atkins case ex part HYLLIARD August the d ves pl SC a treat with the  petitioner against who a commission of bankruptcy have be award for the  purchase of the equity of redemption of his estate in mortgage to f pound  agree for the purchase article sign and a pay pound S to clear off the  mortgage and be to pay pound more on the execution of conveyance on petitioner  refuse to complete the purchase or pay the mortgage a bring a action against  the petitioner who be carry to gaol where he lie two month and upon this  declare a bankrupt petitioner apply now to supersede the commission on a  suggestion that a s debt be not of such a nature as entitle he to sue out a  commission a petition to supersede the commission on a suggestion that Mr  Alsworths debt be not of such a nature as entitle he under the bankrupt act to  sue out a commission Mr aldsworth treat with the petitioner for the purchase  of the equity of redemption of his estate which be in mortgage to one Mr field  four hundred pound be the price settle for the purchase article be sign and Mr  aldsworth pay Hilliard pound S to clear off the mortgage and be to pay he  pound more on the execution of the conveyance Hilliard refuse to complete the  purchase or to pay off the mortgage on this Mr aldsworth bring a action for  pound S against Hilliard who be carry to gaol where he lie two month and  thereupon Mr aldsworth take out a Commission of bankruptcy and Hilliard be  declare a bankrupt on this act of bankruptcy Mr Evans for the petitioner  insist that this be not such a debt as be within the meaning of the bankrupt  act that a indebitatus assumpsit can not be maintain for the pound be a breach  of trust only and not a debt Mr clark who be counsel on the other side insist  it be a debt and money have and receive to the bankrupt use and a action  therefore maintainable as for his debt Mr Evans in the reply urge that there  be no pretence that the pound or one penny thereof be ever tender to Hilliard  but be tell that he must either repay the pound S or go to gaol No one  creditor appear under the commission by that mean Mr aldsworth have by virtue  of choose himself assignee get into his possession all Hylliards effect  although this swear he do not owe any person beside a farthing Lord chancellor  I doubt extreme whether a commission can be take out on such a contract for  the remedy shall have be a bill for performance of the contract and no action  can in strictness of law be maintain atkins but if it stand simple upon this  foot I shall not have supersede the commission but leave the bankrupt to a  action at law to try the bankruptcy but as it come out now that Mr aldsworth  have since the issue of the commission take a assignment of this very mortgage  I will not suffer the commission to go on atkins er p for as stand in the  place of the mortgagee he may hold till redeem and likewise compel a  performance of the contract or Hilliard to refund the pound be the receipt  give by Hilliard be nothing but a acknowledgement of receive pound S in part  of the purchase money No action in this case can be maintain and therefore the  very foundation for the commission fail and Mr aldsworth have by take a  assignment of the mort gage get the security of the mortgage for the money he  have pay the affidavit on both side swear that the petition creditor say  either pay I back the money or convey to I the equity of redemption and not a  word of the petition creditor offer to pay the pound the remainder of the  purchase money the commission therefore must be supersede and the petition  creditor pay the cost for any expression of Hylliards that he be able to live  in gaol or any where else and such like proceed from this ill usage and will  not forfeit his cost see Medlicots case stram ex part lee p W