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permitted the bankrupt, who was uncertificated, to go on trading until the time of his death, his subsequent creditors were preferred to those under the commission, who were beld in equity to have lost their priority, though the bankrupt's subsequent effects were held in law to remain vested in his assignees. That result follows necessarily from the provision, that if a man does not pay fifteen shillings in the pound under a second commission, his future effects remain liable; because, if a man who had not obtained his certificate under a first commission, but who had obtained it upder a second, could be protected in that respect, be would stand in a better situation than the man who had obtained his certificate under a first commission. In Ex parte Martin (a), it was said by Lord Eldon to be “very clearly settled that if a man has been declared a bankrupt under a separate commission, another commission against him cannot be maintained until he has obtained his certificate under the former;" and in Ex parte Rhodes (b), that, " the first commission subsisting, of whatever date, the second is clearly bad.” In the latter case his lordship seems to have expressed an opinion that the case of Troughton v. Gitley (c), had been carried too far, for he added, " cases have, however, occurred where an old commission subsisting, and the bankrupt having gone again into trade, a new commission issued, which he attempted to supersede: and it was held, that if the persons claiming beneficially under the old commission did not mean to interfere with the effects under the latter commission, the Court would not interpose; yet then this difficulty remained, that the first commission might be set up as a bar to an action under the second. The Court, however, has refused to interfere in that case, and has, in Lord Hardwicke’s time, frequently permitted two commissions to proceed together; a separate after a joint commission ; yet it is clear in law that the separate commission was bad. Many important observations arise
against what the Court did in Troughton y. Gitley." Upon the whole review of the subject, therefore, it is clear that the second commission in this case is void in law, or at least that no benefit can be derived from the certificate obtained under it, unless it were obtained by the special permission of the Lord Chancellor, with reference to the first commission; the plaintiffs, therefore, can be affected only by the first commission; and as, according to the law as it stood when that commission issued, they had their election either to hold the body of the bankrupt, or to prove, they have the same privilege now, and not having prored, are entitled to the benefit of the arrest.
Parke, contra.--The second commission and the certificate obtained under it are not absolutely void, but voidable only. The principal reason given for the law as laid down in Er parte Proudfoot (a), was, that when once a commission has issued against a man, he is, until he obtains his certificate, incapable of acquiring any future property. Even as the law stood at the date of that decision, the proposition appears to be laid down a little too broadly, because it is clear that as against all the world, except his assignees, an uncertificated bankrupt has a right to goods, acquired by him since his bankruptcy, and that against a stranger he may maintain trover for them; Webb v. Fox (). As the law now.stands it is plain that the defendant is entitled to his discharge by the express words of the statute 6 Geo. 4, c. 16; for s. 126 of that statute declares that any bankrupt. who shall, after his certificate shall bave been allowed, be arrested, or have any action brought against him for any debt, claim, or demand, thereby made proveable under the commission against such bankrupt, shall be discharged upon common bail ; and s. 127, vests a bankrupt's future estate and effects in his assignees only in cases where he shall have been so discharged by such certificate as aforesaid, or shall have compounded with his creditors, or shall have been (a) 1 Atk. 253.
(6) 7 T. R. 391.
discharged by any insolvent act. Some equity cases have
(6) 4 Price, 240.
of receiving a solemn determination.” No such determination, however, was arrived at, for the case went off upon a defect of evidence of an act of bankruptcy; but at least that case shews that the question is unsettled. Then came the case of Warner v. Barber (a): that was before the Court of Common Pleas, who, so far from considering the question as settled, postponed that cause in consequence of the case of Butts v. Bilke being then depending in the Court of Exchequer; and upon that case going off, they actually gave judgrnent in favour of the second commission, holding, that where a prior and joint commission had been issued, but not acted on or superseded, such commission did not invalidate a second separate commission: and since that, in Todd v. Maxfield (6), where a defendant had been three times declared a bankrupt, and had not paid 15s. in the pound under the second commission, this Court held, that the third commission was not void on that account, but voidable only. Martin v. O'Hara is the only authority that seems strongly against the present defendant, and that case only decided that a second commission against a bankrupt, pending a former one, (which the former commission here can hardly be said to be,) under which he has not obtained his certificate, is void; besides which, that decision proceeded on the ground, that “ the proceedings under the last commission were manifestly a gross fraud and contrivance on the face of thein; that the whole was a gross fraud :” whereas here it is clear, that no fraud was contemplated, nor, indeed, can it be said, that any has been practised.
Cur. adv. vult.
Lord Tenterden, C. J., now delivered judgment, and after stating the substance of the affidavits, thus proceeded: The case principally relied upon in argument, to shew that the second commission in this case was void, was that of
(a) 2 J. B. Moore, 71.
(6) 5 D. & R. 258; 3 B. & C. 222.
Martin v. O'Hara(a). It was there decided that a second commission against a bankrupt, pending a former one under which he had not obtained his certificate, was void; a decision which applies very strongly to the present case. It is but justice, however, to observe, that the second commission in that case was evidently a mere contrivance, entirely founded in fraud,-- an observation which is not applicable to the present case; though here there is no evidence to shew that the assignees under the first commission in any manner acquiesced in the issuing of the second, or in the subsequent trading of the bankrupt. The opinions of the different lords chancellors, which were eited, appear to have been, that the second commission, in a case like the present, would be void. On the part of the defendant we were referred to the case of Webb.v. Fox (b), where it was decided that ap uncertificated bankrupt might maintain trover in respect of goods acquired since his bankruptcy; but the reason of that is, that as between him and all the rest of the world, except his assignees, he has a special property in the goods. The case of Buits v. Bilke (c) was also mentioned, but nothing was decided with respect to this question there ; and we were referred to it merely as shewing the unsettled state of the questioni It was orged on the part of the defendant that the second commission ought to be deemed good until it was superseded; or that the Lord Chancellor would, upon application to him, allow the second commission to stand and supersede the former: but we do not consider ourselves called upon in this case to say what would be the effect of a supersedeas either of the first or of the second commission. We are of opinion, that in this case the second commission was absolutely void; and that all the property of the bankrupt, subsequently acquired, vested in his assignees under the first commission. The case of Todd y. Maxfield was also mentioned, with reference to the effect of a second
(a) Cowper, 823.
(c) 4 Price, 240.