1827.

v.

GLENGALL.

case. We cannot presume the fact to be otherwise, BERNASCONI Seeing it, as we do, asserted and attested by the affixing the great seal to the commission; and if such a question can be raised at all, the proper mode of raising it would be by an application to the Lord Chancellor. The use of the word "bankers" only in the commission, without the words "dealers and chapmen," upon which an objection has been founded, presents in reality no difficulty at all, because that word is descriptive not of the trade of the bankrupts, but of their persons merely. The commission is awarded against them as being traders according to the provisions of the statute," which is a perfectly sufficient allegation of their being traders (a).

BAYLEY, J.-I think there is quite enough upon the face of the commission to shew that the bankrupts were traders, and had committed an act of bankruptcy, within the meaning and operation of the 6 Geo. 4, c. 16. But, at all events, the Lord Chancellor, when he sealed the commission, must have been satisfied of that fact, and we cannot enter into any inquiry upon the subject.

The other Judges concurred.

(a) Vide ante, 327, note (b).

Rule refused.

After the first day of term, a commission of

bankrupt

GREENWAY V. FISHER.

SCIRE facias to revive a judgment. Previously to Easter term, 1824, which began on the 5th of May, the plaintiff had sued the defendant in an action of trover.

issues against A. In the course of the same term B. signs judgment against A. in an action of trover:-Held, that the judgment is a debt provable under the commission, and that A.'s certificate is a bar to a scire facias.

On the 13th of May, a commission of bankrupt was sued out against the defendant, under which he afterwards obtained his certificate, and on the 19th of May, the plaintiff obtained judgment in the action, upon which he proceeded by scire facias. The defendant appeared to the scire facias, and pleaded his bankruptcy in bar, upon which plea the plaintiff joined issue; and at the trial a verdict was found for the plaintiff, with liberty to the defendant to move to set that verdict aside, and to enter one in his own favour. A rule nisi was afterwards obtained accordingly, against which

Scarlett, A. G., and Chitty, shewed cause. The question is, whether the judgment obtained by the plaintiff against the defendant in the action of trover, constituted a debt provable under the commission issued against the latter, within the meaning of the statute 6 Geo. 4, c. 16, s. 47 (a); because if it did, the certificate is a bar to this action. The only ground on which it can be contended that the amount for which the judgment was recovered was a debt provable under the commission, is, that the judgment related back to the first day of the term in which it was signed, and must, therefore be considered as having been signed before the commission issued. Now, though it is perhaps too late to dispute that the judgment does in some instances relate back to the first day of the term in which it is signed, still, that is by a mere fiction of law, which is never permitted to alter the situation of the parties with respect to their legal rights, or to work injustice. Here the judgment, in fact, was signed on the 19th of May, and the commission issued on

(a) Which provides, "that every person with whom any bankrupt shall have really and bona fide contracted any debt or demand, before the issuing of the commission against him, shall, notwithstanding any prior act of bankruptcy committed by such bankrupt, be admit

ted to prove the same, and be a
creditor under such commission,
as if no such act of bankruptcy had
been committed; provided such
person had not, at the time the
same was contracted, notice of any
act of bankruptcy by such bank-
rupt committed."

1827.

GREENWAY

v.

FISHER.

1827.

v.

FISHER.

the 13th; the commission, therefore, in reality had the GREENWAY priority, and the judgment did not constitute a debt provable under it. Ex parte Birch (a) will probably be relied on by the other side. It was there held that a judgment for damages and costs in assumpsit, was a debt contracted within the meaning of the 46 Geo. 3, c. 136, s. 2 (b), and provable under a bankrupt's commission, though final judgment was not entered up until after the commission issued. But there the judgment was in assumpsit; here it is in tort; a most important distinction; and that decision with respect to a judgment in assumpsit cannot be cited as an authority for a similar decision with respect to a judgment in tort (c). In Buss v. Gil

(a) 7 D. & R. 436; 4 B. & C. 880.

(b) Which provides, "that in all cases of commissions of bankruptcy, all and every person with whom the bankrupt shall have really and bona fide contracted any debt before the date and suing forth of such commission, which, if contracted before any act of bankruptcy committed, might have been proved under such commission, shall, notwithstanding any prior act of bankruptcy may have been committed by the bankrupt, be admitted to prove such debt, and to stand and be a creditor under such commission to all intents and purposes whatever, in like manner as if no such prior act of bankruptcy had been committed by such bankrupt."

(c) But see Robinson v. Vale, 4 D. & R. 430; 2 B. & C. 762. There plaintiff recovered damages and costs against defendant in an action of trespass, and signed final judgment on the 29th January. On the 23d of that month defendant committed an act of bank

ruptcy, and a commission issued against him on the 31st of the same month, and on the 3rd May, he obtained his certificate. It was held, that the damages and costs were a boná fide debt within the meaning of 46 Geo. 3, c. 135, s. 2, and provable under defendant's commission; and he having been taken on a ca. sa. for the damages and costs, the court discharged him out of custody. There, the judgment was signed before the commission issued, but after the act of bankruptcy was committed; here the judgment was signed after the commission issued, as well, of course, as after the act of bankruptcy was committed. The court were clearly of opinion that a judgment, even in an action of tort, is a debt within the meaning of the statute, and provable under the defendant's commission, although the final judgment be not signed until after the act of bankruptcy committed. And the grounds of that opinion were explained by Bayley, J., who said, "the judgment was the con

1827.

บ.

FISHER.

bert (a), it was held, that a debt due on a judgment, signed in an action for damages, after the act of bankruptcy GREENWAY committed by the defendant, and a commission issued thereon, was not discharged by the certificate, though the verdict was obtained before the bankruptcy; and in ex parte Charles (b), that where a defendant committed an act of bankruptcy, between the time of a verdict in case for a breach of promise of marriage, and final judgment, the damages were not a provable debt. [Bayley, J. That case does not bear upon the present. The real point there decided was this:-The plaintiff had recovered more than 1007. damages in an action for a breach of promise of marriage. Between verdict and judgment, the defendant committed an act of bankruptcy. It was held that the debt due upon the judgment, after it was entered up, was not a good petitioning creditor's debt whereon to found a commission against the defendant. Besides, the dates in that case were materially different from those in the present; for the verdict was on the 5th of December, the act of bankruptcy on the 25th of December, and the judgment was not entered up until the 31st of January, far in the ensuing term.] In the very recent case of Bire v. Moreau (c), the defendant obtained a verdict in July. A commission of bankrupt issued against the plaintiff in August. Judg

sequence of a tort committed by the bankrupt before the act of bankruptcy, and therefore the debt by relation back to the cause of action, was a debt existing previous to the date of the act of bankruptcy and commission. As such it was clearly provable within the meaning of the statute, the object of which was to protect the bankrupt's estate against the proof of dishonest or fictitious claims, between the date of the act of bankruptcy, and the suing forth of the commission." So, in Buston

v. White, 7 Price 209, where in
an action for damages, on a tort,
a verdict was taken subject to the
award of an arbitrator, and the de-
fendant became bankrupt between
the verdict and the making an
award; it was held that execution
could not be sued out on the judg-
ment, either for the damages or
costs, because the plaintiff might
have proved the damages recoyer-
ed, under the commission.
(a) 2 M. & S. 70.
(b) 14 East, 197.
(c) 4 Bingh. 57.

1827.

GREENWAY

v.

FISHER.

ment was obtained against him, and a certificate under the commission for him, in the following Michaelmas term. And it was held that he was liable to an execution for the costs, notwithstanding the 6 Geo. 4, c. 16, s. 56 (a).

[Bayley, J. That was a very different case from the present. The question there was respecting the costs only, and turned upon a different clause of the act of parliament (b)].

Campbell, contrà, was stopped by the Court.

Lord TENDERDEN, C. J.-I am decidedly of opinion that we ought to make this rule absolute. At common law, every judgment has relation back to the first day of the term in which it is entered up. The rule applies in the present case, and its application to the present