judgment entered up against such prisoner according to the act; and that if any suit or action shall be brought, or any scire facias be issued against any such person, his heirs, &c., for any such debt or sum of money, or upon any new contract or security for payment thereof, or upon any judgment, statute, or recognizance for the same, except as aforesaid; such person, his heirs, &c., may plead generally (c) that such person was duly discharged according to the act by the order of adjudication made in that behalf, and that such order remains in force, without pleading any other matter specially; whereto the plaintiff may reply generally, and deny the matters pleaded, or reply any other matter which may show the defendant not to be entitled to the benefit of the act, or that such person was not duly discharged, in the same manner as the plaintiff might have replied in case the defendant had pleaded the act, and a discharge by virtue thereof, specially. The pleadings and evidence upon this subject will be fully noticed in a subsequent portion of the work.

The act does not extend to a claim for mere unliquidated damages for a wrong done. The discharge therefore affords no protection against an action of trespass for mesne profits, even though they accrued before the discharge (d); and an insolvent is not discharged from damages unascertained at the time of his discharge, although the action in which they are sought to be recovered was commenced, and judgment by default suffered, prior

operative any new promise by the insolvent to pay his former debts, Evans Williams, 1 C. & M. 30; 3 Tyr. 226, S. C. But at common law such promise, or a bill or note for the old debt, would be binding, there being a moral obligation to pay the debt, ante, 47, and Best v. Barber, 3 Doug. 188. In Evans v. Williams, the defendant and his surety signed a promissory note; defendant was afterwards discharged under the insolvent act. The payee applied to the surety for payment, whereupon the defendant, to prevent the surety being sued, joined him in a new note. It was held, in an action by the payee, that he could not recover on this note against the defendant, as it was a new contract for the old debt, though the new consideration of forbearance to the surety

was added. But if a defendant, sued on a bill of exchange given to secure a debt from which he had been discharged under the insolvent act, omit to plead that act as a defence, and gives the plaintiff a warrant of attorney on which the plaintiff signs judgment, the court will not set such judgment aside, Philpott v. Astlett, 1 C., M. & R. 85. As to a bankrupt's promise to pay a debt, from which he was released by his certificate, see ante, 191.

(c) But the insolvent is not entitled to give his discharge in evidence under the common plea of the general issue; per Tindal, C. J. Bircham v. Creighton, 3 M. & Sc. 345; 10 Bing. 11, S. C.

(d) Lloyd v. Peell, 3 B. & Ald. 407. This case was not decided on the present act, but equally applies thereto.

to his first imprisonment (e). Nor is the prisoner discharged as to his implied contract to indemnify his surety (f). And it seems that the obligor in a bastardy bond, conditioned generally to indemnify a parish against the expenses of maintaining the child, is liable for expenses incurred in respect of the child subsequently to such obligor's discharge under the insolvent act (g).

The effect of the adjudication is to relieve the insolvent from those debts only due by him to his several creditors, which are mentioned in the schedule. Therefore, if a prisoner be indebted to a particular creditor in several amounts, but describe only one of them, he is only discharged as to that debt mentioned in the schedule (h). And the insolvent is not discharged from a debt where his schedule omits to notice either the amount of the debt or the creditor to whom it is due (i). But it is sufficient, as we have already seen, that the description of the debt in the schedule be such as to clear the prisoner of any intention to deceive and of culpable negligence; so that the creditor could not be misled, and his attention ought to have been attracted by such description, although not strictly and literally correct (l). And any new securities given by the insolvent, after his discharge, for debts mentioned in his schedule, are, we have seen, void (m).

The discharge shall extend to monies payable by way of annuity

(e) Wilmer v. White, 6 Bing. 291. This was an action of replevin against the insolvent.

(f) Cowley v. Russell, 4 Taunt. 460; Freeman v. Burgess, 4 Bing. 416; 1 M. & P. 91; Mason v. Vere, 2 H. Bl. 1217; Hocken v. Brown, 6 Scott, 194; Abbott v. Bruere, 5 New Cases, 598; 7 Scott, 753.

(g) Davies v. Arnott, 3 Bing. 154; 4 & 5 W. 4, c. 76.

(h) Tyers v. Stunt, 7 Scott, 349; Bishop v. Polhill, 1 M. & Rob. 363.

(i) Ante, 200, 201; Taylor v. Buchanan, 4 B. & C. 419; 6 D. & R. 491, S. C.; Baker v. Sydee, 7 Taunt. 179; Pugh v. Hookham, 5 C. & P. 376; Bishop v. Polhill, 1 M. & Rob. 363; Carpenter v. White, 3 Moo. 231, 234; Howard v. Bartolozzi, 1 Nev. & Man. 69; 4 B. & Ad. 555, S. C. In Tabrum v. Freeman, 4 B. & Ad. 887; 2 C. & M. 451; 4 Tyr. 180, S. C. the court held that an agreement by an insolvent about to take the benefit of the

act, with his creditor, that the claim of the latter should be omitted in the schedule, and that a cognovit which he held should be suspended, and revived after the debtor's discharge, were fraudulent, and the cognovit and judgment signed, and execution issued thereupon after the discharge, were set aside with costs; and it should seem from that case that the decision in Howard v. Bartolozzi cannot be supported, and that any agreement to omit a debt in the schedule is void.

(1) Ante, 200; Forman v. Drew, 4 B. & C. 15; 6 D. & R. 75, S. C.; Nias v. Nicholson, 1 R. & M. 322; 2 C. & P. 120, S. C.; 4 B. & C. 214; and it is a question for the jury whether the description is a full and true one, or whether it is calculated or intended to deceive and mislead, Frampton v. Champneys, 2 Jurist, 699.

(m) Ante, 201, and note (b), and see Ashley v. Killick, 5 M. & W. 509.

or otherwise, at any future time, upon any security of any nature; the creditor to have a dividend upon the value of his claim, and the court to ascertain such value; but the creditor not to be prejudiced as to any security he may have, except as to prisoner's discharge (n). The discharge, therefore, extends to money payable by instalments, some of which have not become due at the time of the discharge (o). So where a bond to replace stock at a certain day, and in the meantime pay dividends, became forfeited by non-payment of the dividends, but the arrears were afterwards paid; the obligor became insolvent; and, being in prison, petitioned for his discharge under the then existing insolvent act, 55 Geo. 3, c. 102, the time for replacing the stock not having yet arrived, and there being no dividends in arrear; it was held that he might insert the bond in his schedule of debts, and was entitled to be discharged from it under the act (p).

But where an insolvent had agreed to pay a weekly sum, which was to be increased upon a contingency, and this was made a rule of court, it was held that a discharge under the insolvent act did not extend to subsequent accruing payments, and that an attachment might issue for their non-payment (g).

The insolvent is not discharged from his liability to indemnify his surety; nor as to moneys paid by his surety after the discharge, in discharge of the arrears of an annuity granted by the insolvent before; even though such arrears became due before insolvency (r).

A judgment is to be entered up in one of the courts at Westminster against the prisoner for the amount of the debts stated in the schedule and left unpaid, and against which he shall have been discharged; and upon such judgment the future property of the insolvent may, by order of the court, and subject to its discretion and superintendence, be taken in execution and rateably divided (s).

(n) 1 & 2 Vict. c. 110, s. 80. (0) Guy v. Newson, 2 C. & M. 140; 2 Tyr. 31, S. C.

(p) Sammon v. Miller, 3 B. & Ad.

596.

(9) Lawrence v. Walker, Dowl. P. C. 614; 1 Harr. & Woll. 205; and see Brown v. Fleetwood, 5 M. & W. 19; 7 Dowl. 387.

(r) Hocken v. Brown, 6 Scott, 194; 4 Bing. N. C. 409, S. C.; Abbott v.

Bruere, 7 Scott, 753; 5 New Cases, 598, S. C.; Freeman v. Bargess, 1 M. & P. 91; 4 Bing. 416, S. C.; Powell v. Eason, 8 Bing. 23. For the principle in case of bankruptcy, see per Tindal, C. J., id.; and Clements v. Langley, 5 B. & Ad. 372, ante, 186.

(s) 1 & 2 Vict. c. 110, s. 87. A judgment given by the insolvent to a particular creditor, to induce him to withdraw his opposition, would be

The 78th section (t) provides, that in case it shall appear to the said court, &c., that such prisoner has contracted any debt fraudulently, or by means of a breach of trust, or false pretences, or without having had any reasonable or probable expectation of paying the same, or shall have fraudulently, or by false pretences, obtained the forbearance of any of his debts by any of his creditors, or shall have put any of his creditors to any unnecessary expense by any vexatious or frivolous defence or delay to any suit for recovering any debt or sum of money due from such prisoner, or shall be indebted for damages recovered in any action for criminal conversation, or for seduction, or for breach of promise of marriage, or for damages recovered in any action for a malicious prosecution, or for a libel, or for slander, or in any other action for a malicious injury, or in any action of tort or trespass to the person or property of the plaintiff therein, where it shall appear to the satisfaction of the court that the injury complained of was malicious, then the court, &c. may adjudge that the prisoner shall be discharged forthwith, excepting as to such debts, monies or damages, and as to them, to adjudge that such prisoner shall be discharged so soon as he shall have been in custody at the suit of the creditor for the same respectively, for a period not exceeding two years in the whole, as the court, &c. shall direct.

It would seem that the case of an insolvent is analogous to that of a bankrupt (u), in regard to the rights of action of the former, upon contracts made after the petition and assignment, and in respect to after-acquired property (x). The petition and assignment appear to bar absolutely any action by the insolvent to recover his former debts or property, although the assignee does not interfere (y). But an action may be maintained in his name by a person to whom he has assigned a debt due to him before his insolvency, and of which assignment notice has been given to the debtor (z). But there is some reason to consider that, as regards agreements made after the petition and hearing, and

considered as a fraud on the other creditors and void, as contravening the act, Jackson v. Duvison, 4 B. & Ald. 691; and see Murray v. Reeves, 8 B. & C. 421; Rogers v. Kingston, 10 Moore, 97; 2 Bing. 444, S. Č.

(t) By s. 84 the adjudication may be made conditional, that is, on the performance of certain matters by the insolvent.

(u) See ante, 192, 194. When insolvent may sue for trespass to realty, ante, 194, note (y).

(a) See Lee v. Telfer, 1 C. & P. 146, 147, per Abbott, C. J. (y) Id.

(2) Buck v. Lee, 1 Ad. & E. 804; Dean v. James, id. 809; Tibbits v. George, 5 Ad. & E. 107.

before the final discharge, the insolvent may have a right of action upon agreements made by him, and in regard to property acquired by him during that period, (should the assignees not interfere and claim the benefit,) although the assignment under the act expressly vests in them, (as we have already seen (a),) the property which the insolvent may obtain, and the debts which may be due or grow due to him at any time before his final discharge. In Taylor v. Buchanan (b) it was held that an insolvent might sue on a contract of sale made by him subsequently to the hearing of his petition, and while he was detained in prison by the order of the court. It was contended that the plaintiff could not sue in respect of a contract made during the time for which he was remanded by the insolvent debtors' court; that this was not a demand for the labour or personal earnings of the plaintiff, but for goods sold and delivered; and that at the time of the alleged sale, the plaintiff's liberation had not taken place, and all his property belonged to the assignees under the insolvent debtors' act. The court, however, referred to the case of Kitchen v. Bartsch (c), and said, "that in the absence of any intervention by the assignees, it did not seem to lie in the mouth of the defendant to resist the claim on the ground of the incompetency of the plaintiff to contract ;" and they refused the rule as to that point. It is true that this was a decision upon the 1 Geo. IV. c. 119, which contains no clause similar to that in the present act, in regard to property and debts accruing to the insolvent during his imprisonment (d). But if there be any analogy between a bankrupt and an insolvent in this respect, the latter may sue (unless the assignee interpose) in the same manner and upon the same principle that a bankrupt may sue on contracts made after the commission and before he obtains his certificate; although the assignees are also entitled to sue if they please to interfere.

10. OF CONTRACTS WITH PERSONS UNDER DURESS.

To give validity to a contract, the law requires the free assent of the party who becomes chargeable thereon; and therefore avoids an agreement, or any instrument extorted from him by

(a) Ante, 197.

(b) 4 B. & C. 420; 6 D. & R. 491, S. C.

(c) 7 East, 53, cited ante, 193,note(u). (d) See Pepper v. Marshall, 9 Moore, 710; 2 Bing. 372, S. C.