trespass against the commissioners for false imprisonment, and was nonsuited, and the commission was afterwards superseded, and thereupon another sued out upon the same act of bankruptcy as the first, it was held that the costs of the nonsuit were provable under the second commission (r).

Formerly, costs in equity were not provable, unless actually taxed before the issuing of the commission (s). But now, by 6 Geo. 4, c. 16, s. 58, if any plaintiff in any suit in equity, or petitioner in bankruptcy or lunacy, shall have obtained any decree or order against any person who shall hereafter become bankrupt, for any debt or demand in respect of which such plaintiff or petitioner shall prove under the commission, such plaintiff or petitioner shall also be entitled to prove for the costs which he shall have incurred in obtaining the same, although such costs shall not have been taxed at the time of the bankruptcy (t).

If judgment be entered upon a warrant of attorney or cognovit, before the issuing of the fiat against the defendant, it may be proved in the same manner as any other judgment. Or if the judgment be entered up, so as to have relation to a time previous to the issuing of the fiat, it may be proved, provided the judgment could have been actually entered up at that time, according to the terms of the defeazance, but not otherwise (u), unless it were given for a debt of itself provable.

A debt arising from an award, made before bankruptcy is provable (x); but if made after the bankruptcy (y), or, at least, after the issuing of the fiat, (see 6 Geo. 4, c. 16, s. 47, ante, p. 101), it is not. Where a verdict for plaintiff is taken subject to an award, the award afterwards made in favour of the plaintiff relates back to the time of the verdict. (See ante, p. 112).

Interest.] In what cases interest is provable upon bills of exchange and promissory notes, see ante, p. 111; and as to interest on bonds, see ante, p. 105. In all other cases, interest is not provable, unless the parties have expressly stipulated for it in the contract. A surety, paying after the bankruptcy to a creditor who has proved, can only stand in his place upon the bankrupt's estate; and, therefore, in the case of a surplus, he can claim no interest which the creditor himself could not have claimed (z). (For the payment of interest from the date of the fiat out of the surplus, see sect. xix. post.)

Rent.] For rent due by a person who afterwards becomes bankrupt, the landlord may distrain, before the act of bankruptcy, for the whole amount due. After the act of bankruptcy, also, the landlord may distrain, even although the messenger be actually in

(r) Holding v. Impey, 7 Moore, 614; 1 Bing. 189.

(s) Er p. Sneapes, Cook, 223: Per Lord Ellenborough, in Er p. Charles, 14 East, 208: R. v. Davis, 9 East, 318: Ex p. Eicke, 1 Glyn & J. 261.

(t) And see 6 Geo. 4, c. 16, s. 47; and

Robinson v. Vale, supra.

(u) Staines v. Plank, 8 T. R. 386: see Wyborne v. Ross, 2 Taunt. 68. (x) Baker's case, 2 Str. 1152. (y) Er p. Kemshead, 1 Rose, 149. (2) Er p. Hauston, 2 Glyn & J. 36,

possession of the goods upon the premises (a); and formerly he might have distrained for the whole of the rent due; but now, by stat. 6 Geo. 4, c. 16, s. 74, no distress for rent made and levied after an act of bankruptcy upon the goods or effects of any bankrupt, (whether before or after the issuing of the commission), shall be available for more than one year's rent, accrued prior to the date of the commission, but the landlord or party to whom the rent shall be due, shall be allowed to come in as a creditor under the commission for the overplus of the rent due, and for which the distress, shall not be available. (See the form of the deposition, ii. p. 35, post.)

And if the landlord do not distrain, if he once allow the goods to be taken off the premises, he, of course, loses his remedy by distress, but he may prove upon the estate for the amount of the rent due up to the date of the fiat (b). Even where the landlord distrained before bankruptcy, and the goods were replevied, and pending the replevin both the tenant and his pledges became bankrupt, and the tenant's assignees possessed themselves of the goods replevied, it was holden that the landlord had lost his lien upon them, and must prove for his rent under the commission (c); but he cannot do both; he cannot distrain and prove for the same rent (d). A landlord, in order to enforce his claim for rent in arrear against the bankrupt's goods, seized by the sheriff under a fi. fa., must distrain; it is not sufficient that he gives notice to the sheriff before the sale under the 8 Anne, c. 14, s. 1, as that statute does not apply to commissions of bankrupt (e).

If, even after an act of bankruptcy, the tenant pay the rent to the landlord, who is about to distrain, the payment will be good, and cannot be impeached by the assignees (f). And where an execution levied, was overreached by an act of bankruptcy, the creditor was allowed to retain a payment he made to the landlord under a distress for rent (g). But where the sheriff seized under an execution, at the suit of the landlord, after an act of bankruptcy, and sold the goods on the day the commission issued and the day after, and afterwards paid the landlord a year's rent, it was holden that this payment to the landlord could not be justified by the sheriff, and that the assignees had a right to recover it from him (h).

Servants' Wages and Apprentice fees.] Formerly an apprentice who had paid a premium, and whose master became bankrupt before the apprenticeship expired, could only come in as a creditor, and prove for a proportionate part of his apprentice fee (i), although the commissioners, instead of this, usually recommended to the creditors to allow him a gross sum out of the estate, in order to apprentice him to another master (j); but now, by stat. 6 Geo. 4, c. 16, s. 49, where any person shall be an apprentice to a bankrupt at the time of issuing the commission against him, the issuing

(a) Er p. Plummer, 1 Atk. 103: Er p Jaques, Id. 104, cit.: Er p. Dillon, Id. eit.: Buckley v. Taylor, 2 T. R. 600. (b) Er p. Desharmes, 1 Atk. 103. (c) Bradyll v. Ball, 1 Bro. 427. (d) Er p. Grove, 1 Atk. 103. (e) Gethin v. Wilkes, 2 Dow, 189.

(f) Stevenson v. Wood, 5 Esp. 200.
(g) Er p. Elliott, 3 Dea. 343; 3 Mon
& A. 664.

(h) Lee v. Lopez, 15 East, 230.
(i) Ex p. Sandby, 1 Atk. 149.

Barwell v. Ward, 1 Atk. 259.

of such commission shall be and enure as a complete discharge of the indenture or indentures whereby such apprentice was bound to such bankrupt; and if any sum shall have been really and bonâ fide paid, by or on the behalf of such apprentice, to the bankrupt, as an apprentice fee, it shall be lawful for the commissioners, upon proof thereof, to order any sum to be paid to or for the use of such apprentice which they shall think reasonable, regard being had, in estimating such sum, to the amount of the sum so paid by or on behalf of such apprentice to the bankrupt, and to the time during which such apprentice shall have resided with the bankrupt previous to the issuing of the commission. (See the form of the Order, ii. p. 51, post). Where the apprentice fee was paid, under an agreement for the apprenticeship, but, from mere inattention, no indenture had in fact been executed, it was held to be a case within this section of the statute (k). And where, at the time of the bankruptcy, the father of an apprentice was indebted to the bankrupt 2007. for an apprentice fee for his son, who had been apprenticed two years, the Court of Review on petition allowed 1007. to be retained (1).

And by sect. 48 of the same statute, when any bankrupt shall have been indebted, at the time of issuing the commission against him, to any servant or clerk of such bankrupt, in respect of the wages or salary of such servant or clerk, it shall be lawful for the commissioners, upon proof thereof, to order so much as shall be so due as aforesaid, not exceeding six months' wages or salary, to be paid to such servant or clerk out of the estate of such bankrupt; and such servant or clerk shall be at liberty to prove under the commission for any sum exceeding such last-mentioned amount. (See the form of the Order, ii. p. 51, post.)

This clause is not confined to trade clerks: where the claimant was clerk to the bankrupt, as an architect, at a yearly salary, he was held to be within the statute (m); but an articled clerk to an attorney, who is made bankrupt as a scrivener, is not within this section as an apprentice(n), and, neither is it limited to yearly servants only, though it must be a continued, and not a mere weekly, hiring (0); therefore a coach guard, and servants at a weekly salary (p), or weekly labourers or workmen (q), or the workmen of a coachmaker, who worked by the piece, receiving a specified sum for each particular job, under separate and distinct contracts, were held not to be servants within this section of the statute (r); but a clerk and foreman engaged at a weekly salary, and two suits of clothes per annum, was holden to be a yearly hiring (s). And a person engaged as a traveller at an annual salary, is a servant within the meaning of the section (t); and where the clerk had left the

(k) Ex p. Haynes, 2 Glyn & J. 122. (1) Er p. Soames, 3 Dea. & C. 320. (m) Ex p. Gough, M. & B. 417; 3 Dea. & C. 189.

(n) Ex p. Prideaur 3 M. & C. 327: 3 Mon. & A. 516; overruling Er p. Fussell, 2 Dea. 158: 3 Mon & A. 67.

(0) Ex p. Collyer, 2 Mon. & A. 30; 4 Dea. & C. 520.

(p) Er p. Skinner, M. & B. 417; 3 Dea. & C. 332.

(q) Ex p. Crawfoot, Mon. 270.

(r) Er p. Grellier, Mon. & M'A. 95: S. C. on appeal, Mon. 264.

(8) Ex p. Humphreys, M. & B. 413; 3 Dea. & C. 114.

(t) Er p. Neal, Mon. & M'A. 194.

service several months before the bankruptcy, but the leaving was not voluntary, he was held to be within the section, and entitled to six months' salary (u), but not if he leaves the service without being compelled so to do (a). The "six months" are construed calendar months (y).

Annuities.] Former only the arrears of an annuity, due at the time of the bankruptcy, could be proved upon the estate of a bankrupt grantor; unless the annuity were secured by bond, and the bond forfeited at the time of the bankruptcy; in which latter case, the commissioners might put value upon the annuity, and the grantee might prove for that amount (z). But if the bond were not forfeited at the time of the bankruptcy, the grantee could not prove it (a); or if it were secured by covenant as well as bond, the grantee need not prove it, but might proceed against the bankrupt afterwards upon his covenant, and his certificate would be no bar to the action (b).

But now, by stat. 6 Geo. 4, c. 16, s. 54, any annuity creditor of any bankrupt, by whatever assurance the same be secured, and whether there were or not any arrears of such annuity due at the bankruptcy, shall be entitled to prove for the value of such annuity, which value the commissioners shall ascertain, regard being had to the original price given for the said annuity, deducting therefrom such diminution in the value thereof as shall have been caused by the lapse of time since the grant thereof to the date of the commission. (See the form of Proof, ii. p. 41, post.)

A bond conditioned for the payment of a sum of money at the death of the obligor, with interest in the meantime, is not an annuity within the meaning of this act; an annuity is where the principal is altogether sunk, and a mere annual sum payable (c), Where the grantor covenants to secure the annuity on future property, the claim under the covenant is not capable of calculation, and therefore is not provable (d).

One of the repealed acts (49 Geo. 3, c. 121, s. 17), was the same in substance as the above section, except that it did not point out the principle upon which the commissioners were to make their valuation. In ordinary cases, the mode of computing the value under the repealed act, was the same as that pointed out by the above section (e). But where a person in an ill state of health purchased an annuity for his own life for 8,0007., and afterwards recovered, and then the grantor became bankrupt, and an actuary valued the annuity at 10,0007., the Lord Chancellor allowed the grantee to prove for this latter sum (ƒ). But this cannot now be

(u) Ex p. Sanders, 2 Dea. 40; 2 Mon. & A. 684.

(x) Ex p. Gee, 3 Dea. 341, 563; 1 Mon. & C. 99: Ex p. Bennett, 3 Mon. & A. 669.

(y) Er p. Humphreys, supra. (z) Ex p. Artis, 2 Ves. sen. 490: Erp. Betton, 1 Atk. 231: and see Wyllie v. Wilkes, 2 Doug. 519.

(a) Perkins v. Kempland, W. Bl.

1136.

(b) 7 Vin. Abr. 71, pl. 4; 2 Bur. 2446; 1 Doug. 93.

(c) See Winter v. Mouseley, 2 B. & A. 802: see Pattison v. Bankes, Comp. 540.

(d) Lyde v. Mynn, 1 M. & K. 683. (e) See Er p. Whitehead, 19 Ves. 557; and see Er p. Brocklis, Buck, 406.

(f) Ex p. Thistlewood, 1 Rose, 290.

done (g); nor is the state of the money market a circumstance to be considered in estimating the value of an annuity (h). Where the bankrupt being indebted to a testator in 1,2007., the latter by his will forgave him 1,000l. of it, upon condition that he paid an annuity of 607. to his sister during her life, and after her death 2007. to his executrix; but that if he made default in the payment thereof, the executrix was to call in the whole 1,2007.: default being made before the bankruptcy, the Lord Chancellor, upon petition, allowed the executrix to prove for the 1,2001. (i). But where the annuity is granted in consideration of relinquishing a business, and not for money, it is not a case for valuation, but the creditor is, entitled to prove for the market value, without regard to the value of the original consideration (k). So also an annuity in consideration of marriage (1). (See Proof for Wife, &c. post). An annuity upon the contingency of the annuitant surviving her husband, is provable under the section (m). So also an annuity payable during the time the annuitant shall continue to superintend certain salt works, which might be discontinued by the brine not flowing, or the pits becoming forfeited (n); but where the bankrupt, as surety, only covenanted for payment of an annuity in case the grantor made default, and default is not made until after the bankruptcy, the annuity is not within this section (o); a surety to a bond for payment of an annuity, if the principal become bankrupt before 6 Geo 4, c. 16, can only prove sums paid by him for arrears due at the time of the bankruptcy (»).

The bankrupt, as surety, joined another person in the grant of an annuity, and the deed contained a joint and several covenant by the two, to pay the annuity; and, also, a proviso that, in case of default of payment by the principal, the grantee should not take any steps against the surety, till he had given him twenty-one days' notice of the default; on the bankruptcy of the surety, before default by the principal, the value of the annuity is not provable under this section (q). The bankrupt granted an annuity in consideration of 4007., which was received by him through the medium of an attorney, employed by him in the transaction, half-an-hour after, and, at a different place, he repaid to the attorney 1007. of the money in discharge of a debt. This is not such a return of the consideration money as to invalidate the annuity (r); and, where the bankrupt had paid the annuity for ten years without objection, and, besides the usual acknowledgment of the consideration money in the deed, granting the annuity, it appeared, from a document signed by the bankrupt, that the amount of the consideration was, at the time, due from him; the court would not prevent the proof

(g) Ex p. Fisher, 2 Glyn & J. 102. (h) Ex p. Webb, 2 Glyn & J. 29. (i) Er p. English, 2 Bro. 610. (k) Erp. Saxe, M. & B. 134; 2 Dea. & C. 172.

(1) Erp. Annandale, 2 M. & A. 19. (m) Ex p. Vankeythusen, 1 Dea. 360; 2 Mon. & A. 519.

(n) Ex p. Parratt, 1 Dea. 696; 2

Mon. & A. 626.

(0) Thompson v. Thompson, 2 Scott, 266; 2 Bing. N. C. 168.

(p) Ex p. Parton, 2 Dea. 62; 3 Mon. & A. 5.

(q) Er p. Marks, 3 Dea. 133; 3 Mon. & A. 521.

(r) Ex p. Bogue, 3 Dea. 314.