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and if the assignees shall not (upon being thereto required,) elect whether they will accept or decline such lease, or agreement for a lease, the lessor, or person so agreeing as aforesaid, or any person entitled under such lessor or person so agreeing, shall be entitled to apply by petition to the lord chancellor, who may order them so to elect and to deliver up such lease or agreement, in case they shall decline the same, and the possession of the premises, or may make such order therein as he shall think fit. If a lessee covenants not to assign, and becomes bankrupt, and his assignees take to the lease, his covenant is discharged by the foregoing section, although a breach of it had become impossible, by reason that he no longer had the subject matter respecting which the covenant was made. And therefore if he comes in again, as assignee of his assignees, he shall not be charged with this covenant, and it is no breach if he assignsk Where it was found that the assignees entered upon the premises for the purpose of completing contracts for repairs to carriages let on hire, the bankrupt being tenant from year to year, it was holden', that the assignees continued liable until that tenancy was regularly determined.
In assumpsit on a promise to pay plaintiff a certain sum per week m for the support of an illegitimate child the plaintiff had had by the defendant, bankruptcy having been pleaded, Lord Ellenborough held, that as to any arrears which had accrued before the bankruptcy, the bankruptcy would operate as a discharge, but as no proof of subsequent arrears would have been admitted under the commission, the defendant was liable for such arrears. B. sold a ship to A. with a covenant that he had a good title, though in fact he had none": afterwards B. became a bankrupt, and A. sustained damages by paying the value of the ship to the true owner; it was holden, in an action on the covenant by A. against B., stating the special damage, that B.'s certificate was no bar. This plea of bankruptcy" will not avail a person against whom a second commission of bankruptcy has issued, unless he has paid 158. in the pound under that commission, although the creditor who sues him has signed the certificate ; for by stat. 6 Geo. 4. c. 16. s. 127, (which see, ante, p. 238,) the person only of the bankrupt is protected, if his effects are not sufficient to pay 158. in the pound. It must appear, affirmatively, that the estate has produced 15s. in the pound; evidence that it will probably produce so much iso not sufficient. If a defendant rely on a certificate under a second commission of bankruptcy" under which he has not paid 15s. in the pound, it will be sufficient for the plaintiff, in order to deprive him of the benefit of it, to produce the proceedings under the former commission, and prove that he submitted to it, without proring the trading, act of bankruptcy, and other facts, which are necessary to support the commission as against third persons. An action against a bankrupt", who has obtained his certificate under a second commission, on a cause of action accruing before his second bankruptcy, may be maintained, before a dividend has been made, or the period allowed for making it is elapsed, if evidence be adduced to shew, that it is not probable, from the state of the effects in the hands of the assignees, that the bankrupt will be able to pay 15s. in the pound. The proving a debt under a commission issued against a person who had before compounded with his creditors, and whose estate under the commission had not nor would produce 158. in the pound, but who, before he became a bankrupt, paid the creditors with whom he compounded, the full amount of their debts, was held to discharge the bankrupt in respect of his future state and effects from an action for the debt so proveds. Heretofore a verbal promise to pay a debt barred by the certificate was binding, but now, by stat. 6 Geo. 4. c. 16. s. 131," no bankrupt, after his certificate shall have been allowed under any present or future commission, shall be liable to pay or satisfy any debt, claim, or demand, from which he shall have been discharged by certificate, or any part of such debt, &c. upon any contract, promise, or agreement made after the suing out of the commission, unless such promise, &c. be in writing, signed by the bankrupt, or by some person authorized in writing by such bankrupt.” In the case of an express promise after certificate, the plaintiff is not bound to declare specially", but may declare on the original cause of action; and if the bankruptcy be pleaded, the plaintiff may give the subsequent promise in evidence.
k Doe d. Cheere v. Smith, 5 Taunt. 795. 1 Ansell v.
Robson, 2 Cr. and J. 610. m Miller v. Whettenbury, 1 Campb.
n Hammond v. Toulmin, 7 T. R. 612.
Thornton v. Dallas, Doug. 46, and 5
To scire facias upon a judgment in assumpsit, by the original plaintiff, defendant pleaded specially the plaintiff's bankruptcy, and that the causes of action in the original suit accrued before plaintiff became bankrupt. On special demurrer, on the ground that the plea did not shew whether the judgment was recovered before or after the bankruptcy; the plea was holden* to be bad: for that it did not appear, but that the bankruptcy might have been pleaded in bar of the original action.
p Coverley v. Morley, 16 East, 225.
3 Esp. N. P. C. 195.
s Read v. Sowerby, 3 M. and S. 78.
68, cites Russell v. Hardman, S. P. x Baylis v. Hayward, 4 Ad. and Ell.
Evidence of the Plea of Bankruptcy. The only evidence required to support the general plea of bankruptcy is the production of the certificate allowed by the chancellory. By stat. 6 Geo. 4. c. 16. s. 1307, the certificate shall be void in the following cases; first, if the bankrupt has lost, by any sort of gaming or wagering, in one day, 201. or within one year next preceding his bankruptcy 2001.; or, secondly, within one year next preceding his bankruptcy, he has lost 2001. by any contract for the purchase or sale of any government or other stock, where such contract was not to be performed within one week after the contract, or where the stock bought or sold was not actually transferred or delivered; or, thirdly, shall, after an act of bankruptcy committed, or in contemplation of bankruptcy, have destroyed, altered, mutilated, or falsified, any of his books, papers, writings, or securities; or made or been privy to making any false or fraudulent entries, in any book of account or other document, with intent to defraud' his creditors; or, fourthly, shall have concealed property to the value of 101. or upwards; or, lastly, if any person having proved a false debt under the commission, the bankrupt being privy thereto, or afterwards knowing the same, shall not have disclosed the same to the assignees within one month after such knowledge. The preceding clauses, being penal, are construed strictly. The certificate is void if signature of one of the creditors has been obtained by a promise from the bankrupt to pay that creditor his whole debta. By stat. 6 G. 4. c. 16. s. 105b, if any assignee indebted to the estate of which he is such assignee, in respect of money retained or employed by him, become bankrupt, if he shall obtain his certificate, it shall only have the effect of freeing his person from arrest and imprisonment; but his future effects, (his tools of trade, necessary household goods, and the necessary wearing apparel of himself, his wife, and children excepted,) shall remain liable for so much of his debts to the estate of which he was assignee, as shall not be paid by dividends under his commission, together with lawful interest for the whole debt. By stat. 6 Ĝ. 4. c. 16. s. 59€, no creditor who has brought any
256. y See the statute, s. 126, ante, p. 238. z See corresponding section, 5 Geo. 2.
c. 30. s. 12. but now repealed.
a Phillips v. Dicas, 15 East, 248.
49 G. 3. c. 121. s. 14. now repealed.
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 commission against such bankrupt, shall prove a debt under such commission, or have any claim entered upon the proceedings under such commission, without relinquishing such action or suit; and in case such bankrupt shall be in prison or custody at the suit of or detained by such creditor, he shall not prove or claim, without giving a sufficient authority in writing for the discharge of such bankrupt; and the proving or claiming a debt, under a commission by any creditor, shall be deemed an election by such creditor to take the benefit of such commission, with respect to the debt 80 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, his relinquishing such action or suit against the bankrupt, shall not affect such action or suit against such other person. Provided also, that any creditor who shall have so elected to prove or claim, if the commission be afterwards superseded, may proceed in the action as if he had not so elected, and in bailable actions shall be at liberty 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 superseding such commission, and by suing the bail upon their recognizance, if the condition thereof is broken.
By stat. 6 G. 4. c. 16. s. 56, ante, p. 241, debts payable on a contingency which has not happened before issuing the commission, may be valued by the commissioners, and admitted to proof. A right to maintain covenantd for unliquidated damages is not a contingent debt capable of proof under this section ; nor a right to maintain an action for not acceptinge and paying for a quantity of oil, contracted for, at a certain price, and to be delivered at a future day.
It seems that proving a debt under a commission was an election within the stat. 49 Geo. 3. c. 121. s. 14., which deprived the creditor of his remedy by action against the bankruptf in the cases excepted in stat. 5 Geo. 2. c. 30. s. 9. But that clause did not extend to prevent a creditor who proved a joint debt under a commission against one partner from suing the others f. 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 certificate and arrest him upon the bill, notwithstanding the holder had proved the bill under the commissions. 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 holden h that the vendors were not precluded by the stat. 49 G. 3. c. 121. s. 14. from suing the bankrupt for the amount of the last parcel of goods. Declaration i upon four bills of exchange. Plea in bar, that defendant was indebted to plaintiff in divers large sums of money for goods sold; and that, for securing to the plaintiffs the said several sums of money, defendant, before his bankruptcy, accepted a bill of exchange drawn by the plaintiffs, for and in payment of one of the said several sums of money in which he was so indebted as aforesaid: and that he had accepted each of the several bills of exchange, for which the action was brought, in payment of one other of the said several sums of money in which he so stood indebted as aforesaid. The plea then stated that defendant had duly become bankrupt; and the bills of exchange mentioned in the declaration were proveable under the commission, and that the plaintiffs, being creditors of the defendant for the amount of the money comprised in all the several bills, 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; secondly, that the election of the creditor to take the benefit of the commission, is confined by the 49 G. 3. c. 121. s. 14. to the debt actually proved, and does f Heath v. Hall, 4 Taunt. 326.
d Atwood v. Partridge, 4 Bingh. 209. e Boorman v. Nash, 9 B. and C. 145.
f Read v. Sowerby, 3 M. and S. 78.