case tempt Hardwicke ambrose and other assignee of the estate of Ambrose a  bankrupt versus clendon a creditor of the bankrupt but who release the  assignee be a competent witness to prove the Act of bankruptcy a commission of  bankruptcy be well find upon a bind give for a preexist debt although it  appear that the bind be execute subsequent to the act of bankruptcy stram S c  at nisi prius at Guildball the day before the term by appointment this cause  be try it be a action of trover direct by my Lord chancellor to try whether  good of the bankrupt take in execution on the that of November by the  defendant be right take or not and whether Ambrose be a bankrupt or not and  after have prove the petition creditor debt the commission and assignment to  the plaintiff the plaintiff enter upon proof of a act of bankruptcy and for  that purpose a footman of the bankrupt be first produce to who defendant  object as be a creditor and be ask the question he say he be a creditor former  and have have none of his debit pay but rely upon the assignee goodness reckon  himself no long a creditor and have no promise of payment c Lord Hardwicke c j  allow he for he be not a creditor then his release be read which be make to  the assignee only and object it ought to be make to the bankrupt likewise for  as this creditor Vill not come in under the commission he have a interest in  the surplus of the estate Lord Hardwicke c j there be no occasion for the  release to be to the bankrupt case tempt Hardwicke er p and the interest which  you mention he to have in the surplus rather strengthen his evidence for the  assignee because he be thereby rather adversary to the success of the  commission another witness in prove the bankruptcy be relate what have be say  by the bankrupt at different time about his have circumstance and fear of be  arrest Lord Hardwicke c j it be not usual to allow such evidence unless when  it be concomitant with fact as what the bankrupt say when he be remove his  book or his good c but not else and the plaintiff witness prove he a bankrupt  very clear but it be observe by defendant counsel that they have prove too  much for now the bankruptcy appear to be before the give the bind to the  petition creditor which be the debt prove for he case tempt Hardwicke in the  beginning of the cause and consequent that bind be after the bankruptcy be as  against the creditor a void bind and the petition and commission on such a  debt must fall to the ground and the plaintiff be nonsuit it appear likewise  upon the evidence that this bind creditor be at the time of the bind and have  be long before the bankruptcy a simple contract creditor for a large sum and  that the bind be give as a high security for that debt Lord Hardwicke c j here  be two question be it suppose the act of bankruptcy appear to be before the  petition creditor debt be contract whether that creditor petition can support  the commission dly whether in this case the petition creditor simple contract  debt which be due before any act of bankruptcy make he such a creditor as to  support the commission notwithstanding the bind give for the same debt or  whether the give that bind be not such a extinquishment of the simple contract  debt as that he can now be consider as a creditor only from the time of give  the bind as to the first if there be a clear act of bankruptcy prove and not  purge by any subsequent act of the bankrupt and the petition creditor debt  shall appear to be after such act of bankruptcy a commission issue upon that  petition will issue erroneous because such petitioner ought to be a creditor  before the act of bankruptcy for as the commission by relation avoid all mesne  act of the bankrupt consequent the petition creditor debt must be thereby  avoid which be to make the commission trip up its own heel and be a absurdity  it be true some inconvenience may happen by this mean by secret act of  bankruptcy which those who deal with the bankrupt can have notice of and  therefore it be expect that act of bankruptcy shall be very full prove and  beyond possibility of be purge and if any subsequent transaction have be by  the bankrupt it shall be leave to the jury whether the act be purge or be a  act within the intent of the statute of bankruptcy or not but in this case  here be a very clear proof of a act of bankruptcy as to the second question I  think this petition be sufficient to support the commission and that the  acceptance of the bind be not a extinguishment of the debt as to this purpose  for the only question now be whether there be a debt subsist sufficient to  support the commission and not of what effect it be with regard to the  bankrupt himself the reason why it be a extinguishment with regard to the  party be because the bind be a debt of a high nature but in this proceed both  debt be the same and it be case tempt Hardwicke every day practice that if a  creditor by simple contract shall after a act of bankruptcy commit get a  judgement confess by the bankrupt for the same debt and take the bankrupt good  in execution if the assignee bring a action of trover against that creditor to  recover yet that very creditor be afterward admit to come in and prove his  debt under the commission notwithstanding his acceptance of a judgement after  the bankruptcy and he come in in that case by force of his simple contract  debt for all creditor be entitle to relief under the commission so that with  regard to the commission be be still consider as a simple contract creditor  therefore I think the acceptance of the bind have not as to this proceed  extinguish his simple contract debt so that I think the commission be well  find verdict be give for plaintiff cite arguendo I h Bl taunt and see cook b l  relative to the principle upon which the footman evidence as to what direction  he receive from his master the bankrupt be admit see t r east r and the case  therein cite see also maul and Selw r where Lord Ellenborough c j observe upon  certain inference draw from this case arguendo be report to have say that Lord  hardwicke judgement in this case be find on this distinction Viz that although  the bind be a extinguishment with regard to the bankrupt himself because it be  a debt of a high nature yet in the proceed under a commission of bankruptcy  both debt be the same or in other word in bankruptcy the creditor all come in  acquire step case tempt Hardwicke er p case tempt Hardwicke trinity term geo  two b r Philip Lord Hardwicke Lord chief justice sir Francis page Knt sir  Edmund probin Knt William lee Esq justice John will Esq attorneygeneral Dudley  rider Esq solicitorgeneral