self; nor is it primâ facie evidence of the validity of the commission. The debt of a creditor, who has joined in a petition to supersede a prior commission, and proved his debt under a second commission, coupled with an act of bankruptcy prior to that on which the second commission is founded, may be set up to defeat such second commission, by a defendant 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 o Stewart v. Richman, 1 Esp. N. P. r Rush v. Baker, M. 8 G. 2. B. R. C. 108. p Rankin v. Horner, 16 East, 191. q Bull. N. P. 41. MSS. Bull. N. P. 41. s Ewens v. Gold, per Hardwicke, C. J. H. 8 G. 2. Bull. N. P. 43. t 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." 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 *. 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 otherz. 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. In an action by the obligees of a joint and several bond against one of the obligors, who was surety for another of them who had become bankrupt, which action was brought u Elsom v. Brailey, C. B. London Sittings after M. T. 50 G. 3. Lawrence, J. S. P. x Wyatt v. Wilkinson, C. B. London Sittings, Chambre, J. 5 Esp. N. P. C. 187. y Hoffman v. Pitt, à Esp. N. P. C. 22. Ellenborough, C. J. z Flower v. Herbert, cited 2 H. Bl. 279. a Bateman v. Bailey, 5 T. R. 512. Ewens v. Gold, per Hardwicke, C. J. Bull. N. P. 40. S. P. (55) In an action by the assignees of a bankrupt for money had 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. after the plaintiffs had elected to prove their debt under the commission, and thereby had relinquished their action against the bankrupt by s. 14. stat. 49 G. 3. c. 121.; the bankrupt not having obtained his certificate, and therefore still liable to be sued by the defendant, his surety, in case of a verdict against him by the plaintiffs, is not a competent witness for the defendant, to prove that a payment of a sum equal to the penalty of the bond made by him (the bankrupt) to the plaintiffs, before action brought was made in discharge of the bond, and not upon another account". 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. 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 gamings. Upon an issue to try the validity of a commission of bankrupt, a creditor is not a competent witness to support the b Townend v. Downing, 14 East, 565. c Per Cur. in Chapman v. Gardner, 2 H. Bl. 279. d Per Ryder, C. J. in Flower v. Herbert, London Sittings, Dec. 17, 1754. 2 H. Bl. 279. n. (a.) e Kennet v. Greenwollers, Peake's N. f Butler v. Cooke, Cowp. 70. and Wal- (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). commission, although he does not appear to have proved under it. 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". A writ of supersedeas under the great seal, reciting the issuing of a commission on such a day, is primâ facie evidence not only of the issuing of the commission but also that it issued on that day". h Adams v. Malkin, 3 Campb. 543. k Ambrose v. Clendon, Ca. Temp. 1 Granger v. Furlong, 2 BI. Rep. 1273. m Green v. Jones, 2 Camp. N. P. C. 411. n Anon. cited by Lord Ellenborough, C. J. in Green v. Jones. o Gervis v. Grand Western Canal Company, B. R. E. 56 Geo. 3. 5 M. & S. CHAP. VIII. BARON AND FEME. 1. 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 as a Feme Sole. may be considered 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 Election. IV. Of Actions against Husband and Wife. I. Of the Liability of the Husband, 1. In respect of Contracts made by the Wife before Comerture. 2. In respect of Contracts made by the Wife dur ing Coverture. 3. In respect of the Children of the Wife by a former Husband. 1. Is respect of contracts made by the Wife before Coverture.-The husband is liable to the debts of his wife, |