issuing of such commission, the person with whom such debt has been contracted may, if he think fit, apply to the commissioners to set a value upon such debt, and they are required to ascertain the value thereof, and to admit such person to prove the amount so ascertained, and to receive dividends thereon; or if such value shall not be so ascertained before the contingency shall have happened, then such person may, after such contingency shall have happened, prove in respect of such debt, and receive a dividend with other creditors, not disturbing any former dividends; provided such person had not, when such debt was contracted, notice of any act of bankruptcy by such bankrupt committed.

But damages which are in their nature unliquidated, and which can be ascertained only by a jury, and have not been ascertained at the time the fiat was issued, cannot be proved under it, although the right to recover them be founded upon a contract (m). Where, therefore, a person who had contracted for a certain quantity of oil, to be delivered to him at a future day at a certain price, became bankrupt before that day arrived, and obtained his certificate, it was held that he was nevertheless liable to a special action of assumpsit, for not accepting and paying for the oil (n). And the same rule holds though the breach of contract happened before the bankruptcy (o). And bankruptcy and certificate are no defence to an action in tort against a broker for selling out stock contrary to orders (p).

In Yallop v. Ebers (q), it appeared that the defendant, on certain considerations, undertook to pay the balance due on a bill of

wife, his or her executors or administrators. Held, that this was a debt payable on a contingency, proveable under a commission against J. S.; Ex parte Tindal, in Chan., 8 Bing. 402; 1 Moore & S. 606, S. C. In this case, the meaning of the 56th section was fully considered and explained by Tindal, C. J., in delivering the opinion of himself, and of Lord Brougham, C., and Mr. Justice Littledale. And see Thompson v. Thompson, 2 Bing. N. C. 168; 2 Scott, 268; 1 Hodges, 225, S. C., where it was held that the instalments of an annuity for the payment of which a bankrupt is surety only, and which he covenants to pay in case of the default of the grantor, are not, where they become

due after his bankruptcy, proveable under a fiat against the surety.

(m) See Eden, 2nd ed. 129. Damages for not returning shares lent are not proveable, Ex parte Heelings, in re Young, 3 Mont. & Ayr. 147.

(n) Boorman v. Nash, 9 B. & C. 145. (0) Green v. Richards, 3 N. & P. 634. It should seem that there is an exception to this rule, in the case of a contract to deliver stock on a certain day, id.

(p) Parker v. Crole, 5 Bing. 63; 2 M. & P. 150, S. C. See other instances of the right to treat the claim as a tort, though it might be viewed as a debt founded on contract, Eden, 2nd ed. 130.

(9) 1 B. & Ad. 698.

exchange, of which the plaintiff was acceptor; and he afterwards, by a new undertaking, engaged to deliver up the acceptance to plaintiff within a month, or to indemnify him against it. The defendant became bankrupt, and did not pay or give any indemnity, and the plaintiff was obliged to take up the bill, the bankrupt having then obtained his certificate. In an action brought for the breach of promise, it was held that the plaintiff could not have proved in respect of it under the defendant's commission, either for a debt not payable at the time of bankruptcy, or for a contingent debt, or in the character of a surety, and therefore that the bankruptcy was no defence. But where a sum being due from A. to B., C. by B.'s request, and for his accommodation, drew a bill of exchange on A. for the amount, which A. accepted, and C. then indorsed the bill and gave it to B., who indorsed and negociated it, and B. subsequently became bankrupt; it was held that C. was a surety for B., and therefore that the amount of the bill, which was dishonoured and paid by C., was proveable by him under B.'s fiat, and that B.'s certificate was a bar to an action by C. (r).

In Atwood v. Partridge (s), the defendant covenanted for the due payment by A. B. of a premium upon a policy of insurance effected to secure a debt due from A. B. to plaintiff. The premium became due June 17th, and being unpaid by A. B. or the defendant, was paid by the plaintiff; on June 20th the defendant obtained his certificate under a commission of bankruptcy. It was held his certificate did not discharge him from the amount of the premium; the claim being merely for unliquidated damages, and not within the 56th section of the bankrupt act.

If the creditor sue the bankrupt for a debt which he might prove under the fiat, he cannot prove without relinquishing the action, and all benefit from the same, and discharging the bankrupt, if in custody at his suit; and the proving a debt precludes the creditor from afterwards suing the bankrupt for the same demand; but this election is not binding, and does not prejudice, if the fiat be afterwards superseded (t).

(r) Haigh v. Jackson, 3 Mee. & W.

598.

(s) 4 Bing. 209; 12 Moore, 431, S. C.

(t) 6 Geo. 4, c. 16, s. 59. See Chitty Pl., 5th ed., 917. Semble that if the plaintiff proceed in his action

after he has proved, the defendant's proper course is to apply to stay proceedings, or to the Bankruptcy Court to procure the debt to be expunged. See per Cur., in Harley v. Greenwood, 5 B. & Ald. 95. Proving one debt no election as to another, Bridget v.

Any bankrupt who shall, after his certificate has been allowed, be arrested, or have any action brought against him for any debt, claim, or demand, proveable under the commission, shall be discharged upon common bail, and may plead in general that the cause of action accrued before he became bankrupt (u). The pleadings and evidence upon this subject will be hereafter considered.

By the 127th section of the bankrupt act, it is enacted, that “if any person who shall have been once discharged, and obtained his certificate, or have compounded with his creditors, or been discharged by any insolvent act, shall again become bankrupt, and have obtained such certificate, unless his estate shall produce (after all charges) sufficient to pay every creditor under the second commission 15s. in the pound (v), such certificate shall only protect his person from arrest and imprisonment; but his future estate and effects (except his tools of trade and necessary household furniture, and the wearing apparel of himself, his wife, aud children,) shall vest in the assignees under the said commission, who shall be entitled to seize the same, in like manner as they might have seized property of which such bankrupt was possessed at the issuing the commission." Upon this section, it has been held that no action can be maintained against a certificated bankrupt for a debt due before his commission, although he has compounded with his creditors before his commission, and his effects have not produced 15s. in the pound (w); Lord Tenterden, C. J., observed, that the provisions of this section protect only the person of the bankrupt, not his future effects; but they vest the latter in his assignees and that it would be extraordinary that the bankrupt's person should be protected, and the property vested in the assignees, and yet the action be maintainable. It has also been held, that this enactment is retrospective, and applies to discharges by bankruptcy or insolvency before the passing of the act, as well as to discharges obtained subsequent to the passing of the act (x).

Mills, 4 Bing. 18; 12 Moo. 92, S. C.; Ex parte Sidebottom, re Clarke, 2 Jurist, 597.

(u) 6 Geo. 4, c. 16, s. 126.

(v) A certificate under a second commission will not exempt the bankrupt's future estate and effects from the claim of his assignees to seize it under this section, unless the estate of the bankrupt existing at the date of the

certificate shall have actually produced sufficient to pay 15s. in the pound, Butler v. Hobson, 5 Scott, 824. And a third commission would perhaps be a nullity, id.; Fowler v. Coster, 5 Man. & R. 352; post, 194, note (a).

(w) Eicke v. Nokes, M. & Mal.

303.

(x) Elston v. Braddick, 2 C. & M. 435; 4 Tyr. 122; Young v. Rishworth,

Foreign Certificate or Discharge. - A foreign bankruptcy and certificate, or discharge, may be pleaded in this country to an action for the recovery of a debt incurred abroad, if the bankruptcy be, by the laws of the country wherein the debt was contracted, a discharge of such debt (y). But a discharge under a commission of bankrupt in a foreign country is not, in general, any bar to an action for a debt contracted here with a subject of this country (z). And a discharge of an insolvent debtor upon a cessio bonorum, by the Court of Session in Scotland, does not bar an action in England by an English subject to recover a debt contracted here, although the creditor opposed the discharge of the debtor in the Scotch Court; he not having claimed to have the benefit of the Scotch law, and to take a distributive share of the insolvent's property (a). There is an exception in the case of a certificate of discharge as an insolvent, obtained from a court at Newfoundland, under the 49 Geo. III. c. 27, which discharges even a debt contracted here, and may be pleaded in bar to an action in this country: the Newfoundland court having jurisdiction over the insolvent's property in this country, and the creditors here being entitled to a dividend (b.) And a debt contracted in England, by a trader residing in Scotland, is barred by a discharge under a sequestration issued in conformity to the statute 54 Geo. III. c. 137, which binds the subjects of both countries in like manner, as debts contracted in Scotland are thereby barred (c). However, the courts of Westminster will not discharge a defendant on entering a common appearance, on the ground of his having become insolvent, and obtained his certificate at Newfoundland, under the 49 Geo. III., but will leave him to plead it (d).

2. Of a Promise by the Bankrupt to pay his former Debts.

3 Nev. & P. 535; Ex parte Hawley, 2 Mont. & A. 436; that it is not so where the second commission was be fore the 6 Geo. 4, c. 16, see also Guthrie v. Boucher, 8 Simons, 248, where Shadwell, V. C., decided that the 127th section is not retrospective.

(y) Ballantine v. Golding, Co. Bank. Laws; Potter v. Brown, 5 East, 124. See Buck, 63; Eden, 2nd ed., 420. See, in general, ante, 93, 94.

(z) Smith v. Buchanan, 1 East, 6; Lewis v. Owen, 4 B. & Ald. 654; Phillpotts v. Reed, 3 Moore, 626; Sidaway v. Hay, 3 B. & C. 22; 4 D. & R. 658, S. C.

(a) Phillips v. Allan, 8 B. & C.

477.

(b) Phillpotts v. Reed, 3 Moo. 623. (c) Sidaway v. Hay, 3 B. & C. 12; 4 D. & R. 658, S. C.

(d) Phillpotts v. Reed, 3 Moo. 244, 623; 1 B. & B. 13, 294, S. C.

-A bankrupt is under a moral obligation to pay his debts, although the legal remedy of the creditors be barred by his certificate. Consequently the law will give effect to an express and distinct promise (e) made by a bankrupt without any new consideration, either after the issuing of the fiat, and before his certificate has been granted, or after the certificate has been obtained, to pay a debt barred by his certificate, although the debt were proveable under the commission (f). Though the subsequent promise of an insolvent debtor to pay a debt from which he has been discharged, cannot be enforced (g).

It is, however, provided by a late statute (), "that no bankrupt shall be liable to pay any debt, claim, or demand, from which he shall have been discharged by his certificate, upon any contract, promise, or agreement, made after the suing out of the commission, unless such promise, contract, or agreement, be made in writing, signed by the bankrupt, or by some person thereto lawfully authorised, in writing, by such bankrupt ” (i). A promise in the handwriting of the bankrupt, but not signed by him, is insufficient (j).

It is not necessary to declare specially on a new absolute promise to pay a former demand; the declaration may be upon the old debt (k).

If a bankrupt make only a conditional promise, namely, "to pay when he is able," it seems that the plaintiff must prove the

(e) Fleming v. Hayne, 1 Stark. 370. (f) Freeman v. Fenton, 1 Cowp. 544; Twiss v. Massey, 1 Atk. 67; Ex parte Burton, id. 225; Birch v. Sharland, 1 T. R. 715; Besford v. Saunders, 2 H. Bla. 116; Haywood v. Chambers, 1 D. & R. 411; Brix v. Braham, 8 Moore, 261; 1 Bing. 281, S. C.; per Gaselee, J., in Sweenie v. Sharp, 12 Moore, 171; 4 Bing. 37, S. C. See ante, 40. But a bill given by the bankrupt to his assignee, who was also petitioning creditor, after the issuing of the commission, and before the bankrupt obtained his certificate, is void; Rose v. Main, 1 Bing. N. C. 360, 361; 6 Geo. 4, c. 16, sec. 8. (g) Post, 201, and note (b). (h) 6 Geo. 4, c. 16, s. 131. () As to the decisions upon the contents and signature of contracts

reduced into writing, under the statute of frauds, see ante. The 6th Geo. 4. does not, it should seem, require that the consideration for the bankrupt's fresh promise should be reduced into writing. For it appears that no new consideration is necessary, Brix v. Braham, 1 Bing. 281. And the 6th Geo. 4. has the words "contract, promise, or agreement," &c. See ante, 2, note (d). Semble that a cognovit after the bankruptcy in an action brought before, is a sufficient new agreement to bind the bankrupt. See Sweenie v. Sharp, 4 Bing. 37; 12 Moo. 163, S. C.

(j) Hubert v. Moreau, 2 C. & P. 528; 12 Moore, 216, S. C.

(k) Brix v. Braham, 8 Moore, 264; 1 Chitty Pl., 6th ed., 55.