the way best calculated to serve his client; but still the course pursued had ended in falsehood. The bankrupt, being in failing circumstances, and largely indebted to the bank of Messrs. Leyland, Bullen & Co., and asking for further advances from them to enable him to carry on his business, was required to submit his books to an accountant to be selected by the bank. He complied with this demand, and while the investigation was proceeding, the item with respect to the tallow transaction came under consideration. The bankrupt gave way to the temptation to make a direct misrepresentation, for his own advantage, to the agent of his creditor, to whom that creditor had entrusted the investigation. If a Court of justice treated such conduct lightly, they could not justify such leniency to themselves. It was possible-his Lordship could not say certain, and was far from saying even probable-that if the learned Commissioner had pronounced a less severe sentence, their Lordships might not have thought it incumbent upon them to alter it; but the sentence having been pronounced, this Court did not dare, whether upon the grounds of public justice, or of the rights of the creditor, the banking firm, to allow any mitigation of that sentence. Public and private justice alike required that their Lordships should adhere to the decision. The petition would therefore be dismissed, with so much of the costs as the deposit sufficed

to meet.

LORD JUSTICE TURNER, though by no means certain that the case was not within the provisions of the 256th section of the Bankrupt Act, would yet for the present purpose assume it not to be so, in favour of the bankrupt. Nevertheless, he thought that it was of the highest importance that a strict adherence to truth should be required from bankrupts; and in this case there was a palpable misrepresentation admitted by him. He could, therefore, not justify himself were he to give his sanction to any mitigation of the sentence, and the petition must be dismissed,

Where a bankrupt has been taken in execution under a certificate B. a., under section 257. of the act 12 & 13 Vict. c. 106, he is not entitled to his discharge (except by payment of the debt), or until he has been in prison for a year from the date of the writ of capias ad satisfaciendum under which he was arrested. Where his protection is refused under section 256, any creditor who has proved may obtain a writ of capias ad satisfaciendum under a certificate B. a., and detain him in prison on such writ for a year, under section 259.

This was an appeal from a decision of Mr. Commissioner Goulburn, made under the following circumstances:-Mr. William Crole the younger, of No. 9, Rood Lane, London, East India merchant, was adjudicated bankrupt, and on the sitting for his last examination, in December 1854, the same was adjourned sine die and without protection, the ground being that he had not filed proper accounts. Thereupon Mr. Robert Hutton Leadbetter applied to the Commissioner, Mr. Fonblanque, for a certificate B. a., under section 257. of the Bankrupt Law Consolidation Act, 12 & 13 Vict. c. 106, and obtained it, whereupon he issued a writ of capias ad satisfaciendum, upon which the bankrupt was arrested and conveyed to the Queen's Prison, on the 19th of December in the same year. filed satisfactory accounts, and was thereupon released, after an imprisonment of five months and eleven days, on the 30th of May 1855.

He

At the certificate meeting his certificate was refused without protection, and then another creditor applied for and obtained a certificate B. a., and issued another ca. sa., and again arrested the bankrupt on the

The reporter is indebted to a note taken by Mr. A. A. Doria for the materials of this report, as also for the judgment of the Commissioner.

14th of January 1857, and at the date of the present application he still remained in custody. On or before the 5th of August last the bankrupt would have been. in custody on the two writs of capias for a period of 365 days, and he applied to Mr. Commissioner Goulburn for his discharge on that day, but his Honour refused the application (1), which was now renewed by way of appeal before the Lord Chancellor, who attended at Lincoln's Inn to dispose of the matter. The 256th section of the act enacts, "That if at the sitting for the allowance of certificate it shall appear that

(1) The judgment of the Commissioner was to the following effect:-A great difference of opinion exists as to what is the true construction of this 259th section. The better opinion seems to be that, after a man has been in prison for a full year, the power given to this Court to discharge him is gone, and he is entitled to his discharge forthwith. The section of the act says, "he shall not be discharged from such execution except by order of the Court." This order you might have applied for at any time if you had thought proper so to do; and the learned Commissioner if so disposed, and with a full knowledge of the facts of the case, might have exercised the power given by this clause. Then it is said that power is given to this Court to discharge the bankrupt, although the year has expired. If the case had rested simply upon this, I should have acted upon it, and discharged the bankrupt, although, as I said before, the better impression seems to be that, in such a case, this Court is functus officio. But that is not what is asked for. The bankrupt seeks to be discharged from this execution, which has been in existence for six months only. I do not see how I can take these two periods of imprisonment as making up one year. I think the three sections, 256, 257, and 259, should be read together. By section 256, for certain offences which are specified, the Court is to withhold protection. By section 257. the assignees and creditors who have proved are to be deemed judgment creditors, and the Court is to grant a certificate thereof, the certificate B. a., as it is called, which is to have the effect of a judgment of a superior court at Westminster. Then follows this 259th section, by which there are two ways, and only two, in which the bankrupt may be discharged from such execution: first, by applying to the Court for his discharge; and, secondly, by remaining in prison till the year has expired, and then coming for his discharge; and if this had been done, and the execution had been in the same suit, I should have taken upon myself to discharge him. If both executions here had been for the same suit, I think you might have used the words "such execution," as including both taken together. But that is not so; they are taken out by different creditors at different times. Under these circumstances, I feel that I cannot interfere to order his discharge until he shall have been in prison for twelve months at one suit."

the bankrupt has been guilty of certain enumerated offences, the Court shall refuse or suspend his certificate and refuse further protection." Under the 257th section a certificate may be granted in the form set forth in Schedule B. a., on which a writ of execution may issue. And by section 259. it is declared, that where a bankrupt is taken in execution thereunder he shall not be discharged from such execution until he shall have been in prison for the full period of one year, except by order of the Court.

Mr. Roxburgh supported the appeal.

Mr. Simpson, for the detaining creditor, opposed, contending that the 257th section made the creditor, under the present circumstances, a judgment creditor, and that it was intended that he should be so for payment of the debt upon which he had issued the ca. sa.-Re Cowgill (2).

Mr. Roxburgh, in reply.

The LORD CHANCELLOR.-If there be no bankruptcy, any creditor who obtains a judgment may issue a ca. sa. and detain his creditor in prison; and there is no limitation as to the time to which this imprisonment may be extended. It is equally clear that, in case of bankruptcy, if the creditor do not prove, he may do the same thing, subject only to the Court directing the bankrupt's discharge under section 112. of the Bankrupt Law Consolidation Act, 1849. Before this act, a creditor who had proved could take no such proceeding against a bankrupt. But by sections 256. and 259, to which I am referred, a creditor who has proved is, under certain circumstances, placed in the same position as if he had a judgment, or had not proved at all and he may take the bankrupt in execution under this certificate; and then section 259. says, he shall not be discharged until he shall have been in prison for a whole year. I think, upon the true construction of this statute, that the bankrupt will be entitled to his discharge after the expiration of a year; but I am clearly of opinion that the term of imprisonment

(2) 13 Q.B. Rep. 336; s. c. 20 Law J. Rep. (N.s.) Q.B. 300.

must be upon the same ca. sa. upon which he is taken. And so it would be if a man have fifty creditors, all of whom take out these certificates-he may be taken upon each, and kept in prison for the full period of one year, unless he pay the debt or be discharged by the Commissioner. It may be said that, in one sense, this 259th section is a provision in pœnam. That may be so; the mode of punishment is laid down by the act, for it places the creditor who has proved in the position of a judgment creditor, and entitles him to all the remedies incident to a judgment, subject only to the restriction I have mentioned. To all intents and purposes the ca. sa. upon which this prisoner is detained is an ordinary ca. sa.,

and on payment he will be entitled to his discharge. Suppose he were to escape; can it be said that an action would not lie against the sheriff for such escape? I am of opinion that, under these sections of the act, each creditor may obtain a ca. sa., and detain the bankrupt under that ca. sa. for a year. No case has been made out for the discharge of this bankrupt upon the merits, as, for example, in assisting his assignees to get in his estate; consequently, I am not warranted in interfering with the discretion of the Commissioner, and ordering his discharge, until he has been in prison for a year under the execution upon which he has been taken. The petition must be dismissed with costs.

ACCOUNT The executor of a testator, who died in
Jamaica, annually recorded the accounts of the
estate in the secretary's office there, in accord-
ance with an act of the legislature of Jamaica.
In directing the accounts to be taken in a suit
instituted here for the administration of the estate
of the same testator, the Court ordered that the
accounts recorded in Jamaica should be taken as
prima facie evidence of the truth of the matters
therein contained, with liberty to the plaintiff to
surcharge and falsify. The rule of the Court is,
that in order to obtain an inquiry as to wilful
default the plaintiff must allege a case for such an
inquiry, must pray for it, and must prove at least
one act of wilful default; and although it may
not be necessary in order to obtain a preliminary
inquiry, upon which an inquiry as to wilful de-
fault may be afterwards founded, that the plain-
tiff should conclusively establish such an act, yet
there must be such a case made out with respect
to some specific item alleged in the bill as raises
a doubt in the mind of the Court. The dictum
of Knight Bruce, L.J., in Coope v. Carter, ex-
plained. Sleight v. Lawson, 553

See Administration of Estate. Infant.

ACQUIESCENCE. See Rehearing.

ACTION AT LAW-Extension of time for bringing.
See Practice.

ADMINISTRATION OF ESTATE-A creditor's affidavit
filed in support of his claim for a debt, under a
decree in an administration suit, is an affidavit
to be used in a proceeding before the Court,
within section 40. of the Chancery Procedure
Amendment Act, 15 & 16 Vict. c. 86.
Cast v.
Poyser, 93

NEW SERIES, XXVI.-INDEX, Chanc. & Bankr.

This

Under the decree in a creditors' suit for admi-
nistration of the estate of J. H, deceased, his
real estates were sold. It appeared by the con-
ditions of sale that a part of the property was
subject to a mortgage for 1,000l. to R. T. The
conveyances to the purchasers were executed by
R. T. at the instigation of J. T. (who acted as
his solicitor and also as solicitor for the pur-
chasers), in consideration of the purchase-money
being paid into court. J. T. was also a specialty
creditor of testator, and proved a claim for a bond
debt of 1,000l. with interest and costs.
debt was paid in full, and the residue of the assets,
amounting to about 6007., distributed among the
simple contract creditors, without any provision
being made for payment of the mortgage debt.
The mortgage deed remained in the possession of
the mortgagee, who died shortly after the execu-
tion of the conveyances. Upon a bill filed by
the executrix of R. T, against the surviving
partner and personal representatives of J. T.
against G. & G, the solicitors who had the conduct
of the suit, the simple contract creditors and the
purchasers of the real estate in mortgage, it was
held that the simple contract creditors were liable
to refund the whole of what had been received
by them; that G. & G. were liable to make good
all such sums as had been received by the
simple contract creditors, and by reason of insol-
vency or otherwise had become irrecoverable
from them; that the representatives of J. T.
were liable to refund the difference between the
sums received by the simple contract creditors
and the amount of the mortgage debt and inter-
est; and that the costs of the suit must be paid
by G. & G. Bill dismissed without costs against
such of the purchasers as had neglected to demand
delivery of the title-deeds, on plaintiff giving
them up, and with costs against a purchaser who

A

had taken a covenant for production from the
purchaser of a larger lot. Todd v. Studholme, 271

A trader being in insolvent circumstances
assigned his business and stock-in-trade, part of
the consideration consisting of two annuities, one
payable to himself for life, the other payable to
his wife during her life, in case she survived him.
The trader died, having appointed his wife his
executrix. Upon a creditors' suit being insti-
tuted, it was decided that the annuity to the wife
was void as against creditors. It was afterwards
held, in an administration suit, that the annuity
was legal and not equitable assets in the hands
of the wife. Hue v. French, 317

Upon taking the accounts in a suit to admi-
nister real and personal estate, if a question
arises between the tenant for life and the re-
mainderman, as to the proper mode of applying
the personal estate, the Court will, if the justice
of the case require it, for the purpose of seeing
to what extent and in what form the real estate
is to be exonerated by means of the personalty,
investigate the application of the personal estate,
and proceed, as a general rule, upon the principle
of applying the capital of the personal estate to
pay the principal of debts, and the income of the
personal estate to pay the interest of debts.
Shore v. Shore, 386

Order for injunction and a receiver as against
the administratrix of a deceased intestate granted
on motion, after the common decretal order made
upon summons for taking the simple adminis-
tration accounts; a case of misconduct and wilful
default against her having come to light in the
course of the proceedings under such decretal
order. Brooker v. Brooker, 411

Lapse of time will bar the right of the next-
of-kin of an intestate to an account against the
administrator. Distinction between the right to
an account and the right to the administration
of a fund admitted to be in hand. In the absence
of any averment in the bill, the Court will not,
upon demurrer, assume that assets have come to
the hands of an administrator without assuming
also that they have been duly administered.
Kohler v. Reynolds, 415

A covenant by A. that he would, by will,
settle 3,000l. to be charged upon and issuing out
of all such real and personal property as he should
at his death be seised or possessed of, constitutes
a specialty debt. Eyre v. Monro, 757

A creditors' suit being instituted to administer
the estate of a testator who died possessed of
certain shares in a company, a claim was made
by the company for payment of calls already due
upon the shares, and for a provision as to future
calls. It was held, that the calls already made
were specialty debts, but that no provision could
be made for future calls, as against the simple
contract creditors. Wentworth v. Chevill, 760

Administrator of deceased executor of the

testator in the cause held entitled, as against
specialty creditors of such testator, to retain
assets of his intestate, who had died indebted to
the estate of the testator, towards payment of a
judgment debt recovered by himself against his
intestate in his lifetime. Horne v. Shepherd and
Horne v. Dendy, 817

Under a commission of lunacy, A. B. was,
in 1852, found lunatic since May 1846. In
1847 A. B. had, by attorney, surrendered copy-
hold lands, of which she was tenant in tail, and
accepted an admittance in fee simple. In a
creditors' suit to administer A. B.'s estate after
her death, one of the Vice Chancellors held that
the entail was effectually barred, and that the
lands were available for her debts; but, upon
appeal, it was held, that the entail was not
effectually barred by reason of the lunacy;
that the finding under the commission was
prima facie evidence of the lunacy, but that
A. B. having, previous to her death, obtained
leave to traverse the inquisition, the creditors
were entitled to an issue to try the question of
A. B.'s competency when the entail was pur-
ported to be barred. Elliott v. Ince, 821