case Bromley and other creditor of sir stephen evance plaintiff goodere  survive assignee of sir stephen evance and other defendant November the that  where a bankrupt estate be sufficient to pay all with a large surplus creditor  who debt carry interest shall be allow interest for their respective debt from  the time the computation of it be stop by the commissioner ex part morris bro  Charles Rep S p where Lord Thurlow declare that he will not have allow  interest if it have break in upon the bankrupt allowance see also ex part  champion bro Charles Rep ex part hankey ibidem but such as be creditor by bind  not beyond their penalty on the saint of December a commission of bankrupt  issue against sir Stephen evance who be find a bankrupt and his personal  estate be assign to Mr goodere and other to who his real estate be also convey  debt to the amount of pound be prove under the commission and on bind and note  pound S d but interest be allow by the commissioner only to the saint of  December the plaintiff testator pay d in the pound towards the charge of the  commission by four several dividend all the creditor receive S in the pound  and when the last be make it appear that Mr Gibson one of the assignee have  then in his hand pound S d and in Michaelmas mary ware as one of the next of  kin of sir Stephen evance bring a bill against sir Caesar child the heir at  law of sir Stephen and against Mr Gibson and Mr goodere for a account and the  cause in November be hear before his honour who declare mary ware and sir  Caesar child be entitle to a equal share of the surplus Mr Gibson and Mr  goodere the assignee have at different time obtain decree in several cause  whereby sir Stephen evances estate be increase pound and upward and be  sufficient to pay all his debt with a large surplus and in regard the  plaintiff deluands by law carry interest and no interest have be allow after  failure of sir Stephen they pray by their bill that the court will direct the  money pay by way of contribution to be refund and give such direction as they  shall think proper for the payment of the interest due to the plaintiff on  their bind and note and that what remain now in the assignee hand may  beyetained for the plaintiff benefit in February sir Stephen evances  certificate be sign by the commissioner in march follow he die and the d of  April the certificate be confirm by Lord chancellor Harcourt the counsel for  the defendant mary ware allege that as atkins she be bear after the death of  sir Stephen evance the plaintiff ought to be put to the proof of the bind  enter into by he for as the testator and intestates of the plaintiff who seek  relief under the commission make no other proof of their debt than by their  oath the plaintiff shall now be oblige to make strict legal proof they insist  likewise that as sir Stephen evance obtain his certificate and have be confirm  by the chancellor the debt owe by the bankrupt antecedent be discharge and the  plaintiff be not entitle to interest on such debt especial as the certificate  be sign by the testator and intestates of the plaintiff but in ease the court  shall allow interest to the special creditor then they contend that the same  shall not be above the penalty their security Lord chancellor there be two  demand in this case one in behalf of all the creditor to have the money pay by  way of contribution refund out of the surplus of sir Stephen evances estate  and the other that the bind creditor and all those atkins er p who debt carry  interest may be allow interest for their respective debt from the time the  computation of it be stop by the commissioner as to the first it seem admit by  the defendant that the contribution money ought to be refund out of the  surplus the principal question therefore be as to the demand of interest and I  think that ought to be pay likewise it come before I original upon petition  and even then my first apprehension be that it will bear no great doubt but as  it be insist there be no foundation for the demand and that if I determine it  that way my determination will have be subject to no appeal I choose to have  it come before I by way of bill but before I enter into the merit of the  question I will take notice of some objection that have be make in order to  lie they out of the case it have be object that this be not a proper question  to come on by way of bill for the court can have no more power on a bill than  they will have have on a petition and that therefore it ought to have be  determine upon a petition it be true the rule of determination must be the  same as if it have come before I by way of petition but yet it be equal proper  that it shall come by way of bill a d bill be frequent bring in case of  bankruptcy for settle the demand of creditor another objection be that the  defendant the representative of sir Stephen evance be not bind by the proof of  the debt before the commissioner but I think they be bind unless they can  prove some particular objection to the debt atkins the common proof before the  commissioner be the oath of the creditor which be bind unless the bankrupt or  the other creditor object to it and then it be examine and a appeal lie from  the determination of the commissioner to the great seal by petition but if no  objection be make in a reasonable time such proof by oath be conclusive the  next objection be make on the part of the plaintiff to the certificate that  not be confirm till after sir Stephen evances death it be void though sir  Stephen evances certificate be not confirm by Lord Harcourt two year after his  death yet I be of opinion it be as good and valid as be confirm in the  bankrupt lifetime for notwithstanding the statute mention only the bank rupt  yet it extend to his representative on the death of the king a commission may  be renew though the bankrupt be dead as it have be twice in this very case and  if a commission may be renew against a bankrupt who be dead it hold much  strong that a certificate may be allow after his death see tudway v bourn burr  Troughton v Gitters ambler but then it be say the allowance be in nature of a  condition and the condition not be perform the certificate be void the  operative force of it arise from the consent of the creditor the reason of  allowance b the chancellor be to prevent surprise and be but a condition  subsequent if you mike it a condition and when the certificate be confirm it  have its effect from the beginning have lie these thing out of the case I come  now to the main question whether creditor for debt carry interest by contract  be entitle to have subsequent interest and I think they be all bankrupt be  consider in some degree as offender ex part capot post ex part Lingood ibidem  ex part Bennet post vol Cooper v city burr tudway v burn burr they be call so  in the old act and all the act be make to prevent their defeat and delay their  creditor and it will be a extraordinary thing that the delay of payment shall  prevent the creditor from have interest out of a estate able to pay it when  interest in all case be give for delay of payment I will consider this case  first upon the old act previous to the that and that of queen Ann and then  upon that statute the statute of Henry the that have be so much alter by  subsequent act that it do not deserve any consideration therefore lie that out  of the case I will begin with the Elizabeth cap it be manifest this act intend  to give the commissioner a equitable jurisdiction as well as a legal one for  they have full power and authority to take by their discretion such order and  direction as they shall think fit and that have be the construction ever since  and therefore when petition have come atkins before the chancellor he have  always proceed upon the same rule as lie will upon cause come before he upon  bill the rule of equity the next direction in the act be what the commissioner  shall do in regard to atkins er p the debt they be direct to pay to every of  the creditor a portion ratelike accord to the quantity of his or their debt  and the question be what debt be here mean and I be of opinion it mean debt  due at the time of the bankruptcy or when the commission issue which be the  same for to prevent dispute about the time when he become a bankrupt the  commissioner always find in general that he be a bankrupt at the time the  commission issue but this construction must be confine to case where there be  a deficiency for it be then only the creditor be to have a portion ratelike  the act go on to take notice of the surplus which it direct to be pay to the  bankrupt and it leaves full power to the creditor to recover the residue of  his debt in like manner and form as he shall and may have do before the make  of this act and as before the act he must have bring his action for the  penalty therefore he must have do the same after the act and at law he will  have have judgement for the penalty and if the debtor have come here for  relief he will not have have it upon any other foot than the payment of  interest to that time this show the surplus to be pay over to the bankrupt be  only the surplus after payment of the whole debt for it will be vain to pay  any other surplus when it may have be recover from he again by the creditor  thus it stand upon the that of Elizabeth the next be the statute of the first  of James cap that have not much in it but the expression of full satisfaction  in the clause which give the bankrupt the surplus and be pen in these word  that the commissioner shall make payment of the overplus of the land c and  good c if any such shall be to the bankrupt his executor administrator and  assign and that the bankrupt after the full satisfaction of the creditor shall  have full power and authority to recover and receive the residue and remainder  of the debt to he owe but the more material act be the saint of James cap in  which there be the follow clause that the commissioner may examine upon oath c  any person or person for the find out and discovery of the truth and certainty  of the several debt due and owe to all such creditor as shall seek relief  under the commission and that all and every creditor and creditor have  security for his or their several debt by judgement statute recognizance  special with penalty or without penalty or other security or have no security  shall not be relieve upon any such judgement c for any more than a rateable  part of their just and due debt with the other creditor of the bankrupt  without respect to any such penalty or great sum contain in any such judgement  c this act only mean to exclude creditor from the benefit of the penalty as  against creditor and not as against the bankrupt himself atkins but then it be  say the practice have be for the commissioner to ascertain the debt by compute  interest only to the time of issue the commission and that be the contemporary  exhibition be to be rely on see ex part Bennet post vol as to the difference  between debt that carry interest and a special deposit of good see Bromely v  child post there be no direction in the act for that purpose and it have be  use only as the best method of settle the proportion among the creditor that  they may have a ratelike satisfaction and be find upon the equitable power  give they by the act but still it have be say that all creditor come under the  term of the commission which be to have interest no far than the time of issue  the commission and if that be the rule of law to be sure they must abide by it  but there be no such rule it be say creditor have advantage give they by the  act and therefore they must abide by the disadvantage of it but the advantage  be very trifle for by the that of Elizabeth estate tail in possession and  copyhold be give to the creditor and it be only estate tail in remainder that  be give by the saint of James the first which be very slight advantage and for  which it have no where direct that they shall lose subsequent interest and the  mere come in to prove his debt can hinder he of it I come now to consider it  upon the that and that of Ann cap which be insist upon as the strength of the  case and the material part to be consider be first what be make the debt  second what be the operation of the certificate three the clause in regard to  the allowance of per cent as to the first I do not find the word debt due  before the time of the bankruptcy atkins er p except in the clause of  discharge so that they seem to be leave the same as in the former act consider  therefore the effect of the discharge the certificate be not to operate as a  discharge of the fund before vest in the assignee but to extend only to any  remedy to be take against the person of the bankrupt or his future effect it  be true it will be a discharge of the bankrupt not only as to debt prove but  also as to creditor who have not come in but that be nothing as to the present  fund for such creditor who have not come in yet may come in if he have not  lapse his time which be a question between the creditor single and therefore I  be of opinion it be mean to discharge the person of the bankrupt and his  estate subsequent accrue and not the estate in the hand of the assignee see  cook b law to come then to the clause which direct a allowance of five per  cent to the bankrupt where the effect amount to ten shilling in the pound c it  be insist that the ten shilling in the pound be to be compute upon the debt  state by the commissioner without regard to the subsequent interest and so it  be because it proceed upon a supposition of there be a deficiency of the  creditor be pay a rateable proportion but suppose there be a surplus and that  it do not amount to per cent then I think so much shall be take out of the  creditor atkins twenty shilling in the pound as will make it up per cent but  then it may be object that here be a case where the bankrupt shall have a  surplus upon the debt as state by the commissioner without pay the subsequent  interest but if I be right in the bankrupt be entitle to that equity it be not  the case for then it come again to the rateable proportion but it be say there  be no detention in this case and that interest arise from the detention of the  debt but the law presume a delay in the bankrupt and therefore it be due for  that reason and suppose that from the difficulty of get in the bankrupt effect  and by his estate be carry interest there shall be a surplus it will be absurd  to say the creditor shall not have interest likewise but it be object there  will be a difficulty in form this decree for by this way creditor upon simple  contract may have a better satisfaction than creditor by special for the  special creditor can have more than their penalty whereas creditor by note  carry interest will have their whole interest but no objection arise on that  account because it be a frequent case in the disposition of trust estate there  be in this act a clause of mutual credit suppose both debt carry interest and  the creditor come in late certain the commissioner ought to stop interest on  both side at the time of the bankruptcy or compute interest on both side till  the settle the account for it be absurd to say they shall stop interest on the  creditor debt at the time of issue the commission aid carry on interest on the  bankrupt demand I mention this to show that a equitable rule ought to be  follow in give interest in these case upon the whole therefore I declare that  as there be a considerable residue of sir Stephen evances estate above what  have be divide upon the principal of the debt and the interest of debt carry  interest down to the time of the commission the contribution money pay by the  creditor towards charge ought to be reimburse out of his estate a that all the  creditor of sir Stephen evance by bind contract or note carry interest be  entitle to receive interest out of his estate for the principal sum which be  owe at the time the commission issue from the day of its issue till they  receive full satisfaction before any surplus shall be convey to the  representative of sir Stephen evance let the master therefore take a account  of the estate of sir Stephen evance in the hand of the assignee and also of  the distribution money and compute interest on the principal sum which be due  at the time of the commission issue on bind contract and note carry interest  by where interest be not express on the body of the note ex part Marlar post  but upon the bind no interest beyond the penalty thereof so tew v the earl of  Winterton bro Charles Rep knight v Maclean ibidem vide Godfrey v Watson post  vol and upon such other contract or note carry interest the interest at the  rate therein specify and wherein no particular interest be specify atkins at  the rate of per cent until reduce by act of parliament to per cent and from  that time at the rate of per cent I decree the effect of the bankrupt remain  in the hand of the assignee to atkins er p be apply in the first place for the  payment of the debt of such of the creditor who have not yet prove to the  satisfaction of the commissioner though not disallow by they and shall  hereafter be allow by the master till pay up equal with the other creditor and  in the next place to pay the contribution money and then the creditor by bind  contract or note carry interest from the time of issue the commission acquire  step till they receive full satisfaction the master to take a account of what  have be pay to such creditor by way of dividend and what have be so pay to be  apply in the first place to keep down the interest and afterward in sink the  principal and if the residue of sir Stephen evances personal estate shall be  sufficient for the purpose aforesaid then I decree that the remain real estate  of sir Stephen evance be convey by the assignee to sir Caesar child sir  Stephen evances heir at law and his heir and if any surplus be leave of the  personal estate after the purpose aforesaid it be to be divide into moieties  and one moiety to be transfer to sir Caesar child and the other to mary ware  but if the personal estate be not sufficient I decree that a sufficient part  of the real estate be sell and the money be apply for the purpose aforesaid  and the surplus if any be pay to sir Caesar and if any estate remain unsold  that the same be convey to sir Caesar if no surplus remain of the estate and  effect of sir Stephen evance after debt and cost or if there shall be a  surplus which shall not be equal to answer the allowance make to bankrupt then  reserve the consideration in regard to such allowance till after the master  report the cost to be pay out of the bankrupt estate Reg lib a fol b this  cause afterward come on upon the master report make in pursuance of this  decree and be to be find in Reg lib a fol