taken, there to remain until he, she, or they be removed by order of the said commissioners, or the major part of

As to that all the debts of a bankrupt are due in conscience, notwithstanding he has obtained his certificate: and there is no honest man who does not discharge them, if he afterwards has it in his power to do so. Though all legal remedy may be gone, the debts are clearly not extinguished in conscience." Trueman v. Fenton, Corp.

544.

That was not a case, where the promise was made after the certificate was obtained.

In that case the bankrupt was indebted upon two promissory notes for sixty-three pounds each; after the commission, and before his certificate, these two notes were taken up and cancelled, and one was given for sixty-seven pounds. The plaintiff proved nothing under the commission. It was held he might recover upon the note for sixty-seven pounds.

In another case where the defendant was in execution after a commission had issued against him. Soon after, in order to regain his liberty, he gave the plaintiff a bond and warrant of attorney to confess judgment for the whole debt.

The bankrupt obtained his certificate, and the bond and warrant of attorney having been put in force; upon a motion to be discharged, as the debt might have been proved under the commission:

"Per Curiam. This certainly is to be considered in the light of a new debt arising upon a new consideration, because the bond and warrant of attorney were given in order to procure the defendant's liberty. The old debt was thereby extinguished. That point was determined in the case of Vigers and Aldrich, and in Jacques and Withy in the Term Reports. This is the same as if a new promise had been given for the same debt, upon the same consideration, even after a certificate obtained; which would operate as a new debt because the old debt still remained in equity." Birch v. Sharland, 1 T. R. 715.

The word equity here means moral abstract justice, not equity as administered in courts of equity.

Lord Mansfield thought that payment of interest upon a bond by a bankrupt after his certificate, amounted to a fresh promise to pay. Alsop v. Brown, Doug. 282.

If the bankrupt after his certificate promises to pay when

notice to com

them, by warrant under their hands and seals; and the Gaolers to give gaoler or keeper, to whose custody such person or persons missioners.

he is able, the plaintiff must prove his ability, though Lord Loughborough unaccountably was of a different opinion. Besford v. Saunders, 2 Hen. Bl. 116.

If a bankrupt is arrested upon a fresh promise the court will discharge him upon common bail. Bailey v. Dillon, 2 Burr. 736.

Lord Kenyon held at nisi prius, where the defendant pleads generally his bankruptcy, that the plaintiff might give the promise subsequent to the certificate in evidence, Williams v. Dyde, Peake 68.

That general plea puts the validity of the certificate in every instance in issue; but this seems rather hard upon a bankrupt, as it may be entirely a surprize upon him, and he may have no opportunity to answer or repel the evidence.

And if the original contract was only obligatory in writing, there seems to be some inconsistency that it should be revived by parol.

An important question arises upon these debts discharged by the certificate, and voluntarily revived by a fresh promise of the bankrupt, and which I do not find has yet been decided, viz. whether under a second commission, they shall be proved and have a dividend with the new creditors for a valuable consideration.

Lord Hardwicke has said, "if a bankrupt applies to an old creditor, after a discharge by certificate to lend him a new sum of money to carry on his trade, or to become a security for any office; I am inclined to think that this ought to be a good consideration for his giving bond for the remainder of the old debt, and that he ought to be admitted a creditor for the whole debt under the second commission; but I will not be bound down by this opinion, though, as I am at present advised, I think it would be so." Exparte Burton, 1 Atk. 255.

In such a case as a commissioner I should think myself bound by the 21 Jac. 1. c. 19. s. 9. that most important but much neglected and injured section, to admit the bond only for the value the bankrupt had received since he began to contract fresh debts. That great pillar of the bankrupt fabric intended that no specialty, judgment, &c. should be admitted for more than a rateable part of

shall be committed, is hereby required to take and receive such person or persons into his custody, and forthwith.

the just debt without respect to the greater sum contained in it; and that those creditors, who might have a good consideration against the bankrupt himself, should only have a share of the remainder of the bankrupt's, property with the other creditors, in proportion to the real and substantial effects which they had respectively contributed to it.

It would be in the highest degree honest and conscientious for the bankrupt to pay his former creditors from his own acquired property; but it would be quite the reverse to rob the second class of creditors to pay the first, who probably would be his near relations or particular friends.

If the first class in this case divide with the second the bankrupt is generous only with another's property, and it is a species of generosity quite irreconcileable with justice.

Lord Redesdale decided in the court of chancery in Ireland that "the proper order to make in case of a voluntary bond is not to expunge it, but that it shall not be set up against the creditor; but if there be a surplus after payment of all joint and separate debts, the party shall be allowed to come in." Assignees of Gardner v. Skinner, 2 Sch. and Lef. 228.

No one entertains a higher opinion of the learning and judgment of the late chancellor of Ireland, than myself.

I read that proposition with approbation, and have cited it in p. 14 ante. But upon further consideration, I think it is subject to the following objections.

If the chancellor thinks it right not to expunge, it is not wrong for the commissioners to admit, subject to Lord Redesdale's restriction, that no dividend shall be paid upon it. But if the proof of it is admitted upon the proceedings, for its nominal amount, then the creditor of such a voluntary bond must be admitted to vote in the choice of assignees, must assent or to dissent from the certificate, and must have all the other rights of a creditor.

I should therefore submit, that there is more propriety and convenience in a strict adherence to 21 Jac. 1. c. 19, s. 9, and that if a bond, judgment, &c. is entirely gratuitous, and given where there was no existing debt, no proof shall be allowed; and it is better for the creditor substantially, as it probably would be held that the bankrupt

to give notice to one or more of the said commissioners in the said commission named of such person or persons being in his or their custody; to the intent the said commissioners may send their warrant to such gaoler or keeper (which they are hereby impowered and required forthwith to send) for the delivering such bankrupt or bankrupts to the person or persons named in such warrant, who shall be thereby authorized to convey and bring such person or persons to the said commissioners in order to such examination and discovery, as aforesaid; and the said commissioners are hereby likewise authorized and impowered, by such their warrant, or any other warrant, to take and seize any the goods, wares, merchandizes, and

was not discharged from the obligation of such a bond by his certificate.

Sir William Grant, master of the rolls, has held that" a bond given for the arrears of a voluntary bond is not to be considered voluntary and gratuitous, like the original bond, which is void against creditors both in the case of death and bankruptcy. But if a bond is given for the arrears, it is a bond for a valuable consideration Gilham v. Locke, 9 Ves. 612.

To the same effect is Stiles v. Attorney-general, 2 Atk.

521.

Lord Hardwicke's reason is that an action may be brought for the arrears, therefore the second bond is founded on a valuable consideration.

A man, who had a wife living, married another woman, and to make the latter a compensation, gave her a bond to pay her an annuity; his Honour said that though it was given from the strongest moral obligation, yet it was not for a valuable consideration, and was void against creditors and in bankruptcy; but that another bond or agreement to pay the arrears was for a valuable consideration, and might be proved under the commission. Gilham v. Locke, 9 Ves. 612.

A bond or note given for seduction, as the præmium pudoris, cannot be proved, but if given to compromise an action for seduction it may be proved. Exparte Ward, 15 Yes. 290. Exparte Mumford, Ibid, 289.

effects of such bankrupt or bankrupts (the necessary wearing apparel of such bankrupt, or of his wife, or children, only excepted) and any of his, her, or their books, papers, or writings, which shall be then in the custody or possession of such bankrupt or bankrupts, or of any other person or persons, in any prison or prisons whatsoever; any custom or usage to the contrary in any wise notwithstanding. (14)

15. Provided always, and be it enacted by the authority aforesaid, that if any such person or persons, so apprehended and taken, shall within the time or times allowed by this act for that purpose, submit to be examined, and

(14) When the commissioners are informed that the bankrupt is embezzling his property, or is preparing to leave the kingdom, or if he does not surrender himself at the third meeting, or at the enlarged or adjourned time, or whenever they think there is a fit occasion till he passes his final examination, they may make this certifi

cate.

The statute says in order to such examination and discovery as aforesaid, which seems to limit the time within which the commissioners are to exercise this power.

In the case of Exparte Lingood, 1 Atk. 240. Lord Hardwicke seems to take it for granted that the commissioners must first summon the bankrupt to attend, and then certify to the judge that he was summoned and refused to attend, and he never once takes notice of the certificate described by the act. The statute requires no such previous summons. And it is now never done in practice as preparatory to the warrant. But upon any representation made to the commissioners upon oath, or otherwise as they shall think proper, the commissioners make this certificate according to this section, and a warrant is obtained now generally from the chief justice of the King's Bench.

Every judge or justice of the peace is bound to grant this warrant upon application, but the warrant from one of the judges of the King's Bench is preferable, because that may be executed immediately in every county in England. A warrant from a justice of peace must be