Ld. Ch. Just. Wilmot. the marshal of the marfhalfea, was charged in execution for the Curia. We are all of opinion, that the poftea must be delivered to the plaintiff, and he must have his judgment: For no debt was due or owing, from the defendants to the plaintiff, until he was charged in execution, and his body being in prifon upon judgment and execution for a certain fum, we hold to be the very fame thing, as if the plaintiff had paid the debt and cofts, due on account of the bill and note; and then, and not before, the defendants became indebted to the plaintiff; which being after the defendants became bankrupts, the plaintiff could not come in under the commiffion. It was rightly argued at the bar, whether the cause of action was before the bankruptcy, and whether the plaintiff could have come in under the commiffion as a creditor, to receive this 3087. 10s. and cofts; if he could, he is barred; if he could not, he is not barred. We being all of opinion, that the plaintiff could not come in as a creditor, under the commiffion of bankruptcy, it would be abfurd to fay, that he is barred in this cafe; but the cafe of Tully v. Sparkes and May, executors of Donalfon, 2 Stra. 867. and ditioned fo cies. 17 and 2 Ld. Raym. 1546, 1549, 1570. is very clearly applicable to The Bank the prefent cafe: It was an action of debt for 800/, wherein the ruptcy of t obligor doti plaintiff declared, that William Donalfon in his life, viz. 6th of not discharg May 1704, by his bond then dated, obliged himself, his heirs, a bond con executors, and adminiftrators, to the plaintiff Tully, and one his execut Philip Rudfby, whom the plaintiff furvived, in 8ool. with con- to do an a dition, that if the heirs, executors, or administrators, of the said upon two William, fhould pay to the faid plaintiff Tully and Philip, or the contingenfurvivor of them, or the executors or adminiftrators of the furvivor of them, 400l. within two months after the death of the faid William, in cafe one Martha Latimer fhould marry the faid William, and fhould happen to furvive him, in truft for the be nefit and behoof of the faid Martha, her executors, administrators or affigns, then the obligation fhould be void, otherwise fhould remain in full force; and the plaintiff averred, that after the making the faid bond, viz. 8th of May 1704, the faid Martha married the faid William Donalfon; and that after the faid mar riage, viz. 17th of May 1727, the faid Philip Rudby died, and the plaintiff furvived him; and that the faid William, the fame day and year, made his will, and the defendants, his executors; and afterwards, viz. 3d of January, in the fame year, the faid will not being revoked, died, and the faid Martha furvived him, and is yet alive and that after the death of the faid William Donalfon, viz. on the 10th of April 1728, the defendant Sparkes proved the faid will in due form of law, and that the heir of William Donalfon, or the faid defendants, or either of them, did not nor did any other perfon pay to the plaintiff, the faid 400!. within two months after the death of the faid William, according to the faid condition; and that the faid 400l. was ftill due to the plaintiff, whereby the faid bond became forfeited, unde actio accrevit to the plaintiff, to demand of the defendants the faid 800l.; but the defendants, though often requefted, have not, nor hath either of them, yet paid the faid 800l. &c. The defendant May pleaded, that he never administered, or proved the will; and the plaintiff, as to him, entred a nolle profequi; the other defendant Sparkes prayed oyer of the bond, which was fet out without the condition, and then pleads, that the obligor was a trader, and after entering into the bond, committed an act of bankruptcy; whereupon the creditors petitioned, had a commiffion, and he was declared a bankrupt, and had his certificate, which was confirmed: To this, the plaintiff having inrolled the condition of the bond in hæc verba, demurred; and judgment was given by the whole court, on the merits, that the plaintiff's debt was not barred by the matter comprized in the plea, and was not within the 7 Geo. 1. c. 31. and that the plaintiffs could not have come in to prove their debt within that ftatute; for that the 400l. in the condition was payable at a day after the bankruptcy committed, viz. within two months after the death of William temp. rdw. Ch. 262. an act of ankruptcy etween the :ime of becoming bail in error, and the af William Donalfon, the bankrupt; and alfo, upon two contingencies, viz. if Martha Latimer married him, and furvived him. And this judgment was afterwards affirmed in the Exchequer chamber. The court alfo cited the cafe of Hockley v. Merry, 2 Stran. 1043. as very applicable to the prefent cafe. Merry, the defenhere there dant there, on the 9th of May 1734, was bail on a writ of error. On the 23d of October 1734, he committed an act of bankruptcy; and, after a commiffion, obtained his certificate. On the 12th of November 1735, the Judgment was affirmed. And in debt upon the recognizance of bail, he pleaded his discharge; and that the caufe of action accrued before he became a bankrupt. firmance, the And the Chief Juftice (Lord Hardwicke), on the trial, held, that the defendant was not discharged, according to the cafe of Tully v. Sparkes (above cited), for this was but a contingent debt, for which the plaintiff, Hockley, could not come in under the commiffion; the ftatute of 7 Geo. 1. c. 31. only letting in those where the payment was certain, though future. There was a verdict for the plaintiff. party is not difcharged from his recognizance. See Barnes 113. Where the breach of a bond of indemnity is after a bank. ruptcy, the bond is not discharged. 2 Kel. 239. They alfo cited the cafe of Crookshank v. Thompson, 2 Stra. 1160. where the defendant gave a bond of indemnity, and before any breach, became a bankrupt; and being fued, moved to be dif charged on common bail: But the court compared it to the cafe of Tully v. Sparkes (above cited), and ordered he fhould give fpecial bail. The cafe of Macarty v. Barrow, 2 Stra. 949. was cited pl.191.2 Bar- for the defendants; and the Lord Chief Juftice Wilmot faid, nard. B. R. that it was the only cafe which, at the first blush, seemed to S. C. & S. P. clafh with the cafes above cited. Sir John Strange has re 251, 255. ported the cafe to this effect; viz. "The defendant, Barrow, in January 1728, drew bills on Spain, which in March were returned protefted, for non-acceptance; between the drawing and return, he became a bankrupt; and being fued to execution, as the drawer, he moved, on the act 5 Geo. 2. c. 30. to be dif charged." Strange, contra, infifted, that this caufe of action arofe upon the non-acceptance and proteft, which are both neceffary to be averred, in order to maintain the action; and the charges thereof are to be recovered. Sed per curiam, the principal is the drawing the bills, and therefore he must be discharged. Quare tamen, fays the report). The Chief Juftice (Wilmot) faid, he had looked into his own note of this cafe, taken by himself at the bar, in Eafter term, 6 Geo. 2, and that he, and other gentlemen his cotemporaries at the bar, ufed to confer and compare their notes together; and that therefore his note of this cafe was probably more accurate and full than Sir John Strange's Strange's report of it. And that the cafe was thus; viz. "The defendant, Barrow, in December, and until January 1728, drew bills upon merchant's at Bilboa in Spain; that after the drawing of thefe bills, Barrow became a bankrupt; and afterwards, in February following, the bills were returned unaccepted and protefted: Whereupon the defendant was arrested; and being fued to execution, moyed to be difcharged upon the ftat. 5 Geo. 2. c. 30. Strange infifted, that the caufe of action did not arife againft Barrow, until the non-acceptance and proteft: But it was refolved by the court, that Barrow contracted the debts the very inftant when he drew the bills, which was before the act of bankruptcy; and that the non-acceptance or proteft did not raise any debt, but was only notice to the party who held the bills, that the drawee would not pay the fame; and was as much as to fay, "I will not pay the bills, and you may go back to the "drawer, and he must pay you." The court held the debts to be debita in prefenti folvenda in futuro by the drawer; and the Chief Juftice Wilmot faid, that the ftat. 7 Geo. 1. c. 31. extends to all fecurities given on good confideration; that the drawer of a bill of exchange, inftantly upon his drawing the bill, contracts a debt; and a proteft is nothing but a notice that the drawee will not pay it. Upon the whole; no debt can be barred, but what was a debt contracted with certainty before the act of bankruptcy. Did the defendants owe to the plaintiff Chilton, 308/. 10s. and cofts, before he rendered his body in fatisfaction thereof? (which we take to be the fame thing as if he had actually paid the debt and cofts). They certainly did not. They had promised to pay the money, to furnish the money to take up the bill and note, and to fave the plaintiff, Chilton, harmlefs; they broke their promife, Chilton was terrified and arrefted. Here is an injury to a certain degree, but no debt owing by the defendants to Chilton, before his body was in execution for the certain fum. How could the plaintiff, Chilton, at the time of the commiffion of bankruptcy iffued, have fworn to a debt, before he had advanced a fhilling for the defendants? He certainly could not: -But now his body being in execution, he has thereby paid the debt. So the poftea must be delivered to the plaintiff, and he muft have judgment. Per totam curiam. Vol. III. EASTER |