AFTER AN ACT OF BANKRUPTCY. Supposing an Act of Bankruptcy to have been committed and to be capable of proof, the next step for the Creditor, provided his debt amount to £50 or upwards, is to make an Affidavit before any of the like authorities, setting forth that the trader is justly and truly indebted to him in the sum of £50, or upwards. Blank forms are to be had at the stationers, and no stamp is necessary (see s. 115 of same Act). Great accuracy is required in filling the blanks in this affidavit. The variation of a letter in the name of the Bankrupt has been fatal-Ex p. Ward, 1 Rose, 314-or any mistake in his description-Ex p. Layton, 6 Ves. 434; Ex p. Beckwith, 1 Glyn. & J. 20; Ex p. Lewis, 3 M. D. & D. 93; 7 Jur. 244-or in the debt-in Re Lees, 3 Dea. 36; Ex p. Thorpe, 3 Mon. & A. 395. As to a letter in the name it was decided that, generally speaking, an omission of a letter was of no importance; but in some names, such as Smith, or Clark, the exact mode of spelling formed the distinction, and proceedings were stayed, the name being Clarke, instead of Clark-Ex p. Burridge, 1 De G. 256—and as to description-the Commissioner refused to proceed with the fiat where the Bankrupt was described as J. W. of Todmorden, in the county of York, which was a parish extending into an adjoining county; but, on appeal, the chief justice held it a sufficient description, provided it should appear, on affidavit, that there was no other person in the same parish of the same name and trade-in Re Woodward, 1 De G. 99. Before the recent Act abolishing the bond (s. 3) it was necessary to give a bond to the Lord Chancellor, in the penalty of £200. (See 6 Wm. 4, c. 14, s. 30, Ir.) This was conditioned for proving the debt as well before the Commissioner, as upon a trial of law, in case the Commission was contested, and for proving the party to have committed an act of Bankruptcy. It was also a security to the trader against a malicious suing out of commission, &c.; but now see 12 & 13 Vic., c. 107, s. 3, and note thereto. The affidavit and, heretofore, the bond together, were called the Docket, and they were both lodged in the office of the Secretary of Bankrupts, at the Four Courts, and this lodgment or delivery of both together into the hands of the proper officer, was technically called Striking_the_Docket:* upon this occasion the party pays a fee of £2 10s. By Rule 4 of Lord Ch. Sudgen's Orders in Bankruptcy, 1843, the persons striking a docket must order a Commission within 4 days, or else Docket, or Docquet-a short abstract of anything (Cow. Interp. West. Symb. Lib. 2, s. 106), perhaps originally Dogget: see 4 & 5 W. & M., c 20, passim; and see Ruff, Dict. By that Act all judgments to affect lands were to be entered into an Alphabetical Dogget, as if it were a word then in familiar use. Blackstone says, judgments Docquetted according to the statute, 2 Com. 511; and again, "docquetted, that is, abstracted and entered in a book, according to the directions of the statute 4 & 5 W. & M. c. 20."-3 Com. 397. A similar use is made of the word docket in Lord Erskine's "Orders in Bankruptcy, December 2, 1806:"-" No docket shall hereinafter be con SUING OUT THE COMMISSION. any other person shall be at liberty to strike a new docket, &c. If 14 The Petition and Commission.]-The petition and the commission are then engrossed on parchment, and are entirely the work of the office of the Secretary of Bankrupts, and with the drawing up of which the Creditor or his agent have nothing whatsoever to do. The materials were found in the affidavit made by the Creditor. When prepared, they are conveyed by the Secretary of Bankrupts from his office, and laid before the Lord Chancellor, who affixes his signature, together with the great seal, when they forthwith become the "Commission of Bankrupt." Generally the Petitioning Creditor's agent finds the commission ready for him on the second day after lodging the docket. Delivery of the Commission to the Registrar.]-The next process is to deposit the commission with the Registrar in his office, which should be done without loss of time. The mode of effecting this is strictly set forth in Rule 2 of General Orders, which directs that the Commissioners shall be immediately transmitted by the Secretary to the registrars, to be by them laid before the Commissioners; and if not effectually proceeded on to an adjudication within 8 days after its date, where the alleged Bankrupt resides within 20 miles of the Castle of Dublin, or within 14 days if he resides beyond that limit, then the Commissioner shall return it, with a certificate endorsed thereon under his hand, to the Secretary's office, when the Commission shall be superseded at the expense of the person who sued it out. The time however may be extended by the Commissioner, if satisfactory cause be shewn upon oath, but such extended time shall not exceed 15 days, or 21 respectively. The solicitor or attorney who sued ont, is bound to pay the costs of the supersedeas in the first instance, with power to recover over against his client. This is the whole substance of Rule 2, which see however infra. The cost of a supersedeas is £6 16s. 6d. (see Table of Fees). The Registrar keeps an exact record of the day and hour at which the Commission is deposited. Subsequent proceedings shew the necessity of this accuracy. The Fees payable on suing out the Commission, amount to £8 13s. 6d. which includes the foregoing sum of £2 10s. To appoint a first meeting.]-On delivering the commission to the Registrar, a day of meeting is settled on, and summonses are taken out for witnesses, on each of which is paid a fee of half-a-crown, which will This book sidered as struck until the same shall be entered in the docket book;" and words to the same effect are to be found in our own rules and orders, (1843), Order 4. was arranged in alphabetical order, so that a search for a Bankrupt's name was but a Mr. Christian inclines to think the word docket a contradiction matter of a moment. for "documentum," the letters m and n being left out, and supplied by strokes over the Vowels. There is no question, from ancient charters still remaining, that "muster" was originally "monstratio militum ;" see 1 Chr. B. L. 458. It is unnecessary to explain the word striking, which is used in so many various senses in our language. In Legal phrase-striking a panel-a jury is struck-striking the circuits, &c. In mercantile striking a balance, &c. include four witnesses if necessary, upon this occasion a fee of £4 8s. 4d. is lodged, which is returned to the "Bankruptcy Fund." Subsequent meetings may or may not be necessary, in which event additional summonses will be required. At the first meeting.]-Prove the Petitioning Creditor's Debt, see page 57, supra. Prove the alleged Bankrupt to have been a person liable under the Bankrupt laws. See list of traders, page 18, etc. Prove an act of Bankruptcy by a competent witness, (other than the Petitioning Creditor,) as upon a trial at law. If it consist of conveyance of trader's property, proof by subscribing witness, or if none, proof of handwriting will be necessary: see 1 Arch. Pr. B. R. 165, etc.; Arch. Pl. and Ev. 377; Goss v. Tracy, 1 P. Wms. 289,; Burnett v Taylor, 9 Ves. 381. A witness who could prove an act of Bankruptcy, having secreted himself, time was enlarged on affidavit: In re Hayes, 1 G. & J. 255: Ex p. Fox, 1. D. & C. 572. The Adjudication.]-When the above matters are proved to the satisfaction of the Commissioner, he "shall thereupon adjudge such person or persons Bankrupt," (6 Wm. IV., c. 14, s. 37)-and the Commissioner "shall forthwith cause notice of such adjudication to be given in the Dublin Gazette, and shall thereby appoint two or more public sittings for the Bankrupt to surrender and conform, the last of which sittings shall be on the forty-second day, hereby limited for such surrender." Sec. 38 of same. After Adjudication.]-The adjudication is a solemn act, it being the decision of the court, after having all the circumstances of the case that could be brought together by the Petitioning Creditor duly investigated by the Commissioner. Still it is but a primâ facie case, and therefore it is that, in England, the trader is allowed five days to dispute the adjudication, in order to obtain his protection: 5 & 6 Vic., c. 122, s. 23, Eng. By this section, the Bankrupt in England must have five day's notice before the adjudication can be advertised. This is given in order that he may come in and shew cause why the adjudication should not stand. This provision has not been extended to Ireland. After adjudication, therefore, the person and property of the Bankrupt instantly become subject to the Commissioner: and the Bankrupt must surrender "before three of the clock upon the forty-second day after notice thereof in writing, to be left at the usual place of abode of such person: 6 Wm. IV., c. 14, s. 130. In case of the trader's being in prison, the notice is personal, ibid. If he fail in surrendering at such time, then, under 12 & 13 Vic., c. 107, s. 44, he "shall be deemed guilty of felony, and be liable to be transported for life, or for such term," &c. Under the following section, the Commissioner, now, and not the Lord Chancellor, as heretofore, can enlarge the time for surrendering; but see the sections referred to. The warrant to the messenger.]-Upon the adjudication of the Court, as above, viz., that the trader has committed an act of Bankruptcy, the Commissioner executes his warrant to the messenger, authorising him to seize (see 6 Wm. IV., c. 14, ss. 40, 41,) upon the body or property of the Bankrupt. By these sections he is armed with full authority "to SUING OUT THE COMMISSION. break open any house, chamber, shop, warehouse, door, trunk, or chest of any Bankrupt, where such Bankrupt, or any of his property, shall be reputed to be, and seize upon the body or property of such Bankrupt;" and, in Ireland, any one obstructing the messenger, is "guilty of a misdemeanour," and liable to "fine and imprisonment, with or without hard labour:" 12 & 13 Vic., c. 107, s. 50, Ir. The warrant must be under hand and seal of a Commissioner: see s. 71 of same; and by rule 3 of General Orders (1843), the Petitioning Creditor is bound to save harmless the messengers, in the event of any action brought against them to try the validity of the commission: see General Orders, infra. The Surrender.]-Under 6 Wm. IV., c. 14, s. 130, et seq. Ir.; and also 12 & 13 Vic., c. 107, s. 42, et seq. Ir., the whole of the duties and obligations of the Bankrupt are set forth. They are simple, where no desire to conceal or misrepresent exists in the mind of the Bankrupt; but exceedingly stringent, in the event of any attempt to mislead the court, or deceive or defraud the Creditor. The time limited by the statute for the Bankrupt's surrender, is 3 of the clock on the 42nd day after the service of the notices set forth in s. 130, as above: but it is advisable, for many reasons, that the Bankrupt should appear as early as possible, and give what assistance he is able, in order to defeat unjust claims, and thereby save the estate for the benefit of his Creditors, an event which the law has wisely ordained should be also directly for the benefit of the Bankrupt himself. See allowance to Bankrupts, 12 & 13 Vic., c. 107, s. 61, Ir. If the Bankrupt do not surrender at the prescribed time, he is then guilty of felony, and liable to transportation for life, or for any period not less than seven years; or to imprisonment and hard labour for the same period. Upon an early application, the time for surrender may be extended, and this is called Enlarging the time of Surrender.]-This was peculiarly the province of the Lord Chancellor, see 6 W. IV., c. 14, s. 131, Ir.; but now the Commissioners are empowered by 12 & 13 Vic., c. 107, s. 45, Ir., to enlarge the time, but the order must be made 6 days, at least, before the day on which the Bankrupt ought to have surrendered: and the same limit of 6 days is prescribed in the above section of the act of W. IV.; but yet it has been held that the Lord Chancellor has jurisdiction, even after the time for surrender has passed, to direct the Commissioners to accept a surrender: in Re Morgan, 1 Drur. & W. 582. The Lord Chancellor will exercise his discretion, and enlarge the time in case of illness, 2 Bro. C. C. 47; or of unavoidable necessity, 15 Ves. 1; or accident, Cox, 48-12 Ves. 496; or being abroad at the time, 10 Ves. 183. But not if he purposely absent himself, 1 Ves. 195; unless where he hid through apprehension of some criminal proceeding: 1 Gl. & J. 223. Whilst coming to surrender, the Bankrupt is privileged from arrest under 6 W. IV., c. 14, s. 136, Ir.; but not if he be tardy; as when he arrived in Dublin from Liverpool on the 20th, and was arrested on the 23rd, arrest held good: in Re Christopher Wall, Ir. Jur. 1. CHAPTER VI. PROOF OF DEBTS. A Creditor is obliged to say whether he has or has not a security-Ex p. Grove, 1 Atk. 104—and to produce it, and the court marks it as having been exhibited. In England, if a Creditor have a judgment, he is obliged to exhibit the office copy of it: Ex p. Concannon, Cooke, 4 Ed. 126; Ex p. Williamson, 1 Atk. 83. But to save expense, the paper of final judgment has been considered sufficient: 1 Mon. & Ayr. B. L. 184. When the Debt accrued.]—Before 46 Geo. III., c. 135, s. 2, U. K., the debt must have accrued before the act of Bankruptcy: Bamford v. Burrell, 2 B. & P. 1; O'Brien v. Grierson, 2 Ball & B. 334. The provision was incorporated in 6 Wm. IV., c. 14, s. 58, enabling Creditors to prove the debt, if really and bona fide contracted, although a prior act of Bankruptcy existed, provided the Creditor had no notice. Under 6 Geo. IV., c. 16, s. 47, Eng., same as 6 Wm. IV. above, it was held, that, by the act of Bankruptcy therein, was meant, that act on which the commission was issued, that is, if the debt was contracted before that particular act of Bankruptcy, though with notice of a prior act, it was proveable: Ex p. Bowness, 2 M. & S. 479. In a later case, the Court of Review held the contrary: Ex p. Sharp, 3 M. D. & D. 496. p. Time of contracting.]-It may be after Bankrupt left off trade: Megott v. Mills, 12 Mod. 159; 1 Lord Raym. 287. If barred by the statute of limitations, although Bankrupt admit non-payment not proveable: Ex Dewdney, 15 Ves. 479; Ex p. Seaman, idem.; Ex p. Roffey, 2 Rose, 245. But the statute does not run after commission: Ex p. Ross, 2 G. & J. 46. 336. An agreement for composition where default does not preclude from proving balance of the original: Ex p. Bateson, 1 M. D. & D. 289. Debts of Bankrupt's wife incurred before marriage, are proveable: Miles v. Williams, 1 P. Wms. 249. When due and payable.]—A debt is said to be due the instant it has existence as a debt, though payable at a future time, Arch. B. L. 125. As a general rule, debts must be due at the time of the act of Bankruptcy: Bamford v. Burrell, 2 B. & P. 1. School money payable half yearly not proveable, the time not having expired at the time of the act of Bankruptcy. Between Bankruptcy and certificate, Bankrupt endorsed two notes, held certificate no bar to an action, therefore, notes not proveable under commission-Brix v. Braham, 1 Bing. 281—and see Birch v. Sharland, 1 T. R. 715. By 6 Wm. IV., c. 14, s. 58, same as 6 Geo. IV., c. 16, s. 47, "every person with whom any Bankrupt shall have really and bond fide contracted any debt or demand (see Robinson v. Vale, 4 Dow. & R. 432; 2 B. & C. 762,) before the issuing the commission against him, shall, notwithstanding any prior act of Bankruptcy committed by such Bankrupt, be admitted to prove the same, and be a Creditor under such commission, as if no such act of Bankruptcy had been committed, provided such person had not, at the time the same was contracted, notice of any act of Bankruptcy, by such Bankrupt committed;" but see last |