The stat. 24 G. 3. c. 57. s. 9. has been mentioned in a former section (a); it is only introduced here for the purpose of illustrating a point of evidence arising out of its provisions. As, where a bankruptcy was pleaded in bar, and the plaintiff was desirous of establishing fraud, by showing that some person had proved fictitious debts contrary to this statute, Lord Kenyon was of opinion, that the parties who had proved those debts, however suspicious their testimony, and open to observation, ought to be called as witnesses, although even the plaintiff's counsel had doubted their competency on the ground of their being perjured one way or the other. One of these persons proved the fraud, and the plaintiff had a verdict. (b)

The twelfth section of 5 G. 2. c. 30., already stated in the preceding section, exempts gamesters, jobbers in the funds, and persons who have given marriage portions to a larger amount than 100%., and who afterwards become bankrupts, from the benefits of the act. It has been determined, that insuring in the lottery was not within the clause; and thus, where the defendant, taken in execution, moved to be discharged by virtue of his certificate, an affidavit was produced, stating, that the bank-› rupt had lost 500l. within twelve months (c) before his bankruptcy, by insurances in the English and Irish lotteries, the Court made the rule absolute, saying, that this was not gaming within the statute. (d) A question

"next

(a) Ante, p. 60. (b) 3 Esp. 264. Edmonstone v. Webb. (c) Qu. If the affidavit should not have said, before?" &c.

(d) 1 H. Bl. 29. Lewis v. Piercy.

was made recently, whether evidence of gaming could be given at Nisi Prius; and in a case where bankruptcy had been pleaded, and the plaintiff was preparing to rebut the discharge by evidence of this kind, it was insisted, that the twelfth section related, as to impeaching the certificate, solely to petitioning the Chancellor against its allowance. Mr. Justice Bayley reserved the point (a), but the Court held, that the twelfth section of the act must be considered as virtually incorporated with the seventh, and as communicating its exceptions to those contained in the seventh section. (b) Another objection was made, that, admitting such a transaction to be the subject of investigation in a court of law, the special matter should have been disclosed in the replication, whereas there was the similiter only; but the Court disallowed this argument: for, as they had decided that there could not be a special replication to a plea which concluded to the country, how could evidence of the fact alleged be adduced unless under the general issue? (c) But under that issue evidence of one act alone can be admitted; and, therefore, a plaintiff was put to his election whether he would prove one loss of 57. in one day, or several losses amounting to 100l. (d) In this case the jury disbelieved the plaintiff's witness, and found for the defendant; but the Court of King's Bench granted a new trial, as the verdict was against evidence. (e)

(a) Holt, N. P. 520. Hughes v. Morley.

(6) 1 B. & A. 22. S. C. in banco.

(d) Holt, 521. S. C.

(c) Ibid.

(e) 1 B. & A. 22. S. C., and see 1 B. & P. 429. Lister v. Mundell.

creditor's

Lastly, it seems that the certificate may be impeached Petitioning by showing, that no petitioning creditor's debt ever ex- debt bad. isted sufficient to support the commission. As, where it was proposed to prove, that the bankrupt's house had given the petitioning creditor a bill without any consideration, for the purpose of making him such, Lord Kenyon said, that, although in general the certificate only, and not the commission could be impeached, he would admit the evidence proposed. This attempt failed, but it being satisfactorily proved by other evidence, that the plaintiff had gambled largely in the funds, and had lost considerable sums on account of differences, the plaintiff had a verdict. (a)

SECT. V.

Of the Effect of the Bankrupt's Certificate.

If the certificate be allowed, and the bankrupt have so conducted himself as to prevent it from being impeached with success, it will produce, under the beneficial regulations of the stat. of G. 2., certain effects very favourable to the insolvent. It is proposed to consider

them

I. As they deliver the bankrupt from his debts.
II. As they operate in protection of his person.
III. As they regard his property, present, and future.
IV. As they affect his bail.

(a) 4 Esp. 43. Bateson v. Hartsink.

It may not be amiss, however, to dispose of one or two general questions before we enter upon the main subjects of this section. And, first, with regard to the period at which the certificate begins to be in force. Lord Hardwicke is reported to have said, that the operative force of a certificate arises from the consent of the creditors; that the reason of the Chancellor's allowance is to prevent surprise, and if made a condition, is but a condition subsequent, and that when the certificate is confirmed, it has its effect from the beginning. (a) But, on a case sent from Chancery while Sir Robert Henley was Lord Keeper, the Court of King's Bench held, that a legacy fallen in to the bankrupt after his creditors had signed, but before his discharge had been allowed by the Great Seal, belonged not to the bankrupt's executor, who had filed a bill in equity against the executor of the testatrix, and the assignee of the Commissioners to whom this property had been assigned for the benefit of the creditors, but that it vested in the bankrupt's assignee. (b) So, where a lottery-ticket, given by a creditor to the bankrupt as a mark of approbation, was drawn a considerable prize between the signature and allowance of his certificate, it was claimed and shared by the creditors at large. (c)

(a) 1 Atk. 77. in Bromley v. Goodere.

(6) 2 Burr. 716. Tudway v. Bourne, and see 1 Chr. B. L. 340.

(c) 7 T. R. 297., related by Lord Kenyon C. J., and see 1 T. R. 361. Cullen v. Meyrick. 1 B. & P. 427. Lister v. Mundell, and the observations of Professor Christian upon Cullen v. Meyrick.

pleton v. Macbar.

1 Chr. B. L. 358. 7 Taunt. 589. Sta

The effect of certificates obtained in Scotland or Ireland, or in a foreign country, will next be shortly considered.

The principle seems to be, that such a discharge will be effectual against a debt, if obtained where the debt is contracted, but not so, if the debt be incurred in one country, and the certificate acquired in another; and this latter question is mainly determined by the domicile of the party. (a) Thus, where a bill was drawn upon the plaintiff in equity at Leghorn, which he accepted, but his acceptance became vacated according to the local laws of that country, Lord King C. said, he would relieve the plaintiff under such circumstances, although the Attorney General insisted that the plaintiff should take advantage of this defence at law, and the defendant in equity was perpetually enjoined against suing on the bill. (b) And the extent of the discharge depends upon the law of the country where the certificate is obtained. (c)

So, where a bill had been drawn in Ireland, and payable by the defendant who resided there, but who obtained afterwards a bankrupt's certificate under the Great Seal of Ireland, it was moved to enter an exoneretur on the bail-piece; and by Lord Mansfield, "it is a general principle, that where there is a discharge by the law of one country, it will be a discharge in another."

(a) See 2 V. & B. 231.

(b) 2 Str. 733. Burrows v. Jemino, in Canc.

Mosely's

Rep. 169. S. C. 2. Eq. Ca. Ab. 524. S. C., and see the analogous authorities there cited.

(c) 1 Atk. 255. Ex parte Burton.

G