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![handle is hein.slavery/ssactsengr0647 and id is 1 raw text is: 2 ATK. 528. BENNET 'V. LEE 717
a future day, which Bennet accepts, but before they were due, Lingood becomes a
bankrupt. Bennet insisted before the commissioners, that he had a right to prove
his whole debt of £1700, but the commissioners doubting whether he ought to come
in as a creditor for any more than the composition of £948, is. and refusing to admit
him, even for that sum, unless he would give up, for the benefit of the creditors in
general, several bonds entered into by Lord Clanrickard, and others, to Lingood,
and by him delivered to Bennet as a further security; he petitioned the Chance]lor
upon both these points, to be let in under the commission for his whole debt of £1700,
and to keep the bonds notwithstanding.
Lord Chancellor. The question is, Whether Bennet ought to be admitted a creditor
for £948, is. only, which is the sum due upon the composition or for the whole £1700.
Bennet's acceptance of the two notes from Lingood, instead of the money, is a
waver of the particular default in the payment of this instalment: But then the
question is, with regard to the defaults which have been made since Lingood became
a bankrupt.
Now the general rule of equity, with respect to compositions of debts, has been
rightly laid down, that the court wvill not dispense with the point of time in composi-
tions ; for where a creditor agrees to take less than his debt, so that it be paid precisely
at the day, and the debtor fails of payment, he cannot be relieved. Eq. Cas. Abr.
28, sect. 3. This was in the case [528] of common creditors and debtors : But the
question here is, between a creditor, and a debtor who becomes a bankrupt, by which
other persons are interested, the creditors at large.
Commissioners, after a man becomes a bankrupt, compute interest upon debts
no lower than the date of the commission, because it is a dead fund, and in such a
shipwreck, if there is a salvage of part to each person, in this general loss, it is as much
as can be expected. (See Bromeley v. Goodere, ante, 1 vol. 79. Bromeley v. Child,
ibid. 259.)
But then the case of a composition differs, for it is broke by the default of the
debtor, as he is guilty of a crime and a tort in becoming a bankrupt; and though
the genius and turn of bankrupt acts is altered of late, yet it is by the old acts of parlia-
ment considered as a wrong. (Bromley v. Goodere, ante, 1 vol. 77.)
Therefore, whatever the accident is, which happens to the debtor, it shall not
affect a creditor, who has compounded to take a less sum than the original debt.
Upon the reason and justice of the thing, it would be very hard, after Mr, Bennet
had agreed to reduce his debt to eleven shillings in the pound, that he should not be
admitted to prove the whole 1700.
Next question, As to the bands delivered to Bennet by Lingood, before his bank
ruptcy.
If it had been a mortgage assigned to Bennet, I should have directed the mortgaged
premisses to be sold, and if the produce arising from the sale had not been sufficient,
I would have ordered that Bennet should be admitted under the commission, as a
creditor for the deficiency.
The doubt is, Whether he can be admitted to prove the whole sum, Unless he will
deliver up the bonds.
I do not remember this case has ever come before me since I have had the seals.
If they had been joint bonds from the bankrupt and another person to Bennet,
he might have come in for his whole debt under the commission, without being com-
pelled to deliver up such joint securities, as he was entitled to get in what he could
from the co-obligor.
I do not absolutely determine the point now, but will direct the commissioners
to inquire what has been received by the creditor Mr. Bennet from these bonds, and
to state likewise the nature of them, and to certify the same to the court.
[529] Case 316.-BENNEr versus LEE, March 23, 1742, upon a Petition for a Bill of
Review.
S. C. ante, 324, 487.-Where parties apply for leave to bring a new bill, upon new
matter discovered after a decree, they must shew that it is relevant, for it being
new matter will not intitle them to such a bill.
Lord Chancellor. This is a case of very great consequence to the practice of the court,
it comes before me upon two petitions ; one is on the petition of Francis Lee, a person](ViewImageLocal?handle=hein.slavery/ssactsengr0647&div=1&collection=&method=preview&ext=.png&size=3)