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And the debt of Mr. Surtees, the petitioning creditor, who sued out the commission, appearing to be, by a promissory note given by the bankrupt to him for £112 dated the 7th of July 1730, for the balance of an account; and the appellants having alledged, by their bill, that the bankrupt had committed an act of bankruptcy before the execution of the deeds, some of which were in 1720; and one of appellants witnesses having proved an act of bankruptcy in 1726, an objection was started by the respondents counsel, that the commission of bankruptcy was void; insisting, that John Ward appeared to be a bankrupt in 1726, and was therefore incapable, by law, of contracting a debt, or giving a note to the said Mr. Surtees in the year 1730; and consequently, that the commission of bankruptcy was unwarrantably sued out upon the petition of a person who was not a real creditor. And though several acts of bankruptcy were fully proved to be committed by the said John Ward after July 1730, and no other commission issued, or creditor complained, but all the creditors that the appellants ever heard of, came in and proved their debts under the said commission; and though the respondents proved by many witnesses, that the bankrupt appeared publicly in 1729, and insisted, by their answers, that the said John Ward was not a bankrupt; yet the Lord Chancellor was of opinion, that the appellants bill ought to be dismissed; it appearing, that the bankrupt had committed an act of bankruptcy before the petitioning creditor's debt accrued his Lordship, therefore, did not go into the merits of the cause; but ordered, that the appellants bill should be dismissed, without prejudice to their bringing a new bill, as they should be advised.

The appellants therefore appealed from the decree; and on their behalf it was argued (J. Strange, J. Browne, W. Hamilton, J. Gambier), that if an act of bankruptcy, secretly committed by a person continuing in a public course of trade for several years afterwards, should be allowed to overturn a commission carried on by the whole body of the bankrupt's creditors, who had joined in the commission, by seeking relief under it, and not impeached or opposed by one single creditor, it would be of dangerous consequence to trade and credit; for by these means, the several acts made for the relief of creditors might, in many instances, become a snare and delusion, instead of a relief and protection to them. And if this doctrine should be established, it would greatly deter creditors from taking out commissions, which are attended with very great expence, for they never can be sure that a prior secret act of bankruptcy has not been committed; it would also be the highest encouragement to dishonest debtors to commit secret acts of bankruptcy, on purpose to protect them from commissions, or to render them fruitless. That though an act of bankruptcy disables the bankrupt from contracting a debt with another person to the prejudice of creditors, prior to the act of bankruptcy, if they insist on their priority; yet the bankrupt may contract a debt, not only to charge his person, but even [542] his effects, if they are sufficient to pay the whole, or if the prior creditors do not insist on a preference. And if they wave their preference, and allow such person to be a creditor, neither the bankrupt himself, nor any of his confederates, are at liberty to say he is not a creditor. That the several statutes which forbid the issuing of commissions, except on the petition of a creditor for £100 were not in force when this commission issued; which was grounded on the old statutes, authorising a commission to issue on complaint to the Lord Chancellor. That a creditor having a right in any event, to have his debt paid out of the effects of his debtor, though others may have a preference to him, is aggrieved by the fraudulent concealment of those effects; and has an equal, if not a greater right to complain, than those creditors who are prior to him, because he is in greater danger of losing his debt by the concealment and in the present case it was not proved, nor even pretended, that there may not be sufficient of the bankrupt's effects to satisfy the petitioning creditor's debt, though all the other creditors should insist upon a priority; but which they had not done. As to the merits of the case, it was apprehended, that the several deeds before stated would appear to be voluntary, fraudulent, and void, as against the bankrupt's creditors. And though the articles made on the marriage of the respondent Knox Ward, might seem to be founded on a valuable consideration; yet as they rested only in covenant, and as the several conveyances in trust for him were fraudulent and void as against creditors, the articles ought not to be set up to their prejudice.