" for Bankrupts ;" and thirdly, by Virtue of the Act made in the first Year of the Reign of King James the First, intituled "An Act for the better Relief of Creditors "against such as shall become Bankrupts ;" and lastly, by Virtue of the Statute passed in the second Year of James the First, for the same Purpose (a).

These Pleas were met by three several Replications.

First, that the several Trespasses mentioned in the Declaration were done and committed by Virtue of a Commission of Bankrupt awarded and issued against William Bryant, bearing Date at Westminster, the 17th August 1810, and that it issued upon the Petition of William Stewart, a Creditor of the said William Bryant, before the issuing of the Commission exhibited to the Lord High Chancellor; and that by Virtue of the Commission, William Bryant was found and declared a Bankrupt, upon an alleged Act of Bankruptcy, by lying in Prison two Months, on a Declaration for Debt on a Committal to Prison, on the 11th of April 1807; and that before the said Commission was awarded or issued, and in Order to obtain the same, namely, on the 13th of July 1810, William Stewart, the Petitioning Creditor, made an Affidavit that he, William Bryant, was indebted to him in the Sum of £100, for Money lent and advanced to him; and that the Affidavit was made by William Stewart as the Petitioning Creditor, and that the Commission was awarded on the Affidavit: that after the committing the Act on which he was found and declared a Bankrupt, and before the Time of making the Affidavit, namely in Trinity

(a) The difference between the two last Pleas was introduced on Account of a Doubt, whether the Act of

Parliament was passed in the
first or second Year of the
Reign of James the First.

Term,

1813.

BRYANT

v.

WITHERS.

1813.

BRYANT

0.

Term, in the 50th Year of the present King, the Petitioning Creditor had recovered against him a Judgment for £1056, for his Damages and Costs; and that this Judgment was signed on the 6th of July, in the 50th WITHERS. Year aforesaid, and not before: that the Sum of £100, in which William Stewart, by his Affidavit, swears he was indebted to him, was included in the Damages for which the said Judgment was recovered, and was Part of the said Sum of £1056 therein mentioned; and at the Time of making the Affidavit was not, but had ceased to be, a Debt for simple Contract, and was merged in and extinguished by the Judgment, and was a Debt of Record; and that at the Time of making the said Affidavit, and of awarding the Commission, he was not, nor at any Time since has been, nor is, indebted to the said William Stewart in any other Sum, or in any other Manner than by the Judgment.

Second, that long before the Time of the awarding and issuing the Commission of Bankrupt in the Replication to the said second Plea mentioned, and long before the contracting the Debt to the said William Stewart, upon whose Petition the said Commission in the said second Plea mentioned was awarded and issued, and upon which Debt the said Commission was grounded, namely, on the 30th August 1806, he the said William Bryant was a Prisoner for Debt, and detained as a Prisoner for Debt in the actual Custody of the Warden of His Majesty's Prison of the Fleet, and remained and continued and lay in Prison upon the said Detention for two Months and more, namely, until the 13th November last aforesaid; and that at and during the Time of such his Detention he was a Trader, and was indebted to John Flight in the Sum of £100 and upwards for a just and true Debt, then and still due and owing, and that the same was a good and sufficient Peti

tioning

tioning Creditor's Debt to support a Commission of Bankrupt against him; and that he by so lying in Prison, under a Detention for Debt for two Months and more, committed an Act of Bankruptcy, and could and might have been found and declared a Bankrupt; and that long before the Time of awarding and issuing the Commission of Bankrupt in the Replication to the said second Plea mentioned, and before he was indebted to the said William Stewart on the Judgment recovered, or in the Money mentioned in the Affidavit of the said William Stewart, he was a Trader, had committed an Act of Bankruptcy, and was indebted to the said John Flight in a Sum sufficient to form a good and sufficient Petitioning Creditor's Debt, and whereon a Commission of Bankrupt could and might have been awarded and issued against him; and that the said William Stewart at the Time the Debt to him was contracted, and on which he grounded his Petition for the Commission of Bankrupt, and under and by Virtue of which the Trespasses are attempted to be justified, and at the Time he made the said Affidavit in the Replication to the said second Plea mentioned, and petitioned for the said Commission, had full Notice that the said William Bryant had committed such prior Act of Bankruptcy by lying in Prison for two Months, as in the Replication mentioned.

Third, that the said William Bryant, after he had committed such Act of Bankruptcy as in the Replication to the third Plea mentioned, and after the said William Stewart had Notice of such prior Act of Bankruptcy, and before the awarding and issuing the said Commission of Bankrupt, and under and by Virtue of which the several Trespasses are attempted to be justified, the said William Bryant became and was indebted to the said William Stewart in divers large Sums of Money, amounting in the

whole

1813.

BRYANT

0.

WITHERS.

1813.

BRYANT

v.

whole to £3700, and did at divers Periods after committing the said prior Act of Bankruptcy, and after the said William Stewart had Notice thereof, and before the awarding and issuing the Commission, pay to the said WITHERS. William Stewart divers large Sums of Money, amounting to £3000, Part of the Money in which he was indebted to him; and that the said William Stewart afterwards, and long before the issuing of the Commission of Bankrupt in the Replication to the second Plea mentioned, namely, in Hilary Term, in the 48th Year of the present King, proceeded and recovered a Judgment against him for £1056, for his Damages and Costs, which Judgment, at the Time of issuing the Commission, was and still is in force; and that after the Judgment, the said William Stewart exhibited his Petition to the Lord Chancellor for the Purpose of causing a Commission of Bankrupt to be awarded and issued against him, and that upon such Petition the Commission was awarded and issued; and that the said William Stewart did not, before he presented such Petition and caused such Commission to be issued, relinquish the said Action or Suit so brought.

To these Replications there was a Demurrer, and a Joinder in Demurrer.

Abbot, in Support of the Demurrer.-The Sum of the first Replication is, that the Commission issued upon an Affidavit stating the Debt to be for Money lent and advanced, but before the issuing of the Commission, the Petitioning Creditor had recovered a Judgment, and thereby made the Debt of a higher Nature; his Affidavit was therefore incorrect and insufficient. To this Objection, however, the Case of Ambrose v. Clendon, 2 Strange 1042, and more fully reported in the Cases Temp. Hardwicke 267, is an Answer. In that Case there was a simple Contract Debt, then an Act of Bankruptcy, and after

wards

wards a Bond given. Lord Hardwicke says,

1813.

To the second Replication (b) there are two Answers,

BRYANT

v.

one of which applies to all the Replications, viz. That it WITHERS. is not competent to the Bankrupt himself to defeat a Commission by setting up a prior Act of Bankruptcy,