cate; for, by the present act, the certificate is made a dis- Annuities. charge from all claims, either of the annuitant or the surety, in respect of the annuity. (1) annuity Where the annuity is secured on freehold or leasehold Where property, which is insufficient to satisfy the arrears due, as charged well as the value of the annuity, an order will be made for on lands. the sale of the property on which the annuity is charged; and the grantee will afterwards be allowed to prove for the residue. (2) ment to pay annual interest A mere stipulation for the payment of annual interest, An engage. for the forbearance of a sum of money, cannot be proved as an annuity; for it is not an annuity in any reasonable sense of the term - neither does it come within the mean ing of the statute. An ANNUITY implies, that the principal sum is gone for ever, and is to be satisfied by yearly periodical payments. (3) It has been stated, that arrears of an annuity subsequent to the commission are not the subject of proof (4); but no authority is cited for this position, which, indeed, does not appear very reasonable in itself. For, as the creditor, in proving for the entire value of the annuity, proves in fact for the probable, though at the same time the uncertain, amount of all future payments-which payments would, of course, when they fell due, become of themselves arrears subsequent to the commission-it is somewhat inconsistent to shut him out from proof of arrears which are actually due, and in regard to which there can be, therefore, no uncertainty as to the amount. cannot be proved as an annuity. T as to sure The new statute provides, also, for the relief of the Provision surety for the payment of an annuity by the bankrupt, ties. (which the 49 G. 3. c. 121. was deficient in) as well as for the relief of the bankrupt himself from the contingent claims of the surety. For by section 55. (besides declaring (1) Section 55.; and see also Section 121. (2) Ex parte Key, 1 Madd. 426. Ex parte Slack, 1 G. & J. 346. (3) Winter v. Mouseley, 2 B. & A. 806, 807. (4) 1 G. & J. 346., note (a). Eden's B. L. 115. Annuities. it to be unlawful for any person entitled to an annuity granted by the bankrupt to sue any person, who may be a collateral surety for the payment of the annuity, until the annuitant shall have proved under the commission for the when dis- value of the annuity) it is enacted, that if the surety, charged; after such proof, shall pay the amount so proved, he is discharged from all claims in respect of the annuity; and he is only liable to be sued for the accruing payments, in the event of his failing to pay the sum proved, before any payment of the annuity subsequent to the bankruptcy becomes due; nor is he then liable to pay beyond the amount so proved, with interest at 4 per cent. from the time of his receiving notice of such proof, and of the amount thereof. And after such payment or satisfaction by the surety, he may then stand in the place of the annuitant, in respect of the proof, to the amount of the sum so paid or satisfied; and the certificate of the bankrupt is then declared to be a discharge from all claims of the surety, as well as of the annuitant, in respect of the annuity. The surety is also entitled to credit in account with the annuitant, for any dividend which the latter may have received, before he can be called upon to pay the whole sum proved by the annuitant under the commission. when may stand in the place of the annuitant in respect of his proof. When annuity creditor comes upon the surety for It may still, however, be a doubtful point, when the annuity creditor, after proving the value of the annuity, and receiving all the dividends he can receive upon such proof, comes upon the surety for the deficiency after the any defici- bankrupt has obtained his certificate, whether, in such a ency after case, the certificate would discharge the bankrupt from the bankrupt has got his claims of the surety. For, if the annuity creditor chooses certificate, to avail himself to the extent of his proof, without giving whether any notice to the surety, or making any claim against him bankrupt until after a final dividend is declared, the surety would discharged have no opportunity of proving under the commission. It quære, as to the surety. might, indeed, be held, that in order to acquit himself, as against the annuity creditor, and to entitle himself to any claim against the bankrupt, he is bound to take immediate notice of the annuitant's proof, and to pay the amount so Annuities. proved; for, by the above section, the annuitant is not compelled to give the surety notice of the amount of the proof, except indeed so far as to entitle himself to interest from the surety upon the sum proved. (1) SECTION XII. Apprentices, Clerks, Servants, and Children. to appren Where a sum of money had been paid as a premium Former with an apprentice, and his master became bankrupt, it practice as was the practice of the commissioners, before the new tices. statute, to recommend it to the creditors to allow the apprentice a gross sum out of the estate, for the purpose of binding him to another master- instead of obliging the apprentice to come in as a creditor under the commission. (2) But this proceeding, though equitable and just in itself, was only matter of indulgence, and not of right; for if it was objected to, the Court could, in strictness, only order the apprentice to be admitted as a creditor. (3) The bankruptcy, also, of the master was held no discharge, in law, of the apprentice's indentures. (4) But now, by the 49th section of the new act, it is declared, Discharged that the commission shall enure as a complete discharge of now by the indentures of an apprentice; and if any sum shall have bankbeen paid as an apprentice fee, the commissioners may, ruptcy; upon proof thereof, order any sum to be paid to or for the premium part of use of the apprentice which they shall think reasonable, may be reregard being had, in estimating such sum, to the amount of turned. the premium which has been paid, and to the time that the apprentice shall have resided with the bankrupt. (1) And see Watkins v. Flanagan, 1 Bing. 413. 1 G. & J. 199. 5 B. & A. 186. Welsh v. Welsh, 4 M. & S. 333. (2) Barwell v. Ward, 1 Atk. 261. (3) Ex parte Sandby, 1 Atk. 149. (4) Buckington V. Shepton, 8 Mod. 235. Str. 582. 2 Ld. Raym master's Children. With respect to servants, also,—by the 48th section of Clerks and the act, a power is given to the commissioners to order six months' wages, or salary, to be paid to any servant, or clerk, of the bankrupt; but if more than this is due, then the clerk, or servant, must prove for the difference. servants may have six months' wages. A child may, in some cases, be admitted a creditor. A child living with the father, and earning money for itself, may be admitted as a creditor under the commission against the father, if he has received that money to the child's use. But Lord Hardwicke said he was under some difficulty in making such an order, for the sake of the precedent; as it might be dangerous in London to lay it down as a general rule, that every child who earns money whilst living with his father, which the latter receives, may claim it as a debt in the event of his father's bankruptcy; for a father frequently, as was remarked in that case, sends out his son to work as a journeyman, and his earnings then are supposed to belong to the father.(1) And where a son had lived with his father seven years as a clerk, receiving only board and lodging, and there was no actual contract for wages though the father swore it was always his intention to pay him something for his services, and the assignees did not object - yet Lord Eldon, though he lamented the hardness of the case, said, that as there was in reality no contract for wages, he could make no order for the son to prove. (2) Debts owing by the bankrupt to children, or other relations, are always watched in Bankruptcy with great suspicion—with greater, perhaps, than the justice of the case frequently requires; since a man in pecuniary distress, as has been well observed, is more likely to apply to his relations, than to strangers, for that assistance of which he is in want. (3) (1) Ex parte Macklin, 2 Ves. 675. This case arose out of the bankruptcy of Macklin, the comedian, and the petitioner was his daughter; whose earnings, as an actress, he had received from the managers of different theatres. (2) Ex parte Glover, 1 Mont. Dig. 165. (3) Per Lord Eldon, 1 Ves. & B. SECTION XIII. Awards. An award, if made before bankruptcy, creates such a debt as may be proved under the commission. Therefore where a man was taken upon an attachment for not performing an award, and afterwards became bankrupt and obtained his certificate, he was ordered on motion to be discharged. For though an attachment is in the nature of a contempt, which is not purged by bankruptcy, yet an action of debt will lie on an award; and the bankrupt ought not to be arrested, prosecuted, or impleaded (1) for any debt due before the bankruptcy. But where proof was admitted upon an award made after the bankruptcy, the proof was in that case ordered to be expunged. (2) SECTION XIV. Bonds. A creditor by bond is entitled to prove his demand against all the parties to it, and to receive dividends upon the whole sum from each estate, provided he does not receive more than 20s. in the pound. If he does receive more, he is accountable for the surplus. And if he has received any part of the debt before he applies to prove, he can then only prove and receive dividends for the residue due to him. (3) (1) Baker's case, 2 Str. 1152. (3) Ex parte Wildman, 1 Atk. 109. 2 Ves. 113. |