Amends may be paid into issue joined.

court before

Limitation of actions.

same were not sufficient, and also against the defendant on such other plea or pleas, they shall give a verdict for the plaintiff, and such damages as they shall think proper, which he shall recover together with costs of suit; provided that if any such commissioner shall neglect to tender any amends, or shall have tendered insufficient amends before the action brought, he may, by leave of the court where such action shall depend, at any time before issue joined, pay into court such sum of money as he shall think fit, whereupon such proceedings shall be had in court as in other actions where the defendant is allowed to pay money into court.-[See Arch. B. L. 18.]

XLIV. And be it enacted, That every action brought against any person for anything done in pursuance of this act shall be commenced within three calendar months next after the fact committed; and the defendant or defendGenerai issue. ants in such action may plead the general issue, and give this act and the special matter in evidence at the trial, and that the same was done by authority of this act; and if it shall appear so to have been done, or that such action was commenced after the time before limited for bringing the same, the jury shall find for the defendant or defendants; and if there be a verdict for the defendant or defendants, or if the plaintiff or plaintiffs shall be nonsuited, or discontinue his or their action or suit after appearance thereto, or if upon demurrer judgment shall be given against the Double costs. plaintiff or plaintiffs, the defendant or defendants" shall recover double costs' (q).-[See Arch. B. L. 18, 26, 388, 403.] XLV. And be it enacted, That it shall be lawful for the commissioners, as often as they shall think fit, by writing under their hands, to appoint one or more person or persons as assignee or assignees of the bankrupt's real and chosen by cre- personal estate, or of any part thereof, which assignee or assignees shall or may be removed at the meeting of the creditors for the choice of assignees, if they (r) shall think fit; and such assignee or assignees so removed shall deliver up and assign all the estate of the bankrupt come to his or their possession to the assignee so chosen as hereinafter mentioned; and all the estate of the bankrupt, which shall be so delivered up and assigned, shall be as effectually and legally vested in the assignees so chosen as aforesaid, as if the first assignment had been made to them by the commissioners; and if such first assignee or assignees shall not within ten days (s) after notice given of the said choice of assignees, and of their consent to accept such assignment, signified to the first asssignee or assignees by writing under their hands, make such assignment and de

Commissioners may appoint assignees until others are

ditors.

Penalty on first assignee for not delivering the effects to the new ones, 2007.

(q)" to have his costs."-See 1 Jac. 1. c. 15, s. 16).

(r) "or the major part in value of them, whose debts respectively amount to 10%. or upwards, as aforesaid, then present, and

of such persons duly authorized as aforesaid, shall think fit."-(5 Geo. 2, c. 30, s. 30).

(s) "Shall refuse or neglect by the space of ten days next."—(Id.)

livery as aforesaid, every such assignee shall forfeit two hundred pounds ().—[See Arch. B. L. 92.]

XLVI. And be it enacted, That at the three several Debts how to meetings so appointed by the commissioners as aforesaid, be proved; and at every other meeting by them appointed for proof of debts, (whereof and of the purport whereof ten days' notice shall have been given in the London Gazette), every creditor of the bankrupt may prove his debt by his own oath,

abroad.

and all bodies politie and public companies incorporated or by corpora authorized to sue or bring actions, either by charter or act tions, &c.; of parliament, may prove by an agent, provided such agent shall in his deposition swear that he is such agent as aforesaid, and that he is authorized to make such proof; and if by creditor, any creditor shall live remote from the place of the meeting remove or of the commissioners, he may prove by affidavit, sworn before a Master in Chancery, ordinary or extraordinary; or if such creditor shall live out of England, by affidavit sworn before a magistrate where such creditor shall be residing, and attested by a notary public, British minister or consul (u); and no creditor shall pay any contribution

on account of any such debt: Provided that it shall be Creditors may lawful for the said commissioners to examine upon oath, be examined either by word of mouth or by interrogatories in writing, upon oath.

every person claiming to prove a debt under the said commission, or to require such further proof, and to examine such other persons in relation thereto, as they shall think fit().-[See Arch. B. L. 149.]

admitted to

prove not

of bank

XLVII. And be it enacted, That every person with whom Bonâ fide creany bankrupt shall have really and bona fide contracted any ditors shall be debt or demand before the issuing the commission against him (y) shall, notwithstanding any prior act of bankruptcy withstanding committed by such bankrupt, be admitted to prove the any secret act same, and be a creditor under such commission, as if no ruptcy. such act of bankruptcy had been committed; provided such person had not, at the time the same was contracted, notice of any act of bankruptcy by such bankrupt committed (z).— (See Arch. B. L. 101, 112, 113.]

XLVIII. And be it enacted, That when any bankrupt shall Commission

If In the 5 Geo. 2, c. 30, s. 30, the following provisions are added: "to be divided and distributed amongst the creditors towards satisfaction of their debts, in such manner as the estate of the bankrupt is or ought to be divided and distributed, and to be recovered by action of debt, bill, plant, or information in any of his Majesty's Courts of Record at Westminster, by such person or persons as such the major part of the commissioners authorized as aforesaid shall appoint to sue for the same, with full costs of suit, wherein no privilege, protection, or wager at law, or more than one imparlance shall be allowed; any law, custom, or usage to the contrary notwithstanding."

b

(u) And in case of creditors residing in foreign parts, such affidavits or solemn affirmations to be made before a magistrate where the party shall be residing. and shall, together with such creditor's letter of attorney, be attested by a notary public, to vote, &e-5 Geo. 2, c. 30, s. 26.)

(z) 21 Jac. 1, e. 19, s. 9, altered.

(y) "The date and suing forth of such commission, which, if contracted before any act of bankruptcy committed, might hare been proved under such commission, shall, notwithstanding," &c.—(46 Geo. 3, c. 135,

s. 2.)

(z) 46 Geo. 3, c. 135, s. 2.

six months'

wages of ser

vants or clerks of bankrupt to be paid.

ers may order have been indebted, at the time of issuing the commission against him, to any servant or clerk of such bankrupt, in respect of the wages or salary of such servant or clerk, it shall be lawful for the commissioners, upon proof thereof, to order so much as shall be so due as aforesaid, not exceeding six months' wages or salary, to be paid to such servant or clerk out of the estate of such bankrupt; and such servant or clerk shall be at liberty to prove under the commission for any sum exceeding such last-mentioned amount.-[See Arch. B. L. 116.1

Apprentices

discharged

dentures.

XLIX. And be it enacted, That where any person shall be from their in- an apprentice to a bankrupt at the time of issuing of the commission against him, the issuing of such commission shall be and enure as a complete discharge of the indenture or indentures whereby such apprentice was bound to such bankrupt; Commission- and if any sum shall have been really and bonâ fide paid by or any sum to be on the behalf of such apprentice to the bankrupt, as an apprenpaid in respect tice fee, it shall be lawful for the commissioners, upon proof of apprentice thereof, to order any sum to be paid to or for the use of such

ers may order

fees.

Mutual debts and credits may be set off

ing a secret act of bankruptcy.

apprentice which they should think reasonable, regard being had, in estimating such sum, to the amount of the sum so paid by or on behalf of such apprentice to the bankrupt, and to the time during which such apprentice shall have resided with the bankrupt previous to the issuing of the commission.-[See Arch. B. L. 115.]

L. And be it enacted, That where there has been mutual credit given by the bankrupt and any other person, or where notwithstand- there are mutual debts between the bankrupt and any person, the commissioners shall state the account between them, and one debt or demand may be set against another, notwithstanding (a) 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 provable against the estate of the bankrupt may also be set off in manner aforesaid 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 (b).— [See Arch. B. L. 121.]

(a) "In like manner as if no such prior act of bankruptcy had been committed, provided such credit was given to the bankrupt two calendar months before the date and suing forth of such commission, and provided the person claiming the benefit of such set-off had not at the time of giving such credit any notice of any prior act of bankruptcy by such bankrupt committed, or that he was insolvent or had stopped payment: Provided always, that the issuing of a commission of bankrupt against such bankrupt, although

such commission shall afterwards be superseded, or the striking of a docket for the purpose of issuing a commission against such bankrupt, whether any commission shall have actually issued thereupon or not, shall be deemed notice of a prior act of bankruptcy, for the purposes of this act, if it shall appear that an act of bankruptcy had been actually committed at the time of issuing such commission or striking such docket."—(46 Geo. 3, c. 135, s. 3.)

(b) 5 Geo. 2, c. 30, s. 28.

time of the

LI. And be it enacted, That any person who shall have Debts not given credit to the bankrupt upon valuable consideration, payable at the for any money, or other matter or thing (c) whatsoever, bankruptcy which shall not have become payable when such bankrupt may be proved, deducting committed an act of hankruptcy, and whether such credit rebate of inshall have been given upon any bill, bond, note, or other terest. negotiable security (d), or not, shall be entitled to prove such debt, bill, bond, note, or other security, as if the same was payable presently (e), and receive dividends equally with the other creditors, deducting only thereout a rebate of interest for what he shall so receive, at the rate of five per cent, to be computed from the declaration of a dividend (f) to the time such debt would have become payable according to the terms upon which it was contracted.— [See Arch. B. L. 102].

persons liable

paid such

LII. And be it enacted, That any person who at the Sureties and issuing the commission shall be a surety or liable for any for the debts debt of the bankrupt, or bail for the bankrupt, either to the of bankrupts sheriff or to the action, if he shall have paid the debt or any may prove, part thereof in discharge of the whole debt (although he after having may have paid the same after the commission issued), if the debts. creditor shall have proved his debt under the commission, shall be entitled to stand in the place of such creditor as to the dividends and all other rights under the said commission which such creditor possessed or would be entitled to in respect of such proof; or if the creditor shall not have proved under the commission, such surety or person liable, or bail, shall be entitled to prove his demand in respect of such payment as a debt under the commission, not disturbing the former dividends, and may receive dividends with the other creditors, although he may have become surety liable or bail as aforesaid, after an act of bankruptcy committed by such bankrupt; provided that such person had not, when he became such surety or bail, or so liable as aforesaid, notice of any act of bankruptcy by such bankrupt committed (y).[See Arch. B. L. 127.]

(e) These words are omitted in the 49 Geo. 3, c. 121, s. 9, although contained in the preceding act of 7 Geo. 1, c. 31, s. 1, where the words are, "that all and every person and persons who have given credit, or at any time or times hereafter shall give credit on such securities as aforesaid, to any person or persons who is, are, or shall become bankrupts, upon a good and valuable consideration bona fide for any sum or sums of money, or other matter or thing whatsoever," &c.

(d) or other securities, promise, or agreements."-(7 Geo. 1, c. 31, s. 1.)

(e) "or not at a future day."-(49 Geo. 3, c. 21, s. 9.)

"the actual payment thereof."(7 Geo. 1, c. 31, s. 1; and 49 Geo. 3, c. 121, 6.9.)

(g) "or that he was insolvent, or had stopped payment."-(49 Geo. 3, c. 121, s. 8.)

"and every person against whom any such commission of bankruptcy has been or shall be awarded, and who has obtained or shall obtain his certificate, shall be discharged of all demands at the suit of every such person having so paid, or being here. by enabled to prove as aforesaid, or to stand in the place of such creditor as aforesaid, with regard to his debt in respect of such suretyship or liability, in like manner, to all intents and purposes, as if such person had been a creditor before the bankruptcy of the bankrupt for the whole of the debt in respect of which he was surety, or was so liable as aforesaid."— (Id.)

Obligee in bottomry or respondentia bonds, and assured in policy of insurance, admitted to claim; and after loss to

prove.

LIII. And be it enacted, That the obligee in any bottomry or respondentia bond, and the assured in any policy of insurance made upon good and valuable consideration, shall be admitted to claim, and, after the loss or contingency shall have happened, to prove his debt or demand in respect thereof, and receive dividends with the other creditors as if the loss or contingency had happened before the issuing of the commission against such obligor or insurer (h); and that the person effecting any policy of insurance upon fecting insur- ships or goods with any person, as a subscriber or underance admitted writer, becoming bankrupt, shall be entitled to prove any to prove loss. loss to which such bankrupt shall be liable in respect of such subscription, although the person so effecting such policy was not beneficially interested in such ships or goods, in case the person or persons so interested is not or are not within the united realm (i).—[See Arch. B. L. 144, 149.]

Persons ef

Annuity creditor admit

ted to prove.

Sureties for payment of annuities granted by Bankrupt, in what manner

LIV. And be it enacted, That any annuity creditor of any bankrupt, by whatever assurance the same be secured, and whether there were or not any arrears of such annuity due at the bankruptcy, shall be entitled to prove for the value of such annuity, which value the commissioners shall ascertain (k), regard being had to the original price given for the said anuuity, deducting therefrom such diminution in the value thereof as shall have been caused by the lapse of time since the grant thereof to the date of the commission.—[See Arch. B. L. 117.]

LV. And be it enacted, That it shall not be lawful for any person entitled to any annuity granted by any bankrupt to sue any person who may be collateral surety for the payment of such annuity, until such annuitant shall have proved under the commission against such bankrupt for the value of such annuity and for the "payment" (1) thereof; and if such surety commission. after such proof pay the amount proved as aforesaid, he shall be thereby discharged from all claims in respect of such annuity; and if such surety shall not (before any payment of the said annuity subsequent to the bankruptcy shall have become due)

to come in under the

(h) 19 Geo. 2, c. 32, s. 2.

(i) "in that part of the United Kingdom in which the commission shall have issued in the proceedings under which such loss is to be proved."-(49 Geo. 3, c. 121, s. 16.)

(k) And be it further enacted by the authority aforesaid, That it shall be competent to any annuity creditor of any person against whom a commission of bankrupt shall issue after the passing of this act, whether the same shall be secured by bond or covenant, or bond and covenant, or by whatever assurance or assurances the same shall be secured, and whether there shall or shall not be or have been any arrears of such annuity at or before the time of the bankruptcy, to prove un

der such commission as a creditor for the value of such annuity, which value the commissioners shall have power and are hereby required to ascertain, and the certificate of every bankrupt, under whose commission such proof shall be or might have been made, shall be a discharge of such bankrupt against all demands whatever in respect of such annuity, and the arrears and future payments thereof, in the same manner as such certificate would discharge the bankrupt with respect to any other debt proved or which might have been proved under the commission. -(49 Geo. 3, c. 121, s. 17.)

(7) Should be "arrears."