1803. MATTER OF M'WILLIAMS, A BANKRUPT. May 25. MR. LELAND had moved at the rolls, on the petition of A bankrupt pending his examination, is protected from an arrest made attachment is the bankrupt, that he might be discharged from an arrest made pending the examination of the bankrupt, and as he was returning from it, by virtue of an attachment issued by by virtue of an this court for a contempt in not lodging money in court sued for a con pursuant to a decree. Mr. Leland mentioned the statute tempt in not 11 & 12 Geo. 3, c. 8, sect. 28,(a) which protects from in court, purlodging money arrests by creditors, and cited Ex parte Parker, 14th Aug. 1797, Cooke's Bankr. L. 115, (edit. 1799). "Privilege ex"tends to protect a bankrupt against an attachment for nonpayment of money, which is considered only as process 46 to enforce payment of a debt, and analagous to an execu "tion."(b) suant to a de cree. Though the form of the process be crimi nal, yet if it is sue to compel payment of a debt, it is an arrest under the stat 11 and sect. 28. Mr. Wallace on the other side, stated that the attachment 12. Geo. 3, c & had issued in a cause of Mary Hands v. M'Williams and his (a) Which provides a right for the bankrupt to inspect his books, &c. pending the examination; " and in order thereto, the said bankrupt or bankrupts shall be free from all arrests, restraint, "or imprisonment of any of his, her, or their creditors, in coming “to surrender, and from the actual surrender of such bankrupt to "the said commissioners for and during the said forty-two days, or such further time as shall be allowed to such bankrupt or "bankrupts for finishing his, her, or their examination as afore"said; provided such bankrupt was not in custody at the time of "such surrender and submission to be examined: and in case such "bankrupt shall be arrested for debt or on any escape war❝rant, coming to surrender him or herself to the said commission. ❝ers, or after his or her surrender shall be so arrested within the "time before mentioned," the statute provides means for his discharge. (b) See this case somewhat more fully, 3 Ves. Jun. 554. wife as executrix of D. Hepburn, (she having proved the will and collected assets of the testator previous to her marriage with MWilliams) for an arrear of interest due on a sum of 5001. bequeathed to Mrs. M Williams (then Martha Sturgeon) in trust to pay the interest to Mary Hands for her life, with power by deed or will to divide said sum to and among said Mary Hands and her lawful issue in such shares as she might think proper. The bill sought that the arrear should be paid, and the principal sum brought into court to be secured for the plaintiff, insisting that Mrs. M'Williams was merely a trustee for plaintiff and her children should she happen to have issue. The defendants admitted assets, and an arrear of interest due, but set up an absolute title to the principal sum in case of Mrs. M' Williams surviving Mary Hands. The decree(a) ordered defendants to pay the arrear of interest on a given day, and the principal sum to be brought into court, without prejudice to the question upon the title to the principal. The defendants did not lodge this sum of 500/. in court in obedience to the decree, and for this contempt an attachment issued against M' Williams, subsequently to which he became bankrupt; under that attatchment he was arrested, and from this arrest he now sought to be discharged. On these facts Mr. Wallace argued that the petitioner was not entitled to privilege under the bankrupt act, insisting, first, That the duty to enforce which this decree was made, was a duty of the wife as executrix, and Williams was joined only for conformity. The wife as executrix would at all times be liable notwithstanding his bankruptcy, and he therefore would also be at all times liable, because his liability would always be commensurate with that of his wife. (a) 17th May 1802, Reg. Lib. xlviii. 126. He would not therefore be discharged from this liability by his certificate, because in fact the plaintiff was not his creditor. 2. The act gives an immunity from no arrests but those on civil process but this arrest is on process of a criminal nature, which is proved by its being such as may be executed on a Sunday: Tidd's Prac. 28; 1 Atk. 55, Ex parte Whitchurch. 3. The express words of the statute confine the immunity to arrests for debt; now, admitting that process of contempt for not paying money to a party in a cause may be considered civil process, yet here the contempt not being for non-payment of money to a party in the cause or of a debt, but merely for not lodging money to which no party has at present an established right, the statute does not reach this case. In Ex parte Gibbons, 1 Atk. 238, the arrest had been by bail, the analogy between whom and a creditor was the closest possible; yet the petition to be discharged from the arrest was dismissed, it not being strictly at the suit of a creditor. 4. The petitioner is expressly excluded from the privilege given by the statute, by the very words of the statute itself, for that excepts all those who at the time of coming to surrender to the commissioners shall be in custody; now, in all cases where an order issues in this court for the committal of a party, he is virtually in custody, and is so considered from the moment the order is pronounced; Ex parte Whitchurch: and in the present case the order for committing was pronounced long before the commission issued. As to the case Ex parte Parker, it does not appear from that case that the attachment issued under circumstances at all similar to the present case. 1803. MWIL LIAMS, a Bankrupt. His Honour was of opinion that the petition ought to be dismissed; and he grounded it chiefly on the fraudulent conduct of the bankrupt in obtaining the commission to issue for the purpose of defeating the decree, (which had been 1803. M'WIL- stated at the bar and not denied) which he thought entitled the court to refuse to exert its summary interposition in his favour and to leave him to his writ of habeas corpus. His a Bankrupt. Honour also observed that the order for his attachment had been pronounced before the commission of bankruptcy issued, and that under the case Ex parte Whitchurch, the bankrupt was to be considered as in actual custody at the time of the surrender and therefore within the proviso in the act. May 25. On this day the motion came on again to be heard before the Lord CHANCELLOR. Mr. Dunn, Mr. Leland, and Mr. B. Hamilton for the motion, relied that privilege extended to this case, the attachment under which the bankrupt was arrested having been in the nature of a civil execution; and they cited 5 Vin. Abr. Contempt, D. pl. 10; Bactram v. Dennett, Finch, 240, 253; S. C. 2 Vern. 89; Searle v. Lane, Cowp. 136; Rex v. Stokes, and Ex parte Parker, 3 Ves. Jun. 554. Mr. Wallace on the other side, was proceeding to state the facts which had been mentioned at the rolls in order to shew that the commission of bankruptcy had been obtained by the suggestion of M'Williams himself for a fraudulent purpose. But the Lord CHANCELLOR thought he could not enter into such a discussion now, but that the commission must be taken at present as valid to all intents and purposes. Mr. Wallace then argued that the case did not come within the act, in as much as the sum for which the attachment was awarded did not fall under the description of a debt; there was no person who could claim it during the life of Mrs. Hands; it was therefore not a debt proveable under the commission, for if it was, the certificate would bar it; but here Mrs. M-Williams, who had proved the will before her marriage, and acted as executrix, would be answerable for the assets during her life, even though the husband had obtained his certificate, and therefore as his liability arises out of hers, he also must continue liable during her life, and cannot be discharged from this debt or duty by the certificate: Vaughan v. Thompson and Ux. Dy. 210. not. Lord CHANCEllor. I think this was clearly a debt in respect of the admission of assets it is the possession of the assets that constitutes the debt, and the thing to be proved under the commission is the assets: the debt now due by M'Williams is the debt for which his wife is debtor as executrix, and he, because he is her husband; this debt could be enforced I 1803. M.WIL LIAMS, a Bankrupt. Executrix marries, and her husband and she admit assets in an swer to a bill filed against them. The as of this admission, and may be proved un der a commission of bank, ruptcy issued against him. against him if he was not a bankrupt, and therefore is his sets become a debt of the husdebt now, and as being his debt is discharged; you do not band in respect distinguish between assets, and a charge upon assets; the debt is the assets, the legacy is a charge on the assets. had no right to make the decree which I made in the case of Hands v. M'Williams, unless this was a debt; my decree was founded on the principle that the 500 was a debt chargeable upon the assets; that it ought to be set apart to pay Mrs. Hands the interest during her life, and that the principal might be paid over to the person entitled to it after her death; and that the money ought to have been so set apart if the trusts of the will had been properly executed. Mr. Wallace also insisted on the topics, and cited the authorities mentioned before; and observed that the cases now |