the general issue-on the ground, that when the proceed- Of pleadings were stayed in the action on the bail-bond, it was in- ing it. tended, that the defendant should only question the validity of the original debt. (1) The plea of bankruptcy also is given only to the bankrupt himself: bail, therefore, cannot plead the bankruptcy and certificate of their principal in an action brought against them; but must either apply to the Court for summary relief by motion, or proceed by auditá querelá. (2) On the production of the certificate in evidence, the in- Registry of dorsement thereon, purporting to be signed by the proper how certificate, officer at the bankrupt office, will (without any proof of proved. such signature (3)) be admissible evidence of the certificate having been duly entered of record, pursuant to the requisitions of the 95th and 96th sections of the new statute. The allowance of the certificate needs no proof; for the AllowJudges take judicial notice of the hand-writing of the Lord ance. Chancellor. SECTION VIII. Of Discharging a certificated Bankrupt. mon bail. By section 126. of the new statute (as we have already Bankrupt seen) it is provided, that where the bankrupt after the may be discharged allowance of his certificate is arrested for any debt, claim, on comor demand, proveable under the commission, he may be discharged upon common bail. And if he is taken in execution, or detained in prison for such debt, where judgment has been obtained before the allowance of his certificate, any Judge of the court wherein the judgment has been obtained may, on the bankrupt producing his certi (1) Dowson v. Levi, 4 B. & A. 249. (2) Walker v. Giblett, 2 Bl. 812. Beddome v. Holbrooke, 1 Bos. & P. 450. Donnelly v. Dunn, 1 Bos. & (3) Section 96.; and see post. Of discharging the bankrupt. Officer cannot discharge without a Judge's order. When order for discharge will be refused. A feigned issue some times directed. As to re lief on an auditâ querelá. ficate, order the officer to discharge him without exacting any fee. The officer, however, who arrests the bankrupt, has no power to discharge him without the order of a Judge; and therefore, where a bankrupt taken in execution produced his certificate to the officer and demanded his discharge, with which the officer complied, the Court refused to stay proceedings in an action against the sheriff for an escape. (1) The Court will not discharge the bankrupt upon common bail, if it appears that the certificate was obtained by fraud (2)—or that the bankrupt has been guilty of any deception (3) or if the certificate is seriously meant to be disputed. (4) But in a case where an attorney, who had obtained his certificate under a commission, describing him as "a dealer and chapman," was arrested for a debt payable before the commission issued-though the plaintiff swore that he did not know that the defendant was the person mentioned in the commission, and that he intended to dispute the validity of it on the ground of fraud, — the Court of Common Pleas nevertheless ordered the bankrupt to be discharged on common bail, as the plaintiff had not stated the nature of the fraud, nor when he discovered its existence. (5) The Courts, however, will sometimes, when they think it necessary, instead of discharging the bankrupt in a summary way, direct the commission to be tried on a feigned issue (6); and the same thing also has been done against the bail, where the validity of the certicate has been contested. (7) In cases where execution had been taken out against the goods of a bankrupt, and executed after the allowance the bank rupt. of the certificate, it was formerly held, that a Judge had of disno authority to discharge the execution upon motion, and charging that the bankrupt, to obtain relief, must resort to an auditá querelá. (1) But the modern practice appears to be, for the Courts to interpose in a summary way in all cases, where the party would be entitled to relief on an auditâ querelá. (2) A certificated bankrupt is, also, entitled to be discharged As to from custody, though his imprisonment is in the nature imprisonment for a of a contempt, in not obeying the order of the Lord Chan- contempt cellor made in a previous matter of bankruptcy—that is, if such order is for the payment of money by him, which could be proved under his commission. (3) It has been suggested, that bankruptcy and certificate is on a capias no ground of discharge of a prisoner in custody on a capias utlagatum. utlagatum (4); though it is somewhat difficult to extract such a position from the very confused report of the case, which is cited as an authority for it. As to the discharge of a bankrupt, when he is arrested upon a new promise to pay a debt barred by the certificate, see the following section. bankrupt jointly Where a joint action is brought against a bankrupt Where (who has obtained his certificate) along with other defendants, the bankrupt's name will be struck out of the pro- sued with ceedings, unless he is indemnified by the plaintiff. (5) (1) Calcraft v. Swan, Barnes, 204. Ashdown v. Fisher, ibid. 206. Callen v. Meyrick, 1 T. R. 361. (2) Lister v. Mundell, 1 Bos. & P. 427. 3 Bl. Com. 406.; and see Anon. 1 Salk. 93. and Wicket v. Cremer, 1 Ld. R. 439. 1 Salk, 264. (3) Ex parte Eicke, 1 G. & J. 261. (4) Beauchamp V. Tomkins, 3 Taunt. 141. (5) Ex parte Read, 1 Rose, 460. 1 V. & B. 346. others. SECTION IX. Of the Bankrupt's Liability on a new Promise. Though a bankrupt is discharged by his certificate from all debts due at the time of the commission, he may still make himself liable on a new promise to pay any one of those debts; for, though all legal remedy of the creditor is taken away by the statute, the debt itself is clearly not extinguished in conscience; and every honest man, as Lord Mansfield observed, would discharge all debts owing by him at his bankruptcy, if he afterwards had it in his The pro- power to do so. (1) But it is now provided by the new statute (section 131.) that such promise must be in writing, in order to bind the bankrupt; and it must also be either signed by himself, or by some person lawfully authorised in writing by him. mise must now be in writing, and signed by the bankrupt. A plaintiff need only declare on the ori ginal consideration. Security given by bankrupt after his The existence of the debt in foro conscientia is a sufficient consideration for the bankrupt's promise to pay it; and indebitatus assumpsit will lie against him on the original consideration, to which the certificate will be no bar (2); neither need the plaintiff declare specially on such new promise; but it will be sufficient for him to declare generally, and give the subsequent promise in evidence. (3) The bankrupt, also, may after his bankruptcy give a creditor (who does not come in under the commission) a valid security for the whole, or for part of his debt, which will not bankrupt- be barred by his certificate. As where a bankrupt, who was cy for part of a debt indebted to the plaintiff upon two notes for 631. 9s. each not proved, (which were not proved under the commission), voluntarily valid. proposed to secure to him the payment of 677. in satisfaction of his debt, if he would take up the two notes, and cancel and (1) Per Ld. M. 2 Cowp. 548. Per Ld. Hard. 1 Atk. 256. (2) Penn v. Bennett, 4 Camp. 205. Williams v. Dyde, Peake, 68. |