1810. Ex parte LLOYD.-In the Matter of LLOYD. Sir Arthur Pigott and Mr. Wetherell on the other Side. The Judgment has completely extinguished the original debt, and any further Proceedings must be by sci. fa. or by Action of Debt; the Bills of Exchange are totally gone, Lloyd having paid the Debt, and taken an Assignment of the Judgment, is neither Surety nor liable, within the Meaning of the Act-how can he make Oath as to his Debt? [The Lord CHANCELLOR. The Objection as to the Form of the Oath applies to so many Cases, that it contains a great deal too much in it.] Suppose the Judgment had not been assigned, could Phelps, Conway, and Co. have proved? But even if they could, the present Petitioner is a stranger, has no Privity with them, and is not entitled to their Equities. The Lord CHANCELLOR. There are certain Points in this Case at which we soon arrive. The Acceptors having paid these Bills after the Bankruptcy of the Drawers, could not, as the Law then stood, have proved them under the Commission. The Demand which the Acceptors had after Payment of the Bills, was a Simple-Contract-Debt, for which, before the late Act of Parliament, they might have brought an Action of Assumpsit, and since that Act might have gone in and proved it under the Commission. The Question is, whether, having altered the Situation in which they stood, by becoming Judgment-Creditors, they could have proved; and whether, if they could have proved, their Assignee is entitled to the same Advantage. The Words of the Act are very comprehensive. (His Lordship here stated the Substance of the Sec tion (a).) (a) The 8th Section enacts, that in all Cases of Commissions of Bankrupt already issued, under which no Dividend has yet been made, or under which the Creditors, who have not proved, can receive a Dividend equally in proportion to their respective Debts without disturbing any Dividend already made; and, in all Cases of Commissions of Bankrupts hereafter to be issued, where at the Time of issuing the Commission any Person shall be Surety for or be liable for any Debt of the Bankrupt, it shall be lawful for such Surety or Person liable, if he shall have paid the Debt, or any Part thereof in discharge of the whole Debt, although he may have paid the same after the Commission shall have issued, and the Creditor shall have proved his Debt under the Commission, to stand in the place of the Creditor as to the Dividends upon such Proof, and when the Creditor shall not have proved un 1810. Ex parte, Conway LLOYD.-In der the Commission, it shall be lawful for such Surety, or Person liable to prove his. Demand, in respect to such Payment as a Debt under the Commission, not disturbing the former Dividends, and to receive a Dividend, or Dividends, proportionably with the other Creditors, tak ing the Benefit of such Commission, notwithstanding such Person may have become Surety or liable for the Debt of the Bankrupt, after an Act of Bankruptcy had been committed by such Bankrupt, provided that such Person had not at the Time when he became such Surety, or when he so became liable for the Debt of such Bankrupt, Notice of any Act of Bankruptcy by such Bankrupt committed, or that he was insolvent, or had stopped Payment: provided always, that the issuing a Commission of Bankrupt, although such Commission shall afterwards be superseded, shall be deemed such Notice; and every Person against whom any such Commission of Bankrupt the Matter of LLOYD. 1810. Ex parte, LLOYD.-In the Matter of LLOYD. Aug. 16. Conway and Phelps were not Sureties, but liable. The whole of Sir Samuel Romilly's principle stands on this: The Petitioner has purchased the Rights of an Individual, who was entitled to prove, and is, as such Purchaser, entitled to all his Advantages and Equities. Supposing the Judgment would not have prevented Phelps and Conway from proving under this Act of Parliament, Is there any thing that precludes a Person from saying, "If you will exert all your Rights for me, I will pay you your Debts." I have no Doubt of the Justice of this Case, but I have a Doubt upon this. The Operation of the Certificate is, to bar the whole of the Debt; but the Judgment-Debt is greater than the original Debt, which might have been proved under the Commission; and therefore, the Bankrupt will not have the Advantage of being discharged from the Surplus. Mr. Cooke mentioned the Case of Willet and Pringle (a), in which it was held, that subsequent Costs were barred by the Certificate. The Lord CHANCELLOR. On looking into the Act (b), I think the Prayer of this Pe Bankrupt has been or shall manner to all intents and purposes as if such Person had been a Creditor, before the Bankruptcy of the Bankrupt for the whole of the Debt in respect of which he was Surety or was so liable as aforesaid. (a) 2 New Reports, 190. And ex parte Hill, in Notes, ibid. 11 Ves. 649. (b) 49 Geo. 3. c. 121. Sect. 8. 1810. Ex parte LLOYD.-In LLOYD. tition ought to be granted; at the Time the Acceptors paid the Bills for the Accommodation of the Drawers, they were not Sureties, but liable; and standing in the Situation of Persons liable, having paid the Acceptances, they were the Matter of clearly within the Act. The Acceptances having been paid, the Bills, as Bills, were gone, but the Acceptors became Simple-Contract Creditors for the Amount, as having paid it for the use of the Drawers: the first Question is, whether Conway, Phelps, and Co. would have a Right to prove; it struck me at first, that as Judgment had been obtained, they would have no Right; but that Inference arose from a Mistake, viz. that as the original Debt was £1372:128:10d. aud the Judgment for £1530:6s; 10d. the Certificate would not operate upon the Surplus: upon looking into the Subject, I think that makes no Difference; notwithstanding the Judgment is a new Debt, it must be considered as a Security for the original one; and the Question is, not whether the Assignee of the Judgment can himself prove, but whether he is not entitled to call upon Conway, Phelps, and Co. to prove for him. When he advanced the Money he purchased all their Remedies and Advantages, and therefore he is entitled to prove in their Names. His Proof must disturb nothing that has gone before; he shall be at liberty to prove against whatever constitutes a Fund for future Dividends, and shall receive a Dividend equal to those already paid to the other Creditors; or, if not enough for that Purpose, as far as the Fund will extend; he must have the Expences of this Application, and the Assignees must have their Costs. Ordered accordingly. 1810. August. A. being an Indorsce of B. C. and Co.'s Acceptances for £1364, sues out a separate Commission against B. At the Time of suing out the Commission, D. the Person for whom A. had discounted the Acceptances, had, by Pay expte vere 4D &C. 308 Ex parte DE TASTET.-In the Matter of CORSON. Ο N the 12th of September, 1809, a separate Commission of Bankrupt was issued against James Corson (carrying on Business in Copartnership with Jean Marynonail Villegille and others, under the Firm of Villegille, Corson, and Co.) on the Petition of Thomas Warren and Richard Bruce, under which he was duly found and declared a Bankrupt, and the Petitioner De Tastet chosen his sole Assignee. Warren and Bruce were Creditors of Villegille, Corson, and Co. to the Amount of £1364, as the Holders of certain Acceptances which had been indorsed over to them by a Person of the Name of Rimmer, for whom they had discounted them; but they were not (nor was Rimmer) Creditors of John Corson on his separate Account. rate Account. Other Bills of Exchange had been deposited with them by Rimmer, and they had also received count, reduced certain Sums of Money on his Account, whereby the Debt actually due from him to them, at the Time of suing out the Commission, was reduced to £420; so that, for all that would be recovered on Villegille, Corson, and Co.'s Amount, and Acceptances, above the Sum of £420, Warren and Bruce would be Trustees for Rimmer. They had been admitted by the Commissioners to prove for the full Amount of the the £420 will Bills; and the Object of the present Application was, that their Proof might be reduced to £420, that it might stand for the Purpose of assenting or dissenting only; and that the Commissioners might be directed to enquire what Sum was due to Warren and Corson at the Time of suing out the Commission. ments on ac the Debt to titled to prove for all that is received above be a Trustee for D. The Lord CHANCELLOR, after stating the Substance of the Petition, delivered his Judgment as follows:-- |