But the Court were of Opinion that the Solicitor was not to be regarded, in general, as a Principal; that the Messenger is aware that he is not a Principal, and, upon the opening of the Commission, may ascertain who is the petitioning Creditor; and, though the Solicitor is the Medium through which it is convenient to the Messenger to receive his Bill of Fees, that will not make him a Principal. Rule refused. G. Marriott then moved to enter a Nonsuit, on the Authority of a Case (a) before Lord Redesdale, that "Costs in Bankruptcy could not be the Subject of an Action; and that a special Undertaking by the Assignees to pay them made no Difference." But the Court said that this was different from the Case cited, not being an Action for the Costs; and that the Receipt of the Money for the Business of working the Commission, in which was included the Business of the Messenger, made the Solicitor liable upon the Count for Money had and received. And Lord Ellenborough, C. J. seemed not inclined to accede to what fell from Lord Redesdale, in the Case cited, in its full Extent; but said he should have thought otherwise, where the Party makes a special Agreement. Sed vide Ex parte Hartop, 12 Ves. 349. Rule refused. (a) Ex parte Dillon, 2Scholes and Lef. 110. S. C. Cooke's Bankrupt Laws, 642, 6th Edit. Saturday, April 30, MORAVIA and ANOTHER against D. HUNTER and J. W. GLASS. 1814. In assumpsit 2 Maule and Selwyn, 444, 445. against two, where NDEBITATUS assumpsit. D. Hunter pleads, 1st, non assumpsit ; 2dly, one pleads non as- a special Plea of Bankruptcy; 3rdly, a general Plea of Banksumpsit, and a Plea ruptcy. Glass pleads non assumpsit. The Plaintiffs entered a nolle of Bankruptcy, pros. as to D. Hunter, as follows: "And the Plaintiffs, inasmuch as and the Plaintiff they cannot deny the several Matters above pleaded by the said D., freely enters a nolle prosequi as to him, as here in Court confess that they will not further prosecute their Suit to the several Mat- against him, the said D." A Verdict having been found against ters pleaded by Glass, and Judgment thereon, it was moved by Campbell in Arrest of him, and the other Defendant leads non assumpsit, the latter is not discharged by the nolle prosequi. Judgment, Judgment, that the Plaintiffs, by having entered a nolle prosequi as to Hunter, "upon the several Matters pleaded by him," had confessed the non assumpsit as well as the other Pleas; and, therefore, Glass was also discharged. In Noke v. Ingham (a), Denison, J. took this Distinction. But the Court held that the nolle prosequi was in Effect only a Confession, that as far as regards Hunter, he had a Defence on the Matters pleaded by him. 1814. MORAVIA and Another against Rule refused. (a) 1 Wils. 89. E DOE, on the Demise of ESDAILE and OTHERS, against MITCHELL and ANOTHER. 2 Maule and Selwyn, 446, 447. JECTMENT for certain freehold Lands of a Bankrupt, of whom the Lessors of the Plaintiff were the Assignees. The Demise was laid after the Date of the Commission, but before the Assignment, and also before the Bargain and Sale of the Lands in Question by the Commissioners to the Assignees. And, upon Exception taken that the Demise was insufficient, the learned Judge directed a Nonsuit (a). And now Lawes moved for a new Trial, on the Ground, that after the Execution of the Bargain and Sale, in the same Manner as after an Assignment by the Commissioners of the Bankrupt's Goods (b), the Assignees were in by Relation to the Act of Bankruptcy. The Court inquired if there was any Authority, extending the Doctrine of Relation to the Conveyance by the Commissioners of the Bankrupt's Freehold; for without some Authority, it would be going too far to carry it to that Extent; and (no Authority being cited) they said that it remained in the Bankrupt, though not beneficially, until taken out of him by the Conveyance (c). (a) Thomson, C. B. (6) 2 Rep. 26. 2 East, 258. (c) And it is essentially necessary to Rule refused. complete the Conveyance that the Deed Saturday, April 30, 1814. The Bargain and Sale by the Com- the Bankrupt's Freehold Lands, does not relate to the Act of Bankvest the Title in ruptcy, so as to the Assignees from that Time; and, therefore, in Ejectment by the Assignees, upon a Demise laid after the Act of Bankruptcy, but before the Bargain and Sale, adjudged ill. Ex parte Monday, May 9, 1814. The Stat. 46 Geo. III. c. 135, s. 2, does not restrain a Creditor from proving under a Commission of Bank rupt a Debt con tracted before the Act of Bankruptcy, on which the Com mission issued, but after Notice of a prior Act of Bankruptcy. Ex parte BOWNESS, in the Matter of PHILLIPS, a Bankrupt. 2 Maule and Selwyn, 479 to 484. PHILLIPS and Hawkins were Bankers in Partnership; Phillips also carried on the Business of a Wine Merchant. Phillips and Hawkins as Bankers, were indebted to Penfold, on simple Contract, in the Sum of £4000. Phillips committed an Act of Bankruptcy, which was known to Penfold; after which Phillips and Hawkins executed joint and several Bonds to Penfold, to secure the £4000 and Interest. Afterwards, Phillips, still continuing his Trade of Wine Merchant, became indebted to Bowness in £800, and committed another Act of Bankruptcy, on which Act a Commission issued against him, and he was declared bankrupt. There was a joint Fund, and Hawkins was not a Bankrupt. Penfold proved, under Phillips's Commission, the Amount of Principal and Interest, due on the Bonds, against the separate Estate of Phillips. Upon the Petition of Bowness to the Lord Chancellor, to expunge the Proof, his Lordship directed the following Question for the Opinion of this Court: whether Penfold was entitled by Virtue of the said Bonds, to prove his Debt under the Commission, as a separate Debt due from Phillips. Gifford maintained the Affirmative. There could be no Doubt that, before the Statute 46 Geo. III. c. 135. s. 2. (a), this Debt would have been proveable notwithstanding the prior Act of Bankruptcy, because it was a Debt contracted before the Act of Bankruptcy on which the Commission issued, and such Debt would have been barred by the Certificate. Debts proveable under the Commission, and Debts to be discharged by the Certificate, are convertible Terms; but Debts, not due at the Time of the Act of Bankruptcy, were not affected by the Commission, and, consequently, not proveable under it: Bamford v. Burrell (a). With respect to the petitioning Creditor's Debt, the Law still requires that it should be a subsisting Debt, at the Time of the Act of Bankruptcy on which the Commission issues, Moss v. Smith (b): but as to the Proof of Deeds, the Stat. 46 Geo. III. c. 135. s. 2. has afforded this Remedy, in relief both of the Creditor and Bankrupt. It is a remedial Law, not a restrictive one: it is to enable those to prove who, before the Statute, could not prove, not to impose a Limitation on those who could: to say that wherever there has been any Act of Bankruptcy, prior to the contracting of the Debt, a Creditor shall only be admitted to prove his Debt under the Condition there imposed, would be to restrain the Proof of Debts, and not to enlarge it. A mere Act of Bankruptcy, not followed up by any Commission, is of none Effect, Forster v. Allanson (c): and it would be strange if by an Enactment, intended to relieve both the Creditor and Bankrupt, the Assignees or petitioning Creditor should be enabled to set up an Act of Bankruptcy, in Derogation of their own Title, which before the Statute they could not have done, in order to defeat the Creditor of his Proof, and the Bankrupt of his Discharge. Marryat contra said, 1st, that the general Rule was, that if the Debt be contracted subsequently to any Act of Bankruptcy, not to the Act alone on which the Commission is founded, it is not proveable: and, until this Statute, (s. 5.) even the Commission itself was avoided by an Act of Bankruptcy prior to the petitioning Creditor's Debt. The Statute was intended to give a partial Relief in this Respect; that is, to such Creditors as had not Notice of any prior Act of Bankruptcy: consequently it cannot aid in this Case, because the Creditor had Notice. But, 2dly, supposing the Debt would have been proveable before the Statute, yet the Statute has interfered to prevent it: the Enactment clearly imports that in all Cases where the Creditor has Notice, he shall not be admitted to prove. And this Construction seems reasonable; for if the Creditor knowing a Man' has committed an Act of Bankruptcy, chooses to give him Credit, he cannot be supposed to give Credit to his Effects; and if the Bankrupt become indebted under these Circumstances, he cannot complain that he remains liable. Lord ELLENBOROUGH, C. J.-It certainly was the Object of the Act of Parliament to facilitate and give a greater Capacity of proving Debts under certain Terms, and not to abridge it. I feel it unnecessary to go into any other Question. If it had not been doubted by the (a) 2 Bos. and Pull. 1. (b) 1 Camp. N. P. C. 489. (c) 2 T. R. 479. 1814 Ex parte BOWNESS, in the Matter of PHILLIPS, a Bankrupt. learned 1814. ނ Ex parte BOW NESS, in the Matter of PHILLIPS, a Bankrupt. learned Mind who has directed this Case, I should not have much hesitated. However, as it is, we will look at it again before we certify. The following Certificate was sent. We have heard this Case argued by Counsel, and have considered it, and are of Opinion that Penfold was entitled by Virtue of the said Bonds, to prove his said Debt under the said Commission, as a separate Debt due from the said Phillips. ELLENBOROUGH. S. LE BLANC. J. BAYLEY. H. DAMPIER. Tuesday, May 17, 1814 After a general Plea of Bankrupt cy, concluding to the Country, a Replication that Defendant was before the Commission discharged as a Bankrupt, and that his Estate has not produced 15s. in the Pound, WILSON and ANOTHER against KEMP. 2 Maule and Selwyn, 549 to 551. ASSUMPSIT against the Defendant as Acceptor of a Bill of Ex change. Plea, the general Plea of Bankruptcy concluding to the Country. Replication, that the Plaintiffs ought not to be precluded from having their Action, because, admitting that the Defendant became a Bankrupt, and that the Causes of Action accrued before the Bankruptcy, after the 24th of June, 1732, and after the Statute 5 Geo. II. c. 30, and before the issuing of the Commission against the Defendant, under which he was declared a Bankrupt, to wit, on the 19th Day of October 1807, the Defendant was discharged as a Bankrupt by Virtue of that Act, and that afterwards, to wit, on which was pleaded the 23d August 1811, he was again discharged, &c. and that his Estate has not produced 15s. in the Pound; and the Replication concludes with a Verification and Prayer of Judgment and Damages, &c. Demurrer, assigning for Causes, that the Plaintiffs have not in their Replication accepted the Issue tendered by the Plea, although the same is a material and sufficient Issue, but have proceeded to reply specially Matters which might have been given in Evidence under that Issue: and also for that by the Replication they have attempted to deprive the Defendant of the Benefit of pleading his Bankruptcy generally, according to the Form of the Statute, &c. and to oblige him in Maintenance of the Action gene rally, and with a Verification, was held ill, on a special Demurrer. to |