time of issuing the fiat against him, shall be discharged from all debts due by him when he became bankrupt, and from all claims and demands provable under the fiat, in case he shall duly obtain a certificate of such conformity (n) provided that no such certificate shall release or discharge any person who was partner with such bankrupt at the time of his bankruptcy, or who was then jointly bound, or had made any joint contract with *such bankrupt. By stat. 6 Geo. 4, c. 16, s. 127, if a certificated [*186] bankrupt or discharged insolvent shall become bankrupt, and his estate does not pay 15s. in the pound, the certificate under the second com. mission shall only protect his person from arrest and imprisonment, but his future estate and effects (except his tools of trade and other such necessaries) shall vest in the assignees under the second 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 date of issuing the commission. 232. It is not intended to enumerate the different claims and demands which have been held to be provable under the commission. (o) The general rule, however, is, that no claim is so provable, even though its amount can be fixed by calculation, if the intervention of a jury is necessary ;(p) and therefore the bankrupt continues liable on any contract of this description, entered into by him before his bankruptcy; the creditor's inability to prove his debt and the bankrupt's continuing liability being, under the 121st section above referred to, convertible terms.(7) And whether the breach of contract be before(r) or after(s) the bankruptcy is not material, as regards the continuing liability of the bankrupt. *232 a. By stat. 7 & 8 Vict. c. 70, s. 8, intituled "An Act for [*187] facilitating arrangements between debtors and creditors," the trustee of the estate of the petitioning debtor may sue and be sued as if he were an assignee under the statute relating to bankrupts, and all the estate of the petitioning debtor shall vest in such trustee from and after the date of the resolution and agreement of the creditors therein mentioned; and by s. 13 the certificate shall operate as fully as a bankrupt's certificate, but shall not bar any debt excepted from the operation of the Act. We may observe also, that imprisonment by order of the court, under the statute 8 & 9 Vict. c. 127, s. 3, does not operate in anywise to extinguish the debt. 233. Formerly, a bankrupt lessee continued liable on the covenants in the lease or agreement, if his assignees declined to accept the term, although it was considered otherwise with respect to the action of debt. (ss) But now, it (n) See stat. 5 & 6 Vict. c. 122, ss. 39. 42. Before obtaining his certificate, the bankrupt is of course liable to sued for a debt which the creditor does not elect to prove against the estate;-6 Geo. 4, c. 16, s. 59. See Augarde v. Thompson, 2 M. & W. 617.* (0) Sce Flather's Archb. Bankrupt Law, 4th ed. p. 100 et seq.; 1 Selw. N. P. 10th ed. 249 et seq. (p) Green v. Bicknell, 8 A. & E. 701. 715," and cases there cited. See Banister v. Scott, 6 T. R. 489. (q) Chitt. Contr. 3rd ed. 184; 1 Selw. N. P. 10th ed. 249. (r) Green v. Bicknell, 8 A. & E. 701," (s) Boorman v. Nash, 9 B. C. 145° (ss) Mills v. Auriol, 1 H. Bla. 433, affirmed in error, 4 T. R. 94; Boot v. Wilson, 8 East, 311. "Eng. Com. Law Rep. 35. Id. 17. *Reprinted by T. & J. W. J. at $2.50 per vol. is provided by 6 Geo. 4, c. 16, s. 75, that in this case he shall not be liable to pay any rent accruing after the date of the commission, or to be sued in respect of any non-observance or non-performance of the conditions, covenants, or agreements therein contained; provided he deliver up such lease or agreement to the lessor, within fourteen days after notice that the assignees have declined the same; and this section has been held to apply, where the bankrupt held as yearly tenant under an unwritten contract.(1) When, however, *the assignees have declined to take the lease to which the bankrupt was entitled, and the bankrupt has not delivered [*188] up the lease to the lessor, the property in the demised premises in the meantime continues vested in the bankrupt, and the lessor retains until such delivery up to him his right of distress for the rent. (u) Moreover, if the assignees do not elect to take the lease, and the bankrupt omit to deliver up the same, it seems that he would be liable for breaches of covenant occurring subsequently to the bankruptcy ;(x) but if the assignees accept the lease, the bankrupt's discharge is so complete, that should he afterwards come in as assignee of his own assignees, he will be liable simply as such.(y) 234. It is clear that an action lies against an uncertificated bankrupt on any contract entered into by him since the fiat issued; and he may renew his liability in respect of any claim provable under the commission, and which consequently would be barred by the certificate, if he agree so to do in writing, signed by himself, or by some person thereto lawfully authorized in writing by him ;(2) and as to this renewal of liability there is no distinction between the case of a promise *made before the certificate and [*189] one made after it. Either will be binding, though the only consideration be the old debt, provided the promise be one which binds the bankrupt personally to pay, notwithstanding his certificate. (a) The agreement to pay will clearly be void if executory, and made with the creditor in consideration of his signing the certificate, or of his forbearing to oppose the same (b); or be in other respects fraudulent and contrary to the policy of the bankrupt act.(c) 235. A foreign certificate, which operates as a discharge of a debt in the country where it was contracted, is a discharge of it everywhere ;(d) but a certificate obtained abroad is no bar to an action for a debt contracted here (1) Slack v. Sharpe, 8 A. & E. 366; but see the remarks on this case, Briggs v. Sowry, 8 M. & W. 739.* (u) Briggs v. Sowry, 8 M. & W. 729. Newton v. Scott, 9 M. & W. 434;* S. C. affirmed in error, 10 Id., 471, which cases are recognised in Philips v. Shervill, 14 L. J. N. S. Q. B. 144. (x) Copeland v. Stephens, 1 B. & Ald. 593, which was decided under the stat. 49 Geo. 3, c. 121, s. 19. See Tuck v. Fyson, 6 Bing. 331; Inglis v. M'Dougal, 1 Moore, 196. (y) Doe d. Cheere v. Smith 5 Taunt. 800. (z) 6 Geo. 4, c. 16, s. 131, 5 & 6 Vict. c. 122, s. 43, Lobb v. Stanley, 5 Q. B. 574.3 (a) Kirkpatrick v. Tattersall, 13 M. & W. 766.* (b) 6 Geo. 4, c. 16, s. 125, 5 & 6 Vict. 122, s. 40; Haywood v. Chambers, 5 B. & Ald, 753; Kirpatrick v. Tattersall, supra. (c) Davis v. Holding, 1 M. & W. 159,* recognized Belcher v. Sambourne, 6 Q. B. 414. 422. See Seivers v. Boswell, 4 Scott, N. R. 165; Staines v. Wainwright, 6 Bing. N. C. 174; Rose v. Main, 1 Bing. N. C. 357. (d) Per Lord Mansfield, C. J., Ballantine v. Golding, Co. B. L. 5th ed. 499, recognised by Lord Ellenborough, C. J., Potter v. Brown, 5 East, 130; Hunter v. Potts, 4 T. R. 182. PEng. Com. Law Reps. 35. Id. 19. Id. 1. Id. 48. Id. 7. Id. 37 *Reprinted at $2.50 per vol. with a subject of this country, for a contract made in one country cannot be governed by the laws of another.(e) However, a certificate under an Irish commission of bankrupt, pursuant to stat. 6 & 7 Will. 4, c. 14, is a bar, as well of debts due from the bankrupt in England or Scotland, as of those incurred by him in *Ireland ;(ƒ) and it seems that an English cer[*190] tificate is an answer to every contract by the bankrupt made in any part of the world.(g) (As to a discharge under a Scotch sequestration, see Sidaway v. Hay, 3 B. & C. 12; under a cessio bonorum, see Phillips v. Allan, 8 B. & C. 477.) 236. By the statute 1 & 2 Vict. c. 110, s. 91, an insolvent who has become entitled to the benefit of the act by the adjudication of the court for the relief of insolvent debtors may, if sued in respect of any debt mentioned in his schedule, or in respect of any new contract or security for the payment thereof,(k) plead generally, in answer to such action, his discharge according to the act; and by the subsequent act, 5 & 6 Vict. c. 116, ss. 7, 10, amended by 7 & 8 Vict. c. 96, it is enacted, that, on the passing of the final order, the estate of the petitioner shall become absolutely vested in the official assignee, and assignee chosen by the creditors,() without any deed or conveyance, who shall sue and be sued like the assignees under a fiat in bankruptcy ;(m) and that the presentation of the *petition, and final [*190 a] order of the commissioner, shall be a sufficient plea in bar of any action for or in respect of a debt contracted before the date of filing the petition.(n) A discharged insolvent, however, like a certificated bankrupt, remains liable for damages unascertainable at the time of his discharge, and therefore unextinguished by it ;(0) and under the recent statute 7 & 8 Vict. c. 96, the final order only protects the person of the insolvent from process, and consequently such final order is no bar to an action brought against the insolvent.(p) 237. Where the assignee of an insolvent lessee accepts the lease, it is enacted, that the insolvent shall not be liable to pay any subsequent rent to which his discharge would not apply, nor be liable for non-performance of the covenants in the lease. If, in such a case, the assignee decline to determine whether or not he will accept such lease, the lessor may thereupon apply to the court to order that the assignee shall either accept the lease, or deliver up the same, together with possession of the demised premises, to the lessor.(q) In like manner the recent stat. 7 & 8 Vict. c. 96, s. 12, enacts, that where any petitioner under that act shall be entitled to any (e) Smith v. Buchanan, 1 East, 6; Per Kenyon, C. J., Id. 10; Phillips v. Allan, 8 B. & C. 477.* (f) Fergusson v. Spencer, 2 Scott, N. R. 229. See Lewis v. Owen, 4 B. & Ald. 654. (g) Per Pollock, C. B., Armani v. Castrique, 14 L. J., N. S., Ex. 38. (k) See 7 Geo. 4, c. 57, s. 61; Collins v. Benton, 3 Scott, N. R. 183; Sheerman v. Thompson, 11 A. & E. 1027; Denne v. Knott, 7 M. & W. 143; Evans v. Williams, 1 Cr. & M. 30; Ashley v. Killick, 5 M. & W. 509; Rogers v. Kingston, 2 Bing. 441.b (1) See Nicholls v. Payne, 15 L. J., N. S., C. P. 23; Gillon v. Deare, Id. 25; Tyler v. Shinton, Id. Q. B. 204. (m) See also 7 & 8 Vict. c. 96, s. 13. (0) See per Tindal, C. J., Wilmer v. White, 6 Bing. 293.c (n) Ante, s. 126. (P) Toomer v. Gingell, Q. B., Trin. T., June 9, 1846, citing Nicholls v. Payne, 2 Dowl. & L. 629. (q) 1 & 2 Vict. c. 110, s. 50. *Eng. Com. Law Reps. 15. Id. 6. Id. 39. Id. 9. Id. 19. *Reprinted at $2.50. per vol. lease or agreement for a lease, and his assignee shall accept the same, the said petitioner shall not be liable to pay any rent accruing after the filing of *his petition, nor be in any manner sued after such acceptance, in respect of any subsequent non-observance or non-performance [1906] of the conditions, covenants, or agreements therein contained; provided that, if the assignee shall decline upon his being required so to do, to determine whether he will or will not accept such lease or agreement for a lease, the lessor or person agreeing to make such lease may apply to the commissioner, praying that he may either so accept the same, or deliver it up, together with possession of the premises, and the commissioner shall thereupon make such order as shall seem meet and just, and the same shall be binding upon all parties. It has been held(r) that the landlord's remedy by distress for rent due before the commencement of a tenant's imprisonment is not extinguished by the tenant's petition and discharge under the stat. 1 & 2 Vict. c. 110, although the amount of rent was inserted in his schedule as a debt due to the landlord, and the distress was not made until after the discharge. "The judgment confessed to the provisional assignee," it was observed by Lord Denman, C. J., " may have the effect of an additional and a collateral security, but neither merges nor extinguishes the peculiar remedy by distress, which is incidental to rent service, and is quite independent of other remedies, and therefore remains, notwithstanding the discharge of the tenant, under the Insolvent Act, except so far as that act has expressly restrained it." 237 a. Under the stat. 1 Geo. 4, c. 119, the interest of the insol vent in the term has been held to pass absolutely by the assignment [*191] to the provisional assignee, even without any express act of acceptance on his part ;(rr) though it has likewise been held, that he is entitled to an option, whether he will accept or decline the lease, and a reasonable time to decide.(s) Where the provisional assignee of an insolvent lessee had assigned over the insolvent's estate to the assignee appointed by the insolvent court, under the stat. 1 Geo. 4, c. 119, s. 7, who acted as tenant of the demised premises, as well as assented to the assignment, it was held, that an action of covenant lay against the executor of such assignee for rent accrued due, and breaches of covenant committed, since the testator's death, no fresh assignee having been appointed by the court under the 14th section. of the statute.(t) 238. With respect to the future property of the insolvent, the abovementioned act, 1 & 2 Vict. c, 110, directs, (u) that a judgment shall be entered up in one of the courts at Westminster against the prisoner, for the amount of the debts stated in the schedule, or so much thereof as shall be left unpaid, and in respect of which he shall have been discharged; and upon such judgment, the future property of the insolvent may by *order of the court, and subject to its discretion and superintend- [*192] ence, be taken in execution and rateably divided among the creditors. (r) Phillips v. Shervill, 14 L. J., N. S., Q. B. 144. (rr) Doe d. Palmer v. Andrews, 4 Bing. 348. 351;d Crofts v. Pick, 1 Bing. 354. (u) Sect. 87; see the corresponding section in the Lords' Act, 32 Geo. 2, c. 28, s. 20. dEng. Com. Law Reps. 13. Id. 8. fId. 35. fId. 35. 2.-EXECUTORS AND ADMINISTRATORS. Liability of Personal Representatives, ss. 239-242. What Causes of Action may be joined in suing Personal Representatives, s. 213. Rule as to the Joinder of Personal Representatives, and in Case of Survivorship, &c., s. 244. 239. When the relation of landlord and tenant subsists, we have already(x) stated under what circumstances the personal representatives of either may be sued; in other cases, the rule is, that the personal representatives, though not expressly named, are liable, as far as they have assets, on all the covenants and contracts of the deceased broken in his lifetime, and contracts of the deceased broken after his death, for the due performance of which his skill or taste was not required,(y) and which were not to be performed by the deceased in person.(z) [*193] *240. The personal representatives are also liable in that character, on a covenant by deceased, for their performance of a particular act,(a) as payment of a sum of money; and it has been held, that an action lies against executors on an obligation or covenant by the testator to instruct an apprentice in his trade, though it sounds as a personal act; the reason assigned being, that they ought to see the apprentice taught his trade, and if not of the same trade, they ought to assign him to another, who is of the same trade, so that he may be taught according to the covenant.(b) So, executors have been held liable on a covenant to build a house, which was commenced but left unfinished by the testator, (c) and on the deceased's contract for the performance of work by another party, before the completion of which he died, but which was subsequently completed ; (d) and the same principle was held to apply, where an intestate had entered into an agreement to receive from plaintiffs a certain quantity of slate monthly, for a certain period, a portion of which, when tendered after his death, but before the expiration of the stipulated period, his administrator refused to accept.(e) [*194] *241. Where several persons jointly contract for a chattel to be made or procured for the common benefit of all,—the building of a (x) Ante, ss. 166. 176-180; Fox v. Waters, 4 P. & D. 1. As to suing personal representatives for a legacy or for a distributive share of the personal estate, ante, s. 152, (y) Per Parke, B., Šiboni v. Kirkman, 1 M. & W. 423; Per Patterson, J., Wentworth v. Cock, 10 A. & E. 445, 446;s Bac. Ab. Executors and Administrators, (P. 1); Com. Dig. Administration, (B. 14). (z) Hyde v. The Dean and Canons of Windsor, Cro. Eliz. 552, 553; Per Cur., Mar. shall v. Broadhurst, 1 Cr. & J. 406; ante, s. 152. (a) Ex parte Tindal, 8 Bing. 404, 405,h and cases there cited; Powell v. Graham, 7 Taunt. 580.i (b) Walker v. Hull, 1 Lev. 177, cited arg., 10 A. & E. 43, but denied Baxter v. Burfield, 2 Stra. 1266; Rex v. Peck, 1 Salk. 66; ante, 129. (c) Quick v. Ludborrow, 3 Bulstr. 30, recognized 1 M. & W. 423. See per Lord Abinger, C. B., 3 M. & W. 353, 354 ;* Per Cur., Marshall v. Broadhurst, 1 Cr. & J. 405, 406. (d) Corner v. Shew, 3 M. & W. 350. 352. be special stating the facts. Id. (e) Wentworth v. Cock, 10 A. & E. 42.k Semble, the declaration in this case should Eng. Com. Law Reps. 37. Id. 21. Id. 2. Id. 37. *Reprinted at $2.50 per vol. |