fere; for, by the 141st section of the 12 & 13 Vict. c. 106, all the after-acquired personal property and contracts of the bankrupt so long as he remains uncertificated vest in the assignees, consequently their superior title must prevail where they come forward and assert it (a). An uncertificated bankrupt may acquire property and contract for the benefit of his assignees, and may sue in respect of such property or contract; and a plea showing the bankruptcy, &c., constitutes no defence, unless there be an allegation that the assignees have interfered (y).

An uncertificated bankrupt may maintain an action for work and labour done after his bankruptcy (2); and for materials incident and necessary to the labour (a). So, for money lent and advanced, as it will be presumed that the money may have been earned by his labour (6). But where the plaintiff, a furniturebroker and uncertificated bankrupt, was employed by the defendant to remove his goods, in the course of which business he employed several men and vans, supplied packing-cases, repaired furniture, and provided materials for this purpose and other articles to a trifling amount, it was held, that the debt which thereby accrued to the plaintiff was not a debt in respect of personal labour merely, and that the assignees had a right to intervene and claim it (c); for, if the bankrupt is in effect continuing to carry on his business, the proceeds belong to his assignees (d). The assignees, however, cannot recover in respect of the mere personal labour of the bankrupt, otherwise the court "must go the length of deciding that the assignee might, in the words of Lord Mansfield, in Chippendale v. Tomlinson, let the bankrupt out to hire, and contract himself for his" (the bankrupt's) "personal labour" (e). It has been held, indeed, that if the assignees of a bankrupt manufacturer employ him in carrying on the manufacture for the benefit of the estate, and pay him money from time to time, this is evidence of such a contract between him and his assignees as will enable him to recover from them a reasonable compensation for his work and labour (f). See Castelli v. Boddington, and cases quoted ante, p. 274, et seq.

In an action for maliciously causing and procuring the plaintiff to be declared a bankrupt, it must be averred and proved that the adjudication was annulled before the commencement of the action; and if this fact be not proved, the plaintiff ought to be nonsuited; though it be not averred in the declaration, and though the

defendant has omitted to demur (g). See 24 & 25 Vict. c. 134 s. 91. As to actions by a bankrupt, who has obtained an order for protection under the 112th sect. of the 12 & 13 Vict. c. 106, against overseers for arresting him for non-payment of a poor-rate see Phillips v. Naylor, 3 H. & N. 14, 4 ib. 565.

Actions against Bankrupt.-Formerly, a verbal promise to pay a debt barred by the certificate was binding (h). By 5 & 6 Vict. c. 122, s. 43, such promise, to be binding, was required to be in writing. Now, however, by 24 & 25 Vict. c. 134, s. 164, "after the order of discharge takes effect, the bankrupt shall not be liable to pay or satisfy any debt, claim, or demand proveable under the bankruptcy, or any part thereof, on any contract, promise, or agreement, verbal or written, made after adjudication; and if he be sued on any such contract, promise, or agreement, he may plead in general, that the cause of action accrued pending proceedings in bankruptcy, and may give this Act and the special matter in evidence" (i). A bond is within the above section, Kidson v. Turner, 3 H. & N. 581. By section 166, "any contract, covenant, or security made or given by a bankrupt or other person (k) with, to, or in trust for any creditor for securing the payment of any money as a consideration or with intent to persuade the creditor to forbear opposing the order for discharge, or to forbear to petition for a re-hearing of, or to appeal against, the same, shall be void, and any money thereby secured or agreed to be paid shall not be recoverable, and the party sued on any such contract or security may plead in general, that the cause of action accrued pending proceedings in bankruptcy, and may give this Act and the special matter in evidence (1), provided always that no such security, if a negotiable security, shall be void as against a bona fide holder thereof for value without notice of the consideration for which it was given" (m). This is a penal section, and not to be extended by implication: hence a security given by a bankrupt in consideration of forbearance to oppose his last examination is not void (n). A bill accepted by the bankrupt in blank before the allowance of the certificate, but not dated and drawn till afterwards, is not a security within this clause (o); nor

202. See Smith v. Saltzmann, 9 Exch. 535.

(m) This proviso is new. The effect of the clause without it is to avoid a security in the hands of an innocent indorsee for value. Goldsmid v. Hampton, 5 C. B. N. S. 94; Birch v. Jervis, 3 C. & P. 379.

(n) Taylor v. Wilson, 5 Exch. 251. See 24 & 25 Vict. c. 134, s. 140. (o) Goldsmid v. Hampton.

does the 164th section afford any defence to a bankrupt in an action, at the suit of an innocent indorsee for value, on such bill (p).

By 12 & 13 Vict. c. 106, s. 182 (g),-"No creditor who has brought any action, or instituted any suit against any bankrupt, in respect of a demand prior to the bankruptcy, or which might have been proved as a debt under the bankruptcy, shall prove a debt under such bankruptcy, or have any claim entered upon the proceedings, without relinquishing such action or suit; and the proving or claiming a debt, under a fiat or petition for adjudication of bankruptcy by any creditor, shall be deemed an election by such creditor to take the benefit of such fiat or petition with respect to the debt so proved or claimed; provided that such creditor shall not be liable to the payment to such bankrupt, or his assignees, of the costs of such action or suit, so relinquished by him; and that where any such creditor shall have brought any action or suit against such bankrupt, jointly with any other person or persons, his relinquishing such action or suit against the bankrupt shall not affect such action or suit against such other person or persons. Provided, also, that any creditor who shall have so proved or claimed, if the fiat or petition for adjudication be afterwards superseded or dismissed, may proceed in the action as if he had not so proved or claimed, and in bailable actions shall be at liberty, under the authority of a judge's order for that purpose, obtained in like manner as may now by law be done, to arrest the defendant de novo, if he has not put in bail below, or perfected bail above, or, if the defendant has put in or perfected such bail, to have recourse against such bail, by requiring the bail below to put in and perfect bail above, within the first eight days in term, after notice in the London Gazette of the first superseding or dismissing such fiat or petition, and by suing the bail upon their recognizance, if the condition thereof is broken."

A party does not bring his case within this section so as to amount to an election to prove under the commission; nor is he entitled to a stay of proceedings, unless he has proved his debt, or had his claim entered on the proceedings (r). The section does not extend to prevent a creditor, who proved a joint debt under a commission against one partner, from suing the others (s). The drawer of a bill of exchange, who had paid the amount to the holder after a commission of bankruptcy issued against the acceptor, might sue the acceptor before he had obtained his certi

(p) Goldsmid v. Hampton.

(4) See corresponding sections 49 Geo. III. c. 121, s. 14, and 6 Geo. IV. c. 16, s. 59, repealed; Geikie v. Hewson, 4 M. & G. 618; Morisse v. The Royal British Bank, 1 C. B. N. S. 67; Exp. Flower, De G. 503; 16 L. J., Bank. 9, S. C.

(r) Augarde v. Thompson, 2 M. & W. 617; Ball v. Bowden, 22 L. J., Exch. 249.

(8) Heath v. Hall, 4 Taunt. 326. See Young v. Glass, 16 East, 252, and sect. 163, post, p. 324d.

ficate, and arrest him upon the bill, notwithstanding the holder had proved the bill under the commission (t). Two parcels of goods were sold at different times, and paid for by bills; the vendee afterwards becoming bankrupt, the vendors proved, under the commission, for the amount of the first parcel, they then holding the bill given in payment for the same; the bill for the other parcel, having been negotiated by them prior to the bankruptcy, and being at the time of the bankruptcy outstanding, was afterwards dishonoured: it was held, that the vendors were not precluded from suing the bankrupt for the amount of the last parcel of goods (u). Declaration upon four bills of exchange. Plea in bar, that defendant was indebted to plaintiffs in divers large sums of money for goods sold; that, for securing to the plaintiff's the said several sums of money, defendant, before his bankruptcy, accepted a bill of exchange drawn by the plaintiffs, in payment of one of the said several sums of money; and that he had accepted each of the several bills of exchange in payment of one other of the several sums of money. The plea then stated that defendant became bankrupt; that the bills of exchange were proveable under the commission; that the plaintiffs proved the amount of one bill only under the commission, and thereby made their election to take the benefit of the commission, not only with respect to the debt proved, but also as to the bills and debts mentioned in the declaration. Held, upon demurrer, that this plea could not be supported: first, because the proof of a debt under the commission of bankruptcy cannot be pleaded in bar to an action at law brought for the same debt (x); secondly, that the election of the creditor to take the benefit of the commission is confined to the debt actually proved, and does not extend to distinct debts ejusdem generis due at the same time (y). When the plaintiff, in an action against the bankrupt, elects to proceed under the bankruptcy, the defendant is entitled to have a suggestion to that effect entered on the record (z). Where the defendant in an action becomes bankrupt after verdict against him, but before judgment, and the plaintiff proves under the commission for the debt, but the costs are disallowed, the court of law will stay any proceedings taken on the judgment to recover such costs, although the bankrupt has not obtained his certificate and no dividend has been paid (a).

The husband's bankruptcy is a defence to an action against the

husband and wife for a debt due from the wife before coverture, there being no allegation that the wife is possessed of separate property (b).

XIII. Of the Order of Discharge (c).`

By the provisions of the 24 & 25 Vict. c. 134, certificates of conformity are abolished (see s. 157), and orders of discharge substituted therefor. By s. 161 (d),-"The order of discharge shall, upon taking effect, discharge the bankrupt from all debts, claims, or demands proveable under his bankruptcy, save as herein otherwise provided; and if thereafter he shall be arrested, or any action shall be brought against him, for any such debt, claim, or demand, he shall be discharged upon entering an appearance, and may plead in general, that the cause of action accrued before he became bankrupt, and may give this Act and the special matter in evidence; and the order of discharge shall be sufficient evidence of the bankruptcy and the proceedings precedent to the order of discharge." By s. 162,-" If a bankrupt, after the order of discharge takes effect, be arrested or detained in custody for a debt, claim, or demand proveable under his bankruptcy, where judgment has been obtained before the order of discharge takes effect, the court, or a judge of a superior court of law, shall, on proof of the order of discharge, and unless there appear good reason to the contrary, direct the officer who has the bankrupt in custody to discharge him, which shall be done accordingly without fee." s. 165,-"The order of discharge shall discharge the bankrupt from the effects of any process issuing out of any court for contempt of any court for non-payment of money, or of costs or expenses in any court, and from all costs which he would be liable to pay in consequence of, or on purging, his contempt; and a bankrupt in custody under any such process as aforesaid shall, on obtaining an order of discharge, be entitled to be discharged from such custody forthwith." By s. 149, a person entitled to enforce against the bankrupt payment of any money, &c. by process of contempt, may prove for the amount. By s. 172, the order of discharge is to be in such form as general orders shall direct. See Wagner v. Imbrie, 6 Exch. 882.

By

By the above section (the 161st), a bankrupt is discharged, in the case of a debt proveable under the bankruptcy, not merely from the debt, but from all remedies for its recovery (e). A land

(b) Carr v. Duncan, 31 L. T. 96; Lockwood v. Salter, 5 B. & Ad. 303.

(c) The order of discharge releases the creditors' assignee from all demands by the creditors, or any person who might have proved under the bankruptcy, s. 180.

(d) This section is similar to 6 Geo. IV. c. 16, ss. 121, 126; 5 & 6 Vict. c. 122. ss. 37, 122; and 12 & 13 Vict. c. 106, ss. 200, 205.

(e) Davis v. Shapley, 1 B. & Ad. 54; Barrow v. Poile, 1 B. & Ad. 629; and