1813.

Косн,

Ex parte.

quently Interest was due on the Notes subsequent to the Bankruptcy: none of the Instances, in which Interest was refused, applying to the Case of a solvent Estate.

Sir Samuel Romilly, and Mr. Cooke, for the Bankrupts.

The Consequences of an Order, made on the Ground, that Interest subsequent to the Commission shall be allowed in every Case, where the Law would give Interest, must be very extensive. One obvious Consequence would be, that the Bankrupt would pay more than if he had continued solvent; in which Case many of these Notes would have remained in Circulation without any Demand for many Years. The Novelty of such a Proceeding forms a strong Objection to it; and the Effect is an Alteration of the Practice, settled by Lord Hardwicke, that Interest shall not be calculated on a Debt, which does not by Contract carry Interest at the Time of the Bankruptcy (a): a Rule which has never been departed from. Though at Law Interest is frequently given for the Detention of a Debt, it is always in the Shape of Damages; which cannot be proved as a Debt; Marlar, Ex parte (b). In the Case of Bromley v. Goodere (c) the Master was directed to compute Interest on the Notes carrying Interest upon the Face of them; whence is to be inferred, that there were Notes, that did not carry In

(a) In addition to the Cases cited in the subsequent part of the Argument, see Morris, Ex parte, 3 Bro. C. C. 79. Champion, Er parte, 3 Bro. C. C. 436. Hankey, Ex parte, 3 Bro. C. C. 504, and

Mills, Ex parte, 2 Ves. jun.

295. Clark, Ex parte, 4 Ves. 677. Boardman, Ex parte, 1 Cooke, B. L. 184. Reeve, Ex parte, 9 Ves. 588.

(b) 1 Atk. 150. See also Craven v. Tickell, 1 Ves. jun. 63.

(c) 1 Atk. 75.

terest.

terest.

In Ex parte Rooke (a), upon the Rule now set up Interest ought to have been calculated from the Time, not of the Report, but of the Bankruptcy. The Case of Lowndes v. Collins cannot be applied to a Surplus in Bankruptcy.

Mr. Courtenay, in Reply, admitting, that the Cases cited establish, that Interest shall not be calculated, where the Contract does not expressly provide for it, observed, that they proceeded upon the Uncertainty, what Interest might be due at the Time of the Bankruptcy: but the Course is now different; and the same Rule, which the Courts of Law and Equity adopt generally with regard to Interest, must prevail in Bankruptcy. The Interest in these Cases is due, not as Damages, but as a compo nent part of the Debt.

The Lord CHANCELLOR.

If there is any Contract for Interest, the Debt will carry Interest: but I have always understood the Rule in Bankruptcy, that Debts, carrying Interest, and no others, are in the Case of a Surplus, to have Interest subsequent to the Commission. It is very difficult to say, upon what Ground originally in Bankruptcy Debts, carrying Interest, were to have it out of the Surplus: as the Debt to be proved is the Principal and Interest due at the Date of the Commission; and the Principle of the Bankrupt Law is to pay the Debts proved, and nothing afterwards. The Court however has gone so far as to give subsequent Interest out of the Surplus with regard to Debts, carrying Interest by the Contract; which is the Expression of all these Orders; Damages are not Interest; and in the Cases at Law it has been considered as ascertained Damages; not as Interest, due by the Contract. It is

(a) 1 Atk. 244.

1813.

Косн, Ex parte.

better

1813.

Косн,
Ex parte.

better to abide by the Rule, that has hitherto prevailed in
this Case of a Surplus, than to introduce a new one; the
Consequences of which it is not easy to foresee.

Take the Order in the same Words as in the Case of
Sir Stephen Evance (a), to compute Interest upon such
Debts only as by the Contract carry Interest (1).
(a) Bromley v. Goodere, 1 Ath. 75.

e

1813.

LINCOLN'S

INN HALL.

Feb. 5.

Joint Credi

A

tors having

READ, Ex parte.

COMMISSION of Bankruptcy issued against the Petitioner in August, 1811, upon the Petition of Matthias Attwood, a joint Creditor of the Bankrupt, separate Com- and John Lea and Jonathan Corrie, upon their joint

taken out a

mission of Bankruptcy, proving, and voting in the

Choice of As

signees, may afterwards join the Bankrupt in an Action as a Co-Defendant, upon giving a full Indemnity, un

dertaking to take no Advantage of the

Verdict or

Judgment

against him,

with Costs of

the Petition.

Promisory Note for £3500; which Debt he proved under
the Commission; having no other Demand against the
Bankrupt; and voted in the Choice of Assignees (a). In
January, 1813, Attwood commenced an Action upon the
Note against the Bankrupt jointly with Lea and Corrie.

The Petition prayed, that all Proceedings at Law in the Action, so far as regards the Bankrupt, might be stayed (b), and that Attwood may pay the Costs at Law, and of this Application. A Motion was made in the Court of Common Pleas, that a Noli Prosequi should be entered as against the Bankrupt; but that Court declined interfering.

(a) Ex parte Ackerman, 14 Ves. 604. Ex parte De Tastet, 17 Ves. 247.

(b) See 49 Geo. 3. c. 191. s. 14.

(1) See Lord C. Eldon's Evance's Case, 18 Ves. 82. Observations on Sir Stephen

Sir Samuel Romilly, in support of the Petition.

Mr. Parker, for Lea. Mr. Benyon, for Corrie.

Mr. Heald, for Attwood, stated, that the Bankrupt was a necessary, though a formal, Party; and, had the Plaintiff proceeded without joining him, the Defendants might have pleaded in Abatement; offering to indemnify the Bankrupt.

The Lord CHANCELLOR.

This Creditor's Proof under the Commission is an Election not to take any other Proceeding, meant to be effectual against the Bankrupt: but where it is necessary to join him in an Action for the Purpose of sustaining the Plaintiff's Right against other Parties, the Bankrupt is entitled both under the last Act of Parliament (a) and the Law, as it stood previously, to a full Indemnity, before the Plaintiff can proceed at Law.

The Order must be, that the Plaintiff at Law shall indemnify the Bankrupt against all the Expences of the Action, to whatever Point it may be carried, and shall not take Advantage of the Verdict or Judgment as against him; and the Plaintiff must pay the Costs of this Petition (1).

(a) Stat. 49 Geo. 3. c. 121.

joint Action, if Attwood did
not give an Indemnity within

(1) Afterwards, 1 Rose's Bkpt. Ca. 460. the Lord Chancellor ordered the Bankrupt's a Week. Name to be struck out of the

1813.

READ, Ex parte.

TRIGWELL,

TRIGWELL, Ex parte.

THIS HIS Petition prayed, that a Commission of Bankruptcy, which had not been opened, might be superseded, with the Consent of the petitioning Creditor.

Mr. Montague, referring to Ex parte Lanchester (a) said, that though the Lord Chancellor would not stay the Proceedings without the Consent of the petitioning Creditor (b), with that Consent there could be no Objection.

Mr. Heald, for the petitioning Creditor, expressed his Consent.

The Lord CHANCELLOR made the Order.