1835.

Ex parte

ment, from time to time, until the whole of the debts shall be fully paid and satisfied. The debts here alluded to are the debts specified in the insolvent's schedule; BARRINGTON. which, therefore, in the contemplation of the statute, still exist, notwithstanding his discharge.

The 58th section provides, that where the insolvent shall, after his discharge, become entitled to property, which cannot be taken in execution under the judgment, and the insolvent refuses to convey it to the assignee, the assignee may apply to the Court; which may order the insolvent to be imprisoned until he does convey it.

Now it is very remarkable, that the legislature should contemplate a proceeding for the satisfaction of the insolvent's debts, by a legal process against his future property, and yet provide for the recovery of it in this vague and collateral manner. If the insolvent become subsequently entitled to stock, there is nothing to prevent that from vesting in his assignees, the same as any other chattel; for that is expressly provided for by the 59th section. The legislature, therefore, could never mean that property subsequently acquired by the insolvent should not be liable to the payment of his debts; notwithstanding the provisions of the 61st section, which I shall come to presently.

The 60th section of the act declares, that no person who shall have become entitled to the benefit of the act, shall at any time thereafter be imprisoned, by reason of the judgment so as aforesaid entered up against him, or by reason of any debt or sum of money, or costs, with respect to which such person shall have become so entitled, or by reason of any judgment, decree, or order for payment of the same; but that upon every arrest or detainer in prison upon any such judgment so entered

1835.

Ex parte

up as aforesaid, or by reason of any such debt, &c., it shall and may be lawful for any judge of the Court, from BARRINGTON. which any process shall have issued in respect thereof, upon proof made to his satisfaction that the cause of such arrest or detainer is such as hereinbefore mentioned, to release such prisoner from custody; unless it shall appear to the judge, that such adjudication as aforesaid was made without due notice (where notice is by the act required) being given to or acknowledged by the plaintiff, or being by him dispensed with by the acceptance of a dividend under the act, or otherwise; and the judge has also a discretionary power to order costs to be paid to the prisoner, which are incurred on such occasion. This section plainly confines the benefit to the exemption of the insolvent's person from arrest.

Then the 61st section enacts, that after any person shall become entitled to the benefit of the act, no writ of fieri facias, or elegit, shall issue on any judgment obtained against him, for any debt or sum of money to which he shall have so become entitled, nor in any action upon any new contract, or security for payment thereof, except upon the judgment entered up against the insolvent according to the act; and that if any suit or action should be brought, or any scire facias be issued against such person, his heirs, executors, or administrators, for any such debt or sum of money, &c., it shall be lawful for him or them to plead generally that such person was duly discharged according to the act, and that such Order remains in force, without pleading any other matter specially; whereto the plaintiff may reply generally, and deny the matters pleaded as aforesaid, or reply any other matter or thing which may show

1835.

Ex parte

the defendant not to be entitled to the benefit of the act, or that he was not duly discharged according to the provisions thereof, in the same manner as the plaintiff BARRINGTON. might have replied, in case the defendant had pleaded specially.

66

Now it appears to me, from reading this last section, that it only applies to legal proceedings; for though the word "suit" might, without any thing further, mean a suit in equity, yet an action at law is also denominated a suit; and when the section provides that the party may reply generally," it could not contemplate a suit in equity, to which the expression would be inapplicable. But the whole language of the statute evidently points to this, that notwithstanding the discharge of the insolvent, the debt was intended to exist, and continue still a legal debt, until satisfaction by payment; and, consequently, it is one sufficient to support a fiat in bankruptcy.

I think it unnecessary to refer to the case of Jellis v. Mountford (a), as that was decided under a different act of parliament; but it is a complete authority for the decision of the present case, so far as the reasoning in regard to the operation of the then act is applicable to that which is now in force.

Upon the whole of the case, therefore, my opinion is, that the fiat is valid, and that the petition ought to be dismissed with costs.

Lord Commissioner BOSANQUET.-I am also of opinion that this petition must be dismissed. I shall not go into the first question, namely, whether the debt of the petitioning creditor was sufficiently described in the insolvent's schedule; for my opinion proceeds on the

(a) 4 B. & Ald. 256.

1835.

same grounds as have been stated by my brother Lord Commissioner. Ex parte It has been laid down however by BARRINGTON. Several judges, that the clause in the act relating to

description is to be construed liberally. It has been contended, that the notice required by the act of parliament to be given by the insolvent was insufficient ; and four or five cases were cited in support of that position. I think it unnecessary, however, to consider that question; because, even admitting the sufficiency of the notice, and that the description of the debt in the insolvent's schedule is correct, I think there is a sufficient debt remaining due to the petitioning creditors to support the fiat. That it was a good debt owing to their testator, John Lowe, at the time of the bankrupt taking the benefit of the Insolvent Act, there is no doubt whatever; and the question is, whether that debt has been discharged by the provisions of the 7 Geo. 4. c. 57. Now what is the benefit to which the insolvent is entitled under the provisions of this act? By the 46th section it is declared, that upon the insolvent doing certain things therein specified, the Court may adjudge "that such prisoner shall be discharged from custody, as to the several debts and sums of money due or claimed to be due at the time of filing such prisoner's petition." What that section provides, therefore, is, that the insolvent shall be discharged from arrest; not that he shall be discharged from his debts. Then, if we look to the 60th and 61st sections of the act, the same construction applies to them. Thus, the 60th section enacts, that no person, who shall become entitled to the benefit of the act, shall at any time thereafter be imprisoned; but that upon every arrest or detainer in prison, a judge may release such prisoner from custody. And the 61st section enables the insol

vent, in case of any suit or action being brought against him, to plead generally "that he was duly discharged according to this act by the order of adjudication." The question then arises, what is that discharge? Does the act intend to discharge him from the debt? If so, it is very inaccurately worded; for it was easy to have said, "shall be discharged from the debt." That the statute contemplated the issuing of a commission of bankruptcy after the discharge of the insolvent, plainly appears from the language of the 13th and 14th sections. A question similar to the present was decided in the case already referred to of Jellis v. Mountford (a); which, though it did not turn on the construction of the last Insolvent Act, arose out of an act in pari materiâ, namely, the 53 Geo. 3. c. 102., which contained expressions much stronger in favour of the absolute discharge of the insolvent, than the present act contains; and in that case, the Court of King's Bench held, that the debt was not discharged, but was still capable of supporting a commission. One of the judges there observes, that although the Insolvent Debtors' Act may be a bar to an action, yet the creditor is not thereby deprived of all legal remedy. There are some words introduced into the last act, which are not in the former: thus, in the 61st section it is declared, that the insolvent shall be discharged from "any new contract;" which seems to imply that the old debt must still exist, as a consideration for such new contract. It seems to me, as Lord Tenterden remarked in Jellis v. Mountford (a), that "if the legislature had intended to extinguish the debt, one word would have been sufficient; but no such word is found in the act of parliament. On the contrary, for all purposes of obtaining relief and

(a) 4 B. & Ald. 256.

1835.

Ex parte BARRINGTON.