debt be not due, or no proof of an act of bankruptcy, and it shall also appear that such commission was taken out fraudulently or maliciously; the chancellor may, upon petition, examine into the same, and order satisfaction to be made for the damages; and for the better recovery thereof, assign such bond to the parties petitioning, who may sue for the same in his name." See stat. 1 and 2 W. 4. c. 56. s. 12. The assignment of the bond by the chancellor is conclusive evidence of the fraud or malice in an action on the bond; and it is not necessary to state in the declaration that the commission was fraudulently or maliciously sued out. See further on this point, Smithey v. Edmonson, 3 East's R. 22.

وو

IX. Of the Pleadings.

By stat. 6 Geo. 4. c. 16 s. 121. Every bankrupt who shall have duly surrendered, and in all things conformed himself, shall be discharged from all debts due by him when he became bankrupt, and from all claims and demands proveable under the commission, in case he shall obtain a certificate. By this section the bankrupt is discharged not merely from the debt, but from all remedies for its recovery, in the case of a debt proveable under the commission".

By s. 126. Any bankrupt who shall, after his certificate shall have been allowed, be arrested, or have an action brought against him for any debt, claim, or demand, hereby made proveable under the commission, shall be discharged upon common bail; 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 certificate and the allowance thereof shall be sufficient evidence of the trading, bankruptcy, commission, and other proceedings precedent to the obtaining such certificate.

By s. 127. If any person who shall have been so discharged by such certificate, or who shall have compounded with his creditors, or who shall have been discharged (12) by an insol

a Davis v. Shapley, 1 B. & Ad. 54. Barrow v. Poile, 1 B. & Ad. 629.

(12) This section is retrospective, and is not confined to discharge by bankruptcy, composition, or insolvency, after the passing of this act. Elston v. Braddick, 2 Cr. & M. 435. 4 Tyr. 122.

vent act, shall become bankrupt, and have obtained such certificate, unless his estate shall produce (after all charges,) sufficient to pay every creditor under the commission fifteen shillings in the pound, such certificate shall only protect his person from arrest and imprisonment; but his future estate and effects, (except his tools of trade and necessary household furniture, and the wearing apparel of himself, his wife, and children,) shall vest in the assignees under the said commission, who shall be entitled to seize the same in like manner as they might have seized property of which such bankrupt was possessed at the issuing the commission.

The foregoing 127th section does not entitle a creditor to proceed against the bankrupt after a second certificate for a debt which he might have proved under the commission; and if the creditor brings an action for such debt, the certificateb will be a bar. Debt on bond-Plea, bankruptcy; The defendant had since the date of the bond been discharged under an insolvent act, but the bond had not been inserted in the schedule; a commission of bankrupt had afterwards issued against him under which he obtained his certificate before the day on which the stat. 6 G. 4. c. 16. received the royal assent, but his estate had not produced 158. in the pound. The court was of opinion, that there were not any words in the 127th section by which the right of a creditor, situated as the plaintiff was, to sue the bankrupt and recover a judgment, and have execution against his effects, was specifically and expressly taken away, or the effects of a bankrupt, situated as the defendant was, were specifically and expressly vested in his assignees; and consequently the certificate was no bar. They added, that these grounds of their judgment left the case of Robertson v. Score, wholly untouched.

It is sufficient for the defendant to pursue the words of the statute, and to aver that the cause of action accrued before he became a bankrupt, without averring that the defendant had conformed, according to the bankrupt statuted, or that the defendant became a bankrupt before the commencement of the suite. By a certificate obtained under a joint commission, separate as well as joint debts are discharged. In like manner by a certificate obtained under a separate commission, joint

b Robertson v. Score, 3 B. & Ad. 338. recognized in Elston v. Braddick, Ex. Feb. 21st, 1834, 2 Mont. & Ayr. 436 n. and ante p. 238.

c See Carew v. Edwards, 4 B. & Ad. 351.

d Willan v. Giordani, Co. B. L 5th

edit. p. 518. in which Paris v. Salkeld, 2 Wils. 139. was over-ruled. e Tower v. Cameron, 6 East, 413. Howard v. Poole, Str. 995. Dav. 431. S. C. Wickes v. Strahan, Str. 1157. S. P. Horsey's case, 3 P. Wms. 25.

debts as well as separate debts are dischargeds. Formerly, indeed, doubts were entertained whether a certificate under a separate commission, against one partner, would not discharge the other partner; and, therefore, it was held necessary to provide against such discharge by stat. 10 Ann. c. 15. That statute is now repealed; but by stat. 6 Geo. 4. c. 15. s. 121. no certificate shall release or discharge any person who was partner with the bankrupt, at the time of his bankruptcy, or who was then jointly bound, or had made any joint contract with the bankrupt. This general plea of bankruptcy may be supported by evidence of a certificate allowed after bill filed, and before plea pleaded; the cause of action having accrued before the bankruptcy; but the certificate cannot be given in evidence under the general issue, for the debt still exists, and as the certificate only operates as a special discharge from it under the statute, the defendant must avail himself of this discharge in the manner prescribed by the statutei. Where the bankrupt is sued for a cause of action accruing before his bankruptcy, and pending the suit and before trial obtains his certificate, he must pleadk it, puis darrein continuance; and if he neglects to do so, and judgment is obtained against him, he will not be permitted to plead his certificate to an action on such judgment. See new rule as to plea puis darrein continuance, ante, p. 138.

The certificate will operate as a discharge of such debts only as are due at the time when the act of bankruptcy is committed; and the foregoing remark as to the time when the certificate was obtained must be attended to. But if an action be commenced against a bankrupt after the bankruptcy, for a debt due before the bankruptcy, and a verdict found for the plaintiff, and afterwards the bankrupt obtains his certificate: the costs of such action, as well as the original debt, are proveable under the commission. Willet v. Pringle, 2 Bos. and Pul. N. R. 190. The costs bear relation to the original debt; hence where plaintiff before the bankruptcy of the defendant sued him for a debt, and went on with the suit after such bankruptcy, and had judgment, and defendant obtained his certificate, and afterwards brought a writ of error, which was non-prossed, and costs of non-pros in error awarded against him; it was holden, that the certificate discharged the defendant from these costs, Scott v. Ambrose, 3 M. and S. 326. Debts proveable under the

g Exp. Yale, 3 P. Wms. 24 n.

h Harris v. James, 9 East, 82.

i Gowland v. Warren, 1 Campb.

k Todd v. Maxfield, 6 B. and C. 105.

1 Bamford v. Burrell, 2 Bos. and Pul. 1.

commission, and debts to be discharged by the certificate, are convertible terms, and debts not due at the time of the act of bankruptcy, except in the cases especially provided for by the statute, are not affected by the commission. Hence where a debt accrues after an act of bankruptcy and before the issuing of the commission, the bankrupt will remain liable, although he has obtained his certificate, and cannot avail himself of the general plea of bankruptcy. By 6 G. 4. c. 16. s. 51. Any person who shall have given credit to the bankrupt upon valuable consideration, for any money or other matter or thing, which shall not have become payable when such bankrupt committed an act of bankruptcy, and whether such credit shall have been given upon any bill, bond, note, or other negotiable security or not, shall be entitled to prove such debt, bill, &c. as if the same was payable presently, and receive dividends equally with the other creditors, deducting only thereout a rebate of interest for what he shall so receive, at the rate of five per cent. to be computed from the declaration of a dividend to the time such debt would have become payable. And by s. 56. If any bankrupt shall, before the issuing of the commission, have contracted any debt payable upon a contingency which shall not have happened before the issuing of such commission, the person with whom such debt has been contracted may apply to the commissioners to set a value upon such debt, and the commissioners are to ascertain the value, and to admit such person to prove the amount and to receive dividends thereon; or if such value shall not be so ascertained before the contingency shall have happened, then such person may, after such contingency shall have happened, prove in respect of such debt, and receive dividends with the other creditors not disturbing any former dividends; provided such person had not, when such debt was contracted, notice of any act of bankruptcy by such bankrupt committed".

By marriage settlement, S. covenanted to cause a certain sum of money to be paid to his wife's trustees within twelve months after his own death, in trust to pay her the interest for her life in case she survived him, and afterwards the principal to their children; but if they had not any children, then to the survivor of them, that is S. and his wife, his or her representatives. It was holden, that this was a debt on a contingency proveable under the foregoing section. The instalments of an annuity for the payment of which a bankrupt

m Todd v. Maxfield, 6 B. and C. 105. n See Yallop v. Ebers, 1 B. and Ad. 698.

o Exp. Tindal, coram Ld. Brougham,

C., Tindal, C. J. and Littledale, J. reversing the decision of Lord Lyndhurst, who had reversed the decision of the Vice Chancellor. 8 Bingh. 402.

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is surety only, and which he covenants to pay in case of the default of the grantor, are not, when they become due after his bankruptcy, proveable. N. The 54th section enables an annuity creditor of a bankrupt to prove the value of the annuity against the grantor.

A debt due on a judgment signed in an action for damages after an act of bankruptcy committed by defendant, and a commission issued thereon, is not discharged by the certificate though the verdict was obtained before the bankruptcy". So a bankruptcy of plaintiff occurring after verdict for the defendant, and before judgment, the subsequent certificate is no bar to an execution for the costs of the actions. Verdict for defendant in July. Commission against plaintiff in August; judgment against him, and certificate for him in Mich. T. ensuing; it was holdent, that the plaintiff was liable to an execution for costs, notwithstanding the 56th section. So where plaintiff became bankrupt after nonsuit, but before judgment signed ". Plaintiff obtaining judgment against bankrupt for debt proveable under commission, is entitled to prove for the costs, though not taxed at the time of the bankruptcy. But if the acceptor of a bill of exchange not due become bankrupt, and the indorser be afterwards obliged to take up the bill on account of non-payment by the acceptor, he may prove the amount under the commission; and consequently if the acceptor afterwards obtain his certificate, he will be discharged from the debt. So where a verdict is obtained in vacation, against a trader, who, after the first day of next term, but before final judgment is signed, becomes bankrupt; it was holden, that the judgment signed in the same term relates to the first day of the term, and that the debt thereby created was barred by the certificate; and this rule holds, whether the verdict be in an action of assumpsity or tortz.

Before the year 1819, a debt for which a person was merely liable as surety, but which was not paid until after the bankruptcy of the principal, was not proveable under the commission, and consequently was not barred by the certificate; but now by stat. 6 Geo. 4. c. 16. s. 52b, any person who, at

q Thompson v. Thompson, 2 N. C. 168.

r Buss v. Gilbert, 2 M. and S. 70.

s Walker v. Barnes, 5 Taunt. 778. 1 Marsh. 345. S. C.

t Bire v. Moreau, 4 Bingh. 57.

u Haswell v. Thorogood, 7 B. and C. 705.

x Joseph v. Orme, 2 Bos. and Pul. N. R. 180.

y Exp. Birch, 4 B. and C. 880.

z Greenway v. Fisher, 7 B. and C. 436. a Chilton v. Wiffin, 3 Wils. 13. Young v. Hockley, 3 Wils. 346. 2 Bl. R. 839. S. C. Vanderheyden v. De Paiba, 3 Wils. 528:

b See corresponding section, 49 Geo. 3 c. 121. s. 8. but now repealed.