case ex part Salkeld Lord chancellor Parker though a creditor come into a  commission of bankruptcy and prove his debt and be prevail on to be a assignee  be inform that otherwise he shall lose his debt yet if the bankrupt have no  estate the creditor may take the bankrupt in execution if he will waive any  benefit of the statute Salkeld be a clothier in town and hale make cloth in  Wiltshire Salkeld be indebt to hale in pound for clothes and afterward by bill  of sale assign over these clothes in it all to his fatherinlaw Jackson towards  satisfaction of a debt pretend to be due from he to Jackson peer William hale  bring a action at law against Salkeld and have obtain judgement take he in  execution on a can sa and this be about two year since and a act vide Geo cap  be make the last session whereby a bankrupt in case he surrender himself be  examine and fourfifth in value and number of his creditor sign his certificate  and testify their consent c be to be discharge after this the bankrupt  fatherinlaw take out a commission of bankruptcy against Salkeld under which  hale be prevail on to come and be assignee be tell that otherwise the bankrupt  fatherinlaw will sink the estate and get he discharge it prove that the  bankrupt remain estate be but some few shilling and some desperate debt  Salkeld the bankrupt petition that he may be discharge out of execution since  hale at who suit he be take in execution have come into the commission and  prove his debt nay be the assignee under the commission and that this have be  often settle nor can it make any diversity whether the bankrupt estate be  great or peer William er p small for the creditor can have but all that though  hale have propose wave all benefit and advantage accrueing from the commission  yet this be now too late he have come in under it prove his debt and consent  to be assignee which be a plain election to proceed this way and be once make  can not be waive afterward on the other side it be insist that if fraud appear  on the bankrupt side and a honest debt on thecreditors equity ought not to  interfere in prejudice of the honest creditor and peer William in favour of  the fraudulent bankrupt which Lord chancellor admit that here be fraud  apparent when the bankrupt fatherinlaw take out the commission which must be  intend in favour of the bankrupt and not of his creditor whereas the creditor  good be the proper end of sue out commission that it may be think necessary  hale shall prove his debt before the commissioner in order to oppose the  bankrupt discharge and this be hold to be reasonable by Lord chancellor that  the reason of its have be frequent rule that a creditor can not Com e in  before commissioner and then detain the body of the bankrupt in prison be  because it will be unconscionable the creditor shall detain the bankrupt body  in custody for nonpayment of his debt and yet seize all his estate wherewith  he be to pay they but this case differ the bankrupt have no estate leave to  seize in regard all have be before make away by the bill of sale to his  fatherinlaw that another reason why the creditor shall not detain the bankrupt  body in prison for a debt be because by come into the commission the creditor  elect to have the benefit of the bankrupt estate towards satisfy his debt and  therefore ought to waive his former execution of the body but here can be no  election of a estate where there be none and this be like the case of a  elegant to extend the moiety of the land where after such a execution the  plaintiff it be true can not take the person of the defendant but if the  sheriff peer William shall return that there be no land this wouldbe no  election and the plaintiff may afterward take the body of the defendant  notwithstanding that in this case the creditor to show he be satisfy there be  no estate of the bankrupt leave to be distribute be Willing to waive all  benefit and advantage under the commission cur this commission be plain sue  out fraudulent by the bankrupt fatherinlaw to discharge the bankrupt out of  custody the proposal be fair on the creditor side to waive any benefit under  the commission and therefore ought to be accept the creditor can be say to  elect to be satisfy out of the estate where there be none which more  particular distinguish this case I will not discharge this bankrupt to the  prejudice of a creditor where it appear on the face of the thing that the  commission be sue out in favour of the bankrupt himself by his fatherinlaw and  not for the service and advantage of creditor ex part grant I GI t I ex part  capot I atk ex part ware ib ex part Lindsey ex part Dorvilliers ib see ex part  wright Ves jun ex part Cundell Ves ex part Knowell Ves ex part parquet Ves ex  part warder I cook b l ex part Benjamin buck ex part Frith GI I stat g c S  post Vol two note