no dividend had been declared—and the plaintiff afterwards Effect. entered up judgment, and took out execution;-upon a motion to set it aside, on the ground of the cognovit being discharged by the subsequent bankruptcy and certificate, the Court refused the motion, saying, that a cognovit is a mere acknowledgment of the amount of the damages - and that where a man acknowledges the cause of action, the plaintiff may sign judgment at any time. (1) tificate As to the form of pleading, and the evidence necessary to defeat a certificate under a second commission, see post. With respect to a certificate under a third commission, As to cerit has been held, that though the bankrupt had not paid under 15s. in the pound under the second, the certificate was third comnot void, but voidable only by application to the Lord mission. Chancellor. (2) For a certificate is valid, as long as the commission under which it is obtained continues in forceunless, indeed, in those cases where the statute says that the certificate shall be absolutely void. (3) cate after creditors. In that part of the above clause which relates to the Operation compounding with creditors, such a composition only is of certificontemplated, as is general, and is calculated to admit all compoundcreditors of every description. Therefore, where a deed of ing with composition was framed only for the joint creditors of two bankrupts, and not signed or accepted by the separate creditors of one of the bankrupts, it was held not such a compounding, as would prevent the certificate from extending to the protection of the future property of the bankrupt, as well as of his person. (4) But, if the terms of the deed embrace all the creditors, although some of them do not come in, and afterwards sue the bankrupt, and are paid, -that has been held to be such a compounding, as will deprive the bankrupt of the benefit of his certificate, with regard to the protection of his future effects. (5) It is a Effect. As to discharge under insolvent act. Where money fraudulently misapplied, question, however, when a bankrupt (who has previously compounded with his creditors) pays those creditors before his bankruptcy the full amount of their debts, whether his future estate and effects are to remain liable, unless his estate under the commission shall produce 15s. in the pound. The above provision in the statute makes no distinction, whether the creditors, with whom the bankrupt has compounded, are afterwards satisfied or not. And it may be argued, that such a case is within the mischief contemplated by the act; for the bankrupt will have had all the benefit (for a certain time at least) of a composition, till he could satisfy his creditors the full amount of their debts; and, in the interim, the creditors will have sustained some damage by the delay. The crime, therefore, (if it may be so called) of non-payment will be complete at one time, and the subsequent payment in full may have been the very cause of his bankruptcy. (1) On the other hand it may be contended, that the term "compounding with his creditors" is intended by the statute to imply simply a composition as to the amount of his debts-that is, accepting a part in satisfaction of the whole; and that when the debts are actually paid in full, the agreement of the creditors to give the bankrupt merely time for payment, cannot be said to come within the meaning of the word composition. An uncertificated bankrupt is not entitled to his discharge under the insolvent act, unless he has been in custody for the space of three years. (2) Where after the bankruptcy of one partner, the other was obliged to pay a partnership debt, which he had before the bankruptcy furnished the bankrupt partner with money for the express purpose of discharging-who, instead of doing so, misapplied the money, this was considered to be such a case of fraud, as prevented the certificate from operating as a bar to an action by the solvent partner, (1) See the argument of Mr. J. Holroyd (then at the bar) in the case of Read v. Sowerby, 3 M. & (2) 7 G. 4. c. 57. for the bankrupt's proportion of the debt paid subsequent Effect. to the bankruptcy. (1) But, as such a debt may be proved now under the 52d section of the new act, it is a question, whether he would not be discharged by his certificate; for, notwithstanding the fraudulent misapplication of the money by the bankrupt, it does not seem to come within those exceptions enumerated in the act, which render the certificate void. does not The certificate does not estop the bankrupt, from dis- Certificate puting the validity of the commission against a stranger to estop it, between whom and the bankrupt there is, consequently, bankrupt no reciprocity. Therefore, in an action of trover brought from disputing against a stranger to the commission by a bankrupt, who commishad obtained his certificate under a joint commission issued sion against himself and others, he was held to be not pre- stranger. vented from taking advantage of its illegality. (2) against a cate where another It has been before stated (3), that where the bankrupt is Operation assignee of another bankrupt's estate, and is indebted to of certifithat estate in respect of money retained or employed by bankrupt him to the amount of 1007., the certificate will only have assignee of the effect of freeing his person from arrest; but his future bankrupt effects will remain liable for so much of his debt to the estate. estate of which he is assignee, as shall not be paid by dividends under his commission, together with interest for the whole debt. (4) fect, unless registered. The certificate, also, (as has been already mentioned (5)) Of no efwill have no effect, unless it is entered of record at the Bankrupt office, and has a memorandum of such entry indorsed on it by the proper officer, pursuant to the directions of the 95th and 96th sections of the new act. (1) Wright v. Hunter, 1 East, 20 (4) Sections 104, 105. When bank SECTION VII. Of Pleading the Certificate, and herein of the Evidence to support it, or defeat it. By section 126. (1), any bankrupt who shall, after his certificate is allowed, be arrested, or have any action. ruptcy and certificate brought against him for any debt, claim, or demand, made may be proveable by the statute under the commission (2), may be displeaded. charged upon common bail; and may plead in general, that the cause of action accrued before he became bankrupt, and give the act and the special matter in evidence; and such certificate and the allowance thereof will be sufficient evidence of the trading, bankruptcy, commission, and other proceedings precedent to the obtaining such certificate, provided the certificate is registered pursuant to the directions contained in the 95th and 96th sections. (3) The form must be followed. As the statute provides for the particular form of the given by the statute plea, viz. that the cause of action accrued before the defendant became bankrupt,-he cannot, therefore, give his bankruptcy in evidence under the general issue. (4) Neither can he plead specially in an action of covenant, "that before the action he became bankrupt, and that the said indenture was made before he became bankrupt;" for he must comply strictly with the form of the plea prescribed by the statute. (5) But it is not necessary to aver, that the bankruptcy happened before the commencement of the suit. (6) And though the certificate is allowed after the commencement of the action, yet if it is before the plea is of pleadpleaded, it will be evidence to support the general plea ing it. given by the statute. (1) pleaded puis darrein con tinuance. It is said to have been ruled by Lord Kenyon, that May be a certificate granted after plea pleaded, though before trial, was not available at law. (2) But it seems to be settled, that it may be pleaded puis darrein continuance at any time before judgment; and an affidavit verifying the plea to the best of the deponent's knowledge and belief, has been held a sufficient affidavit to accompany the plea under the 4 Ann. c. 16. s. 11. (3) Thus, where an uncertificated bankrupt had pleaded a judgment recovered—and upon an issue of nul tiel record, the plaintiff ruled him to produce the record on the 25th April-and the bankrupt (who had obtained his certificate on the 14th of April) on the morning of the 25th moved for leave to plead the allowance of the certificate puis darrein continuance,- the Court in this case allowed the plea. (4) And though the certificate be not obtained till after judgment, when it is too late to plead it, it is still available for the bankrupt's discharge out of execution for the debt and costs. (5) The plea of bankruptcy does not require the signature As to of counsel in the King's Bench (6); but in the Common counsel's Pleas a serjeant's signature is necessary to it. (7) The plea must be delivered, and not filed. (8) signature. It was once held, that the defendant must aver in his As to averplea, "that he has conformed according to the statutes ment of conformi ty. |