Ex parte Barnett; in re Barnett.

or might appear to be plainly invalid, it is not, therefore, a matter of right that it should be superseded or annulled, but that it is competent to the court, in the proper exercise of its judicial discretion, to leave the alleged bankrupt to avail himself of the objection at law, without assisting him here; supposing, I say, the capacity still to exist here to act on such principles, I should, beyond all question, dismiss this petition, that is to say, refuse to interfere, there being no merits, in my opinion, brought forward to render it right, in this case, to interfere. Mr. Swanston has contended, and the argument deserves attention, although I do not mean to give any opinion upon it, that, as the legislature has now changed and constituted the jurisdiction, such an exercise of discretion is withdrawn from this court, and that it is only competent to this court to deal with the question strictly as a court of law, having nothing to do but to say whether, in its judg ment, the order was, when made, correct or incorrect. The argument, I repeat, seems to me to deserve great attention, but I decline giving any opinion upon it.

With regard to the jurisdiction of the registrar, or the power of the registrar to act for the commissioner, I think that as the adjudication was made on the 19th of August, I may take it that the registrar had jurisdiction, for the condition of the existence of a single commissioner in the district does not apply to the 27th section, and I think I may take the 19th of August to be during the vacation, within the meaning of the act of Parliament. The registrar, therefore, had jurisdiction. The registrar, in his order, finds that it has been shown to the satisfaction of the court, that the petitioning debtor has not made a full disclosure of debts, credits, estate, and effects. That is one of the cases in which the court is authorized to make an adjudication of bankruptcy; and the correctness of that recital in the order has not been impeached. Again, he finds that the appellant is not desirous of making a bona fide arrangement with all her creditors. That is a case also in which the 223d section provides that the commissioner may adjudicate her a bankrupt; and I should have been very much surprised if any one were capable of believing that she was desirous of making a bona fide arrangement with all her creditors; and believ ing, to the utmost extent of my power of credence, that she was not, how can I say that it is not a case to be adjudicated in bankruptcy?

The only remaining point is this: the petition for arrangement was dismissed; but by the dismissal of the petition she was only taken from one list of bankrupts, or insolvents, or traders, or whatever they might be called, and she was held to belong to some other class. I do not see that the power of adjudication was rendered irregular by taking her out of the class in which she was, and bringing her into the class in which she is. I dismiss the petition with perfect willing. I suspect that this was a mere device to obtain two months' protection. The lady may still defend herself at law, if she is not a bankrupt; I think I ought not to lend her any assistance. The creditor who appears to oppose may take his costs out of the estate, if he satisfies Mr. Vizard that he has proved his debt in the District Court of Bankruptcy.

ness.

Ex parte Johnson; in re Johnson.

Ex parte JOHNSON; in re JOHNSON.1

January 10, 1851.

Bankrupt Laws Consolidation Act - Practice - Certificate Notice. On an appeal by a bankrupt from the decision of the commissioner, suspending the certificate of conformity, notice of the appeal must be served on the creditors who opposed before the commissioner.

THE bankrupt presented this petition by way of appeal from the decision of the commissioner, by which he had suspended the certificate for twelve months.

Bacon, Cooke, and Toulmin, for the petition.

Prior, for the assignees.

KNIGHT BRUCE, V. C. Who besides the assignees have been served with notice of the petition? Were there any creditors who opposed before the commissioner?

Bacon. No one else has been served. The assignees represent the creditors. Two creditors, and no more, appeared before the commissioner, and opposed the bankrupt's application for his certificate.

KNIGHT BRUCE, V. C. By the 198th section of the Bankrupt Laws Consolidation Act, it is enacted, "that forthwith, after the bankrupt shall have passed his last examination, the court shall appoint a public sitting for the allowance of his certificate, (whereof, and of the purport whereof, twenty-one days' notice shall be given in the London Gazette, and to the solicitor of the assignees,) and at such sitting the assignees, or any of the creditors of such bankrupt, who shall have given to the registrar of the court three clear days' notice, in writing, of his intention to oppose, may be heard against the allowance of such certificate." Now, in the present case, two creditors appeared and opposed, and I think that, on an appeal from the commissioner's decision, they are entitled to notice. These two creditors should therefore be served, and the petition must stand over for that purpose. What I should have done in case a great multitude of creditors had appeared I do not say; but as only two gave notice, under the 198th section, and appeared, they ought to be served with notice of the appeal. Let the petition stand over for such notice to be given.

1 15 Jur. 185.

Ex parte Jones; in re Morrison.

Ex parte JONES; in re MORRISON.1
January 10, 1851.

Joint and separate Fiat - Proof.

A creditor brought an action against one of three joint debtors, two of whom were out of the jurisdiction, and obtained judgment. The creditor afterwards issued a fiat of bank. ruptcy against the debtor against whom he had so recovered. Distinct accounts were directed to be kept of the joint estate of the three debtors. The creditor endeavored to transfer his proof from the separate to the joint estate, but was refused permission by the commissioner. Upon an appeal, the creditor agreeing to abandon or withdraw the proof made against the separate estate, the court declared he was entitled to make such proof as he would be entitled to make if the action had not been brought and the judgment had not been obtained.

THIS was the petition of John Jones, one of the registered public officers of the Sheffield and Hallamshire Banking Company, praying the reversal of the commissioner's decision respecting a refusal to permit a transfer of proof from a separate estate of one of three joint debtors, to the joint estate of the three. The facts were these: A fiat was issued against the bankrupt on the 24th of June, 1844, on the petition of Mr. Jones, the present petitioner; and Mr. Morrison having been declared bankrupt, assignees were chosen. On the 26th of July, 1844, upon the petition of the assignees, it was ordered by the Court of Review that the commissioner should cause distinct accounts to be kept under the fiat of the joint estate or partnership firm of Morrison, Jee, & Co., and of the separate estate of the bankrupt Pearson Richard Morrison, and that such joint estate should be divided to and amongst the joint creditors of the said firm of Morrison, Jee, & Co., who had already proved, or should thereafter prove, their respective joint debts under the said fiat, and that the costs of keeping such distinct accounts should be paid out of such joint estate. On the 7th of October, 1840, Morrison, Jee, & Co. were indebted to the Sheffield and Hallamshire Banking Company upon two bills of exchange, drawn by Ibbotson Brothers, on and accepted by the bankrupt and his partners. Mr. Jones, as registered officer of the bank, in October, 1840, commenced an action in the Queen's Bench against the bankrupt in respect of the debt, and recovered judgment, the other partners of the firm being at the time out of the jurisdiction. On the 12th of November, 1850, the petitioner tendered a proof for 10392. 9s. 5d. (the amount of the debt, interest, and costs) against the joint estate, but the commissioner refused to allow the proof, and decided, that the petitioner having brought the action, and recovered judgment against Morrison alone, the banking company had thereby elected to treat the debt as a debt due from the separate estate of Morrison, and they could not therefore resort to the joint estate. From this decision of the commissioner Mr. Jones now appealed.

Swanston and Lucas, for the petition, argued, that although the

1 15 Jur. 214.

Ex parte Jones; in re Morrison.

judgment in the action was prior to the act of bankruptcy, the peti tioner was not debarred by any reason nor by law from transferring his claim to the joint from the separate estate. Ambrose v. Clendon, Cas. t. Hardw. 267; 2 Str. 1042. Bryant v. Withers, 2 Mau. & S. 123. Ex parte Pennell, 2 M. D. & De G. 273. Ex parte Christy, 2 Deac. & C. 155.

Page Wood and Morris appeared for creditors who had proved against the joint estate, and resisted the application, on the ground that the judgment was before the act of bankruptcy; and relied on the case of King v. Hoare, 13 M. & W. 494, as governing the point.

Bacon, for the assignees, did not oppose.

KNIGHT BRUCE, V. C. Assuming the case of King v. Hoare to be not according to law, or, if according to law, not to govern the present case, all principle and all authority are in favor of the present application. Is, then, the case of King v. Hoare, according to the law of the country? Upon that I decline giving any opinion, because, if it is, I do not consider that it governs this case, by reason of the admitted fact, that, at the time of the action being brought, and at the time of issue being joined in the action, two of the three debtors, who were not bankrupts, were out of the jurisdiction. As the case may come again before me, and it is desirable to save the expense of presenting another petition, the proper order will, perhaps, be to declare, that, notwithstanding the action and judgment at law, the petitioner, on behalf of the banking company, abandoning or withdrawing the proof already made, which he must consent and undertake to do, shall be entitled to make such proof as he would have been entitled to make if the action had not been brought, and the judgment had not been obtained. The petitioner may proceed before the commissioner accordingly, the petition in all other respects to stand over, with liberty to apply. I only intend that the proof already made shall be abandoned or withdrawn for the purpose of the dividend.

Ex parte Dornford, in re Dornford; and ex parte Johnson, in re Johnson.

Ex parte DORNFORD, in re DORNFORD; and Ex parte JOHNSON, in re JOHNSON.1

February 19 and 25, and March 13, 1851.

Bankrupt Laws Consolidation Act, 1849-" Conduct as a Trader” —

Certificate.

A man may fairly carry on his trade even where, if his assets were realized, they would have been less than his debts. Such a course may be likely to be beneficial to existing creditors, and may be pursued without dishonesty, if he have a well-grounded expectation and reasonable hope of surmounting his difficulties.

Where all the material acts under consideration took place while a bankrupt carried on that trade in respect of which he was declared a bankrupt, those acts are to be regarded as "conduct as a trader," within the meaning of the statute.

The acts of a trader done before the statute came into operation, in the trade in respect of which he is subsequently adjudged a bankrupt, are within the intention of the statute, and may be taken into consideration on the question of the grant of the certificate. Where the evidence appeared to the court to establish that a bankrupt's conduct was not open to censure, complaint, or imputation, in his dealing with some members of his family; and where he had for a considerable time continued to trade when the assets were less than the debts, yet the evidence satisfactorily proving that it had not been carried on dishonestly or desperately, but with a reasonable hope of paying the creditors in full; and where an action, although probably erroneously, had been defended, yet not frivolously and vexatiously, but on behalf of the creditors; and where the trader's conduct was open, manly, and straightforward, it is a reasonable interpretation of the statute to hold him entitled to his certificate.2

THIS was a petition presented by the bankrupt, Thomas William Dornford, a wine merchant, stating that a petition for adjudication, on the 5th of August, 1850, was presented against the petitioner, upon which he was adjudged and declared a bankrupt: that assignees had been chosen that the petitioner passed his last examination on the 4th of October, 1850: that he applied to the commissioner for his certificate on the 12th of November then following: that on that occasion, in consequence of allegations made by Mr. De Caulier, a creditor for a large amount, against the petitioner, the greater part of which allegations were either wholly or partially untrue, Mr. Commissioner Fane determined on suspending the certificate for two years from the date of the petition for adjudication, and refused the bankrupt protection until after he should have been three months in prison. The prayer of the petition was, that this court would take into its consideration the order of the commissioner, and reverse or modify the same, and grant to the petitioner his certificate. The judgment pronounced by Mr. Commissioner Fane, on the question. of granting the certificate, was in the following words: "This case

1 15 Jur. 278.

2 This latter paragraph applies to the case of Er parte Johnson, in re Johnson, a statement of which is given by his honor in the judgment. It was decided on the 1st of February, 1851. See ante, p. 239.

Bacon, Cooke, and Toulmin appearing for the petition;

Hobhouse, for the opposing creditor; and

J. V. Prior, for the assignees.