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![handle is hein.slavery/ssactsengr0024 and id is 1 raw text is: GLAZEBROOK V. WOODROW
the sheriff to bring in the body, to give the defendant time to make an applica-
tion to the Lord Chancellor for relief. [3 B. & P. 6.]
In May 1796, a commission of bankrupt issued against the defendant, under which
he was declared a bankrupt, and the plaintiffs were chosen his assignees, and have
since made two dividends, of which the plaintiffs received their shares in common with
the other creditors. After which, on the 23d of October last, they arrested the
defendant for 1001. being the residue of 1301. the amount of the original debt ; and on
a former day in this term
Lambe moved to discharge the defendant out of custody on filing common bail.
He admitted that the Court of Chancery will in some cases permit a creditor who has
proved his debt under a commission, to wave his advantage under such commission,
and proceed at law for the recovery of his debt; but he said that no case has gone the
length of the present, where the assignees, after possessing themselves of all the bank-
rupt's [365] property, and receiving dividends under the commission, have been
suffered afterwards to proceed at law : and he observed, that if the Court of Chancery
would prohibit them, ol the ground of having made their election, this Court will not
suffer them to arrest the person of the bankrupt. On the same principle, in the case
of Aylett v. Haiford(a), the Court refused to suffer a creditor, who had proved his
debt and acquiesced under the commission above a twelvemonth, to resort to the
bankrupt's bail, in an action commenced before such commission issued.
Espinasse opposed this in the first instance; and referred to the cases Ex Parte
Ward (b), and Ex parte Dorvilliers (c), to shew that the circumstance of a creditor being
chosen assignee under the commission, does not preclude him from proceeding at law
against the bankrupt, though the Court of Chancery will not suffer a petitioning
creditor to do so. At any rate, lie insisted that this was only a ground for an appli-
cation to the Lord Chancellor, and not for a summary application to a Court of
Law, as was lately determined by the Court of Common Pleas, in the case of Hill v.
Beeves (d).
The Court said, they would look into the case cited from the Court of Common
Pleas; and-on this day
Lord Kenyon, Ch.J. said, that as that Court had referred the complaint of the
defendant to the Court of Chancery, which was the usual forum for the decision of such
questions, this Court would follow the same example. That it was a settled rule not
to suffer a petitioning creditor to sue the bankrupt at law ; but that in other cases the
Court of Chancery would allow the (e) creditors reasonable time to make their election,
after they had proceeded under the commission. But that Court had precluded
parties from pursuing their remedy at law after much less acquiescence than three
years.
Therefore the Court discharged the present rule : but the plaintiff having ruled
the sheriff to bring in the body, they suspended the execution of that rule, in order to
give the defendant an opportunity of applying to the Court of Chancery.
(366] GLAZEBROOK, Clerk, against WOODROW, Clerk. Tuesday, Nov. 19th, 1799.
Plaintiff covenanted to sell to the defendant a schoolhouse, &c. and to convey the
same to him on or before the 1st August 1797, and to deliver up the possession
to him on 24th June 1796 ; and in consideration thereof defendant covenanted to
pay the plaintiff 1201. on or before the 1st August 1797 ; Held that the covenant
to convey and that for the payment of the money were dependent covenants ; and
that the plaintiff could not maintain an action for the 1201. without averring that
hd had conveyed or tendered a conveyance to the defendant. [6 East, 555.]
In covenant, the declaration stated, that by articles of agreement, under seal, made
on the 10th of March 1796, between the plaintiff and the defendant (after reciting that
the plaintiff had established a grammar-school at Warrington, in which he had many
(a) 2 Blac. Rep. 1318. (b) 1 Atk. 153.
(c) Ib. 221. (d) Bos. & Pul. Rep. 424.
(e) Vid. Ex parte Capot, 1 Atk. 220 ; where the Lord Chancellor permitted the
plaintiff, one of the assignees of ,he bankrupt, to proceed at law, on refunding what
he had received as dividends under the commission.
1436
8 T. R. 365.](ViewImageLocal?handle=hein.slavery/ssactsengr0024&div=1&collection=&method=preview&ext=.png&size=3)