disturbing the former dividends, and may receive dividends, with the other creditors, although he may have become surety, bail, or liable as aforesaid, after an act of bankruptcy committed by such bankrupt; provided that such person had not, when he became such surety, or bail, or so liable as aforesaid, notice of any act of bankruptcy, by such bankrupt committed (p). And by 6 G. 4, c. 16, s. 56, if any bankrupt shall, before the issuing of the commission, have contracted any debt, payable upon a contingency (q), which shall not have happened before the 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 (r). 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 of his partner, is within this provision, and may prove under the commission, and therefore cannot sue him for contribution. Aflalo v. Fourdrinier, 6 Bing. 306; 3 M. & P. 743, note. (p) 6 G. 4, c. 16, s. 52. (q) J. S. covenanted to cause 4000l. to be paid to his wife's trustees within twelve months after his own decease, in trust to pay her the interest for her life in case she survived him, and afterwards the principal to their children; but if they had no children, to the survivor of them, J. S. and his wife, his or her executors or administrators. Held, that this was a debt 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. (r) See Eden, 2nd ed. 129. oil (s). And bankruptcy and certificate are no defence to an action in tort against a broker for selling out stock contrary to orders (t). In Yallop v. Ebers (u), it appeared, that the defendant, on certain considerations, undertook to pay the balance due on a bill of 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. In Atwood v. Partridge (x), 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 a creditor sue the bankrupt for a debt which he might prove under the commission, 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 commission be afterwards superseded (y). (s) Boorman v. Nash, 9 B. & C. 145. (t) 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. (u) 1 B. & Ad. 698. (x) 4 Bing. 209; 12 Moore, 431, S. C. See (y) 6 G. 4, c. 16, s. 59. 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 the Court to stay proceedings, or 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. Mills, 4 Bing. 18; 12 Moore, 92, S. C. 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, provable under the commission, shall be discharged upon common bail, and may plead in general that the cause of action accrued before he became bankrupt (z). 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 discharged by the certificate therein mentioned, or have compounded with his creditors, or been discharged by any insolvent act, shall become bankrupt, and have obtained such certificate, unless his estate shall produce (after all charges) sufficient to pay every creditor under the commission 15s. in the pound, 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, and 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 158. in the pound (a). 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. 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 (b). 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 (z) 6 G. 4, c. 16, s. 126. (a) Eicke v. Nokes, M. & Mal. 303. (b) Ballantine v. Golding, Co. Bank. Laws; Potter v. Brown, 5 East, 124. this country (c). 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 (d). There is an exception in the case of a certificate of discharge as an insolvent, obtained from a court at Newfoundland, under the 49 G. 3, 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 (e). 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 G. 3, c. 137, which binds the subjects of both countries in like manner, as debts contracted in Scotland are thereby barred (ƒ). 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 G. 3, but will leave him to plead it (g). 2. Of a Promise by the Bankrupt to pay his former Debts. A bankrupt is undera moral obligation to pay his debts, although the legal remedy of the creditors be barred by his certi ficate. Consequently, the law will give effect, not only to a new contract, founded on a debt contracted before the bankruptcy, but also to an express and distinct promise (h) to pay such debt, made by the bankrupt. without any new consideration, either after the issuing of the commission, and before his certificate has been granted, or after the certificate has been obtained; although the debt was proveable under the commission (i). It is, however, provided, by a late statute (k), "that no bank (c) Smith v. Buchanan, 1 East, 6; Lewis v. Owen, 4 B. & Ald. 654; Phillpots v. Reed, 3 Moore, 626; Sidaway v. Hay, 3 B. & C. 22, 4 D. and R. 658, S. C. (d) Phillips v. Allan, 8 B. & C. 477. (e) Phillpots v. Reed, 3 Moore, 623. (f) Sidaway v. Hay, 3 B. & C. 12; 4 D. & R. 658, S. C. (g) Phillpots v. Reed, 3 Moore, 244, 623; 1 B. & B. 13, 294, S. C. (h) Fleming v. Hayne, 1 Stark. 370. (i) Freeman v. Fenton, I 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, 41. (k) 6 G. 4, c. 116, s. 131. rupt 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 authorized, in writing, by such bankrupt” (/). A promise in the handwriting of the bankrupt, but not signed by him, is insufficient (m). 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 (n). If a bankrupt make only a conditional promise, namely, "to pay when he is able," it seems that the plaintiff must prove the defendant's ability (o); and it would appear to be judicious to declare specially on such a promise (p). In an action of assumpsit, on a bankrupt's promise to pay the plaintiff so much in the pound, if he would not prove his debt under the commission, Lord Kenyon held, that the plaintiff had abandoned and waived the agreement, and his right of action thereon, by petitioning the Chancellor against the allowance of the defendant's certificate; this being an act inconsistent with the contract (q). In the King's Bench, a certificated bankrupt cannot be arrested, on a subsequent promise by him to pay a debt incurred before his bankruptcy (r); but the rule appears to be otherwise in the Exchequer (s). () As to the decisions upon the contents and signature of contracts reduced into writing, under the statute of frauds, see ante, 59 to 61. The 6th G. 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 G. 4, has the words " tract, 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 Moore, 163, S. C. con (m) Hubert v. Moreau, 2 C. & P. 528; 12 Moore, 216, S. C. (n) Brix v. Braham, 8 Moore, 264; 1 Chitty Pl. 5th ed. 62. (0) Id., Besford v. Saunders, 2 Hen. Bla. 116, Lord Loughborough dissen tiente; Fleming v. Hayne, 1 Stark. 370. As to such a promise, by an adult, to pay a debt barred by infancy. Penn v. Bennett, 4 Camp. 205; or a promise to pay a debt barred by the statute of limitations, "when of ability," Haydon v. Williams, 4 M. & P. 811; 7 Bing. 163, S. C. (p) See id.; Penn v. Bennet, 4 Camp. 205; Fleming v. Hayne, 1 Stark. R. 371; per Ld. Ellenborough. (q) Colls v. Lovell, 1 Esp. R. 282. (r) Peers v. Gadderer, 1 B. & C. 116; 2 D. & R. 240, S. C.; and see Bailey v. Dillon, 2 Burr. 736; Wilson v. Kemp, 3 M. & Selw. 595. But see Drew v. Jefferies, H.; 26 G. 3, K. B. Tidd, 9th ed. 211; 8 Price, 531; semb. contra. (s) Blackbourn v. Ogle, 8 Price, 526; Walker v. Rushbury, 9 id., 19; Trueman v. Fenton, Cowp. 549; Tidd, 9th ed. 211. |