and is discharged by the bankruptcy and certificate. The difficulty arises from confounding the security and debt. The debt is not contingent, although the security is so. The moment the debt was ascertained by the judgment, it became by relation, a debt due before the bankruptcy, and as such, it was proveable under the commission, and is discharged by the certificate, The security is indeed, contingent, and depends on the event of the judgment. Here, the original debt has been released by the certificate, and the bond, which was only a security for it, cannot now be enforced. Co. Litt. 291.6. For the certificate may be considered as a statutory release of the debt, Kansandau v. Corsbie (a), Scott y. Ambrose. (b) In Hunter v. Campbell (c), the Court only decided, that they would not interfere, on motion, in a case like the present. This case iş analogous to bail, where the Court relieve the bail on motion, when the principal debtor has obtained his certificate. Parke contrà, referred to the statute 7 G. 1. c. 31, as the authority by which bonds were first made proveable, and to Callowel v. Clutterbuck, cited in Tully v. Sparkes (d) as proving that point. Under that statute, however, the time of payment must be certain, for a rebate of interest is to be calculated, Ex parte Barker (e). Here the time is clearly contingent, for it could not be ascertained when judgment would be given. There are many cases where it depends on the nature of the security, whether it be barred by the certificate, as, for instance, (a) 3 B. & 4. 13. (c) 3 B. & 4. 273. (b) 3 M. & S. 326. 1821. JAMESON against CAMPBELL. an 1821. JAMESON against CAMPBELL. an annuity bond, and a covenant to secure the annuity, if the bond be forfeited before the bankruptcy, it may be proved. But in an action on the covenant for not paying subsequent instalments, the certificate would be no bar. Cotterel v. Hooke (a), Ex parte Granger (b). So a certificate obtained subsequently to the judgment in an action on a bail bond, was held not to discharge the bankrupt from the judgment; the bail bond not having been forfeited at the time of the bankruptcy, Cockerill v. Owston (c), although it was there admitted, that the original debt was thereby discharged. Here the certificate was obtained after the judgment in the Common Pleas, and Bouteflour v. Coats (d), and Dinsdale v. Eames (e), shew that in such a case it is no bar. Nor will this be any hardship on the defendant, for, by suing the sureties, who are clearly liable, he may be made liable circuitously, and the law abhors circuity of action. Wilde, in reply, referred to Utterson v. Vernon (ƒ), as shewing that 7 G. 1. c. 31. was a declaratory act. The cases as to bail bonds are distinguishable, for the condition of the bail bond is not, as here, to pay the debt, but to do a collateral act. Cur. adv. vult. ABBOTT C. J. now delivered the judgment of the Court; and, after stating the pleadings, proceeded as follows: This case was argued before us in the last Easter term. It is an action on a bond, given in pur (a) Dougl. 97. (b) 10 Ves. jun, 551, (ƒ) 3 T. R. 546. suance suance of the statute 4 G. 3. c. 33. which has been since amended and rendered effectual by the statute 45 G. 3. c. 124. It appears by the pleadings that the plaintiffs having recovered judgment in the original action on a bill of exchange, the debt and costs remaining unpaid, afterwards brought their present action. Pending the proceedings in the original action, and before judgment obtained therein, the defendant became a bankrupt, and a commission was taken out against him, under which commission, but not before judgment in that action, he obtained his certificate. This certificate undoubtedly operated as a discharge in law from the debt due on the bill of exchange, and also from the costs of the action upon the bill; the costs being considered, as to this point, only as an accessory to the debt. And it was contended on the part of the defendant, that being thus discharged from the payment of all that was recovered by the judgment in the first action, he is, by consequence, discharged also from the bond given to secure the payment of what should be so recovered. But we think this consequence does not follow from the premises. There may be two securities for the same payment, one of which shall be barred by a certificate, and the other not barred. Thus, if the grantor of an annuity executed a deed of covenant for payment of the annuity as it should from time to time accrue due, and also a bond in a penal sum, with a condition for the like payment, if the bond was forfeited, so as to make the penalty a debt at law before bankruptcy, a certificate afterwards obtained discharged the grantor from all suit on the bond, as well for future as prior payments of the annuity; but such a certificate did not discharge him from 1821. JAMESON against CAMPBELL. 1821. JAMESON against CAMPBELL. from his deed of covenant, as it respected future payments, until the statute 49 G. 3. c. 121. was passed. So, if a person, being arrested, give a bail-bond, conditioned for his appearance in court to answer in a suit for a debt, and become bankrupt between the execution of the bond and the time of appearance, so that the bond is not forfeited before his bankruptcy, if he do not afterwards appear to the suit, whereby the bond becomes forfeited, and an action be brought upon it, and he obtain his certificate after judgment in that action, the certificate, although it operates as a discharge from the debt for which the original action was brought, does not operate as a discharge from the judgment obtained in the action upon the bond. (a) It is true, that the condition of such a bond is not for payment of the debt; but nevertheless the bond is, in effect, a security only for such payment; and, although a judgment in the action on the bond be given for the penalty, yet execution can be taken out only for the original debt, together with costs, and not for the full penalty of the bond. And we think the bond in question is more analogous to a bail-bond than to any other instrument or deed in common use. The defendant was a member of parliament, privileged from arrest; and, consequently, could neither be required to give a bond to any sheriff for his appearance to an action, nor to give bail in court to any action in the usual way. This was found to be inconvenient; because a trader, who happened to be a member of parliament, being relieved from the fear of personal arrest, might, for a (a) Cockerill v. Owston, 1 Burr. 436. long long time, avoid the committing any of the usual acts of 1821. JAMESON against CAMPBELL. |