SMITH, J. I am of the same opinion. Mr. Lopes well put everything which could be said in support of this rule. The land was mortgaged in 1836 for the purpose of securing a debt, and the mortgagor remained in possession, but not as tenant to the mortgagee. In 1847, the mortgagee obtained a judgment in ejectment by default, and he got possession of one portion of the land. The land so taken may have been taken in payment of the debt, and the residue may have been left in the mortgagor's power. It appears to me that the right of action under the mortgage deed accrued more than twenty years ago; and that, therefore, the Defendant has a good answer to this action.

Rule discharged (a).

(a) Reported by R. H. B. Marsham, Esq.

1866.

THORP

V.

FACEY.

1866.

Thursday,
June 7.

Bankruptcy. 24 & 25 Vict.

c. 134, s. 123.

Creditors' as

signee.

Certificate of appointment.

KELLY V. MORRAY.

The certificate of appointment of a creditors' assignee, under stat. 24 & 25 Vict. c. 134, s. 123, is a record of the Court of Bankruptcy, and conclusive evidence of the appointment; and may be used as such in an action by the assignee, though it were signed and sealed after such action was commenced.

THIS case was tried before Bramwell, B., at Chester, at the Spring Assizes.

The action, which was in trover, was commenced on February 13th, 1866, and was brought by the Plaintiff as creditors' assignee of one Thomason for the conversion of certain goods, which had been seized by the Defendant under a bill of sale executed by Thomason. The Defendant, among other pleas, traversed the title of the Plaintiff as assignee. The bill of sale was executed November 27th, 1865, and a sale advertised shortly afterwards. After that advertisement and previous to the sale, notice of a trader debtor summons sued out by a creditor was served on the Defendant, notwithstanding which the sale took place on December 9th, which was prior to the date of the return of the summons.

The adjudication in bankruptcy was announced in the London Gazette on December 22nd.

At the trial the Plaintiff put in a copy of a certificate dated January 9th, 1866, which certified, that the Plaintiff was duly chosen creditors' assignee on January 6th, 1866, and that, after he had consented to act, his appointment had been approved by the commissioner. The certificate was signed by the registrar, acting for the commissioner, and bore the seal of the Court of Bankruptcy. On the part of the Defendant evidence was given that this certificate was not signed or sealed till some time after action brought;

and it was contended on his behalf, that the Plaintiff was in consequence not entitled to maintain this action, though he was chosen, and by parol appointed by the commissioner, assignee before action brought.

A verdict was found for the Plaintiff, with leave reserved to the Defendant to move to enter a nonsuit, on the ground that the Plaintiff was not duly appointed assignee at the time the action was brought, inasmuch as his appointment was not under the hand of the commissioner or the seal of the Court.

M'Intyre, in Easter Term obtained a rule accordingly, citing Ex parte Nash (a).

1866.

KELLY

บ.

MORRAY.

Giffard and Horatio Lloyd showed

cause.

The

question turns on the construction of the 123rd section of the Bankruptcy Act, 1861, 24 & 25 Vict. c. 134, which is, "When the election of an assignee shall have been accepted by the person elected and confirmed by the Court, the Court shall, by certificate under the hand of the commissioner and the seal of the Court (to be called the certificate of appointment), declare such creditors' assignee to have been duly elected, and appoint him to the said office accordingly. Such appointment shall be final, and shall not be subject to review or appeal, except as hereinafter provided." There was here the proper choice of the assignee by the creditors and the proper approval by the commissioner. The appointment is the choice of the creditors ratified by the commissioner, and the certificate is only evidence of the appointment. The date of the appointment is the day when it is confirmed by the Court, not the day when the certificate is drawn up; as the date of an order in bankruptcy is the day when it was made, not that on which it was drawn up: Ex parte The Dudley

(a) 1 Dea. & Ch. 445.

1866.

KELLY

ບ.

MORRAY.

and West Bromwich Banking Company, in re Hopkins (a). In actions by executors, the executor need not obtain probate till after action brought. [Byles, J. A magistrate's order need not be, and seldom is, drawn up till after notice of appeal.] The case of Ex parte Nash (b), which is relied on by the other side, does not apply, as the facts were different, and the decision was on a different point: for Sir J. Cross says in his judgment at p. 452, "I think the duration of the meeting and the election of the assignees was in the breast of the commissioner during the meeting. Just in the same way as a record is under the control of a Court of Common Law during the whole of the term in which it is entered." The Act is only directory, and the appointment of the assignee is valid without the commissioner's signature, as in the case of Morgan, App. v. Parry, Resp. (c), where it was held, that sect. 13 of stat. 6 & 7 Vict. c. 18, which enacts that overseers shall make out and sign lists of persons entitled to the vote for a borough or, &c., is directory only as to the signing of the lists.

M'Intyre in support of the rule.-The appointment is to be under the hand of the commissioner and seal of the Court. By sect. 116, the creditors are empowered to choose an assignee, but he may be rejected by the Court. If he is not rejected, and is willing to accept, the Court must confirm the choice, and by sect. 123 shall, by certi ficate under the hand of the commissioner and the seal of the Court, declare him to have been duly elected, and appoint him accordingly. The appointment must be in the manner specified by that section: Ex parte Nash (b). Until the certificate is signed, there is not an appointment at all; and here the certificate was not signed till long

(a) 32 L. J., Bankr. 68.

(c) 17 C. B. 334.

(b) 1 Dea. & Ch. 445.

after action brought. [Willes, J., referred to sect. 203.] This document is only a copy of the certificate, and therefore there ought to be two seals upon it, one of the original drawing up, and another as showing it to be a correct copy; it is without the seal of appointment and has only a seal to make it admissible in evidence.

ERLE, C. J. I am of opinion that this rule should be discharged. A certain choice of an assignee was made and the appointment approved by the commissioner before action, and the objection taken by Mr. M'Intyre is, that the signature of the commissioner, or person acting for him, was not put to the document till after the commission day of the Assizes, when the document was required to be used. It appears to me that the seal of the Court made it a valid instrument and a record of the Court under sect. 203 of the Bankruptcy Act, 1861, and the seal being there Mr. M'Intyre had no right to go into the question as to the time at which the document was signed or sealed.

WILLES, J. I am of the same opinion. The proper conclusion to come to is that the appointment was regularly entered and the seal put to it at the proper time. Section 123 of the Bankruptcy Act, 1861, draws a distinction between the act of the Court and the act of the commissioner. [His lordship read the section.] Apart from the consideration of sect. 203, the act of the Court is the material part, and the object of sect. 123 was to enable the assignee to have something in his hands to produce as evidence of his appointment. And sect. 203 confirms this notion, for it deals with the seal as the material thing to look to. Section 1 gives the Court of Bankruptcy, for the purposes of the Act, all the powers and authorities of the Superior Courts: the records of it may therefore be drawn up when they are requisite, and if sealed with

1866.

KELLY

v.

MORRAY.