CASES ARGUED AND DETERMINED IN THE COURT OF COMMON PLEAS IN Michaelmas Term, In the Fortieth Year of the Reign of GEORGE III. 1799. TH BAMFORD V. Burrell. HIS was an action for goods sold and delivered. At the Sittings in Michaelmas Term 1797 a verdict was found for the Plaintiff on the plea of the general issue, and judgment was signed. Previous to this verdict, viz. on the 9th of August in the same year, a commission of bankruptcy issued against the Defendant; and on the 4th of December following he obtained his certificate. In Easter Term 1798 the Defendant applied to the Court to order 481. 12s. the debt and costs in the above cause, paid into the hands of the sheriff of London, by his bail, to be returned to them on payment of the costs of a scire facias issued against them, to enter an exoneretur on the bail-piece nunc pro tunc, and to set aside the judgment on the scire facias, on the ground of his having obtained his certificate before the return of any ca. sa. issued against him before the bail were fixed. The court at that time directed the parties to go to trial on the question of bankruptcy, the Defendant pleading his certificate; and accordingly at the Guildhall Sittings after that term the cause came on before Eyre, Ch. Just, when the material facts in evidence were; that the act of bankruptcy was committed by the Defendant on the 8th of March 1797; that the debt in question accrued to the Plaintiff in April following; and that the com (a) Vide Stacey v. Federici, post. 390. Brett v. Levitt, 13 East, 213. Buss v. Gilbert, 2 M. & S. 70. Erparte Bowness, ibid. 479. VOL. II. B mission Nov. 6th. A debt accrued sub sequent to an act of bankruptcy, and previous to the issuing of the not barred by the certificate (a). commission, is 1799. BAMFORD v. BURRELL. mission issued on the 9th of August in the same year. A verdict having been found for the Plaintiff, and a rule nisi obtained by the defendant in Trinity Term following for setting aside that verdict and entering one for the Defendant, the case stood over till Easter Term 1799. Cockell and Shepherd, Serjts. then shewed cause. The question in this case arises upon the construction of the words of the 5 Geo.2. c. 30. s. 7. where it is said, that" the bankrupt shall be discharged "from all debts by him, her, or them due or owing at the time "that he, she, or they did become bankrupt." Now a manifest distinction appears as well in the statutes relating to bankrupts as in the proceedings themselves between the time of the act of bankruptcy being committed, and of the commission issuing. The 13 Eliz. c. 7. s. 1. directs, that certain persons committing certain acts shall be deemed bankrupts, without referring to any adjudication. In 21 Jac. 1. c. 19. s. 14. the time of suing forth the commission is expressly distinguished from that in which the party becomes bankrupt; it being there enacted, that no bona fide purchaser shall be impeached, unless the commission to prove the party a bankrupt be sued forth against such bankrupt within five years after he shall become a bankrupt. So in 7 Geo. 1. c. 31. s. 1. which empowers creditors having debita in præsenti solvenda in futuro to prove under the commission, the words used are "be"coming bankrupts, and commissions of bankruptcy being taken "out against them," evidently considering the party as bankrupt independent of the commission. Where it has been the intention of the legislature to give relief against all debts due at the time of the commission, a phrase has been employed expressive of such intention, as in 12 Gco. 3. c. 47. s. 2. by which persons then in custody were discharged from debts due before the issuing of their commissions. The same distinction is preserved in the commission, which states, that whereas the party by exercising trade, &c. did become bankrupt, therefore the commission issues. And it is to be observed, that in pleading, the expression always used is, before the party became bankrupt, not before the issuing the commission. It is the invariable practice of the Court of Chancery to expunge debts which have been proved under a commission where it appears that such debts have been contracted subsequent to an act of bankruptcy. And many commissions have been superseded upon proof of an act of bankruptcy antecedent to the time when the petitioning creditor's debt accrued. As in De Gols v. Ward, Cas. Temp. Talb. 243. Cooke's B. L. 20. ed. 4. The reason there given by Lord Talbot is, that "the commission must issue on the "petition of some creditor who could be relieved under it: but if "the debt is subsequent to the act of bankruptcy, the creditor "cannot come in under the commission against the effects of the "bankrupt, though the person of the bankrupt will be liable." And though that decision was afterwards reversed in the House of Lords, yet it appears by 4 Brown's Parl. Cas. 327. and Ex parte Wainman, Cooke's B. L. 21. that the reversal proceeded on the ground of the old acts being in force at the time when the commission issued; and it is said by the Lord Chancellor in Ex parte Wainman, that if the case had been on the new acts, the Judges would have been of a contrary opinion. There is an anonymous case in 2 Wils. 135. C. B. which shews that the petitioning creditor's debt must be due from the bankrupt at the time of the act of bankruptcy committed, though it do not become due to the petitioning creditor till afterwards. The act of bankruptcy puts an end to the trading; it subjects the stock and effects of the bankrupt to be assigned; and from that period his accounts ought to be closed. Le Blanc, Serjt. in support of the Rule. The effect of the construction contended for by the Plaintiff will be to work an injustice to the creditors of the bankrupt whose debts have been incurred between the committing the act of bankruptcy and the issuing the commission. For if a merchant after a secret act of bankruptcy carry on trade for any length of time, and obtain goods in the course of that trade to a considerable amount, the creditors anterior to the act of bankruptcy will be entitled by the above construction to a distribution of all those goods, to the exclusion of the very persons by whom they were furnished. The 1 Jac. 1. c. 15. s. 6. enacts, that upon lawful warning left "at the dwelling"place or house where the bankrupt, his wife or family, for the "most part of his abode, did lodge, or remain within one year "before he, she, or they became bankrupt," the commissioners may proclaim the party a bankrupt. In this case, therefore, it is clear, that the words of the statute must refer to the time previous to the issuing of the commission, and not the committing the act of bankruptcy; for the latter may have taken place by an assignment of the party's effects five years before it was discovered; and the statute could not intend that if he had changed his abode during that time, the warning should be left at the place where he lived when the act of bankruptcy was committed. By 5 Ann. (a) (a) Vid. Ruff head's Statutes, Appendix, p. 235. c. 22. 1799. BAMFORD v. BURRELL |