arrested for debt, or on any escape warrant, in coming to surrender, or shall, after his surrender be so arrested within the time aforesaid, he shall, on producing the summons under the hands of the commissioners to the officer who shall arrest him, and giving such officer a copy thereof, be immediately discharged; and if any such officer shall detain any such bankrupt after he shall have shewn such summons to him, so signed as aforesaid, such officer shall forfeit to such bankrupt, for his own use, the sum of five pounds for every day he shall detain such bankrupt, to be recovered by action of debt in any court of record at Westminster, in the name of such bankrupt, with full costs of suit.

This is the same as a section in one of the repealed acts, namely, 5 Geo. 2, c. 30, s. 5. It extends to all arrests by creditors, whether for debts provable under the fiat or not (i); to arrests under attachments for the non-payment of money (k); and even to arrest under extents at the suit of the Crown (1), and to an arrest upon a capias utlagatum (m). But it does not extend to a taking of the principal by his bail; for the bail are not creditors; and besides, in contemplation of law, he was in their custody the moment they became bail (n). Nor does it extend to retaking a prisoner for any escape, by the marshal of the Queen's Bench prison, without an escape warrant; what is said of a taking upon an escape warrant in the statute, relating to a retaking by a creditor (o). A bankrupt at large on bail is not "in custody" within the meaning of the exception in this clause (p).

And where a bankrupt is entitled to his discharge upon an arrest, he will be discharged also from all detainers lodged against him after it took place (q): but if in custody at the time he surrenders, it is otherwise (r): and the discharge must be unconditional; the court cannot impose terms, that the bankrupt shall not bring an action (s); nor can the court order the costs of an application for the discharge to be paid out of the estate (t).

The act gives the bankrupt this privilege from arrest whilst coming to surrender: and where a bankrupt, upon receiving the commissioners' summons, delivered up his keys and effects to the messenger, and promised to submit to the directions of the act, but was arrested at his house on the first day appointed for the surrender, the Lord Chancellor upon petition discharged him (u). So, where on his way to surrender he had deviated from the direct road, and was arrested during that deviation, still he was holden entitled to his privilege (x). But where the bankrupt came from

(i) Darby v. Vaughan, 5 T. R. 209. (k) Re M'Williams, 1 Sch. & Lef. 169: Ex p. Parker, 3 Ves. 554: Er p. Jeyes, 3 Dea. & C. 764.

(1) Er p. Russell, 1 Rose, 278: 19 Ves. 163: Er p. Temple, 2 Rose, 22; 2 Ves. & B. 391.

(m) Ex p. Helsby, 1 Dea. & C. 16; Mon. 355.

(n) Ex p. Gibbons, 1 Atk. 238: and see 1 Arch. Pr. B. R. 49: see Ex p. Leigh, 1 Glyn & J. 264.

(0) See Anderson v. Hampton, 1 B. & A. 308: and see Er p. Johnson, 14 Ves. 36.

(p) Ex p. Leigh, 1 Glyn & J. 264. (q) Er p. Hawkins, 4 Ves. 691: Erp. Ross, 1 Rose, 260.

(r) Ex p. Goldie, 2 Rose, 343; 1 Merivale, 176.

(8) Ex p. Helsby, Mon. & B. 79.
(t) Ib.

(u) Ex p. De Fries, Davies, 163.
(x) Ogle's case, 11 Ves, 556.

Holland within the forty-two days, intending to surrender on the forty-second day; but finding the time had been enlarged, he deferred surrendering until the expiration of the enlarged time, and in the meantime was arrested: the court refused to discharge him, saying that, the privilege in this case, like that of witnesses attending a court, must be confined to a reasonable time eundo et redeundo, and must not be extended beyond it (y).

The privilege also continues during the whole of the forty-second day, although the bankrupt may have passed his examination at an early hour on that day (2); and in the same manner it continues to the end of the day to which the examination is adjourned, if adjourned to a specific day (a); but if adjourned sine die (b), then by 6 Geo. 4, c. 16, s. 118, the bankrupt shall be free from arrest or imprisonment for such time, not exceeding three calendar months, as the commissioners shall, by indorsement upon such summons as aforesaid, appoint, with like penalty upon any officer detaining such bankrupt. The protection continues whilst the party is actually in attendance on the commissioners, or going or returning from the meeting (c). So, if, after the expiration of the forty-two days, the bankrupt obtain an order to enlarge the time for surrendering, he enjoys no privilege from arrest during the enlarged time (d), unless whilst in actual attendance at, or in going to, or returning from, the meeting (e). But a commitment of the bankrupt does not operate as an adjournment sine die, with a protection; and where the bankrupt, on the day appointed for his last examination, was committed by the commissioners for not answering to their satisfaction, a detainer lodged against him, after a day fixed for his being brought up, was held legal (ƒ).

And the bankrupt derives the protection of 6 Geo. 4, c. 16, s. 117, from the statute, and not from the commissioners' certificate indorsed upon his summons (g). And therefore, where the commissioners adjourned the bankrupt's last examination, the bankrupt was holden to be privileged from arrest in the meantime, although the commissioners had neglected to indorse the adjournment upon his summons (); but the protection of sect. 118 is derived from the indorsement of the commissioners; and if the last examination is adjourned sine die, and the commissioners do not indorse a protection on the summons, the bankrupt is not protected from arrest, although, after such adjournment, he obtains a new appointment for further examination (i).

In order to obtain his discharge when privileged, the bankrupt may petition the court (k): the order is made upon the plaintiff in the first instance (7); and if he disobey it, it is then extended to

(y) Kenyon v. Solamon, Covp. 156. (2) Er p. Donlevey, 7 Ves. 317. (a) Simpson's case, Buck, 424: and see Davis v. Trotter, 8 T. R. 476.

(b) See Claughton v. Leigh, 2 D. & R. 831; 1 B. & C. 652: Ex p. Woods, 1 Glyn & J. 75.

(e) Ec p. Ross, 1 Rose, 260. (d) Anon., 15 Ves. 1.

(e) Er p. Hawkins, 4 Ves. 691. (f) Ex p. Wright, 2 Glyn & J. 202. (g) Ec p. Leigh, 1 Glyn & J. 264. (h) Price's case, 3 Ves. & B. 23. (i) Er p. Bailey, 3 Dea. 43; 3 Mon. & A. 408.

(k) Anon., 1 Rose, 230: see Exp. Byne 1 Ves. & B. 316

(2) Anon., 15 Ves. 1.

N

the officer (m), and disobedience of it is punishable as a contempt (n).

But besides the privilege given by this statute, the bankrupt also enjoys at common law the same privilege that parties and witnesses, &c., do in all other cases. And therefore, where a bankrupt was arrested as he was returning from the hearing of his petition for leave to surrender, he was holden to be privileged, and was discharged (o). So, where a bankrupt was attending a meeting of the commissioners to declare a dividend several years after his final examination, being directed verbally by the commissioners to do so, he was holden to be privileged eundo, morando, et redeundo (p).

Allowance to the Bankrupt until his Examination.] By stat. 6 Geo. 4, c. 16, s. 114, it shall be lawful for the commissioners, before the choice of assignees-and after such choice for the assignees, with the approbation of the commissioners, testified in writing under their hands-from time to time to make such allowance to the bankrupt out of his estate, until he shall have passed his last examination, as shall be necessary for the support of himself and his family. The court has no power to interfere with the discretion of the commissioners, or the assignees, in the making or continuing the allowance. It is no objection to the allowance by the commissioner, that the order is signed after the choice of assignees, if, in fact, it is made before the choice; and if the assignees, when chosen, concur in the making an allowance, they cannot afterwards object to pay it on the ground of not having funds (7); and where the assignees, with the approbation of the commissioners, made an allowance to the bankrupt, until he passed his last examination, and that examination was adjourned sine die, and the assignees refused to pay the allowance, the court refused to make any order (r). The court will not make an order for payment of the arrears of the bankrupt's allowance granted after the choice of assignees (s). (See the order, ii. p. 52, post).

SECTION 11.

The Bankrupt's Examination.

The Summons, &c.] By stat. 6 Geo. 4, c. 16, s. 36, it shall be lawful for the commissioners, by writing under their hands, to summon any bankrupt before them, whether such bankrupt shall have obtained his certificate or not; and, in case he shall not come

(m) Ex p. Boyne, 1 Ves. & B. 516. (n) Er p. Kerney, 1 Atk. 155: Er p. King, 7 Ves. 312: Er p. Dixon, 8 Ves.

104.

(0) Ex p. Jackson, 15 Ves. 116.
(p) Arding v. Flower, 3 Esp. 117; 8

T. R. 534.

(q) Er p. Stephenson, 3 Dea. 311; 3 Mon. & A. 605.

(r) Ex p. Hall, 4 Dea. & C. 530.
(8) Id., 1 Mon. & A. 450.

at the time by them appointed, (having no lawful impediment made known to them at such time, and allowed by them), it shall be lawful for the said commissioners, by warrant under their hands and seals, to authorize and direct any person or persons they shall think fit, to apprehend and arrest such bankrupt, and bring him before them.

The usual summons is issued at the private meeting (see ante, p. 30, and see the form, ii. p. 22); and it is either served upon him personally, or left for him at his usual place of abode. (See 6 Geo. 4, c. 16, s. 112, ante, p. 261). But by this section the commissioners may summon him at any time, even after his last examination: and where a bankrupt, after being summoned in the usual way, and before the forty-second day was removing and embezzling his effects, and conveying away his lands, the commissioners issued their summons for his attendance at an earlier period; and upon his disobeying it, he was committed to Newgate. The commitment was holden to be legal (†).

The usual summons must be considered as giving the bankrupt the option of appearing before the commissioners on any one of the two days therein mentioned; so that, upon his failing to appear on the first day, the commissioners, I should think, would not issue their warrant as directed by the above section; if they required his attendance on the first day, they would issue a fresh summons to that effect; and even where the bankrupt has absconded with part of the property, the commissioners will not issue a warrant to apprehend him before the forty-second day, unless he has been specially summoned (u); and the Court of Review will not interfere with the discretion of the commissioners in issuing a warrant (x). (See the form of the Summons, ii. p. 80; of the Deposition of the service of the summons, ii. p. 83; of the Memorandum of his non-attendance, ii. p. 84; and of the Warrant to apprehend him, ii. p. 85).

The above section, of course, relates only to bankrupts who are not in custody; but by stat. 6 Geo. 4, c. 16, s. 119, whenever any bankrupt is in prison, or in custody, under any process, attachment, execution, commitment, or sentence, the commissioners may, by warrant under their hands, directed to the person in whose custody such bankrupt is confined, cause such bankrupt to be brought before them at any meeting, either public or private; and if any such bankrupt is desirous to surrender, he shall be so brought up, and the expense thereof shall be paid out of his estate; and such person shall be indemnified by the warrant of the commissioners for bringing up such bankrupt: Provided that the assignees may appoint any persons to attend such bankrupt from time to time, and to produce to him his books, papers, and writings, in order to prepare an abstract of his accounts, and a staten:ent to shew the particulars of his estate and effects, previous to his final examination and discovery thereof; a copy of which abstract and

(t) Er p. Lingood, 1 Atk. 240: Ex p. Hunt, 2 Jac. & W. 460.

(u) In re Creed, 3 Mon. & A. 725. (x) In re Creed, 3 Dea, 38.

statement the said bankrupt shall deliver to them ten days at least before his last examination. (See the form of the Warrant, ii. p. 73, 80).

We have already seen, in the last section, that if the bankrupt shall not, before three o'clock on the forty-second day, surrender himself to the commissioners, and sign or subscribe such surrender, and submit to be examined before them from time to time, upon oath, he will be guilty of felony. (See 6 Geo. 4, c. 16, s. 112, ante, p. 261).

Examination and Commitment.] The examination of the bankrupt usually takes place on the forty-second day; it may take place before that period, if the bankrupt have been summoned for that purpose (supra); or if the bankrupt have surrendered on or before the forty-second day, or such further day as may have been appointed for that purpose by the order of the court, the commissioners may enlarge the time for his examination, if they see occasion to do so (y); and the bankrupt must attend to be examined at such enlarged time; or if the bankrupt have not surrendered, we have already seen that the time for the surrender, and, of course, for the bankrupt's examination, may in some cases be enlarged, upon application, by petition, to the Court of Review (z). (See ante, p. 262). And if the commissioners have been prevented from meeting on the day appointed for taking the bankrupt's examination, the court will appoint another day for that purpose (a); and where the bankrupt had surrendered, but through inadvertency had absented himself from the last meeting without having passed his examination, the court ordered another meeting to be called, cn payment of the costs by the bankrupt (b). And by stat. 6 Geo. 4, c. 16, s. 118, it shall be lawful for the commissioners, at the time appointed for the last examination of the bankrupt, or any enlargement or adjournment thereof, to adjourn such examination sine die, and he shall be free from arrest or imprisonment for such time, not exceeding three calendar months, as they shall, by indorsement upon such summons as aforesaid, appoint, with like penalty upon any officer detaining such bankrupt after having been shewn such summons. This is usually done where the answers of the bankrupt are so unsatisfactory that the commissioners do not feel themselves justified in passing his examination, and yet perhaps not sufficiently so to justify them in committing him (c). And when the last examination has been adjourned sine die, the court will not interfere with the discretion of the commissioners so as to order them to appoint a time for the bankrupt to pass his examination, unless improper conduct can be proved against them, or that otherwise serious injury will ensue to the bankrupt (d).

By stat. 6 Geo. 4, c. 16, s. 36, after giving authority to the commissioners to summon the bankrupt, and to issue their warrant,

(v) Davis v. Trotter, 8 T. R. 476: R. v. Perrot, 2 Bur. 1124: Er p. Hawkins, 4 Ves. 691.

(2) See Ex p. Dayrie, 1 Glyn & J. 231.

(a) Er p. Wilson, 2 Dea. & C. 383. (b) Erp. Dixon, 1 Dea. & C. 351. (e) Cook, 431.

(d) Exp. Perkins, 1 Mon. & A. 524.