cient petitioning creditor's debt to support an adjudication of bankruptcy. If the Court should be of opinion that it was not, judgment was to be entered in this action for the plaintiff, with 18. damages. If the Court should be of opinion that it was, judgment was to be entered for the defendants.

Cowling for the plaintiff-An execution under a ca. sa. is a satisfaction of the debt, and prevents it from afterwards being a good petitioning creditor's debt, which must be a legal debt: Hope v. Meek (a). Cohen v. Cunningham (b) decided that a judgment creditor who has taken his debtor in execution, cannot afterwards sue out a commission of bankrupt against him upon the same debt. Burnaby's case (c) is also an authority to that effect. [Parke, B.— Those cases are beyond all doubt, because there the creditor had the debtor in execution at the time he sued out the commission. This case turns on the effect of the discharge under the Insolvent Act.] It is material to consider, in the first place, what was the effect at common law of the discharge of an execution debtor. At common law, execution of the body was an absolute satisfaction of the debt, so that the creditor could not afterwards resort to any other legal remedy. The principle was, that the liberty of the subject was of such inestimable value that a creditor who infringed it was considered as having received satisfaction for the debt. The act of God, as for instance, the death of the debtor in execution, made no difference; and where the debtor's discharge was in invitum, as by an escape, either negligent or wilful, the creditor could have no other execution; even though he was deprived of his remedy against the sheriff by the sheriff's death: Foster v. Jackson (d) So if the creditor consented to his debtor's discharge on

1855.

WATSON

ข.

HUMPHREY.

1855.

WATSON

V.

HUMPHREY.

his undertaking to pay at a future day, he could not in
default of payment sue out any execution on that judgment:
Tanner v. Hague (a). In the case of the death of the
debtor in execution, a remedy was provided by the 21 Jac.
1, c. 24. Then what is the effect of a discharge under the
Insolvent Act, 1 & 2 Vict. c. 110? It being a discharge
by the act of law its effect will be the same as a discharge
in that manner at common law, unless the Legislature has
otherwise provided. The 75th section of the Insolvent Act
enables the Court, upon the prisoner's swearing to the truth
of his schedule, and executing such warrant of attorney as is
thereinafter directed, to adjudge that such prisoner shall
be discharged. There is nothing in that section to shew that
the ordinary consequence of a discharge shall not take place
as regards the execution creditor. By the 87th section,
before adjudication, the prisoner is required to execute a
warrant of attorney to enter up judgment against him for
the amount of the debts in his schedule. So that not only
the present, but the future property of the insolvent is
made available for the payment of his debts. The Legisla-
ture has, therefore, given a compensation to the creditor
for the debtor's discharge; and could never have intended
that the creditor, having that benefit, should resort to another
remedy. [Parke, B.-The warrant of attorney is only a
collateral security, and cannot be enforced unless the Court
is of opinion that the insolvent is able to pay. In Jellis v.
Mountford (b), it was held that a creditor of an insolvent
trader might, after his discharge under the 55 Geo. 3, c.
102, take out a commission of bankruptcy against him, and
that his debt, although included in the insolvent's schedule,
was a sufficient petitioning creditor's debt to support the
commission.] There the petitioning creditor was not the
person who had taken the debtor in execution. [Martin,
B. The 39th section renders the filing of a petition by a

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WATSON

V.

trader in actual custody an act of bankruptcy, and enacts that a fiat issued within two months from the making of the vesting order, "whether upon the petition of such prisoner, HUMPHREY. or the petition of any such creditor as aforesaid," shall divest the estate and effects of the prisoner out of the provisional assignee. Then, who are meant by the term “any such creditor as aforesaid?" If the 36th, 37th, and 38th sections be referred to, it will appear that the term "any such creditor as aforesaid," includes "the creditor at whose suit such prisoner shall have been so committed or charged in execution for such debt." Therefore it is evident that the debt of an execution creditor is a good petitioning creditor's debt.] The 39th section of the Insolvent Act is in pari materiâ with the 74th section of "The Bankrupt Law Consolidation Act, 1849" (a), in which the words are "whether upon the petition of such prisoner, or upon the petition of a creditor," &c. Reading those enactments together their meaning is, that, notwithstanding the vesting order, a fiat in bankruptcy may issue within a limited time, at the instance of a creditor having a good petitioning creditor's debt. The word "creditor" must be construed with reference to the subject-matter, and when the Legislature uses it as speaking of a fiat, it means a creditor who has a debt legally sufficient to support a fiat. Unless that construction be put upon the term, it would include a creditor whose debt was under 501. [Parke, B.-The context shews that the petitioning creditor must be a creditor to the amount of 50%.]

Montague Smith for the defendant.-There was a good and sufficient petitioning creditor's debt. This case is not distinguishable in principle from Jellis v. Mountford (b). If it be held that the debt of an execution creditor cannot be a good petitioning creditor's debt, the 74th section of (a) 12 & 13 Vict. c. 106. (b) 4 B. & Ald. 256.

1855.

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v.

HUMPHREY.

the Bankrupt Law Consolidation Act will in some measure
be rendered nugatory, for it might happen, that, whilst the
insolvent was in custody at the suit of one creditor, the
others had lodged detainers against him. The object of
that section was to enable any creditor to transfer the
administration of the insolvent's assets from the Insolvent
to the Bankrupt Court; and there is no reason why the
insolvent should get rid of his obligation to the bankrupt
law because an execution creditor petitions, or why the
latter should be in a worse position in that respect than
the other creditors. The discharge under the Insolvent
Act was not a satisfaction of the debt. In Blumfield's
case (a), the distinction is pointed out between a discharge
by default of the creditor and a discharge by the act of
God or act of law. Foster v. Jackson (b) is at variance
with the resolutions in Blumfield's case (a). [Parke, B.—
The 21 Jac. 1, c. 24, begins by reciting that the law was
doubtful, and then says, "for the avoiding of such doubts
and questions hereafter, Be it declared, explained, and
enacted," &c.] The taking of the debtor in execution is
not a satisfaction of the debt, but it is the keeping him in
custody until he pays; and therefore if the creditor con-
sents to his discharge he cannot have another execution,
but it is otherwise if the discharge is in invitum. Moun-
son v. Cleyton (c) decided, that, if an execution debtor
escape, the plaintiff may have a new ca. sa. or sci. fa, on
the judgment; and it was there said that the fact of the
plaintiff having a remedy against the sheriff "doth not
take away his remedy against the party who escaped, un-
less the defendant shews that the plaintiff had sued the
sheriff, and recovered against him; and it may be that the
sheriff here is dead, and then no power to sue his execu-
tors." The discharge under the Insolvent Act of one of

H

(a) 5 Rep. 86.

(b) Hob. 52.

(e) Cro. Car. 240.

two joint debtors does not other: Nadin v. Battie (a).

operate as a discharge of the
The question whether a judg-

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V.

ment creditor who takes his debtor in execution is a good HUMPHREY. petitioning creditor to support a commission in bankruptcy was raised, but not decided, in Walker v. Edmondson (b).

Cowling replied.

PARKE, B.-The question referred to the Court is, whether, under the circumstances stated, the debt due to the defendant upon the judgment recovered by him, was a good and sufficient petitioning creditor's debt, to support an adjudication of bankruptcy. I am of opinion that it was; and therefore that judgment ought to be entered for the defendant,

It appears that on the 13th of April, 1854, the defendant recovered judgment against the plaintiff for 951. 188. On the 5th of May, 1854, the plaintiff was taken in execution under a ca. sa. issued on that judgment and committed to the county gaol; and on the 13th of May, he petitioned the Insolvent Debtors Court for his discharge from custody. On the 26th of June the petition was heard, and the plaintiff discharged. On the 14th of July, and within two months from the time of the vesting order, the defendant filed a petition in bankruptcy against the plaintiff, who was thereupon adjudicated bankrupt. The question is, whether, under these circumstances, there was a good and sufficient petitioning creditor's debt? It cannot be disputed that a petitioning creditor's debt must be not only a legal debt upon which an action might be brought, but also a valid and subsisting debt, both at law and in equity. There is no doubt, that whilst the plaintiff was in custody under the ca. sa., the defendant was incapable of petitioning for a fiat in bankruptcy; because, whilst the