1799.

BAMFORD

บ.

BURRELL.

c. 22. s. 1. if any person who shall become bankrupt shall remove,
conceal, &c. any effects whereof he is possessed to the value of 207.
or any books, bonds, &c. with intent to defraud his creditors, every
such person so becoming bankrupt, and being thereof lawfully con-
victed, shall suffer as a felon without benefit of clergy. Now,
supposing a man to have committed an act of bankruptcy by an
assignment of his effects, and afterwards to remove his goods
with an intent to defraud creditors, but not to elude the statutes
in force against bankrupts, he not considering himself to be a
bankrupt, would such a man be liable to an indictment and exe-
cution as a felon? The becoming bankrupt is compounded of
the two facts; of his committing an act of bankruptcy, and of the
commission issuing against him. The second section of the same
act directs, that the certificate shall be signed by four-fifths of
the creditors in number and value, who shall have proved their
debts: and the 5 Geo. 2. c. 30. s. 27. directs the assignees to be
chosen by the major part in value of the creditors according to
the debts then proved; but if proof of an act of bankruptcy, com-
mitted prior to the time when debts of such creditors as have
signed the certificate, or voted in the choice of assignees, accrued,
be sufficient to destroy their right to prove under the commission,
the certificate may be overturned, and the whole proceedings
under the commission unravelled, when every thing is supposed
to be settled, the bankrupt having obtained his discharge and a
dividend having been actually made. So the 41st sect. of the
5 Geo. 2. c. 30. enacts, that "all certificates which have been al-
"lowed and confirmed and entered of record, or a true copy of
"every certificate signed and attested as therein mentioned, shall
"and may be given in evidence in any of His Majesty's Courts
"of Record, and be without any further proof deemed, &c. to
"be a full and effectual bar and discharge of and against any
"action or suit which shall be commenced or brought by any
"creditor of such bankrupt, for any debt or demand contracted,
"due, or demandable before the issuing of such commission."
Again, in the 19 Geo. 2. c. 32. s. 2. which entitles obligees
in bottomree and respondentia bonds, and the assured in policies
of insurance, to prove their debts where the contingency hap-
pens after the issuing of the commission, the expression used
is, that "the debt shall be proved, the dividend received, and
"the bankrupt be discharged, in like manner to all intents and
purposes as if such loss or contingency had happened, and
"the money due in respect thereof had become payable before
"the time of the issuing of such commission." Nothing can more

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strongly

strongly shew the opinion of the legislature, that the time of issuing the commission is the true period up to which all other debts may be proved. With respect to the 12th Geo. 3. c. 47. s. 2., which discharged bankrupts in custody previous to 25th March 1772, from debts due before their respective commissions issued; it is not probable that the legislature intended to put those who had not obtained their certificate, probably in consequence of some misbehaviour, on a better footing than all those who had conformed themselves to the bankrupt laws. From these expressions therefore of all these statutes, it is clear that the legislature has used the term "becoming bankrupt," as synonymous with the term "when the commission issued;" at least in those acts which relate to the proof of debts, and the effect of the certificate, though perhaps in those which describe the circumstances constituting a bankrupt, the act of bankruptcy and the commission may sometimes have been treated as distinct. It is also to be observed, that the Court of Common Pleas in Perkins v. Kempland and others, 2 Bl. 1107, refer to the date of the commission as the period beyond which a debt cannot be proved, and to which the operation of the certificate as a bar is confined.

EYRE, Ch. J. It is agreed on all hands that this case is new: we must therefore consider of it; and in entering into that consideration we must look through all the bankrupt laws, and construe the exceptions used in the 5 Geo. 2. with reference to the construction which has prevailed upon the rest of the bankrupt laws. The 5 Geo. 2. c. 30. s. 7. directs that every bankrupt conforming, &c. shall be discharged from all debts due or owing at the time he did become bankrupt: and yet in the 41st section of the same statute it is said, that the certificate, or a true copy thereof, shall be given in evidence, and be a bar to any action brought for a debt due before the issuing of the commission. Again, the 7 Geo. 1. c. 31. s.1., which allows holders of bills payable at a future day to prove under the commission, describes the bills in question as bills not due or payable at the time of such person becoming a bankrupt; and yet the 19 Geo. 2. c. 32. s. 2. allows the obligees in bottomree and respondentia bonds, and the assured in policies of insurance to prove in respect of such bond or policy as if the loss had happened before the time of issuing the commission. So 12 Geo. 3. c. 47., which continued the 5 Geo. 2. c. 30., then near expiring, in the second and third sections discharges persons against whom commissions had issued previous to 25th March 1772, from all debts due before the commission issued. In some therefore the ambiguous expression "becoming bankrupt" is

used,

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BAMFORD

v.

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1799.

BAMFORD

V.

BURRELL.

used, and in others, that of the "issuing of the commission" with-
out any reference to the act of bankruptcy. It should seem, there-
fore, that the two expressions must control and expound each
other. Doubtless it is a circumstance of considerable weight that
a practice of expunging debts accrued subsequent to the act of
bankruptcy, has prevailed in that Court, to which the general
jurisdiction arising under the bankrupt laws belongs. Whatever
rule has been adopted in that Court sufficient to afford us a
ground for reasoning by analogy is entitled to considerable atten-
tion. This however being a new case upon an act of parliament
the decision belongs to the courts of law, and I shall not hold
myself concluded by any practice of the court of Chancery. The
practice alluded to appears open to many observations. As soon
as a single instance had occurred of a debt being expunged, on
account of its having been contracted subsequent to the act of
bankruptcy, it ought to have been considered as an universal rule
to which all the commissioners were bound to conform, that no
proof of debts should be received unless the time were also shewn
when they accrued. It appears however to be the usage of the
commissioners, to require no other proof than that the debt was
due at the time of issuing the commission; and I am much sur-
prised to find this usage in some degree sanctioned by the obser-
vation of Lord Chancellor Hardwicke," that commissioners very
❝rightly declare a man a bankrupt only before issuing the com-
“mission, without specifying any precise time.” (a) Suppose a
creditor to have proved a debt accrued subsequent to the act of
bankruptcy, and to have received a dividend: could that dividend
be taken from him? Possibly the Court of Chancery might hesitate
to interfere: but how would the case stand in a court of law? I
was much struck with the apparent injustice of excluding the
proof of debts accrued subsequent to an act of bankruptcy, and
thus allowing the few creditors who existed when the act of bank-
ruptcy was committed to sweep away all the effects acquired since
that time, to the prejudice of those very persons by whom they
had probably been furnished. Besides the person of the bankrupt
himself, after the surrender of all his property, might still remain
liable to the majority of his creditors. I may find myself obliged
to say, that the rule which has been adopted, must be adhered to,

(a) Vid. 1 Aik. 119.-In 1 Aik. 78. Lord Hardwicke, speaking of the clause in the 13 Eliz. which directs the commissioners to pay creditors in proportion to their debts, says: "The question is, what "debts are here meant? And I am of 66 opinion, it means debts due at the time

"of the bankruptcy, or when the com"mission issued, which is the same; for "to prevent disputes about the time when " he becomes a bankrupt, the commissioners always find in general, that he was a bankrupt at the time the commission "issued."

66

66

and

and that it is for the legislature, not for the court, to make an
alteration. Still, however, the consideration of inconvenience
will weigh against a great deal of practice in forming my opi-
nion.
Cur, adv. vult.
On this day the opinion of the Court was delivered by
BULLER, J. The question in this case is, whether the certifi-
cate be a bar to the plaintiff's demand? We who were in Court
last term (a) have considered the point, and are all of the opi-
nion which I shall now deliver.

By the 5 Ann. c. 22. s. 2. no person becoming a bankrupt shall be discharged from all or any debts owing at the time of such bankruptcy, unless the certificate be first signed by four-fifths in rumber and value of the creditors who have proved debts. The 3 Geo. 1. c. 12. recites the same words, and the 5 Gco. 1. c. 24. says, that bankrupts conforming, &c. shall be discharged from all debts due or owing to at the time they became bankrupt, and may plead that the cause of action did accrue before such time as they became bankrupt. The 5 Geo. 2. c. 30. has the same words. Use has sanctioned them, and it is most clear that they have not been employed unadvisedly or inconsiderately. In pursuance of these statutes the words of the plea have always been, that on such a day the Defendant became a bankrupt; under such a plea, it has been the constant practice and usage to prove that the day on which the act of bankruptcy has been committed, was subsequent to the contracting of the debt. We think the words of the statute are so explicit that they admit of no doubt, and if there were room for doubt, the usage and practice which have prevailed must decide. The practice of the Court of Chancery to expunge debts which have become due since the act of bankruptcy, is likewise founded on the same construction of the statute, and that affords a very long list of authorities, entitled to the greatest weight and consideration, because the whole business of bankruptcy is the almost daily subject of decision in that Court. I think, it was admitted, that a debt which was not contracted till after the act of bankruptcy, would not be a good foundation for a commission, and if it will not sustain the commission, the proposition, that it may be proved under the commission at all, becomes extremely difficult. The proof of a debt is the same, whether it be the debt of a petitioning creditor or of any other creditor, for the creditor must in every case swear, that the bankrupt was indebted before, and at the time of suing out the commission (b).

(a) Buller, Heath, and Rooke, Js.

(b) 2 Co. B. L. 1. 33.

But

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v.

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1799.

BAMFORD

v.

BURRELL.

But the two grounds of argument insisted on for the Defendant were, first, that a person is not a bankrupt till a commission has issued against him; secondly, that some statutes make use of the words" at the time of issuing the commission," and that all statutes made in pari materiá ought to be considered together, and expounded by each other. As to the first ground, undoubtedly a man does not fall within many of the provisions of the bankrupt laws till he is declared a bankrupt, and therefore there is the same reason for extending the discharge to that time as to the date of the commission. But that has not been contended for. The commission and the declaration of the bankruptcy relate to the act of bankruptcy, and when a man is declared a bankrupt, he is so to all intents and purposes from the time that the act of bankruptcy was committed. But speaking of a bankrupt in the sense of the objection is a technical use of the word, whereas in the natural sense, it means only having committed an act of bankruptcy. In the affidavit to obtain the commission, the petitioner swears, that he believes the party is become a bankrupt, within the intent of the statutes, which being previous to the commission, of course cannot include it. It is impossible to read the case of Goddard v. Vanderheyden without seeing that this point was then considered as clear. It is stated as a thing before settled, that the cause of action must be such as would produce a proveable debt, which, it is said, was not the case there at the time of the bankruptcy committed, a term very inapplicable to the issuing of the commission. Lord Ch. J. De Grey (a) states the question to be, what debt

(a) The judgment of Lord Ch. J. De Grey in the above case was cited by Mr. J. Buller from a manuscript note of the late Mr. J. Gould, to the following effect: De Grey, Ch. J. The Defendant in this action being arrested, the present Plaintiff became his bail to the Sheriff, in consideration of which the Defendant promised to save him harmless. The Defendant not having put in bail, the Plaintiff in, the original cause sued this Plaintiff on the bailbond and obtained judgment, and he was obliged to pay the debt and costs. To recover this he sued the Defendant, who pleaded that he became Lankrupt before the cause of action accrued; at the trial before Lord Camden, a case was reserved, which stated; that in May 1763, the Defendant was arrested; that the Plaintiff became bail for him; that in Mich. Term

1763, judgment was obtained against the Plaintiff on the bail-bond so given by him; that on the 10th of March 1764, the Defendant became a bankrupt; that at that time a writ of error was depending on the judgment obtained on the bail-bond, which having been carried from the Exchequer Chamber into Parliament, was there nonprossed in January 1765; that on the 21st of the same month a fieri facias issued against the present Plaintiff at the suit of the Plaintiff in the original action, and thereupon the debt due from this Defendant with the costs was paid, and that on the 2d of May 1765, this Defendant obtained his certificate.

The question made is, whether the debt recovered by the Plaintiff was a debt which could be proved as such against the Defendant under the commission, and was there

fore