none of them trade debts, but were all debts due to private personal friends of the defendant. Mr. Lewis's affidavit stated, that, on the summons to discharge the defendant from custody being served at his office, it was returned to the defendant's attorneys with an intimation, that, as the ca. sa. was sued out by the plaintiff in person, he could not appear to the summons; and that his partner and himself had been instructed by the plaintiff to appear as his attorneys upon this application since the 31st of July.

Montague Smith, Q. C., now showed cause.(a)—The defendant was clearly entitled to be discharged from custody upon the production of the warrant of protection: Jones v. Anstruther, 1 Exch. 867.† The 18th section of the 2 & 3 Vict. c. 41, enacts that the warrant granting *protection or liberation, or a copy thereof certified by one of [*705 the bill chamber clerks, shall protect or liberate the debtor from arrest or imprisonment in Great Britain and Ireland and Her Majesty's other dominions, for civil debt contracted previous to the date of sequestration; but such warrant of protection or liberation shall not be of any effect against the execution of a warrant of arrest or imprisonment in meditatione fugæ, or ad factum præstandum, or for any criminal act." The affidavits upon which this rule was obtained disclose no ground upon which this court can inquire into the validity of the protection granted to the defendant. [WILLIAMS, J.-Suppose an application were made to discharge a party from arrest here, on the ground that he had obtained a certificate in the Court of Bankruptcy, would it be any answer to say that the defendant was not a trader?] Clearly not. This court cannot upon a motion of this sort try the validity of the proceedings under the sequestration. If any imposition has been practised upon the Scotch court, the remedy must be sought there.

Shee, Serjt., in support of the rule.--The grounds of this motion are, that the order for the defendant's discharge from custody was obtained upon an ex parte application, and without notice to the plaintiff; and that the sequestration, and the consequent protection, were fraudulently obtained, the defendant having by his petition falsely represented himself to be "a trader, underwriter, and holder of railway and other stock, and as such within the description of persons whose estates might be sequestered, as contained in the 2 & 3 Vict. c. 41," when in point of fact he was not and never had been a trader at all. First, as to the want of notice. Messrs. Lewis & Lewis not being the plaintiff's attorneys at that time, the summons should have been served upon the plaintiff himself. [Smith.-The affidavits show *numerous com[*706 munications with Messrs. Lewis & Lewis, in which they were assumed to be, and were treated as, the plaintiff's attorneys. CRESS

(a) It appeared by the affidavits that the plaintiff had been outlawed, at the suit of one Ford, on the 24th of May, 1849, and that the outlawry was not formally reversed until the 15th of October last.

WELL, J.-Is there not an objection a little higher up? Can an outlaw issue a writ in person?] Substantially the outlawry was long since gone, though the formal entry of reversal appears not to have been made until the 15th of last October. [One of the Messrs. Lewis, who was in court, admitted that the ca. sa. was issued by his clerk with his sanction, he having an interest in the judgment.] The main point arises from the sequestration. Although the courts of this country give full faith and credence to the judgment or adjudication of a foreign court of competent jurisdiction; yet, if it is shown that such judgment or adjudication has been fraudulently obtained for the purpose of defeating or evading the process of our courts, the party will not be allowed to avail himself of it. The validity of a foreign judgment may always be inquired into, where fraud is suggested: The Bank of Australasia v. Harding, 9. C. B. 661 (E. C. L. R. vol. 67). [CRESSWELL, J.-That is where you are seeking to enforce it here.] The affidavits upon which this rule was obtained distinctly allege that the defendant was not a trader, and that his assumption of trading was a mere sham; and he makes no affidavit in answer. [CRESSWELL, J.- How can we inquire into that here? In the case of Barrow v. Poile, 1 B. & Ad. 629, the after-acquired goods of a certificated bankrupt having been taken in execution for a debt which might have been proved under the commission, the court, on motion, set aside the fi. fa., and refused to put the bankrupt to an auditâ querelâ, though it was stated on behalf of the creditor that the bankruptcy was collusive, and that, in an action by the assignees, a jury had found against the plaintiffs as to the fact of the trading. Lord Tenterden, in giving judgment, there says, "It is expressly enacted by the 121st section of the statute [6 G. 4, c. 16], that *every bankrupt who shall have sur*707] rendered and conformed himself, and obtained his certificate, shall be discharged from all debts due by him when he became bankrupt, and from all demands provable under the commission. This judgmentdebt was clearly so provable. It is admitted, that, if an action had been brought on this judgment, the defendant might have pleaded his bankruptcy and given the certificate in evidence, and that the certificate would have been conclusive; and also, that, if he had been taken in execution upon the judgment, or detained in prison upon it, he might have been discharged by a judge on production of his certificate, in which case also it would have been conclusive. But it is said the certificate is conclusive in these cases only. Whether the language of the 126th section is sufficiently general to include the present case or not, does not seem to me to be very material; it points out the course of proceeding in particular instances, but it cannot control the general words of the 121st section; and, it being manifest that the plaintiff's demand is one which might have been proved under the commission, I think we should not give effect to the words of that section, which provides that the bankrupt obtaining his certificate shall be discharged from every

demand provable under the commission, if we were to reject the present application, and put the defendant to the course which has been suggested. If the certificate could be brought within any of the cases specified in the 130th section, where it is declared that a certificate, if obtained, shall be void, as, by gaming or other misconduct of the bankrupt, the question would be very different: but nothing of this kind is suggested: the only endeavour here is, to throw a doubt upon the trading and petitioning creditor's debt."(a)] *It must be confessed that there would be great difficulty in distinguishing that case from the present.

[*708 COCKBURN, C. J.-I am of opinon that this rule must be discharged. The case of Barrow v. Poile is directly in point. The protection granted under the Scotch Sequestration Act, 2 & 3 Vict. c. 41, s. 18, is quite analogous to the certificate under the 205th section of our Bankrupt Act, 12 & 13 Vict. c. 106. It is clearly established, that, where a bankrupt has obtained his certificate, the petitioning creditor's debt, the trading, or the act of bankruptcy, cannot be called in question in a proceeding like this. The principle is the same as applied to the warrant of protection granted under a Scotch sequestration.

CRESSWELL, J.-I am entirely of the same opinion. With respect to the notice, I think Messrs. Lewis were the proper persons to receive notice of the summons for the defendant's discharge from custody. Although they might not strictly speaking be his attorneys, they clearly were his agents for that purpose.

The rest of the court concurring,

Rule discharged, with costs.

(a) And see Pennell v. Butler, 18 C. B. 209 (E. C. L. R. vol. 86). By the 20th section of the 17 & 18 Vict. c. 119, it is enacted that a trader petitioning for an adjudication of bankruptcy shall forthwith after filing his petition, and before adjudication, make it appear to the satisfaction of the court that his available estate is sufficient to produce 150l. at the least:-Held, that the decision of the Court of Bankruptcy as to value is conclusive.

*CUMBERLEGE and Another v. HENRY LAWSON. Jan. 23. [*709 To a declaration upon an indenture, described as made between R. G. of the first part, the defendant and one T. L. of the second part, and the plaintiffs of the third part, whereby the defendant and T. L. jointly and severally covenanted with the plaintiffs for the payment by R. G. of certain annual premiums,-the defendant (setting out the indenture in hæc verba, showing that it was made between R. G. of the first part, the defendant and T. L. and one Pearce of the second part, and the plaintiffs of the third part) pleaded "that the said indenture was made and executed by him, in the faith that Pearce should join therein or execute the same, and that Pearce never did join therein or execute the same:"-Held, bad, it not appearing that the defendant's execution of the deed was upon condition that his execution thereof should be void, if the deed was not executed by Pearce, the other co-surety. The plaintiffs replied, "on equitable grounds," that, after the making and executing of the indenture in the plea mentioned by the defendant and R. G. and T. L., and before the time for payment of the instalments had arrived, R. G., the defendant, and T. L., having notice that Pearce had not joined in nor executed the indenture, by a note in writing consented and agreed that they would be liable upon the indenture, and that their execution thereof should be valid and binding upon them although Pearce had not executed it; and that the plaintiffs relied and acted upon such consent and agreement:-Quare, whether the replication showed any equitable answer to the plea, if well pleaded?

THE declaration stated, that, on the 7th of February, 1844, by a certain indenture made between one Robert Goodwin of the first part, and the defendant and one Thomas Lawson of the second part, and the plaintiff's and Sir G. W. Prescott, Bart., since deceased, of the third part, after reciting that the said Robert Goodwin had effected a policy of assurance on his own life in the Anchor Life Assurance Company, whereby the funds and other property of the said company were charged with and rendered subject and liable to the payment to the executors, administrators, or assigns of the said Robert Goodwin, of the sum of 6007., within three months after satisfactory proof of his decease, subject to the payment of the annual premium and to the provisions in the said policy expressed; and reciting that the said Robert Goodwin had agreed with the plaintiffs and the said Sir G. W. Prescott for the loan of 85l., on the security of an assignment of the said policy, and the joint and several covenants of the said Robert Goodwin and the defendant and the said Thomas Lawson,-it was witnessed, that, in consideration of the sum of 851. paid to *the said Robert Goodwin by the plaintiffs *710] and the said Sir G. W. Prescott, he the said Robert Goodwin did thereby assign unto the plaintiffs and the said Sir G. W. Prescott the said recited policy, and the moneys thereby assured, and all bonuses, benefit, and advantage to be had or received therefrom, to have, hold, receive, and take the said policy, moneys, and premises unto the plaintiffs, subject to the proviso thereinafter contained, that is to say, provided always, that, in case the said Robert Goodwin, his heirs, executors, or administrators, should pay to the plaintiffs and the said Sir G. W. Prescott, their executors, administrators, or assigns, the said principal sum of 851., by equal quarterly payments of 77. 10s. on each succeeding 7th of May, 7th of August, 7th of November, and 7th of February, until the whole of the said principal sum should be paid, together with interest at 51. per cent. per annum on so much of the said principal sum as should from time to time remain unpaid, the first of such instalments to be paid on the 7th of May then next,-then and in that case, and the covenants thereinafter contained being fully performed, the said indenture and the assignment thereby made should be null and void; and the defendant did thereby covenant with the plaintiffs and the said Sir G. W. Prescott, that they the said Robert Goodwin and the defendant and the said Thomas Lawson, or some or one of them, or their or some or one of their executors or administrators, would pay to the plaintiffs and the said Sir G. W. Prescott, their executors, administrators, or assigns, the said instalments and interest on the several days and times aforesaid, and that, if default should be made in payment of any or either of the said instalments and interest, or any part thereof as aforesaid, then that that they the said Robert Goodwin and the defendant and the said Thomas Lawson, or some or one of them, their

[*711

or some or one of their executors or administrators, would *pay to the plaintiffs and the said Sir G. W. Prescott, their executors, administrators, or assigns, upon request, the whole of the said principal sum and interest, or so much thereof as should remain unpaid; and did further covenant that they the said Robert Goodwin and the defendant and the said Thomas Lawson, or some or one of them, their or some or one of their executors or administrators, would, from time to time during the life of the said Robert Goodwin, until all moneys secured by the said indenture should be fully paid and satisfied, pay the premiums, duty, and expenses which ought to be paid for keeping the said policy on foot, or for effecting and keeping on foot any renewed or substituted policy: That the said Robert Goodwin and the defendant and the said Thomas Lawson had not, nor had any or either of them, paid the said sum of 851., or any part thereof, or any interest on the same, or any part thereof, and the whole of the said principal sum, and all such interest as aforesaid respectively remained and were wholly due and unpaid, contrary to the covenant of the defendant in that behalf: That, although all the moneys secured by the said indenture had not been fully paid and satisfied, and although in the lifetime of the said Robert Goodwin a certain premium, to wit, the sum of 147. 128., was forgotten and ought to have been paid for keeping the said policy on foot, the said Robert Goodwin and the defendant and the said Thomas Lawson did not, nor did any of them, pay the said premium, or any part thereof, but default was made in the payment thereof, contrary to the said covenant of the defendant in that behalf: And that, by reason of the premises, the plaintiffs and the said Sir G. W. Prescott were entitled to receive the amount of the said last-mentioned premium, but the said Robert Goodwin and the defendant and the said Thomas Lawson had not nor had either of them paid the same, or any part thereof, but the same remained and was wholly due *and unpaid, contrary to the defendant's covenant in that behalf: And the plaintiff claimed 2001.

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Second plea, that the indenture in the declaration mentioned was and is in the words and figures following.-"This indenture, made the seventh day of February, 1844, between Robert Goodwin, of, &c. (who is hereinafter for the sake of brevity styled 'the said borrower'), of the first part, Henry Lawson, of, &c., Thomas Lawson, of, &c., and Joseph Pearce, of, &c. (sureties of the borrower), of, the second part, and Nathaniel Cumberlege, of, &c., Sir G. W. Prescott, of, &c., and Edward Baylis, of, &c., of the third part: Whereas, by a policy of assurance of the Anchor Life-Assurance Company, dated the 6th of July, 1843, and numbered 275, the funds and other property of the said company are charged with and rendered subject and liable to the payment to the executors, administrators, or assigns of the said borrower of 6007. within three months after satisfactory proof of his decease, subject to the pay