bankrupt, it must appear that the partnership debts are paid (e); and the fact relied upon, as an objection to the certificate, should be alleged positively in the petition; information and belief is not sufficient (ƒ). If the objection is money lost at play, and the affidavits as to the money lost are contradictory, the court will direct an issue (g); and if the bankrupt has obtained an order for the allowance of the certificate, the affidavit must also state that the proof, if admitted, will turn the certificate (h). So, a mortgagee may petition to stay the certificate (i), if he shew the probability of a balance being due to him after the sale of the mortgaged premises (j). But the court will not stay the allowance, upon the application of a creditor whose demand is unliquidated, and depends upon an account to be taken; especially if he do not swear to a balance in his favour (k), and to the probable amount of the balance (1); or of a party, the existence of whose debt depends upon the event of a trial at law (m); or of a creditor who has not come in under the fiat, and has the means of trying the validity of the certificate at law (n).

If the creditor, petitioning to stay the allowance of a certificate, have the bankrupt in custody, he must discharge him; presenting the petition being deemed an election to come in under the fiat (o).

The petition cannot be withdrawn without the leave of the court, and then only upon an affidavit shewing there is no collusion, and that the petition is not withdrawn from any improper motive (p). But this affidavit is not required when, upon the petition of a creditor, the certificate is stayed until he proves, and after proof he withdraws his opposition (q).

The order made upon the petition must be drawn up and taken away from the office within three months, otherwise the bankrupt's certificate will be allowed. (Ord. Loughb. March 22, 1796). So, after an order made to stay the certificate, a sufficient ground for the denial of it altogether must be laid before the court; for the court will not lock up certificates for ever, and deprive a man of the liberty which the law has given him (r).

For the mode of proceeding upon petition, see post, sect. 17. We have hitherto considered the means by which the creditors may prevent the allowance of the certificate. But even after it has been allowed, the court may recal it; and the Lord Chancellor

(e) Ex p. May, supra.

(f) Ex p. Perring, 1 Dea. 266; 2 Mon. & A. 486: Ex p. Green, 4 Dea. & C. 112.

(g) Ex p. Fife, 1 Dea. 413; 2 Mon. & A. 574.

(h) Er p. Ship, 2 Dea. & C. 88; Mon. & B. 262; 1 Dea. & C. 497.

(i) Ex p. Whitchurch, 1 Glyn & J. 71; 2 Jac. & W. 548.

(j) Ex p. Ramsbottom, 2 Christian, B. L. 709.

(k) Ex p. Johnson, 1 Atk. 81.

(1) Ex p. May, 3 Dea. 282; 1 Mon. &

C. 18.

(m) Er p. Heath, 6 Ves. 613. (n) Ex p. Dodson, Buck, 225. (0) Ex p. Blaydes, 1 Glyn & J. 179: Ex p. Bostoch, 1 Dea. & C. 383: Er p. Green, 4 Dea. & C. 112.

(p) Ex p. Gibson, 6 Ves. 5: Er p Cates, 1 Dea. & C. 546.

(g) In re Hall, 1 Dea. & C. 44.

(r) Per Lord Hardwicke, in Er p. Williamson, 1 Atk. 82: and see Er p. Adams, 2 Bro. 48: Er p. Fydell, 1 Atk. 73: and see tit. "Petitions," post.

has ordered it to be thus recalled, where it appeared that the bankrupt had fraudulently procured the commission to be issued, and that his certificate had been obtained by the preponderance of fictitious creditors (s). But the case against the bankrupt must be a very clear one to induce the court to recal the certificate (t); and an application for that purpose has been refused, where the bankrupt had had his certificate upwards of six years (u).

Its Effect.] First, by stat. 6 Geo. 4, c. 16, s. 121, every bankrupt who shall have duly surrendered, and in all things conformed himself to the laws in force concerning bankrupts at the time of issuing the commission against him, shall be discharged from all debts due by him when he became bankrupt, and from all claims and demands hereby made provable under the commission, in case he shall obtain a certificate of such conformity, so signed and allowed, and subject to such provisions as hereinafter directed (see 6 Geo. 4, c. 19, s. 122, ante, p. 285); but no such certificate shall release or discharge any person who was partner with such bankrupt at the time of his bankruptcy, or who was then jointly bound, or had made any joint contract with such bankrupt. Nor does signing the certificate of a surviving partner release the estate of a deceased partner (x); and this section extends to discharge the goods as well as the person of the bankrupt; so, where the goods of a certificated bankrupt acquired after the bankruptcy were seized, under a fieri facias, upon a judgment in respect of a debt due before the bankruptcy, the court set aside the fieri facias on motion (y).

What debts are provable under a commission, we have already seen (ante, p. 96—148). And the certificate will be a bar, not only to actions for debts contracted in England, but to actions for the debts of Scotch creditors (z); of Irish creditors, and of all foreign creditors (a). And, on the other hand, a certificate obtained by a bankrupt in Ireland, or any foreign country, will be a bar to an action in this country for a debt contracted in Ireland or the foreign country (b), but not to an action for a debt contracted here (c). And where a bill of exchange was drawn in Ireland, and accepted and paid in this country, it was holden to be a debt contracted here, and that the certificate of the drawer, obtained in Ireland, was no bar to an action brought against him by the acceptor in England (d). But the certificate is no bar to an action in tort, for selling out plaintiff's stock contrary to orders (e); nor to an action of trover, even in cases where the plaintiff has his option to bring trover or assumpsit (ƒ) nor to trespass for mesne

lantine v. Golding, Cook, 487.

(c) Smith v. Buchanan, 1 East, 6: Quin v. Keefe, 2 H. Bl. 553: Shallcross v. Dysart, 2 Glyn & J. 87.

(d) Lewis v. Owen, 4 B. & A. 654. (e) Parker v. Crole, 2 Moo. & P. 150; 5 Bing. 63.

(f) Parker v. Norton, 6 T. R. 695: and see De Tastet v. Sharpe, 3 Mad. 51; Buck, 153.

profits (g). Where a judgment is signed after a commission issued, but during the same term, it relates to the first day of term, and is provable; and, therefore, the certificate is a bar to a scire facias to revive (h). And where an attorney had received for his client a sum of money as interest on a mortgage, but did not pay it over to the client, and afterwards became bankrupt, and obtained his certificate, the Court of King's Bench discharged a rule to shew cause why he should not pay over the money; as the certificate might be pleaded in bar to an action for the money (i). And where the attorney had recovered and received a sum of money for his client, and when under an attachment for non-payment of the money, became bankrupt, and obtained his certificate, he was held entitled to be discharged, the money being a debt provable under the commission (k). But where an attorney had sold out a sum of stock, under an authority obtained from a client for the purpose of investing the proceeds on mortgage, which he fraud. ulently neglected to do, and an order of a court of law was obtained for him to re-invest the money, and to pay costs by a certain day, and on default, that an attachment should issue, and the attorney did not invest the stock, but became bankrupt the day after the time mentioned for his so doing; it was held that his certificate was no bar to the issuing the attachment (/); nor does the certificate bar a claim under a covenant to charge a particular debt upon a specific fund, in which the covenantor at the time of his bankruptcy had no interest, but merely an expectancy. So, where a trader granted an annuity, and covenanted to charge the annuity on any property he might possess at his wife's death, and then became bankrupt and obtained his certificate, and afterwards his wife, under a power in her settlement, bequeathed an annuity of a larger amount to the bankrupt; it was held that, although the certificate discharged the bankrupt in respect of the annuity granted by him, the property specifically charged still remained liable, and therefore, that he was bound to make good the annuity granted by him out of the annuity bequeathed to him by his wife (m): and where a trader, as surety for the grantor of an annuity, covenanted, in case of default of the principal, to pay the annuity, and after default became bankrupt, obtained his certificate, and died, leaving afteracquired property; it was held that his certificate was no bar to a creditor's suit against his personal representative for payment of the arrears of the annuity, this not being a debt provable under the commission under 48 Geo. 3, c. 121, s. 8, the statute then in operation (n). A certificate does not prevent an extent against the bankrupt's after-acquired property, the crown not being bound by the bankrupt laws (0).

But by stat. 6 Geo. 4, c. 16, s. 127, if any person who shall

(g) Goodtitle v. North, 2 Doug. 584: see Gulliver v. Drinkwater, 2 T. R. 261. (h) Greenway v. Fisher, 1 Man. & R. 330.

(i) Er p. Cullingford, 8 B. & C. 20. (k) E p. Edwards, 2 B. & C. 665.

(1) In re Newbery, 4 Adol. & E. 100. (m) Lyde v. Mynn, 4 Sim. 309; 1 M. & K. 683.

(n) Johnson v. Compton, 4 Sim. 37. (0) Anon., 1 Atk. 262.

have been so discharged by such certificate as aforesaid, or who shall have compounded with his creditors, or who shall have been discharged by any insolvent act, shall be or become bankrupt, and have obtained or shall hereafter obtain such certificate as aforesaid, unless his estate shall produce (after all charges) sufficient to pay every creditor under the commission fifteen shillings in the pound, such certificate shall only protect his person from arrest and imprisonment, but his future estate and effects (except his tools of trade, and necessary household furniture, and the wearing apparel of himself, his wife, and children) shall vest in the assignees under the said commission, who shall be entitled to seize the same in like manner as they might have seized property of which such bankrupt was possessed at the issuing the commission (p). And this, although the first bankruptcy and certificate were anterior to 6 Geo. 4, c. 16 (q); or although the former commission have been superseded (r); or although all the former creditors did not come in under the deed of composition (s); or although the party seeking to take advantage of this insufficiency of the second certificate, had himself signed it (t). But a composition with a certain class of creditors, as, for instance, with joint creditors only (u); or a composition with all his creditors generally, if he have afterwards paid them twenty shillings in the pound before his bankruptcy (x), will not deprive a bankrupt of the benefit of his certificate. This section is similar to the repealed statute 5 Geo. 2, c. 30, s. 9, except in the concluding words. By the repealed statute, the future estate of the bankrupt who obtains his certificate under circumstances mentioned in this section, but whose estate has not paid fifteen shillings in the pound, was made liable to creditors in the same manner as before the passing of that Act; but by the present statute, all such future estate is vested in the assignees under the commission, and they take a present vested interest in such future property from the date of the assignment (y), or, since the 1 & 2 Will. 4, c. 56, the date of the appointment of assignees. This section is retrospective, and applies to discharges by bankruptcy or insolvency before the passing of 6 Geo. 4, c. 16, as well as to such discharges obtained subsequently to the passing of that statute (z). And as this section protects the person of the bankrupt, and vests the property in the assignees under the fiat, no action will lie against the bankrupt for a debt due prior to his fiat, although he had compounded with his creditors before he became bankrupt, and his estate had not paid fifteen shillings in the pound under the fiat (a); and the estate of the bankrupt vests

(y) Ex p. Robinson, Mon. & M'A. 44.

(2) Elston v. Braddick, 2 C. & M. 435; 4 Tyrw. 122; 2 Mon. & A. 436, n.: Young v. Rishworth, 3 Nev. & P. 585: but see Carew v. Edwards, 2 Dow. 613; 4 B. & Adol. 351: Ibberson v. Dicas, Mon. 254, n.: and Ex p. Hawley, 2 Mon. & A. 426, contra.

(a) Eike v. Nokes, Mood. & M. 303: Robertson v. Score, 3 B. & Adol. 338.

in the assignees so absolutely, as not to leave in the bankrupt a right of action, even though the assignees do not interfere (b). If the bankrupt has not obtained his certificate under the first commission or fiat, a certificate obtained under the second is absolutely void at law (c); the Lord Chancellor not having power under the statute to issue a commission for distributing effects already vested in assignees under a prior commission: and a third fiat against a bankrupt, whose effects have not paid fifteen shillings in the pound, is also void (d).

Also, by stat. 6 Geo. 4, c. 16, s. 105, if an assignee, indebted to the estate of which he is such assignee, in respect of money so retained or employed by him as aforesaid, (see sect. 104, ante, p. 167), become bankrupt, if he shall obtain his certificate, it shall only have the effect of freeing his person from arrest and imprisonment; but his future effects (his tools of trade, necessary household goods, and the necessary wearing apparel of himself, his wife, and children excepted) shall remain liable for so much of his debts to the estate of which he was assignee, as shall not be paid by dividends under his commission, together with lawful interest for the whole debt.

2. By stat. 6 Geo. 4, c. 16, s. 126, any bankrupt who shall, after his certificate shall have been allowed, be arrested, or have any action brought against him, for any debt, claim, or demand, hereby made provable under the commission against such bankrupt, shall be discharged upon common bail, and may plead in general that the cause of action accrued before he became bankrupt, and may give this Act and the special matter in evidence; and such bankrupt's certificate, and the allowance thereof, shall be sufficient evidence of the trading, bankruptcy, commission, and other proceedings precedent to the obtaining such certificate; and if any such bankrupt shall be taken in execution, or detained in prison for such debt, claim, or demand, where judgment has been obtained before the allowance of his certificate, it shall be lawful for any judge of the court wherein judgment has been obtained, on such bankrupt producing his certificate, to order any officer who shall have such bankrupt in custody by virtue of such execution, to discharge such bankrupt without exacting any fee, and such officer shall be hereby indemnified for so doing. (See ii. p. 99). This, however, does not extend to process at the suit of the crown, such as an extent; for the crown is not bound by the statute of bankrupts (e). Nor does it extend to any seizure of the property of the bankrupt, but is confined to an imprisonment of his person merely (ƒ). And even in cases apparently within the Act, it is a good answer to a plea of bankruptcy that the certificate was obtained by fraud, although the express enact

(b) Young v. Rishworth, supra.

(c) Till v. Wilson, 1 Man. & R. 580: Fowler v. Coster, 10 B. & C. 427: Ex p. Chambers, 2 Dea. 494; 3 Mon. & A. 294.

(d) Fowler v. Coster, supra: Er p.

Lane, Mon. 12: but see Ex p. Welch, Mon. 279; and dict. C. J. 2 Mon. & A. 368.

(e) Anon., 1 Atk. 262.

(f) Cullen v. Meyrick, 1 T. R. 361: Hanson v. Blakey, 1 Moo. & P. 261.