
    Stephen Whitney versus Royal Crafts.
    Nothing arising under a commission of bankruptcy can protect the bankrupt, but a certificate of discharge.
    Case upon promises made to the plaintiff, and one Currie, whom the plaintiff has survived. The defendant pleaded in bar that, after making the promises declared on, and before the commencement of this suit, he became a bankrupt, and a commission duly issued against him, &c.; that he conformed in all things, &c.; that all his estate and effects were surrendered, &c., and such proceedings were had, as that all his estate and effects were assigned to one John CooTce, the special agent and attorney of the plaintiff appointed to recover and receive said debt, and who was chosen assignee under the said commission by the said Currie Sf Whitney, and the other creditors who had proved their debts under the com- ■ mission, the whole amount of said debts being 7344 dollars 14 cents; that the said Currie Sf Whitney proved before the commissioners the demands sued in this action, which were allowed by the commissioners; that the said John CooTce afterwards received into his possession the whole estate and effects of the defendant, for the use of the said Currie Whitney, and his other c; editors who had proved their debts under the * com- [ * 24 J mission, which estate and effects so received amounted to the sum of 8000 dollars; that the said John CooTce hath never rendered any account of the said estate and effects, either to the creditors or the commissioners, but neglects and refuses so to do, and hath unlawfully wasted and embezzled the whole of said estate and effects; and that by reason of the said CooTce1 s neglect and refusal to render any account as aforesaid, and of his waste and embezzlement aforesaid, the said commission is yet unclosed, and now remains in full force against the defendant.
    To this plea the plaintiff demurred generally, and the defendant joined in demurrer.
    
      The Solicitor-General, of counsel for the defendant, being called • on by the Court to support his bar, argued that the facts alleged in the plea amounted, in effect, to payment of the demand.
    
      CooTce was the authorized agent of the plaintiff for the purpose of receiving what was due from the defendant to him: he had received it and more. His embezzling the property was wholly the affair of the plaintiff, who gave him his authority, and to whom alone, therefore, he was bound to account.
    If there is no relief for the defendant, because we have no court of equity, then a most outrageous wrong may pass without animad-, version. Suppose this a conspiracy to obtain possession of the defendant’s property under pretence of law, and an embezzlement followed ; would it not amount to payment, if the defendant would waive the tort ? At any rate, this plea ought to operate as a temporary bar; and the Court will grant continuances, until the creditors or commissioners, who alone can act in the business, shall compel the assignee to account.
    
      Sedgwick, for the plaintiff, was stopped by the Court.
   Curia.

This is certainly a very hard case upon the part of the defendant. All his effects were taken from him, delivered to an assignee appointed by his creditors, and that assignee the same man whom the plaintiff had made his attorney for the collec- [ * 25 ] tion of this very demand. But * however hard we may consider his case, we are bound to pronounce his plea an insufficient bar to the plaintiff’s action. Nothing arising under a commission of bankruptcy can protect the bankrupt, but a certificate of discharge duly obtained.

Plea in bar adjudged bad.

[See Todd vs Maxfield, 6 B. & C. 105 — F.H.]  