surety had first to pay the debt, before he might prove the claim against the bankrupt. Since he had first to acquit himself of his obligation, if he failed to do so, he might naturally be held to renounce the privilege of indemnifying or exonerating himself against the bankrupt. In addition, the creditor could not, in such case, by signing the certificate be held to alter or impair the remedies of the surety against the principal. The United States bankruptcy act does not require pre-payment by a surety. Section 57, subdivision "i" allows the surety to prove the debt, for which he is secondarily bound, in the creditor's name. So, really, only the holding of Chief Justice Shaw, of Massachusetts, may be taken "contra" to this preliminary proposition, that consent to the composition releases the debt. Without the Massachusetts law before us, it is hard to appreciate the soundness of his ruling. Certainly it is plain that where the withholding of consent is expressly authorized by law, it is "unjustifiable" to annul the force of this consent by ruling that it proceeds from moral obligation. When the statute stipulates for a free choice, courts cannot rightfully construe the assent as coming from a mind, constrained by moral duties running counter to the statute. And, therefore, we may accept it as the law that a creditor consenting to a composition in bankruptcy, which is later accepted and confirmed, releases the debt, as to all parties. secondarily bound thereon.

The reasoning in support of this ruling seems logical. Since the general rule of law is, that if a creditor, by his voluntary agreement with the principal without the surety's consent, alters or impairs the remedy of the surety against the principal, he releases the surety, then, if the consent to the composition alters or impairs the remedy of the surety against the principal, the release follows. Undoubtedly, it does alter or impair the remedy of the surety against the principal. It may be that the composition is not, in the opinion of the surety, advisable. It may be that he would

prefer to have the estate administered in bankruptcy. It may be that he personally does not choose to accord his consent to the composition. The creditor is, of course, at liberty to ignore the surety and consent regardless of the attitude of mind exhibited by the surety. But he has thereby prejudiced the surety, and should lose his recourse against him. Naturally, mere proof of his claim, or failure to prove the same, by the creditor would not release the surety, nor probably would consent so operate where the consent was advised by the surety. Nor would a vain consent, as where the composition failed despite the same, preclude the creditor from his action against the surety. Otherwise, would it be, however, where the rights of a nonconsenting surety were trespassed upon by the arbitrary consent of the creditor.

The co-debtor clause of the Bankruptcy Act (citation 8 above) does not enter the field of our vision. It relates to discharges in bankruptcy, and not to composition proceedings. Not only is this evident from its terms, but (as a glance at citation 7 above makes obvious) the composition provision does not confer upon a confirmation in composition the same effect as a discharge in bankruptcy. It merely discharges the composition-debtor from all debts affected by a discharge. The strict construction required by statutes in derogation of the Common Law limits the co-debtor clause to its precise terms.

Let us now reforge our chain of facts so that it will describe the moot-case before us. The creditor does not consent to the offer of composition. Nor does she vote to disapprove it. Yet the composition is accepted and confirmed. Thereafter the creditor proves her claim and receives her share of the consideration. Has she thereby so adopted the composition as to release the sureties on the debt owing her by the bankrupt debtor?

On the one hand, the argument may be raised that, referring to our ruling principle, the rights of the surety are

not altered or impaired by a non-consenting creditor, who later proves her claim and takes her share of the distribution. The rights in question are altered and impaired by the acceptance or rejection of the composition offer. As the voluntary act of the non-consenting creditor has in no sense contributed toward the acceptance of the composition, she has not impaired or altered the remedy of the surety against the principal. Any later receipt of the benefits of the composition, in no way affects the relation of the principal toward the surety. So the subsequent proof of claim and taking of the avails under the composition would not release the surety.

On the other hand, it might well be taken that she had made her choice at the time that she voted upon the acceptance of the composition. With the facts before her, she had chosen to retain her rights against the sureties and absolve the principal debtor. By voting negatively, she had aligned herself as opposed to the composition because, or partly because, if she voted affirmatively, she released her security (using the word in the popular and not in the bankruptcy sense). Consequently to keep her remedy against the surety, she must not take part in the composition, or accept the fruits thereof.

Again it might be urged that ratification is equivalent to previous consent, and that, by proving her claim and accepting the avails, she had, in effect, bound herself with the majority who made the composition a fact.

Even more strongly, it might be submitted, that the liabilities of the sureties are fixed by the action of the particular creditor with respect to the composition. If she accepts the composition she releases the sureties. If she repudiates the composition, she retains her remedy against the sureties. The time or mode of acceptance are immaterial. Even if, though at the time of voting upon the composition, she voted in disaffirmance thereof, yet she later accepted the avails therefrom, she must be held to accept

the same. She cannot take the benefits of the composition, and avoid its obligations. Any other conclusion leads to absurdity. For example:

Y and Z are sureties. Their creditor consents to the composition and accepts his proportion of the consideration. Y and Z are released. B and C are sureties. Their creditor does not vote in favor of or against the composition. Yet, when the composition is accepted by sufficient others and confirmed, she proves her claim, and gets a proportion of the consideration equal to that received by the creditor of Y and Z. Yet, because of her refusal to assent to the composition in the first instance, her sureties are still bound to her. This is to render the law ridiculous. All creditors accepting the avails of the one composition must release their security (popular sense), or none.

And thus, in the end, we find ourselves involved in a quandry. Should we adhere consistently to the principle which we accepted at the out-set, viz: That the impairing or altering of the remedy of the surety against the principal is the criterion of release, then we must admit that a nonconsenting creditor, who claims the profit of a composition procured without his assistance, has not impaired or altered the remedy of the surety against the principal. Yet if we permit such a creditor to share in the distribution, and still pursue the sureties, such creditor obtains an unfair advantage over the consenting creditor, who, by his consent, released the debt.

In the absence of authority, the problem remains unsolved.

KISSIMMEE, FLA.

G. P. GARRETT.

JUSTICES OF THE PEACE; THE ORGIN OF
THEIR OFFICE.

It is to England that the office of justice of the peace, now established throughout Continental Europe as well as in the United States and the Philippines, owes its origin.1 Before its existence other agencies having for their object the same purpose of conserving the peace and order of civil society in England were constituted and those who discharged for the first such important functions, generally referred to as custodians or conservators of the peace, may fitly be called the predecessors in office of the justices of the peace. These conservatives of the peace, properly socalled, were appointed for every county for the protection of the King's subjects from force and violence and generally the preservation of the King's peace, the King himself being the fountain head of the peace of his kingdom. They were chosen by the freeholders in the county court before the sheriff, out of the principal men in the county, in pursuance of the King's writ directed to them for that purpose. Each one so elected was also by royal writ commanded to take upon himself and execute his office until the King should otherwise order. In addition to the persons so elected a number of other servants of the state possessed ex officio the same general authority of conserving the King's peace as it was euphoniously called. "The King's majesty is by his office and dignity royal, the principal conservator of the peace within all his dominions, and may give authority to any other to see the peace kept and to punish such as break it; hence it is usually called the King's peace."" Such ex officio keepers of the peace are mentioned by Lambard as follows: "The lord chancellor or

1 Vol. 23 Law Quar. Rev. 310.

2 Lambard's Eirenarch, 12.

VOL. L.

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