PARK J. I am of the same opinion. The whole turns on this: have the Defendants kept to their own agreement? They refuse to let the Plaintiff prove under the deed of assignment, and yet they say his right to sue them is suspended. The letter referred to by the Chief Justice settles the whole, for the Plaintiff is there told that "Messrs. Woolner's trustees are of opinion that, after the evidence given by Mr. Loft before the commissioners at their last meeting, they would not be justified in allowing Mr. Garrard to rank as a creditor." The cases of Boothbey v. Sowden and Cranley v. Hillarey go the whole length of the present. In Boothbay v. Sowden Lord Ellenborough said, "If the plaintiffs could shew that the defendants had refused to give them the notes according to the terms of the agreement, they might be remitted to their original remedy. But I think that remedy is suspended by the agreement, unless an infraction of the agreement on the part of the defendants is proved by the plaintiffs." Here the Defendants havé neither signed the deed nor allowed the Plaintiff to come in under it. Mr. Topping contended, in Cranley v. Hil larey, that "no infraction was proved; on the contrary, it appeared that the notes were ready for the plaintiff, who might have received them upon applying for them; but he never did make application." But Lord Ellenborough said, "The rule is, that the person to be discharged is bound to do the act which is to discharge him, and not the other party. If the defendant had offered the notes at the time of action brought, it might have been a ground for staying the proceedings." And Dampier J. said, "It is laid down by Littleton (s. 340.), that the obligor of a bond conditioned for the payment of money at a particular day, is bound to seek the obligee, if he be in England, and at the set day to tender him the money, otherwise he shall forfeit the bond. So in this case, the defendant was to give the notes, and, there therefore, to go with them to the plaintiff, and he was not to go to the defendant." In Cork v. Saunders the defendant had signed the deed, and the plaintiff having concurred in it, the Court would not remit him to his right. BOSANQUET J. I am of the same opinion. It is admitted that the Plaintiff's debt is not extinguished, but it is contended that it has been suspended. How? Supposing any contract to that effect could be implied between the Plaintiff and the Defendants, the Plaintiff has been denied the benefit of the agreement, for by Parnther's letter he is told, that "Messrs. Woolner's trustees are of opinion that, after the evidence given by Mr. Loft before the commissioners at their last meeting, they would not be justified in allowing Mr. Garrard to rank as a creditor." Upon this, it must be taken that his concurrence in the resolutions was repudiated; and having consented to such repudiation, he is entitled to proceed as if no agreement had subsisted between him and the Defendants. ALDERSON J. If the Defendants had in all things conformed to the resolutions, the Plaintiff's right to sue might perhaps have been suspended; but they cannot exclude the Plaintiff from claiming under the deed, and at the saine time suspend his right to sue. Rule discharged. 1832. Jan. 31. Where in an action by the assignees of a bankrupt the bankruptcy is disputed, but the cause is referred to arbitration, the Judge before whom the cause is opened cannot certify under 6 G. 4. c. 16. s. 90. for the costs of proving the bankruptcy, although upon referring, the Defendant agrees to admit the validity of the commission. BARTHROP and Others, Assignees of YATES, a IN N this cause the Defendant's attorney had given notice to dispute the trading of Yates, the commission, the petitioning creditor's debt, and the act of bankruptcy. At the last York assizes, the cause was referred to arbitration by an order of Nisi Prius, containing the following clause: "And it is agreed between the parties, that the bankruptcy of W. Yates shall be admitted, and the arbitrator shall state upon his award any point of law that he shall think fit for the consideration of the Court, or that either of the parties shall require." Parke J., before whom the cause was to have been tried, having certified for costs for the Plaintiff under 6 G. 4. c. 16. s. 90., which enacts, "that in any action by or against any assignee, or in any action against any commissioner, or person acting under the warrant of the commissioners, for any thing done as such commissioner, or under such warrant, no proof shall be required at the trial of the petitioning creditor's debt or debts, or of the trading, or act or acts of bankruptcy respectively, unless the other party in such action shall, if Defendant, at or before pleading, and if Plaintiff, before issued joined, give notice in writing to such assignee, commissioner, or other person, that he intends to dispute some, and which of such matters; and in case such notice shall have been given, if such assignee, commissioner, or other person shall prove the matter so disputed, or the other party admit the same, the Judge, before whom the cause shall be tried, may, if he thinks fit, grant a certificate of such proof or admission; and such assignee, commissioner, or other person shall be entitled to the costs costs, to be taxed by the proper officer, occasioned by such notice;" Wilde Serjt. obtained a rule nisi to set aside this certificate, on the ground that as the Judge had not tried the cause, the statute did not authorize him to give the certificate. The attorney for the Defendant deposed, that when the Plaintiffs' counsel had opened the cause, the Defendant's counsel proposed a reference on the usual terms, of all matters in difference, including the validity of the commission of bankrupt, trading, the petitioning creditor's debt, and act of bankruptcy; that the Plaintiffs' counsel agreed to this, if the Defendant would admit the bankruptcy before the arbitrator; which being assented to, the reference was proceeded with. He Jones Serjt. shewed cause upon an affidavit which stated, that upon the opening of the cause the Defendant's counsel admitted the validity of the commission, upon which the Plaintiffs agreed to a reference. therefore contended, that the admission having been made in the presence of the Judge, the Judge had authority to grant the certificate: it was not necessary that he should try the cause through. The statute was remedial, and it was sufficient for the purpose of the certificate that the Judge should be satisfied by proof or admission that the commission of bankrupt was valid, whatever might be the result of the other points in issue in the cause. TINDAL C. J. This question depends on the construction of the ninetieth section of the statute of 6 G. 4. c. 16., by which it is enacted, that where notice has been given to dispute a commission of bankruptcy, if the "assignee, commissioner, or other person shall prove VOL. VIII. T the 1832. BARTHROP บ. ANDERTON. 1832. BARTHROP บ. ANDERTON. the matter so disputed, or the other party admit the same, the Judge before whom the cause shall be tried may, if he think fit, grant a certificate of such proof or admission, and such assignee, commissioner, or other person, shall be entitled to the costs." Words cannot shew more distinctly, that a discretionary power is vested in the Judge. But, unless he tries the whole cause, he cannot exercise that discretion properly. It has been argued, that in respect of the costs incurred for proving the commission, it is sufficient that the commission has been admitted. But many cases may be conceived in which it would not be proper to give those costs, although the commission may have been admitted: as where a Defendant may have been deceived as to the act of bankruptcy, and upon discovering his error in court, at once makes the due admission. The discretion, therefore, vested in the Judge, by the words "may if he think fit," cannot safely be exercised unless he try the cause. He has the same discretion with respect to the costs of a special jury, for which it has never been the practice to certify when the cause is referred. PARK J. The act says, the certificate may be granted by the Judge before whom the cause shall be tried, if he think fit. The clause is cautiously worded to enable the Judge to decline, if he think fit, even when the cause has actually been tried; but it is impossible to say that this cause was tried before the Judge. BOSANQUET J. It is clear that this certificate was not given by a judge before whom the cause was tried. The statute intended that he should have a discretion which he cannot properly exercise unless he tries. Nor can it be said that the admission here was made on the |