the place where a majority of the creditors resided and the original commission was worked, the court removed the commission back to the original place (p). If the bankrupt requires it, he will be at liberty to issue a renewed fiat, in case the petitioning creditor, upon notice, declines to issue one (q). And after a lapse of twenty years, when four of the commissioners were dead, the bankrupt was allowed to issue a new fiat in the name of a creditor, who had proved his debt under the commission (r); when upon a false suggestion, that the commissioners of the place where the bankrupt resided were creditors, the fiat was directed to another place, the court ordered a renewed fiat to issue directed to the commissioners of the former place (s); but where the fiat and proceedings are lost, if the parties are unwilling to rely on secondary evidence of their existence, it is not a case for a renewed fiat, but a new original fiat must issue (†). In a case where a renewed commission was issued, and two of the commissioners declined to act, and another was a creditor of the bankrupt, a new fiat was issued, but without costs out of the estate, as it was the duty of the assignees or the solicitor to ascertain that the commissioners were willing to act (u). If any bankrupt shall die after adjudication, the commissioners may proceed in the fiat as they might have done if he were living, but if the bankrupt die before adjudication, the fiat cannot be proceeded in (x). A renewed fiat transfers all the commissioners' authority to the new commissioners (y), and the new commissioners proceed from that stage of the proceedings at which the former commissioners left off. And by Gen. Ord., Jan. 12, 1832, a renewed town fiat shall go to the same commissioner before whom the former commission or fiat has been prosecuted.

If London fiats be not prosecuted within fourteen days, or country fiats within twenty-eight days, after the respective dates thereof, they are supersedable, (Ord. Loughb. 26th June, 1793) (z); unless from circumstances it was impossible to prosecute them within the time (a). The fiat is deemed prosecuted, where the advertisements declaring the bankruptcy have appeared in the Gazette (b), or, if the party be declared a bankrupt (c), within the limited time; but if, by reason of the delay in the abjudication, another party is induced to incur costs, by an application for another fiat, the petitioning creditor under the first will have to repay them (d); and under special circumstances the court will enlarge the time for opening a fiat (e), as to give time for effecting a composi

(p) Ex p. Waring, Mon. 216.

(q) Ex p. Bristow, 2 Dea. 334; 3 Mon. & A. 213.

(r) Ex p. Holder, 3 Dea. & C. 276; 1 Mon. & A. 518.

(8) In re Evans, 2 Dea. 480; 3 Mon. & A. 723.

(t) In re Levett, 1 Mon. & A. 308; 3 Dea. & A. 567.

(u) In re Wilkinson, 2 Dea. & C. 112. (x) Ex p. Beale, 2 Ves. & B. 29: Twogood v. Hankey, Buck, 65: Ex p. Green, 1 D. & B. 230.

(y) Ex p. Hill, Mon. 5.

(z) See sect. 16 post.

(a) Ex p. Freeman, 1 Rose, 380: and see Re Hayes, 1 Glyn & J. 255.

(b) Exp. Leicester, 6 Ves. 429: Ex p. Layton; Ex p. Hardwicke, 6 Ves. 434: and see Ex p. Henderson, 2 Rose, 190: Ex p. Mavor, 19 Ves. 530.

(c) Ex p. Ellis, 7 Ves. 135: Er p. Soppit, Buck, 81: In re Wood, 3 Dea. 514.

(d) Ex p. Saunders, 2 Dea. 326; 3 Mon. & A. 206.

(e) In re North, Mon. 511: Ex p. Fox, 1 B. & C. 572; Mon., & B. 264.

tion when the application is on behalf of the bankrupt, but not when it is on behalf of the petitioning creditor (f); the court will also, under special circumstances, enlarge the time for opening a fiat, upon application of the petitioning creditor, as where the delay in opening the fiat had been occasioned by the contrivance of the bankrupt in keeping a witness out of the way (g); and also where one of the commissioners of a country fiat was absent in London, and two others were creditors of the bankrupt (h). The court refused an application to enlarge the time, where there did not appear to have been a reasonable diligence (i); or on the ground, simply that the witness to prove the act of bankruptcy, did not attend (k); on an application to enlarge the time, the court requires an affidavit from the party applying, of a bonâ fide intent to prosecute the fiat, that there is no collusion with the bankrupt, and that no composition deed is in contemplation by the bankrupt with his creditors (1).

And a person, who has thus sued out a fiat, will not be allowed to strike another docket, until the time for opening the fiat has expired (m); and a petitioning creditor who has failed to prosecute the fiat within the time above limited for that purpose, shall not be allowed to sue out a second fiat, without the special leave of the court (Ord. 6th Dec. 1788) (n) ; and the court will not grant a second fiat to a party who has suffered the fourteen days to elapse in negotiating a compromise (o); or who delays prosecuting the fiat in order to enable the bankrupt to settle disputes with his partner, by arbitration (p); or where the delay was occasioned by mistake, as to the construction of a new act of Parliament (q); but where, through the contrivance of the bankrupt, the party had been prevented opening the commission until after the time had expired, the court allowed the same petitioning creditor to strike a new docket (r); the petitioning creditor procured an order of the Court of Review, to strike a new docket before the time for opening the fiat had expired, but did not in fact strike a new docket until after that time had expired, when another creditor also applied for a docket; as the order had not been acted upon, until the time had expired, the right to a new docket accrued to the second creditor (s); but where two days after a joint fiat was issued against two partners, one died, and the petitioning creditor applied for a separate fiat against the surviving partner, when another creditor had lodged other docket-papers, it was held that the petitioning creditor under the joint fiat, had a prior title to the separate fiat (†).

(f) In re North, Mon. 511: Ex p. Dowson, Mon. & B. 264: 1 Dea. & C. 111: Ex p. Moody, Mon. 512; 1 Dea. & C. 34: In re Moody, 2 Dea. & C. 210: Ex p. Stirk, 2 Dea. 328, 3 Mon. & A. 207.

(g) In re Matthews, Mon. 512: Ex p. Burdekin, 1 Dea. 57.

(h) Ex p. Smith, 1 Mon. & A. 473; 3 Dea. & C. 761.

(i) In re Kearsley, 2 Dea. 317.

(k) Ex p. Hilsdon, 1 Mon. & C. 74. (7) Id.

(m) Er p. Gerrish, 1 Dea. 278; 2 Mon. & A. 491: Ex p. Ward, 3 Mon. & A. 394.

(n) In re Edwards, 1 Dea. & C. 531. (0) Ex p. Baker, 1 Dea. & C. 533. (p) Ea p. Foljambe, 3 Dea. 628. (q) Ex p. Partridge, 1 Mon. & C. 165. (r) In the matter of Matthews, 1 Dea. & C. 35; Mon. 512.

(s) In re Scott, 2 Dea. 406; 3 Mon. & A. 239.

(t) In re Norris, 3 Dea. 643; 1 Mon. & C. 157.

And lastly, where a commission has issued and the party has not been found a bankrupt, in case another commission be issued against the same person, whether at the suit of the same petitioning creditor or not, it shall be directed to the same commissioners to whom the former commission was directed (Ord. Apsley, 12 Feb. 1774). This order is still applicable to country fiats; and by General Order, June 12, 1832, second or renewed fiats in the Court of Bankruptcy shall go to the same commissioner before whom the former commission or fiat was prosecuted. In a case where of the five commissioners to whom the commission was directed, one was dead and another out of the jurisdiction, and one of the remaining three was of opinion that the petitioning creditor's debt was insufficient to support the commission, and therefore did not proceed to adjudication, the Chancellor, on petition, ordered that the petitioning creditor should be at liberty to sue out another commission upon the same docket papers, to be directed to the list of commissioners next in rotation, which was full (u). But, in a subsequent case, upon an application for a commission to be re-sealed and directed to other commissioners, upon the ground of the commissioners having improperly refused to adjudicate, the Chancellor refused to exercise a jurisdiction, as the number of acting commissioners was sufficient to afford an undisputed majority on the question submitted to them (x), and see ante, p. 33. By stat. 1 & 2 Will. 5, c. 56, s. 18, after any such issue shall have been tried as aforesaid (see sect. 17, p. 22, ante), it shall and may be lawful for the Lord Chancellor, on petition to him, to be presented within one calendar month after such verdict, and upon notice thereof to the bankrupt, upon special circumstances, to be submitted to the said Lord Chancellor, to order that another fiat do issue at the instance of any other than the former petitioning creditor against the said bankrupt, and that such fiat shall and may be supported by any debt, trading, or act of bankruptcy, other than those given in evidence on the trial of such issue. A commission against an uncertificated bankrupt, where there has been an assignment under the prior commission, is void at law (y); but if there has been no assignment, the existence of a prior commission will not invalidate the subsequent one(z); and, under circumstances, the court has refused to supersede the second commission (a). A commission against one who has been twice before declared bankrupt, and has not paid fifteen shillings in the pound under the second commission, is void (b).

One effect of a creditor suing out a fiat in bankruptcy against bis debtor is, that he thereby elects to proceed for his debt under

(u) Er p. Stead, 1 Glyn & J. 301. (x) Ex p. Nicholls, 2 Glyn & J. 266. (y) Ex p. Proudfoot, 1 Atk. 252: Ex p. Brown, 2 Ves. J. 67: Ex p. Martin, 15 Ves. 114: Everett v. Backhouse, 10 Ves. 95: Till v. Wilson, 9 B. & C. 684: Nelson v. Cherrell, 1 M. & Scott, 452; 5 M. & P. 680; 8 Bing. 316.

(2) Warner v. Barber, 2 Moore, 71; 1 Taunt. 176.

(a) Er p. Lees, 16 Ves. 472: Ex p. Crew, Id. 236.

(b) Er p. Lane, Mon. 12. See Till v. Wilson, supra. Re Chambers, 2 Dea. 494; 3 Mon. & A. 294.

the commission, and not by action of law, and relinquishes his proceedings by action, if he have taken any (c); in such a case the court, upon petition, will enjoin the creditor from proceeding in the action, if necessary (d), or discharge the debtor if he be in custody; but a court of law will not interfere in such a case (e).

Auxiliary Fiat.] By stat. 6 Geo. 4, c. 16, s. 20, it shall be lawful for the Lord Chancellor to direct an auxiliary commission to issue for proof of debts under twenty pounds, and for the examination of witnesses on oath, or for either of such purposes; and the commissioners in every such commission issued for the examination of witnesses shall possess the same powers to compel the attendance of and to examine witnesses; and to enforce both obedience to such examination, and the production of books, deeds, papers, writings, and other documents, as are possessed by the commissioners in any original commission: provided always, that all such examinations of witnesses under such commissions shall be taken down in writing, and shall be annexed to and form part of the original commission (ƒ). The Lord Chancellor never grants such commissions for the examination of the bankrupt (g). And parties claiming debts due under the commission, and summoned to attend for examination under the commission in the country, are not witnesses within the meaning of this section, so as to entitle them to an auxiliary commission for their examination (h). But where the original fiat was directed to Portsmouth, the court, on the petition of the petitioning creditor, ordered an auxiliary fiat to issue for the examination of witnesses in London, but so as not to interfere with the execution of the fiat at Portsmouth (i).

SECTION 5.

Opening the Fiat, and declaring the Party a Bankrupt. THIS section is intended to comprise the business usually done preparatory to and at the first meeting: namely, allotting the fiat to a commissioner (in town fiats), and the swearing of the commissioners in country fiats, the summoning of witnesses, proofs of the petitioning creditor's debt, trading and act of brnkruptcy, the adjudication, the advertisement in the Gazette, the summons of the bankrupt, and the bankrupt's surrender. We have seen (p. 82, ante), that no appointment can be made for opening a fiat in the Court of Bankruptcy, unless it is filed of record within seven days from the date; and by General Order (June 12, 1832), upon every

(c) Ex p. Wilson, 1 Atk. 152: Er p. Ward, Id. 153: Er p. Lewes, Id. 154: Ex p. Prowse, 1 Glyn & J. 92.

(d) See Ex p. Bozannet, 1 Rose, 181: Er p. Hardenberg, Id. 204.

(e) 1 B. & P. 302.

(f) See Ex p. Perry, and Er p. Scott,

1 Rose, 12, where the like was done prior to this statute.

(g) Re, Buck, 532.

(h) Ex p. Kirby, Mon. & M'A. 440. (i) Ex p. Carter, 3 Dea. & C. 106.

application for an appointment for opening any fiat, the registrar shall, in the presence of the solicitor applying for the same, allot such fiat, by ballot, to one of the commissioners of the court, according to the regulations to be from time to time prescribed by the Court of Review, except in cases of second or renewed fiats, which shall go to the same commissioner before whom the former commission or fiat was prosecuted; and upon the making of an appointment for opening any fiat, the registrar shall, in the presence of such attorney or solicitor, write upon the face of the fiat the name of the commissioner before whom the same is to be opened, and each fiat shall be prosecuted before the commissioner so appointed, unless otherwise specially ordered by the Court of Review, or one of the judges thereof.

It is not usual for counsel to attend the opening of the fiat; but where it appeared that the supposed bankrupt was perfectly solvent, and had not committed any act of bankruptcy, and that the commission was a stratagem on the part of the creditor to defeat an action brought against him, the commissioners, on an intimation from the Lord Chancellor, allowed counsel to attend (k). The court will, under special circumstances, enlarge the time for opening the fiat. (See p. 85, ante).

Commissioners' Oath.] By stat. 6 Geo. 4, c. 16, s. 21, no commissioner shall be capable of acting in the execution of any of the powers and authorities given by this act, (except the power hereby given of administering the oath next hereinafter mentioned), until he shall have taken an oath in the presence of one or more of the said commissioners, to the effect in the said statute mentioned, and which oath the commissioners are hereby empowered and required to administer one to another in the same commission named; and they shall enter and keep a memorial or memorials thereof, signed by them respectively among the proceedings under each commission. (See the form of this Memorial or Memorandum, ii. p. 7).

The statute 1 & 2 Will. 4, c. 56, s. 12, repeals this section so far as it applies to commissioners of the Court of Bankruptcy, and sect. 15 substitutes another form of oath to be administered to persons acting as commissioners of bankrupts elsewhere than in the Court of Bankruptcy. (See the form, p. 15, ante).

Previously to the administering of this oath, the fiat is produced by the solicitor, and opened by one of the commissioners.

The above oath is of course administered to the commissioners present at the first private meeting; and if, at any subsequent meeting, a commissioner attend for the first time, one of the commissioners must administer this oath to him, before he takes any part in the proceedings. (See the form of the Memorandum in such cases, ii. p. 7).

Summons for Witnesses.] By stat. 6 Geo. 4, c. 16, s. 24, it shall be lawful for the commissioners, after they shall have taken such

(k) Ex p. Taylor, Mon. & M'A. 427.