Beaty v. Beaty

The Chancellor.

[ * 432 ]

It was decided by Lord Ch. King, in Burnaby's case, (Str. 653.) that the creditor who has the body of his debtor in execution, cannot be a petitioning creditor under the bankrupt law. This case, afterwards, received the sanction of the K. B. in Cohen v. Cunningham, (8 Term Rep. 123.) It was there decided, as founded in principle and in law, that a judgment creditor, who has taken his debtor in execution, has made his election, and is bound by it, and cannot, afterwards, sue out a commission of bankrupt against him for the same debt. This has become the settled rule in chancery. (Ex parte Cundall, 6 Vesey, 446. Ex parte Arundel, 18 Vesey, 231.) Lord Kenyon said, it would be an anomalous case for a creditor who has made his election to proceed against the body, to be able, by his own act, to change the nature of his execution, and pursue his debtor’s property. I am satisfied with the solidity and equity of this principle, and I think it ought to be applied to this case, which is very analogous. Though the words of the act are general, and speak of any creditor, yet those words may easily be supposed to have intended any creditor other than the one who .has charged the debtor in execution, for there is not any *provision in the 9th section that seems to apply particularly to such a creditor. I shall, therefore, under my present impression, suffer the injunction to go.

Injunction granted.