Sched. C. ruptcy on the said day shall be the same as if those proceedings had been taken before such day, and shall be applied to the same purposes. We, the undersigned Lords Commissioners of Her Majesty's Treasury, do hereby sanction the foregoing scale of fees, and do direct that the fees to be taken by stamps shall be those mentioned in Table A., and that the fees mentioned in Table B. shall be taken in money, and that the fees and allowances referred to in Table C. shall be taken by stamps or money according as they have hitherto been taken. And we further direct that the stamp shall be affixed or the money paid in respect of every fee before the proceeding is had in respect of which the fee is payable, and that the charge to be made by the London Gazette for the insertion of each notice authorised by the Act or Rules shall be three shillings. W. P. ADAM. W. H. GLADSTONE. 10th August, 1871. PRACTICE ON PROCEDURE TO As to the petitioning creditor: And as a preliminary observation, it must be the care of the solicitor to the petitioning creditor, that his client has reasonable and probable cause for presenting his petition. In Johnson v. Emerson, 40 L. J. Ex. 201, S., an attorney, having been instructed by H. to make J. bankrupt, obtained a debtor's summons under s. 7 of the Bankruptcy Act, 1869, and served it on J., who thereupon applied to the registrar of the County Court to dismiss the summons. Having heard both parties, the registrar made an order on the 12th of April that J. should within seven days enter into a bond, with two such sufficient sureties as the Court should approve, to pay such sum as should be recovered by H. in any proceeding taken for the recovery of the debt due to him from J., together with costs; and that all proceedings on the summons should be stayed until the Court in which such proceedings for the recovery of the debt should be taken had come to a decision thereon. S. drew up the order, which was the first of the kind made by the County Court in pursuance of the statute. During the seven days a correspondence took place as to the proposed sureties, who were objected to by S. on behalf of H., and no bond having been executed in consequence, a petition in bankruptcy was, by the express order of H., presented by S. on the 21st of April under the 8th sect., and on the same day a receiver was appointed under the 13th sect., the Act of bankruptcy alleged being (in the terms of s. 6, subsec. 6 of the Act) that the petitioning creditor had served on J. a debtor's summons, and that he being a trader had for seven days neglected to pay the debt alleged to be due, or to secure or compound for the same. J. objected to the petition; and after several hearings under the 8th sect., the County Court judge on the 8th of May adjudged J. to be bankrupt. This decision was affirmed by the Chief Judge in bankruptcy, but was afterwards reversed by the Lord Justice of Appeal, who annulled the proceedings on the ground that the order of the 12th of April was a stay of proceedings at the time of the petition and adjudication: Held, by Kelly, C.B., and Cleasby B., that upon these facts an action was maintainable by J. against S. for maliciously and without reasonable and probable cause presenting the petition and causing him to be adjudicated a bankrupt. Held, contra, by Martin, B., and Bramwell B., that such an action was not maintainable by J. against S. A single creditor, or two or more creditors if the debt due to such single creditor, or the aggregate amount of debts due to such several creditors from any debtor, amount to a sum of not less than 501., may petition the Court that the debtor be adjudged a bankrupt (s. 6). · Where the petitioning creditor is the official liquidator conducting the proceedings in winding up a company, it would appear from s. 95 of the Companies Act, 1862 (25 & 26 Vict. c. 89), that he must proceed in the matter with the leave first obtained of the Court under whose appointment he is acting in the winding up. The debt, in respect of which he potitions is specified in s. 75 of the same Act. In the case of Williams v. Harding, L. R. 1 H. of L. 9, it was, indeed, held, that the official manager of a company being wound up under the Acts of 1848, 1849, could not proceed in bankruptcy against a contributory. The Act of 1869 has remedied this manifest inconvenience. A trustee in bankruptcy, it should seem, may petition officially against a debtor to the estate of which he is trustee (Bankruptcy Act, 1869, s. 22). One of several assignees may petition without the other or others joining. (Ex p. Blakey, 1 G. & J. 197.) Where the petition is presented by a trustee against a debtor to the trust, as a rule the cestui que trust should join in the petition. (But see Hope v. Meek, 10 Ex. 842; Ex p. Powell, 1 Mont. B. L. 15; Ex p. Dubois, 1 Cox, 310; Ex p. Gray, 4 D. & C. 778.) Where an executor is the petitioning creditor in respect of a debt to the testator, he must obtain probate before he can proceed to adjudication. Where the debt is due to a co-partnership duly authorized to sue and be sued in the name of a public officer or agent, the petition will be presented by such public officer or agent. (G. R. 15.) In re Calthrop, L. R. 3 Ch. App. 252, Lord Cairns, L. J., said: "As a corporate body cannot make an oath, it is impossible that the petition in the case of a corporate body should be accompanied by their oath. The oath in that case must be made, as has been the practice by a person competent to speak to the facts alleged in the petition. That oath, as I apprehend, has been given in this case, and it is not suggested that there is any other person who could speak more properly as to the facts." In this case the petition was signed by two of the directors and the secretary, and sealed with the seal of the company, and supported by an affidavit of the secretary, that the debtor was justly and truly indebted to the company. A petition against any debtor to any co-partnership duly authorized to sue and be sued in the name of a public officer or agent of such co-partnership, may be presented by such public officer or agent as the nominal petitioner for and on behalf of such co-partnership on such public officer or agent filing an affidavit, according to the form in the schedule, stating that he is such public officer or agent, and that he is authorized to present or sue out such petition. (G. R. 15.) A husband presenting a petition in respect of a debt due to his wife, dum sola, must be joined in his petition by the wife. (Rumsey v. George, 1 M. & S. 176; 2 Rose, 109.) And so where the debt is due to the wife as executrix. (Ex p. Mogg, 2 Gl. & J. 397.) A husband however may petition on a bill or note of which his wife became the legal holder, dum sola, and which he holds jure mariti (Ex p. Barber, 1 Gl. & J. 1; 1 B. & A. 218) for the absolute property in the negotiable instrument legally vested in him by the marriage without indorsement, and an indorsement would have been superfluous. Whoever is possessed of the instrument, and has the legal right to it, is able to sue on it. (Ib.) A married woman can petition alone in respect of a debt due to her as a separate trader under the custom of London. The following, as explained by the recorder, is the course adopted in order to ascertain in any case what the custom of London is: A certiorari is issued from the Court in which the case is pending, and in which the question has been raised as to the existence of a custom of the city, calling upon the lord mayor and aldermen to certify to that Court whether such a custom exists in the city, and what is its nature. The matter is then brought before the Court of Aldermen as the executive body of the corporation, who refer it, by resolution, to the recorder, in order that he may consult the other officers, if necessary, and search the precedents, and then report thereupon. If no doubt exists on the subject, he reports to the Court of Aldermen what he believes to be the custom. If there be any doubt entertained by him with regard to it, it is the practice for him to name a day which meets the convenience of the litigant parties, who, having been allowed full access to all the documents in the custody of the corporation, attend by counsel before him and state what are the precedents on which they rely, and what is the construction they place upon these precedents. There was a very difficult case in the Rolls Court respecting the distribution of a freeman's property, which in the city follows a different rule from the statutory distribution, and arguments by counsel were conducted before him during part of two days, involving a difficult question of mixed law and fact; the difficulty being to put a proper interpretation on a former construction of a custom. In that case he certified by word of mouth in the Rolls Court, and in the other case he certified in the Court of Queen's Bench. The mode is analogous to what he has seen adopted by the Speaker of the House of Commons when he reports to the House, by word of mouth, her Majesty's speech, and says that for convenience he has obtained a copy of it. In the same way he certifies the customs of the city, and states that, for convenience' sake, he holds in his hand a parchment, with the certificate in writing. A married woman may also be a petitioning creditor-1, in respect of a debt becoming due to her after a decree obtained by her for judicial separation, or after a protection order, under 20 & 21 Vict. c. 85; 2, where her husband is in exile, or where she is entitled under the Act 33 & 34 Vict. c. 95; generally where she can bring an action or maintain a suit as a feme sole for the recovery of the debt. Mr. J. R. Griffith, in his valuable edition of the "Married Women's Property Act, 1870," has these observations : |