1842. Westminster, November 22. Certificate Ex parte VARDY.-In the matter of VARDY. MR. BACON moved that the officer of the Court might be directed to issue out the bankrupt's certificate, in order that it might be inserted in the Gazette. certificate had been signed by the requisite proportion of 5 & 6 Vict. c. creditors and by the Commissioner before the 11th of 122. came into November, the day on which the statute 5 & 6 Vict. c. The 122., came into operation; but a doubt had arisen in the office, whether the certificate under these circumstances would be valid, or whether a new certificate ought not to be obtained under the provisions of the new act, the 37th section of that statute providing that every bankrupt, who shall have conformed in manner therein mentioned, shall be discharged from debts, claims, and demands proveable under the fiat, in case he shall obtain a certificate signed and allowed, and subject to the provisions thereinafter mentioned; and that no certificate shall release or discharge him, unless obtained, allowed, and confirmed, according to such provisions, with a proviso that nothing therein contained shall affect the validity of any certificate allowed by the Lord Chancellor or Court of Review, previous to the commencement of the act. The circumstance of this last proviso being confined to certificates which had been actually allowed, occasioned the doubt. The fiat issued on the 9th of September; the bankrupt passed his last examination on the 28th of October; and on the 10th of November the certificate was signed by the Commissioners. VICE-CHANCELLOR KNIGHT BRUCE, C. J., after reading the act, said he entertained no doubt on the subject, except such as was occasioned by the doubts of others, and made the Order for the certificate to issue. ready for allowance, but not allowed before operation; Held, sufficient under the new act, and allowed accordingly. 1842. Westminster, November 23, 24 and 28, and Ex parte PETER MUDIE.-In the matter of WILLIAM JAMES. Feb. 20, 1843. THIS was a petition of rehearing. The petition upon ditor, who, A judgment cre- the original hearing was dismissed with costs, the only dispute then being as to the facts of the case; except as regarded a short point of practice, with reference to having taken the body of a bankrupt in execution before the bankruptcy, keeps him in prison till he is discharged by cannot prove under the bankruptcy. which the case is reported, ante, vol. 2, p. 490. Upon the dismissal of the original petition, leave was his certificate, given to file another, to bring the case more fully before the Court, upon payment of the costs of the former proceedings. The present petition was accordingly presented, and it prayed for the admission upon the proceedings of a proof which had been tendered by the petitioner as a judgment creditor. Quære: Whe ther a final judgment by default, not obtained by collusion, but ad versely, which could not have been disputed, if The judgment was entered up as long since as 1823, and, according to the petitioner's case, under the following mained solvent, circumstances. The father of the bankrupt on his death the debtor re may be im peached under bed, and when about to make a will, was induced to his bankruptcy, under such circumstances as would have been on a proof being forbear doing so, upon the faith of a promise made by the tendered upon it. But if the bankrupt, who was the eldest son, that he would provide judgment were obtained for his sisters, by paying each of them 50l. per annum, while single, and a sum of 500l. on marriage. One of a ground for the the sisters was the wife of the petitioner; and in execution interference of a of this engagement the bankrupt, as it was alleged, to restrain exe- signed and delivered to the petitioner certain bills of cumstances are exchange in the usual form, except that the consideration. was thus expressed :-" For value received in my wife's fortune." Court of Equity a sufficient objection to the proof, although the debtor may have omitted to make a legal de. fence which he These bills not being paid when due, the petitioner had to the action, commenced an action in 1822 against the bankrupt upon and although (under such cir- them, and recovered the judgment now in question, cumstances as those of the present case) nearly twenty years have elapsed since the judgment was obtained. upon which the bankrupt afterwards brought a writ of error; but a non pros was signed on April 24th 1823. The petitioner then caused the bankrupt to be taken in execution upon the judgment, and in June 1823, while he was in prison, the commission of bankrupt issued. According to the statement in the petition, the petitioner, acting upon the advice of his solicitor, declined to prove his judgment debt under this commission; but afterwards, in 1834, when the bankrupt had obtained his certificate, and had been discharged from prison, the petitioner, having no longer any reason for not proving, applied to prove upon the judgment, whereupon the Commissioners refused to admit the proof. According however to the evidence produced on behalf of the respondents, the bills of exchange on which the judgment was obtained, were made use of fraudulently, having been blank acceptances delivered by the bankrupt to the petitioner, for the purpose of his getting them discounted, and paying over the money to the bankrupt, and not for the purpose stated by the petitioner. The objections to the proof were, First. That the petitioner, by keeping the bankrupt in prison till he obtained his certificate, had, in substance, elected not to come in under the commission. Secondly. That the judgment had been obtained on bills of exchange, for which no consideration had been given. Thirdly. That, besides the want of consideration, the bills were given for a specific purpose, and that the action brought upon them was a breach of trust, and a fraud. In answer to these objections, the petitioner contended, first, that he had not elected, having in fact 1842. Ex parte 1842. Ex parte taken the bankrupt in execution before the date; of the commission; secondly, that the judgment was conclusive, and could not be questioned; and thirdly, that there was a sufficient consideration for the bills. The petitioner further contended, that if no consideration was proved, the want of it could not be taken advantage of now, being a good legal defence, if a defence at all, and not having been brought forward at the trial. With respect to the last objection made to his proof, the petitioner, denying the facts stated on the other side, contended also that the objection was substantially the same as the preceding, and amounted to a statement of a want of consideration, which, if it could have been established, would have been a good defence at law. He contended moreover that it was too late, after many years, to attempt to set aside an adverse judgment on equitable grounds. Mr. Anderdon, and Mr. Hallet, in support of the petition. As to the first point. The petitioner is entitled to prove, unless he has elected not to proceed under the commission. Now, taking the debtor in execution before the commission issued, cannot be an election. Ex parte Cundell (a), Ex parte Knowell (b), Ex parte Frith (c), shew that keeping the bankrupt in custody is not an election, unless when he is taken after the commission has issued. An analogy may be derived from the law as to executions against the goods of a debtor, 21 Jac. 1, c. 24, according to which an execution may be had against the goods of a debtor, notwithstanding the body has been taken, if the debtor die in custody. So here, if the body (c) 1 Gl. & J. 166. (a) 6 Ves. 446. is taken out of the custody of the creditor, he must gain a remedy against the property. In Ex parte Goodman (a), the bankrupt was taken in execution before the fiat, and the action becoming abated afterwards by the death of the creditor, the executrix of the creditor was admitted to prove. There being no preliminary objection to the proof, the judgment is conclusive; there is no case in which the Commissioners have been permitted to unravel a matter wound up by a judgment in an adverse action; Assignees of Gardner v. Shannon (b). Ex parte Butterfill (c), which may be cited on the other side, was a case of a verdict not ripened into a judgment, and Lord Eldon there expressly draws the distinction between the two cases. And Protheroe v. Forman (d), and Harrison v. Nettleship (e), establish that a party, who omitted to make a defence which he had at law, cannot be relieved in equity. If the contract were voluntary in the first instance, a judgment upon it might nevertheless be valid. Lee v. Muggeridge (f), Stiles v. Attorney General (g), Blount v. Doughty (h). But the evidence here shews that the promise was not merely voluntary, but one which might have been enforced; Drakeford v. Wilks (i), Chamberlain v. Agar (k). Mr. Russell, and Mr. Greene, for the assignees. Although there is no reported case upon this exact point as to election, Mr Christian (1) says, "If the bankrupt (a) Mont. & Ch. 151; 3 Dea. 631. (b) 2 Sel. & Lef. 228. (c) 1 Ro. 193. (d) Swans. 227. (e) 2 My. & K. 425; and see Abbey v. Pitch, 1 Y. & C. N. C. 262. (ƒ) 5 Taunt. 36. (g) 2 Atk. 154. (h) 3 Atk. 484. (i) 3 Atk. 539. (k) 2 V. & B. 259. (1) Bankrupt Law, vol. i. p. 425, 2nd edit. 1842. Ex parte MUDIE. |