debt was due from the Defendant to the Plaintiff on the 10th of March 1764, which was the very day on which the act of bankruptcy was committed. Now this plainly shews what his 1799. BAMFORD v. BURRELL fore discharged by the certificate? There are three provisions in the bankrupt laws relative to this subject; the first directs what debts shall be admitted; the second, what debts shall be discharged, and the third, how the discharge is to be pleaded. By the old acts of 34 & 35 Hen. 8.c. 4. and 13 Eliz. c. 7. it is generally provided, that the effects of the bankrupt shall be divided amongst the creditors. The 1 Jac. c. 15. directs, that they shall be divided amongst those that come in within four months. No positive rule is laid down in former acts to distinguish who are to be admitted to share, but the principle is to divide equally. The commissioners have a power to take order according to wisdom and discretion, and to fix which debts were owing when the party became bankrupt. The succeeding act of 1 Jac. c. 15. takes it up so and so it is understood in the 21 Jac. c. 19. except where execution has been executed at the time of the bankruptcy. The subsequent statutes of 5 Ann. c. 22. 5 Geo. 1. c. 24. & 5 Geo. 2. c. 30. consider it in the same light, making all securities given by the bankrupt to creditors for securing debts due at the time of the bankruptcy as a consideration for obtaining his certificate, void. With respect to the discharge of debts, the old statutes did not release the person or future effects, but provided that the same remedy should subsist as before for what remained unsatisfied. By 4 Ann. c. 17. bankrupts are made subject to imprisonment, and in some cases to capital punishment: but if they conform, then (amongst other things) they are discharged from all debts due and owing when they became bankrupts. The subsequent statutes make the same provision. And when they direct how the discharge is to be pleaded, they provide that if the bankrupt be sued for debts due, &c. he shall be discharged, and may plead that the cause of action accrued before the bankruptcy. Now, may not a cause of action accrue where there is no debt due and owing? Yet the debt must be proveable under the commission, or it cannot be discharged and to be so, it must be a debt due and owing, which is the same thing as demandable, which a note payable at a future day is not. The first thing which a creditor must swear to is a sum due: and by 5 Geo. 2. c. 30. he is guilty of perjury if he swear to what is not due, or to more than is due. Therefore, future debts, not then demandable, nor then due and owing, could not be proved. The 7 Geo. 1. c. 31. which directs that securities payable at a future day shall be proveable under the commission, and discharged by the certificate, has been held to extend to all kinds of certain debts. Swaine v. De Mattos, 2 Str. 1211. - Contingent debts, however, still remained unprovided for. Therefore, in Tully v Sparks, 2 Str. 867. the Court of K. B. held, that a bond for the payment of a sum after the death of the obligor, if he married M. L. and she survived him, was not proveable. Parlia ment then interposed in favour of trade, and by 19 Geo. 2. c. 32. made bottomry and respondentia bonds proveable. On the principle of these two statutes, the Court of Chancery endeavoured to introduce another case of compassion. Tradesmen generally provide for their families by personal securities: they enter into a bond to pay so much money to trustees on the contingency of the wife or children surviving the obligor. If the contingency had not happened during the commission, these bonds could not come in. But in cases where the bankrupt has died during the proceedings, the bond or covenant becoming due, the Court of Chancery has admitted it; Er parte Caswell, 2 P. Wms. 497. This has been done several times; and Lord C. King held, that the distribution of the estate should not wait for the contingency, but that if the contingency happened before distribution made, or even before the second dividend, the creditor should come in. Lord Hardwicke on the 6th of August 1740, in the case er parte Newburgh, held, that where a bond on marriage was given to trustees to pay a sum of money, if the wife survived, and no dividend had been made before the husband's death, held that the commissioners were right in admitting the trustees. But ex parte Groome, 1 Atk. 115. where the husband 1799. BAMFORD v. BURRELL his opinion was. On the second objection the statutes 12 Geo. 3. c. 47. & 14 Geo. 3. c. 77. were mentioned and relied on. But those are particular insolvent acts, and do not husband covenanted before marriage to leave his wife 600%. in case she survived him, and the husband became bankrupt, and died before any dividend made, Lord Hardwicke decided, that the wife should not be admitted, because it was not a debt which would be discharged by the certificate; but observed, that creditors and parties have often been compassionate. Ex parte Mitchell, 1 Aik. 120. was a like covenant and a bond; the bankrupt paid 9s. in the pound and died; the wife petitioned Lord Hardwicke, who admitted her, there being no opposition, and declared, that if there had been a judgment the wife would have been entitled to come in as a claimant before the death of the husband, and the assignees must have retained enough to answer a dividend. The bar much doubted of the propriety of the order; Lord Hardwicke recollected the impropriety himself, ordered it to be spoken to again, and was satisfied that it would have been a dangerous precedent. He said that a like order in Greenaway's case, 1 Atk. 118. was made by consent of the assignees, and that Lord King's opinion in ex parte Caswell, 2 P. Wms. 497. was merely obiter, and had been doubted both by Lord Talbot and himself. It is now settled that such family provisions cannot come in unless the contingency happen before the act of bankruptcy. Yet even here the Court has introduced exceptions; for where a bill is brought to recover the wife's fortune, the Court will oblige the assignees to do reasonable justice. It was said in Mitchell's case, that if there be a judgment it becomes a legal debt; but I doubt whether it was admitted as such. In Jacob's case, 1759, the husband tried an experiment, and confessed a judgment in contemplation of bankruptcy; but Lord Northington refused to admit the wife a creditor, it being an open fraud. There is another species of debts which comes nearer to the present, viz. debts not only contingent but uncertain in point of liquidation. In these cases it is not necessary that the specific sum should appear as the balance of account; the claim may be admitted, and the Court will take a method to ascertain what was due at the time of at the bankruptcy. But where it is uncer tain whether the cause of action will ever be authenticated; or, if it be, whether it will produce a debt to any particular amount, it is otherwise. Thus an assault and battery committed before the bankruptcy is a good cause of action. But where a verdict in such a case was recovered during the proceedings under the commission, and judgment was not obtained till after the certificate, the Defendant having applied to K. B. to be discharged, it was objected that the bankrupt had nothing to do but to plead that the cause of action arose before the bankruptcy. But the Court held, that to do that, the cause of action must be such as produces a proveable debt, which was not the case there at the time of the bankruptcy committed. It was then urged; that the verdict having ascertained the amount should have relation to the cause of action, but the Court said, that the debt must be due and owing, and decided in favour of the Plaintiff. I never knew an instance of an attempt to prove a debt where the cause of action arose on a breach of covenant in a lease. In Berkely and Another v. Kemstow, Cro. Eliz. 123. a promise to keep a prisoner safely, and to save the gaoler harmless, was held by the Court to be a promise on which the party might sue presently upon the escape. But that sort of case diflers from what was mentioned at the bar, of a right of action before a special damnification. For where a bond is given to indemnify bail, and on the party not appearing, the surety immediately brings an action, the indemnity bond may be held forfeited, because of the danger which the surety incurs of being sued. I will not say how such bonds as these could be admitted. But these cases are strong authorities. And if in the case at the bar judgment had been obtained against the bankrupt, it would have been similar in principle to them; for then there would have been a legal debt, though the damnification would have been uncertain. On the 10th of March 1764 what debt was due from the Defendant to the Plaintiff? It is true the latter was to be saved harmless; but if he had gone in under the at all alter the general system of the bankrupt laws. The insolvent acts are temporary merciful laws, discharging men from their debts because they have nothing to pay, and the legislature undoubtedly may discharge them from what time they think fit. They might have extended the discharge to the time of the certificate, if they had pleased, with equal reason. And yet all cases, except those depending at the time when the particular acts passed, would remain to be decided under the general bankrupt laws. Under those general laws, we are of opinion, that debts proveable under the commission, and debts to be discharged by the certificate, are convertible terms; and that debts not due at the time of the act of bankruptcy, except in the cases specially provided for by particular statutes, are not affected by the commission. This case admits of many other observations, both on the statutes and the judicial determinations upon them: but, the commission, he must have proved some debt due. Can I imply a damnification? It is a probable loss; but it is difficult to say what the Plaintiff would have sworn to, and more so to say what he would have demanded. Suppose no bankruptcy had happened, the Defendant could not have been held to special bail, unless the Plaintiff had suffered a special damnification. What damage would a jury have given? At any rate judgment could only stand as a security, for no execution could be taken out till the party were actually damnified, 6 Mod. 77. Though there was no actual subsisting debt on the 10th of March 1764 due and owing, yet the judgment in this case is evidence of the debt, and may be a measure for the damnification, but that damniscation may not be what is now complained of, namely, paying the whole sum. The original Plaintiff might have come in under the commission and proved the debt, and then the bankrupt would not have been indebted for it to this Plaintiff also. Or suppose the Defendant to have paid 10s. in the pound, the remainder would have been the damnification. Or suppose the Defendant had been taken in execution by the original Plaintiff, that would have been a discharge of the bail. Indeed, how could the Plaintiff come in under the commission, when by his writ of error he had asserted that he had not paid nor ought to pay the debt? that would have precluded him from proving the judgment. Suppose this Plaintiff had proved the debt, and received 20s. in the pound before the certificate allowed, Per Curiam.-Judgment for the Plaintiff. perhaps, 1799. BAMFORD บ. BURRELL [ 12 ] 1799. BAMFORD ย. BURRELL, perhaps, I may be thought to have been too prolix already on a point which appears to have been long and fully settled, and I should not have occupied so much time, but from respect to a great opinion which seemed to differ from that which I now deliver, and to which opinion we all owe the utmost defeLet the judgment be entered for the Plaintiff. Judgment for the Plaintiff. rence. LECHMERE v. RICE. Nov. 12th. To debt on bond VILLIAMS, Serjeant, shewed cause against a rule nisi for the Court will permit the Defendant to plead non est factum, and usury(a). pleading to an action of debt on bond; first, non est factum; and, secondly, that the bond was given upon an usurious consideration: and contended, that although usury was not, strictly speaking, an unconscientious plea, yet, that as it is the constant practice of the Court to refuse a rule of this kind where the pleas are inconsistent (b), they would not depart from that rule in the present instance. He also relied on an affidavit, stating, that the witness to the bond lived in Worcestershire, and that the Plaintiff would be put to great expence, if he were obliged to bring him to London where the venue was laid. Shepherd, Serjt. in support of the Rule, insisted, that the object of pleading non est factum was to oblige the Plaintiff to produce the witness to the bond, in order that the Defendant might have the opportunity of cross-examining him as to the usury. The Court were of opinion that the two pleas were not more inconsistent than many which are allowed to be pleaded together, as not guilty to an assault and a special justification: and that probably the true reason for opposing this rule was, as had been suggested, to keep the attesting witness out of the way. They observed, that the Court of Common Pleas only continued to exercise an authority over applications for pleading several (a) Vide Thyatt v. Young, post. 72. M'Connell v. Hector, post. 549. (b) See 1 Sellon, 298, 299. But in Steele and Others v. Pindar, Barnes, 347. where not guilty, and a general release were allowed to be pleaded together, a reason was given by the Court which applies to the principal case; viz. that the second plea could not be given in evidence under the general issue; and with this agrees Shaw v. Everett, ante, vol. 1. p. 222. matters matters (which had originally been the practice of the King's Bench also) in order to prevent an oppressive use being made of that liberty which is given by the statute (a). (a) 4 Anne, c. 16. s. 4. Rule absolute. 1799. LECHMERE v. RICE. BROWNING v. S. WRIGHT and Others, Executors of COVENANT against the representatives of James Wright. The declaration stated, that the said J. Wright by indenture in his life-time, fully, clearly and absolutely granted,bargained, sold, enfeoffed, and confirmed to the Plaintiff, his heirs and assigns a certain piece or parcel of arable land (describing it), and all ways, waters, &c. and all his estate, right, title, &c. in law or equity, to have and to hold to the Plaintiff, his heirs and assigns, absolutely and for ever; that he warranted it against himself and his heirs, and for himself and his heirs, and covenanted that he was, notwithstanding any act by him done to the contrary, lawfully and absolutely seized in fee simple, and that he had a good right, full power, and lawful and absolute authority to convey; that by virtue of this conveyance the Plaintiff entered and was possessed and fulfilled all his covenants and agreements. "Yet protesting that J. Wright did not in his life-time well and truly observe, &c. and that the said Defendants have not nor have any of them since the death of the said J. Wright well and truly observed, &c. any of the covenants, clauses and agreements in the said indenture contained on their part and behalf respectively to be observed, &c.; in fact the said Plaintiff says that the said J. Wright had not at the time of making the said indenture nor at any time before or since good right, full power, and lawful and absolute authority, or any right, power, or authority whatsoever under him, should make further assurance. Held, that the intervening general words, " full power, &c. to convey," were either part of the preceding special covenant; or, if not, that they were qualified by all the other special covenants against the acts of himself and his heirs (a). (a) Vide Tattersall v. Groote, post 253. Howell v. Richards, 11 East, 633. Seddon v. Senate, 13 East, 63-71. Barton v. Fitzgerald, 15 East, 530. Hesse v. Stevenson, 3 B. & P. 565. Nind v. Marshall, 1 B. & B. 319. Foord v. Wilson, 8 Taunt. 545, 546. to |