of his share in the surplus and dividends. See ante.

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and received, in order to establish the act of bankruptcy, the plaintiffs proved that the trader had absconded for fear of being arrested. The defendant in order to substantiate his defence in proof called the bankrupt. The plaintiffs offered to cross examine him, as to the time of his first secreting himself for fear of being arrested. Norton and Ford for defendant objected, that he could not be examined to that fact; for he was not a competent witness, being interested to establish his bankruptcy; and it was settled that the plaintiffs could not produce him to prove an act of bankruptcy, though he might be examined as to collateral matter. On the part of the plaintiffs it was admitted, that he could not be produced by the plaintiff as a witness in chief to that fact, but when the defendant called him, and made him a competent witness in the cause, he submitted to his being examined and could not prevent any question being asked his own witness. Lee. C. J. "I think the defendant by calling the witness, has waved all objections to his competency; and therefore he may be examined as to the time of the bankruptcy." Fletcher and Bolton, assignees of Gill, bankrupt v. Woodmass, B. R. London Sittings, M. 25 G. 2. MS.

(56) The certificate may be considered/also as a release, which the releasee can never be allowed as a witness to affirm. Per Ryder C. J. in Flower v. Herbert, N. P. 2 H. Bl. 279. n. (a).

A certificated bankrupt, under a second commission of bankruptcy, cannot be a witness for the assignees under that commission", if he has not paid 15s. in the pound under it.

An uncertificated bankrupt may be a witness against himself, but not for himself, that is, he may be a witness to decrease the fund, but not to increase it".

Upon an issue out of chancery to try, whether the bankrupt had, within one year before his bankruptcy, lost five. pounds in one day at gaming, a creditor of the bankrupt was called to prove the gaming; but the C. J. would not allow him to be a witness; because he would be entitled to a share out of the bankrupt's allowance forfeited by the gaming.

A creditor who has released his debt to the assignees, may be called to prove the act of bankruptcy, although the bankrupt is plaintiff in the action in which the commission is disputed'.

A release to the assignees only is sufficient without giving one to the bankrupt.

A creditor who has sold his debt is a good witness to support the commission, by proving the petitioning creditor's debt; because his interest is gone'; but the petitioning creditor is not a competent witness, to shew that the commission was regularly sued; for he enters into a bond to the chancellor, conditioned to establish the several facts upon which the validity of the commission depends, and to cause it to be effectually executed. He has therefore a direct interest in the question at issue'. But he is competent to prove the commission invalid'.

m Kennet v. Greenwollers, Peake's N.
P. C. 3. per Kenyon. J.
Butler v. Cooke, Cowp. 70. and Wal-
ker v. Walker, there cited.

Shuttleworth v. Bravo, Str. 507. per
Pratt C. J. Middlesex Sittings.
p Koopes v. Chapman, Peake's N. P.
C. 19. per Kenyon C J.

q Ambrose v. Clendon, Ca. Temp. Hardw. 267.

r Granger v. Furlong, 2 Bl. Rep. 1273. s Green v. Jones, 2 Camp. N. P. C.

411.

t Anon. cited by Lord Ellenborough C.J. in Green v. Jones.

CHAP. VIII.

BARON AND FEME.

I. Of the Liability of the Husband,

1. In respect of Contracts made by the Wife before Coverture.

2. In respect of Contracts made by the Wife during Coverture.

3. In respect of the Children of the Wife by a former Husband.

II. In what Cases a Feme Covert may be considered as a Feme Sole.

III. Of Actions by Husband and Wife,

1. Where the Husband and Wife must join.

2. Where the Husband must sue alone.

3. Where the Husband and Wife may join, or the Husband may sue alone, at his Elec

tion.

IV. Of Actions against Husband and Wife.

I. Of the Liability of the Husband,

1. In respect of Contracts made by the Wife before Coverture.

2. In respect of Contracts made by the Wife during

Coverture.

3. In respect of the Children of the Wife by a

former Husband.

1. JN respect of Contracts made by the Wife before Coverture. The husband is liable to the debts of his wife,

contracted by her before the coverture, and the husband and wife may be sued for such debts during the coverture (1). But if these debts are not recovered against the husband and wife, in the life-time of the wife, the husband cannot be charged for them either at law or in equity after the death of the wife (2).

The defendant's wife, before marriage, gave a promissory note for 50l. to the plaintiff, and afterwards married the defendant, who had with her personal estate to the amount of 700l., part whereof consisted of choses in action. The plaintiff did not during the coverture recover judgment upon the note against the husband and wife. The wife died about a year after the marriage. The defendant on her death took out letters of administration. Some of the choses in action had been received by the defendant as husband in the life-time of the wife, the rest he took as her administrator. The plaintiff finding that the choses in action were not sufficient to satisfy his demand, filed a bill against the defendant, praying that the defendant should be made liable to answer his the plaintiff's demand, for so much as he had received out of the clear personal estate of the wife upon his marriage.

Lord Talbot Ch. said, that as on the one hand the husband was by law liable, during the coverture, to all debts contracted by his wife, dum sola, whatever their amount might be, although she did not bring him a portion of one shilling; so, on the other hand, it was certain, that if such debts were not recovered during the coverture, the husband, as such, was not chargeable, let the fortune he received with his wife be ever so great. He added, that the wife's choses in action were assets, and thereupon decreed an account of what the husband had received since his wife's death as her administrator, and that he should be liable for so much only; but as to any further demand against him, dismissed the bill.

2. In respect of Contracts made by the Wife during Cover-
c Heard v. Stamford, 3 P. Wms. 409.
Ca. Temp, Talḥ, 173. S. C.
d F. N. B. 120. F.

a F. N. B. 120. F.

F.N. B. 121. C. 1. Rol. Abr. 351. (G.) pl. 2.

(1) In actions for the recovery of such debts, husband and wife must be joined, 7 T. R. 348.

(2) But if the wife survive the husband, an action may be maintained against her for the recovery of these debts. Woodman v. Chapman, 1 Camp. N. P. C. 189. Ed. Ellenborough C. J.

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