that there was not a good petitioning creditor's debt" (k). Where the commission, adjudication and assignment were put in, and it was proved that the plaintiff attended the commissioners, passed his accounts, and afterwards endeavoured to get his certificate signed; it was held, that, as against the plaintiff, this was sufficient evidence of the bankruptcy (1). On a feigned issue, on an allegation that, at the time of the seizing of certain goods in execution, the plaintiffs in the issue were entitled to the same as against and free from the execution, and that the goods were not liable to be so seized as against such plaintiffs: it was held, that the plaintiffs, who claimed as assignees under the bankruptcy of the judgment debtor, were bound to prove the trading, petitioning creditor's debt, and act of bankruptcy, though no notice had been given to dispute those matters (m).

By sect. 235, a similar provision to that contained in sect. 234 is made with respect to suits in equity. By sect. 232, the bank. rupt, an arranging debtor, any creditor or their attorney, is entitled to inspect the proceedings in bankruptcy, and to require office copies (n).

By sect. 236, "any fiat, petition for adjudication of bankruptcy, adjudication of bankruptcy, petition for arrangement between a debtor and his creditors, assignment, appointment of assignees, certificate, deposition, or other proceeding or order in bankruptcy, or under any such petition for arrangement, appearing to be sealed with the seal of the court, or any writing purporting to be a copy of any such document, and purporting to be so sealed, shall at all times, and on behalf of all persons, and whether for the purposes of this act or otherwise, be admitted in all courts whatever as evidence of such documents respectively, and of such proceedings and orders having respectively taken place or been made, and be deemed respectively records of the court, without any further proof thereof, and no such document or copy shall be receivable in evidence unless the same appear to be so sealed, except where otherwise in this Act specially provided." By sect. 203 of 24 & 25 Vict. c. 134," Any petition for adjudication or arrangement, adjudication of bankruptcy, assignment, appointment of official or creditors' assignee, certificate, deposition, or other proceeding or order in bankruptcy, or under any of the provisions of this Act appearing to be sealed with the seal of any court under this Act, or any writing purporting to be a copy of any such document, and purporting to be so sealed, shall at all times and on behalf of all persons, and whether for the purposes of this Act or otherwise be

(k) Hernaman v. Barber, 14 C. B. 594; 15 C. B. 774; 23 L. J. C. P. 145, S. C. See Macbeath v. Coates, 4 Bingh. 34.

(1) Crofton v. Poole, 1 B. & Ad. 568.

(m) Lott v. Melville, 3 M. & G. 40. (n) As to the cost of such copies, see sect. 53.

admitted in all courts whatever as evidence of such documents respectively, and of such proceedings and orders having respectively taken place or been made, and be deemed respectively records of such court, without any further proofs thereof, and no such copy shall be receivable in evidence unless the same appear to be so sealed, except where otherwise in this Act specially provided." By sect. 194, "Every deed, instrument, or agreement whatsoever, by which a debtor, not being a bankrupt, conveys or covenants, or agrees to convey his estate and effects, or the principal part thereof for the benefit of his creditors, or makes any arrangement or agreement with his creditors, or any person on their behalf, for the distribution, inspection, conduct, management, or winding up of his affairs or estate, or the release or discharge of such debtor from his debts or liabilities, shall within twenty-eight days from and after the execution thereof by such debtor, or within such further time as the court in London shall allow, be registered in the Court of Bankruptcy, and, in default thereof, shail not be received in evidence." By sect. 204, "All courts, judges, justices, and persons judicially acting, and other officers, shall take judicial notice of the signature of any commissioner or registrar of the courts, and of the seal of the courts subscribed or attached to any judicial or official proceeding or document to be made or signed under the provisions of this Act." By sect. 42, no document which is required by the Act or by general orders to be stamped, shall be received, &c., unless it be stamped (except in criminal proceedings); but this is not to affect the provisions of the Common Law Procedure Act, 1854; and by sect. 207, judicial notice is to be taken of the seal or signature of any court, judge, officer, or other person, subscribed to any affidavit or other document used for the purposes of the act, or of other acts in relation thereto.

By 12 & 13 Vict. c. 106, s. 240, "a copy of the London Gazette, and of any newspaper containing any such advertisement as is by this Act directed or authorised to be made therein respectively, shall be evidence of any matter therein contained, and of which notice is by this Act directed or authorised to be given by such advertisement; and all proceedings or notices required by this Act to be inserted in the London Gazette shall be marked with the seal of the court from which such proceedings or notices shall be issued, and certified by one of the registrars of the said

court."

By sect. 233 (0), "if the bankrupt shall not (if he were within the United Kingdom at the date of the adjudication, within" (two months (p))," after the advertisement of the bankruptcy in the

(o Corresponding to 5 & 6 Vict. c. 122, s. 24. (p) 17 & 18 Vict. c. 119, s. 24.

London Gazette, or (if he were in any other part of Europe at the date of the adjudication) within three months after such advertisement, or (if he were elsewhere at the date of the adjudication) within twelve months after such advertisement, have commenced an action, suit or other proceeding to dispute or annul the fiat, or the petition for adjudication, and shall not have prosecuted the same with due diligence and with effect, the Gazette containing such advertisement shall be conclusive (q) evidence in all cases as against such bankrupt, and in all actions at law or suits in equity brought by the assignees for any debt or demand for which such bankrupt might have sustained any action or suit (r) had he not been adjudged bankrupt, that such person, so adjudged bankrupt, became a bankrupt before the date and suing forth of such fiat, or before the date and filing of the petition for adjudication, and that such fiat was sued forth, or such petition filed, on the day on which the same is stated in the Gazette to bear date." It is only to actions or suits brought by his own assignees that this section is applicable (8); but it is immaterial whether the cause of action arose before or after the act of bankruptcy (t).

"In all actions by and against assignees of a bankrupt or insolvent-the character in which the plaintiff or defendant is stated on the record to sue or be sued shall not in any case be considered as in issue, unless specially denied." 5 Pl. R. Hil. T., 1853.

In trover by the assignees of a bankrupt, laying the possession in themselves as assignees, pleas that the plaintiff's are not assignees, and were not possessed as assignees, put in issue the trading (where the act of bankruptcy is one for which a trader only is liable to become bankrupt), the petitioning creditor's debt, and the act of bankruptcy; and these must be proved, if notice to dispute them be given (u).

By sect. 155, if the fiat be superseded, or the adjudication or petition be annulled or dismissed, persons from whom the assignees have recovered any real or personal estate, are discharged from all demands in respect thereof. And all persons who shall, without suit, have 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 such persons had no notice of any proceeding to try the validity of the bankruptcy.

(q) Young v. Timmins, 1 Cr. & J. 149; Hare v. Waring, 3 M. & W. 362.

(r) See Alsager v. Close, 10 M. & W. 576.

(8) Muskett v. Drummond, 10 B. & C. 159.

(t) Fox v. Mahoney, 2 Cr. & J. 325; re

cognised in Kitchener v. Power, 3 A. & E. 232.

(u) Buckton v. Frost, 8 A. & E. 844. adopting Butler v. Hobson, 4 B. N. C. 290. As to nonjoinder of a co-assignee, see ante, p. 324 p.

By sect. 242 (x), "in the event of the death of any witness deposing to the petitioning creditor's debt, trading, or act of bankruptcy, under any bankruptcy heretofore or hereafter, or under any petition for arrangement, the deposition of any such deceased witness purporting to be sealed with the seal of the court, or a copy thereof purporting to be so sealed, shall in all cases be received as evidence of the matters therein respectively contained.”

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 (y). See ante, p. 239.

The fact that, after a fiat had been sued out, creditors of the bankrupt delivered up to the assignees goods, which they had received from the bankrupt before the fiat, and before the delivery of other goods by the bankrupt to the defendant, was held not admissible evidence against defendant in trover brought by the assignces for the last-mentioned goods; for any declaration of their opinion made by the creditors after the fiat, however clearly expressed, could not be received in evidence: consequently, evidence of acts done by them, adduced for the purpose of raising an inference respecting the previous intentions, either of themselves or of the bankrupt, is inadmissible (~).

XVI. Of the Suspension of Proceedings, Change from Bankruptcy to Arrangement, and Deeds of Composition.

In addition to the ordinary proceedings in bankruptcy, facilities are afforded for the amicable arrangement of the affairs of debtors, so as to save the exposure of proceedings in open court; and to wind up, in as economical and advantageous a manner as possible, the estate of the debtor. For this purpose the creditors have the option: 1, of suspending proceedings in bankruptcy altogether, and winding up the estate as the majority of the creditors think fit; 2ndly, of changing from bankruptcy to a deed of arrangement, subject to the approval and control of the court; or 3rdly, in cases where no proceedings in bankruptcy have been taken, of winding up the estate under a deed of composition, subject to the jurisdiction of the court.

(x) Corresponding to 5 & 6 Vict. c. 122,

8. 25.

(y) Rush v. Baker, M. 8 Geo. II., B. R., VOL. I.

MSS. Bull. N. P. 41.

(z) Backhouse v. Jones, 6 B. N. C. 65.

A A

Suspension of Proceedings.-By the 24 & 25 Vict. c. 134, s. 110, it is enacted that-"In case at such" (viz. the first) "meeting, or at any other meeting of creditors, any proposal shall be made by, or on behalf of, the bankrupt, which it shall appear to the major part in value of the creditors then present, ought to be accepted (a), or if it shall appear to the majority in value of the creditors present at any meeting to be desirable on any ground to resolve, and such majority shall resolve that no further proceedings be taken in bankruptcy, the meeting shall be adjourned for fourteen days, in order that notice of such resolution may be given to every creditor (b) by the official or creditors' assignee, which shall be done accordingly; and if, at such adjourned meeting, a majority in number, representing three-fourths in value of the creditors present, shall so resolve, the proceedings in bankruptcy shall be suspended, and the estate and effects of the bankrupt shall be wound up and administered in such manner as such majority shall direct, and the bankrupt, having made a full discovery of his estate, shall be entitled to apply for an order of discharge" (c). .

Change from Bankruptcy to Arrangement.-By s. 185, it is provided that "at the first meeting of creditors held after adjudication in manner herein provided, or at any meeting to be called for the purpose, and of which ten days' notice shall have been given in the London Gazette, three-fourths in number and value of the creditors present or represented at such meeting may resolve that the estate ought to be wound up under a deed of arrangement, composition, or otherwise, and that an application shall be made to the court to stay proceedings in the bankruptcy for such period as the court shall think fit." Within four days, the registrar is to report such resolution to the court, and the court after hearing the bankrupt or creditors, for or against the resolution, if it finds that it is reasonable, and was duly carried, and is advantageous to the creditors, shall confirm the same, and stay proceedings accordingly, giving orders for the interim management of the estate (s. 186). At any time within the period for which the proceedings are stayed, the bankrupt, or any creditor nominated by the meeting, may produce to the court a deed of arrangement, signed by three-fourths in number and value of the creditors, and if the court, after inquiry, is satisfied of the reasonableness of such deed, and that its terms are calculated to benefit the creditors (d), it shall, by order, make a declaration of the complete

(a) See Tindal v. Hibberd, 2 C. B. N. S. 199, decided under the repealed sections of the 12 & 13 Vict. c. 106.

(b) Whether an order of discharge granted under this section would bind a creditor who had not such notice, quare.

See Levy v. Horne, post, p. 324ff.

(c) Tindal v. Hibberd, supra; Lee v. Rowley, 8 E. & B. 857.

(d) See Exp. Syers, 25 L. J. Bank. 24; Exp. Perrins, 29 L. J. Bank. 12.