last section, which enables sureties to prove where they could not prove before, and also in section 17, which enables many annuity creditors to prove, that some general words were not added, viz. that they should be considered as creditors to all intents and purposes. Such words are used in the 46 Geo. 3. c. 135. s. 2, which enables creditors whose debts were contracted after the act of bankruptcy to prove.

The 7 Geo. 1. enables creditors to prove who had written securities payable at a future day. It expressly discharges the bankrupt from such debts by his certificate, though it omits to say that such a creditor shall sign the certificate, or vote in the choice of assignees, that defect is afterwards supplied by the 5 Geo. 2. c. 30, which enables all creditors, who have proved, to exercise those rights. By section 17 of this statute, I should think they may sign the certificate; but I cannot find any reason to enable them to vote in the choice of assignees, or to have the benefit of a set-off.

contracts can

Under this hand, I shall consider executory contracts, Executory or contracts subsisting at the time of the bankruptcy, not be proved. This subject has not yet undergone investigation under any bankrupt case.

In the case of Parslow v. Dearlove, it was argued that the debt being payable at a future day could be proved under the 7 Gec. 1. c. 31, though there was no written engagement.

But Lord Ellenborough and the court were clearly of opinion that that statute was confined to written securities. In consequence of that decision the inference is drawn that the debt accruing in that case might now be proved. But that inference I conceive is fallacious.

Executory contracts.

The only case I find upon the subject is, Exparte the East India Company.

A trader contracted with the company at one of their sales for the purchase of a parcel of East-India goods, to be paid for at a future day, and before the day of pay. ment he became a bankrupt.

Lord King said, this is not within the statute of 7 Geo. 1. c. 31. because the goods were not delivered. 2 P. Wms. 396. 1726.

Here we see a principle for the construction of the 7 Geo. c. 31. and this section. The goods or money must be completely delivered on one side before the bankruptcy, for which credit is given to a future day.

Lord Ellenborough had clearly this distinction impressed on his mind in Parslow v. Dearlove, which I shall state again.

It was an action by a school-master, against the defendant, who pleaded his bankruptcy. It appeared that the plaintiff was to educate and board the defendant's children for a certain sum, to be paid every half year. The defendant became a bankrupt before the end of the half year. The question was whether this was a debt, which could have been proved under the defendant's commission.

Lord Ellenborough, after stating that the 7 Geo. 1. was confined to written securities, observed that the question is whether this can be considered as a debt due at the time of the bankruptcy: in other words, whether under a contract to pay a certain sum half yearly, the money can be said to be due before the end of the half year.

This is nothing like a debitum in præsenti. It would depend upon the due performance of the engagement on the part of the schoo!-master.

It was a subsisting contract at the time of the bankruptcy. Parslow v. Dearlove, 4 East. 434. 1S04.

contract.

Here Lord Ellenborough calls it a subsisting contract, Executory that is, an incomplete or executory contract, upon which no action of any kind could have been brought at the time

of the bankruptcy.

This case occurred. The bankrupt had hired a carriage. for a year at a certain sum; he became a bankrupt within the year, the assignees and creditors consented that the coach-maker should take his carriage back, and that he should prove in proportion for the time the bankrupt had used the carriage; but I was confidently of opinion, that it was a contract not affected by the bankruptcy, unless the assignees had claimed the benefit of it, and then they must have paid for the whole year; if they did not assume it, the bankrupt would be liable for the whole year. There could be no apportionment.

The case also more frequently happens where a trader rents a house or land, and becomes a bankrupt before the end of the year or half year, when the rent would be due. There can be no apportionment. If the assignees take the lease or premises, they must pay the whole rent for that year or half year. If they do not, the bankrupt must be personally liable for that year or half year. This frequently happens, yet there is no decision upon the subject. See section 19 of this statute.

In actions by assignees their commission and proceedings shall be sufficient evidence of the petitioning creditor's debt

and the trading

and act of

bankruptcy,

unless notice

be given that

those matters are to be disputed.

49 Geo. III. c. 121. s. 10.

X. And be it further enacted by the authority afore said, that from and after the passing of this act, in any action now brought or hereafter to be brought by or against any assignee of any bankrupt, the commission of bankrupt, and the proceedings of the commissioners under the same, shall be evidence to be received of the petitioning creditor's debt, and of the trading and bankruptcy of such bankrupt, unless the other party in such action shall, if defendant, at or before the time of his pleading to such action, and if plaintiff, before issue joined in such action, give notice in writing to such assignee that he intends to dispute such matters or any of them; and where such notice shall have been given, if such assignee shall at the trial prove the matter so disputed, or the other party shall at the trial admit the same, the judge before whom the cause shall be tried shall if he shall see fit, grant a certificate that such proof or admission was made upon such trial, and such assignee shall be entitled to the costs, to be taxed by the proper officer, occasioned by such notice; and such costs shall, in case the assignees shall obtain a verdict, be added to his costs; and if the other party shall obtain a verdict, shall be set-off or deducted from the costs which such other party would otherwise be entitled to receive from such assignee.

If no notice is given that the petitioning creditor's debt, the trading, or the act of bankruptcy, will be disputed, or any of them, then the commission and the proceedings under it will be conclusive evidence of each of these; the depositions of them taken by the commissioners are perfectly immaterial.

The statute has not said that the proofs of the debt, act of bankruptcy, and trading, entered upon the proceedings, shall be the evidence of each respectively, but that the proceedings by the commissioners shall be evidence.

So where no notice was given, the plaintiffs put in the Commission and proceedcommission and the proceedings, as conclusive evidence ings conclusive of the act of bankruptcy, trading, and petitioning cre- evidence. ditor's debt. The defendant proposed to call a witness to disprove the debt of the petitioning creditor as it stood upon the proceedings. But Chief Justice Mansfield held that that could not be done; that the commission and the proceedings under it were conclusive evidence. Humphries v. Coggan, at the sittings at Guildhall. 1812. 1 Rose 226.

The words certainly justify that construction; but it is doubtful whether that was intended; if it were it would have been more simple to have said, the commission and the assignment, where there was no notice, should be evidence of the petitioning creditor's debt, the act of bankruptcy, and the trading.

notice must be

given.

The statute says, the notice must be given at or before When the the time of pleading; but if no such notice is given before the delivery of the plea, the court will give leave to withdraw the plea, and to plead again with such notice. Radmore v. Gould, 1 Wightw. 80. Rose 122.

Lord Ellenborough has held, that it is sufficient to shew that papers produced are the proceedings under the commission, that they were received from the custody of the solicitor to the commission, or to prove the hand-writing of one of the commissioners before whom they appear to have been taken. Collinson v. Hillear, 3 Camp. 30.

Upon an indictment for perjury before the commis. Evidence upon sioners, strict evidence must be given of the trading, pe

an indictment.