case bennet against GAUDEY if a commission of bankrupt take effect and all the  creditor who appear and prove their debt be satisfy the Lord chancellor on the  petition of the creditor may grant a supersedeas SC Carth ejectment of a  message in Cornhill on the demise of sir John mordant Shem bridge and Thomas  Lawfield on not guilty plead and trial before chief justice holt a special  verdict be find that Edward Blackwell late alderman of London in his lifetime  be a trader and do exercise the trade of a goldsmith within the city of London  seek his live thereby by buy and sell and thereby become indebt in diverse  great sum and become a bankrupt within the statute for that purpose that be a  bankrupt he be afterward seize of the premise in feesimple that afterward  April car at the petition of the creditor of the say Edward a certain  commission under the great seal be make and direct to d king and W b arm W f I  c and I b gentle recite that Edward Blackwell have become a bankrupt above a  year then pass and thereby design to injure diverse creditor therein name  order they to proceed to the distribution of his estate c that the  commissioner therein name April the same year do meet and deal in the say  commission accord to the tenor thereof that June car a writ of supersedeas  issue direct to the commissioner recite a information that he be a bankrupt  and a commission thereon and a petition of diverse creditor but not all the  same to sir Francis north keeper for to have it supersede who do command the  commissioner to stay all further proceed and that they supersede the same that  June Edward Blackwell die that shower KB September James another commission  issue direct to e f W b c m W f I I I d and I m recite the first commission  and that it have be deal in and a deed of assignment of some part of blackwell  estate seal and deliver and carry into the enrolment office and there leave  and a petition to Lord jefferies that a supersedeas have be undue obtain and  the say deed of assignment withdraw out of the enrolment office and that it be  order by the say Lord chancellor that the order for the supersedeas and the  say supersedeas shall be supersede and discharge and that the commission be  abate by the demise of Charles the second be renew and that e f be instead of  I king and I m land itself as to repair the house or amend the fence send vide  cro James and not to annex or transfer any collateral covenant as to pay a sum  of money for that be fix by the commonlaw to the reversion at the commonlaw it  be true a a of a reversion may have maintain a action of covenant for any  thing agree to be do upon the land itself but privity of contract be not  thereby agree transfer so as to make the action transitory but it must be  bring upon the privity of estate for on a mere covenant to do a collateral  thing not in the demise though the word I assign be in the deed yet they be  not bind if they have no estate   a so that it be not the name of they but by  reason of the estate in the land that they be make Chargeable SC Mod the court  therefore incline against the plaintiff SC Carth and hold that the plea be  good SC salk but no judgement be enter on the roll SC Mod but in the case of  way v Yalley Mod this case be cite and say by holt chief justice to be good  law for the action be bring against the assignee it be ground upon the privity  of estate which be local and therefore ought to be bring where the land lie  see also sand hob lev Bac Abr dougl term Rep shower KB er p add and that the  grant it do thereby discharge the supersedeas and the order for it and ordain  those seven to be commissioner of and for the say bankrupt estate that  September James another precept call a supersedeas issue direct to W king W f  I c and I f and all other person recite all the premise do discharge and  supersede the say supersedeas as undue obtain and to the wrong of the creditor  they find another commission November will mary direct to e h I c t g f h m h  I g S a and W recite the bankruptcy and several commission and a petition to  the now keeper pray a renewal thereof and that they hear all on both side do  order and appoint Edward h and other to be commissioner of and for that estate  c that a assignment be make January by the commissioner to the lessors of the  plaintiff and in due manner execute that the say indenture be enrol January  will mary then they find James c S for exposition of the statute of Elizabeth  c that after any commission of bankrupt hereafter sue forth and deal in by the  commissioner if the bankrupt happen to die before the commissioner shall  distribute the good land and debt that then nevertheless the say commissioner  shall and may in that case proceed in execution in and upon the say commission  for and concern the bankrupt estate in such sort as they may have do if the  party be live that the lessors of the plaintiff after the make of the  indenture enter and be possess prout law demand and make the lease to the  plaintiff that he enter and be possess and the defendant enter upon he si pro  quer tunc c shower KB I argue for the plaintiff first as to the supersedeas I  say it be void and illegal for that no such thing can be by law the commission  in this case be not bare a power or authority from the crown for the general  government of the realm but the creditor have a interest in that authority  every creditor have a interest though some only prosecute the commission for  every one may come in before distribution it be a thing grantable to the  creditor of a bankrupt trader ex debt is owed the whole of the laws and can be  deny by the keeper of the great seal any more than a remedial writ to the  party injure it be not the same with the custody of lunatic or idiot for there  the king or the administrator shall have the profit ultra c here the king have  no interest but when and as a creditor and then there be care take for he by  express proviso in those statute till satisfaction the creditor have a right  it be procure at their charge and if it may be supersede without their consent  then these statute put they on a snare and inflame their debt and no certain  of have the bankrupt estate assign to they or their use so that this  supersedeas work a plain wrong to the creditor and the consent of some can  bind the rest for the design of the statute be to make equal satisfaction to  all now by this mean some may have their debt pay to procure their assent and  consequent all the other may be cheat which be contrary to the express design  of all these law the commissioner authority be for the interest and benefit of  each individual creditor by simple contract as well as by judgement for small  sum as well as great one suppose a seizure and no distribution shall the  supersedeas rob these creditor the bankrupt can have it again for he be only  to have that which be surplus after satisfaction the creditor they need a  assignment then what must be the consequence here be a trade debtor become a  bankrupt and find so upon a commission and the estate be seize and then a  supersedeas before satisfaction suppose a partial satisfaction by a  distribution of the then estate of the bankrupt yet even then a supersedeas  will do a wrong for if land descend afterward they may most undoubted be sell  these shower KB act of parliament be for the advancement of trade and so  accord to the rule in our book be to be construe in favour thereof they be  remedial law and therefore also be to be so construe beside there be a express  proviso in the statute that they shall be intend in favour of the creditor and  that ought to extend to the award of commissioner as well as to the other  clause here be the interest of a subject concern the king can dispense with  such a law and a supersedeas be tantamount to it the king can prohibit a suit  here before your lordship a ring not consulted lie not but where he be affect  in consequence and interest and so be the case of Blofield v haver and pl  where a failure of justice ensue the king prerogative be limit so that shower  KB er p it shall not occasion it as many case prove as if be grant exemption  from service of jury it be void if there be not sufficient beside he can grant  exemption from the admiral be jurisdiction in a certain place unless he grant  to some in that place the like jurisdiction for fear of a failure of justice  hudson case roll Abr here be plain a failure of justice if the supersedeas be  legal and good for the creditor not consent can never have right the estate  seize and the bankrupt dead he that be a bankrupt to one creditor be a  bankrupt to all style Reg once a bankrupt and ever a bankrupt glide v  Bludwrith side such supersedeas be never grant before and accord to Littleton  rule that be a good argument against its legality beside second this  supersedeas do not discharge or annul the commission but only command the  commissioner to forbear and surcease all further proceed then it be no more  than a commission deal in and the commissioner stop the party die then a  demise of the king then a new commission and there be now no such supersedeas  for that it be vacate and render as null here be a supersedeas to that refrain  because erronice et improvident to flow out which set the matter at large as  it be before in turner v Falgate side a glynne rule that the vacate of a  judgement make it as null and void and that a action lie against the sheriff  for levy a execution in pursuance of such judgement it be true that have be  deny since but yet be so far true still that except as to the justify of  officer who act under it it be as shower KB if it never have be this may be  compare to the case in Druriess case   if two judgement be and one depend mere  on the first as in debt on a judgement reversal of the first reverse the other  a strong in case of the vacate or supersede of a supersedeas it be a mandatory  writ the vacate of that supersedeas vacates all the consequence of that  supersedeas and it be now as if it never have be we be not here argue to make  trespasser by relation but to relieve creditor against a cheat suppose I do  agree that the first supersedeas do countermand the authority of the  commissioner but yet what they do before be valid and fulfil the word of the  statute their deal be effectual because so far their power be well execute and  here it be find it be deal in and that take off the objection of the party  death but further suppose the first supersedeas do determine the commission  and it be not utter null and void yet it be but a supersedeas and a procedendo  revive it as a habeas corpus in common practice to a inferior court stop  because it remove all yet a procedendo revive it assize bro title Commission a  supersedeas come to commissioner of oyer and terminer by which their  commission be in a manner repeal yet on a procedendo they may proceed and this  per advisement all justiciar it be but as a prohibition to court Christian  which upon a consultation may proceed if a suit be stay ring not consulted yet  on a procedendo the court shall proceed as before three it may be object that  be a new commission grant to new commissioner I answer that well enough  because it recite the former and be still in pursuance of it by Henry c the  chancellor shall take order with the bankrupt body land and good and Elizabeth  c S do not take away that power but enlarge it that the chancellor for the  time be upon complaint shall appoint such person as to he shall seem good so  that plain he have the power to name and the word upon every complaint have be  construe to be from time to time and upon complaint against the commissioner  as well as against the bankrupt as to the word the say commissioner in James c  in the clause find in this verdict it be not to be intend of the person name  in the first commission but of the authority of any person name by the  chancellor as commissioner for the time be as in act of parliament the say  chancellor shower KB be to be so mean therefore that objection be not  conclusive the commissioner have no interest they be only instrument to convey  by assignment as a lord of a manor in copyhold admittances or a sheriff in  sale of a term by a become facias if the commissioner die sure they will agree  new one may be make and yet that will be no more the say commissioner than it  be here suppose they all misbehave themselves a new one may be grant it be no  objection to say they usual be of adjunct for the great seal have a indefinite  power of nomination and may do otherwise stone a SC side lev ray keb shower KB  er p read on these law paragr ult if after seizure and before distribution all  the commissioner die but one a new commission may be grant and the new one  shall call the old to a account and page if they all die but two a commission  shall be award to other and not to they and they shall be call before the new  commissioner as person have the bankrupt estate in their hand the commissioner  be no court in their proceed they need no adjournment so no discontinuance  upon that account the say commissioner be such as shall be appoint for that  purpose this seem natural by the demise of the king the commission abate then  there must be a new commission b now by their opinion if strict true no  further proceed can be after a demise of the king for they be new commissioner  though the same man I can find nothing in any of the statute that give colour  for a opinion that the first name commissioner be removable by the Henry c the  chancellor himself and judge may make a sale for they may take order as to  they seem meet compare it to case at commonlaw one attorney remove a new one  may proceed and after judgement may pray execution even without a warrant and  may before judgement proceed with warrant Goldsb a attorney general file a  information and pray process a new attorney may join issue which show it be  the office and power not the person which the law so much regard a shower KB  commissioner be mere a minister and have no interest and passes nothing by  assignment but the bankrupt right and if one of the commissioner have right in  the bankrupt estate this assignment will not extinguish such his right godb  agree in the case of Lord Sheffield v rivet more a commission of charitable  use sue out of fraud to avoid a charitable use the commissioner make a decree  for exemption from the charity and that decree confirm by the chancellor yet a  new commission be sue on the statute of charitable use and the land charge  with the charity and yet the word of Elizabeth c be the say commissioner to  make order c more Char there be no difference between this and a commission of  adjunct which be a common practice for if a great number be add that major  part may act and it shall be good and if so it be the same thing as to the  objection that then several commission may be grant at once here be no such  thing for that the first be determine by the demise of the king second the  sole power of nomination be lodge in the chancellor and a new commission will  be a determination of the power of the former person though the authority be  still pursue so I pray judgement for the plaintiff the commissioner have their  authority under the great seal and by Act of parliament and yet what they do  if not pursuant be traversable because no other remedy and so be cut v  Delabarr cite at the end of dr Bonhams case   Mr Trevor e contra insist only  on a exception to our declaration in ejectment that the enrolment be the  twentysecond of January and lease entry and ouster in the declaration be lie  the nineteenth and nothing pass till enrolment c there be no title in the  lessor at the time and that in the case of very v bowyer this be the only  point and judgement for the defendant the which be a exception that I be not  aware of not have a copy of the declaration but only of the special verdict  which make I as it do some other suspect the truth of our agent thereon we  have day give we then I argue for a amendment that the date of the lease in  our declaration may be amend and make the twentyfourth of January that so the  other point may come in question and that for these reason first because it be  a ejectment lease which be still under the power of the court and at the trial  other point be insist on and be accord find and consequent such a amendment  can shower KB deceive the party second this amendment can never deceive the  jury for they find that by virtue of the assignment the lessors of the  plaintiff enter and make the lease in the declaration which must be therefore  after the enrolment and b by Geo c S it be enact that no commission of  bankrupt shall abate by reason of the death of the king but such commission  shall continue in full force c see Elizabeth c the James c and the James c  shower KB er p consequent such amendment will be agreeable to their find three  the issue roll be of Trinity term and the declaration be deliver to the tenant  in possession in easter term and that be after the title accrue to the lessors  videlicet after enrolment and so neither party nor jury can be deceive by such  amendment for this be not the point in question as it be the only one in the  case of very v bowyer as to the objection that it be all enter on record and  in another term that be nothing for amendment have be three term after as in  Rawlins case   though that be accord to the note yet it be a answer as to the  time and entry on record the like be sir Burgundy tufton case cro car as to  time and record d this be nothing but the mistake of the clerk in lie his  fictitious suppose demise three day before the title accrue and so it be as  much the mistake of the clerk as the case of Forge v sale cro car and Jones  which croak and Whitlock justice hold amendable e and devise instead of to  send different ways march v S err hob and a venue add to the commission in  trover roll Abr the date of a demise in ejectment be amend after judgement by  confession and writ of error bring for that very fault in the case of part v  Cowley upon my motion last term on show the warrant of attorney f in case for  word a declaration general of a term and the word lie some day in term liberty  be usual give to make a special entry of a day of prefer the bill because  otherwise the action will be before the cause relation be to the first day of  term and this be do frequent if the bailpiece be after the cause of action and  this we think like our case where the declaration be deliver after though the  demise be lie after the title accrue if Kebles report may be cite for  authority amendment have be in fact as material as this countess of Falmouths  case in Lord hale time keb and place v Twiford keb William v more keb but holt  chief justice hold it not amendable because no other lease than what we have  lie be confess and that it be material say adjornatur we move it several time  but can never get over it g