oath as aforesaid, by writing under their hands, to summon before them any person whom they shall believe capable of giving any information concerning the trading of, or any act or acts of bankruptcy committed by, the person or persons against whom such commission is issued, and also to require any person so summoned to produce any books, papers, deeds, and writings, and other documents in the custody, possession, or power of such person, which may appear to the said commissioners to be necessary to establish such trading or act or acts of bankruptcy; and it shall be lawful for the said commissioners to examine any such person upon oath, by word of mouth, or interrogatories in writing, concerning the trade of or any act or acts of bankruptcy committed by the person or persons against whom such commission shall have issued; and every such person so summoned shall incur such danger or penalty for not coming before the commissioners, or for refusing to be sworn and examined, or for not fully answering to the satisfaction of the said commissioners, or for refusing to sign or subscribe his examination, or for refusing to produce, or for not producing any such book, paper, deed, writing, or document, as is hereby provided as to persons summoned after the adjudication of bankruptcy. (See post, sect. 12, and see a form of the Summons, ii. p. 19).

And by sect. 35, every witness summoned to attend before the commissioners, shall have his necessary expenses tendered to him, in like manner as is now by law required upon service of a subpœna to a witness in an action at law.

And here it may be necessary to observe, that every witness examined before the commissioners must be a competent witness, with reference to the matter he is called upon to prove, according to the rules of evidence established in the courts of common law. Proof of the petitioning creditor's debt is the only exception to this; that being proved before the commissioners by the petitioning creditor himself. The bankrupt cannot be called upon, nor is he admissible as a witness, to prove the petitioning creditor's debt, the trading or act of bankruptcy (1). (And see post, sect. 18). Nor is a creditor a competent witness for such a purpose (m); nor can he be rendered competent except by selling his debt (n); but semble, if the objection to the competency of the witness is not taken before the commissioners at the first meeting, it cannot afterwards be urged as an objection to the commission (o). And where the adjudication was founded on the evidence of a shopman of the bankrupt, who stated before the commissioners that he was not a creditor, though in fact he was, the Chancellor refused to supersede the commission (p). What the bankrupt said at the time of his doing an act, alleged as the act of bankruptcy, is properly receivable in evidence, as being part of the res gesta, and as evincing the

(1) Chapman v. Gardner, 2 H. Bl. 279, and n.: Field v. Curtis, 2 Str. 829: Hoffman v. Pitt, 5 Esp. 22.

(m) Per Lord Eldon, 1 Rose, 392, n.: Adams v. Malkin, 3 Camp. 543: Crooke v. Edwards, 2 Starkie, 302: Ex p. Os

borne, 2 V. & B. 177.

(n) Heath v. Hall, 4 Taunt. 326; Granger v. Furlong, 2 W. Bl. 1273.

(0) 1 Mon. B. L. 81: Ex p. Hills, Mon. & M'A. 272.

(p) Ex p. Hills, supra.

intent with which the act was committed (q); and the rule is not confined to the precise time of the act in question, provided there are some connecting circumstances between the declaration and the act (r).

Although this power of summoning witnesses is, by this act, and was, by one of the repealed acts, to be exercised by the commissioners after they had qualified, yet in practice it is usually done previously, in order to have the witnesses in attendance at the private meeting. How far the witness could be punished in such a case for non-attendance, is another matter. In many cases you may get the witness to attend without summons.

Proof of the Petitioning Creditor's Debt.] By an order of Lord Loughborough, dated 26th Nov. 1798, "no commission of bankrupt shall be acted upon by the commissioners to whom the same shall be directed, nor shall the party be declared to be a bankrupt under and by virtue of the same, unless the commissioners do have before them the creditor or creditors petitioning for such commission of bankrupt, and do examine into the nature and consideration of the debt or debts due to them ;" and the commissioners, "before they declare the party to be a bankrupt, shall cause to be entered on their proceedings a deposition of such petitioning creditor or creditors, stating the nature and amount of the debt or debts due to such creditor or creditors, and how and for what consideration the same arose, and also the particular time or times the same accrued due." But the court will dispense with the personal attendance of the petitioning creditor, if he reside 80 miles or upwards from the place where the fiat is to be opened (s), but not for a less distance (t). Where the petitioning creditor died between the time of striking the docket and the opening of the commission. his executors, upon petition, were allowed to make the necessary deposition of the debt (u). And it ought to appear on the affidavit of the petitioning creditor that the debt existed at the date of the act of bankruptcy; as where the debt arises upon bills of exchange drawn and indorsed by the bankrupt, it ought to appear in the deposition that they were indorsed over to the petitioning creditor prior to the act of bankruptcy (x).

Also, by Lord Apsley's order (12 Feb. 1774), the commissioners are desired to be careful in examining into the reality of the debts of petitioning creditors. They are also desired to inquire if the bankrupt was concerned in any partnership at the time of his bank ruptcy; and whether be had ever obtained a certificate under any former commission, or been discharged under any act for the relief of insolvent debtors: and if such be the case, the commissioners shall certify the same to the Lord Chancellor, and transmit such

(2) Ambrose v. Clendon, Cas. T. Hardw. 267: Marsh v. Meagre, 1 Stark. 353.

(r) Bateman v. Bailey, 5 T. R. 512: Ridley v. Gyde, 2 Bing. 349; 2 M. & Scott, 448.

(s) In re Polton, 3 Dea. & C. 688: In re Freeman, 3 Mon. & A. 33: Ex p. Marshall, Ib. 133; Ex p. Ross, Mon. &

B. 265; 1 Dea. & C. 552.

(t) In the matter of Wood. Mon. 509: Ex p. Williamson, 1 J. & W. 240.

(u) Exp. Winwood, 1 Glyn & J 252, S. C.: Ex p. Tanner, Mon. & M'A. 292, n.

(x) Key v. Cook, 2 M. & P. 720. See the form of the deposition, ii. p. 8.

certificate to the secretary of bankrupts, at the same time that they make their certificate of conformity.

Proof of the Trading.] This must be proved by some person who can swear to the fact from his own knowledge. And he must attend before the commissioners for that purpose; unless, perhaps, under very particular circumstances, the Lord Chancellor should dispense with his personal attendance, and allow a proof by affidavit of the trading. (Vide infra. See Forms of the Depositions as to the Trading, ii. p. 9).

Proof of the Act of Bankruptcy.] The act of bankruptcy is proved by a witness or witnesses, who attend before the commissioners and make depositions of the fact; and this personal attendance will not be dispensed with by the commissioners, without an order for that purpose from the court (a); and it is extremely doubtful if the Court of Review would make such an order under any circumstances, if opposed (b).

It must be proved by the ordinary evidence that would be required of the same facts upon a trial at law. Therefore, where the act of bankruptcy consists of a conveyance of the party's property, the deed or other instrument must be proved by the subscribing witness, if there be one, or by proof of the handwriting of the party, if there be not (c). Or if it consist of imprisonment, for instance, in the custody of the Marshal, not only the commitment must be proved, (and which may be proved from the prison books, or a certificate from the clerk of the papers, with a deposition of its being signed by him, which is the usual proof), but the committitur itself should be produced, to shew the cause of his commitment (d).

In all cases where the intent with which an act is done constitutes a part of the act of bankruptcy, the intent must be stated, either expressly in the deposition, or circumstances from which it may be fairly implied (e). And although the act of bankruptcy must appear to have been committed in England, or by remaining out of it, yet evidence of the intent may be derived from facts which occurred in a foreign country (f). See the forms of Depositions, ii. p. 11, &c.).

The Adjudication.] By stat. 7 Geo. 4, c. 16, s. 24, the commissioners, upon proof made before them of the petitioning creditor's debt or debts, and of the trading, and act or acts of bankruptcy of the person or persons against whom such commission is issued, shall thereupon adjudge such person or persons bankrupt. Whether the proofs offered of these matters be sufficient, is a matter entirely for the judgment of the commissioners (g). The adjudi

(a) See in the matter of Wood, 1 Rose, 228

(b) See Ex p. Rowe, 2 Rose, 339.

(c) See 1 Arch. Pr. B. R. 165, &c.: Arch. Pl. & Ev. 377, &c.: Goss v. Tracy, 1 B. Wms. 289; Burnett v. Taylor, 9 Ves. 381.

(d) See Salt v. Thomas, 2 B. & P. 188. (e) See Ex p. Herbert, 2 Ves. & B. 399: Ex p. Osborne, 1 Rose, 387.

(f) See Ex p. Hague, 1 Rose, 150. (g) See Ex p. Parsons, 1 Atk. 72; and see ante, p. 32.

cation is generally ex parte; and although the Court of Review can order the commissioner to proceed in the execution of the fiat, it has no jurisdiction to compel the commissioner to adjudicate (h), nor to control the exercise of his discretion as to the admissibility of evidence, though sometimes the court will intimate its opinion upon the subject (i). When it is manifest there are not requisites to support the fiat, the Chancellor will recommend the commissioner to hear counsel against the adjudication (k).

The commissioners are bound to adjudicate notwithstanding the fiat is issued against an uncertificated bankrupt (1). The court will not allow the bankrupt to attend the adjudication by counsel (m).

Provisional Assignee.] By stat. 6 Geo. 4, c. 16, s. 45, it shall be lawful for the commissioners, as often as they shall think fit, by writing under their hands, to appoint one or more person or persons an assignee or assignees of the bankrupt's real and personal estate, or of any part thereof, which assignee or assignees shall or may be removed at the meeting of the creditors for the choice of assignees, if they shall think fit; and such assignee or assignees so removed shall deliver up and assign all the estate of the bankrupt come to his or their possession, to the assignees so chosen as hereinafter mentioned, and all the estate of the bankrupt, which shall be so delivered up and assigned, shall be as effectually and legally vested in the assignees so chosen as aforesaid, as if the first assignment had been made to them by the commissioners: and if such first assignee or assignees shall not, within ten days after notice given of the said choice of assignees, and of their consent to accept such assignment, signified to the first assignee or assignees by writing under their hands, make such assignment and delivery as aforesaid, every such assignee shall forfeit 2007.

This clause, so far as it relates to the assignment, is repealed by the 1 & 2 Will. 4, c. 56, s. 25, 26, which vests the property of the bankrupt in the assignee by virtue of the appointment, without any deed of conveyance. A provisional assignee is no longer necessary in town fiats; for by 1 & 2 Will. 4, c. 56, s. 22, until assignees shall be chosen by the creditors of each bankruptcy, such official assignee so to be appointed to act with the assignees to be chosen by the creditors, shall be enabled to act, and shall be deemed to be, to all intents and purposes whatsoever, a sole assignee of each bankrupt's estate and effects. In country fiats, however, where the case requires it, application must be made to the commissioners to appoint a provisional assignee as heretofore, and the property will thereupon vest in him in the same manner as heretofore by bargain and sale and assignment, and upon the removal of the provisional assignee by the appointment of the assignees chosen by the creditors, the real and personal estate of

(h) Ex p. Johnston, 2 Mon. & A. 390; and see p. 81, ante.

(i) Ex p. Groom, 4 Dea. & C. 640.
(k) Ex p. Nokes, 1 Mon. & A. 461:

In re Walker, 2 Mon. & A. 267.

(1) Ex p. Addison, 3 Dea. 61: 3 Mon. & A. 438.

(m) Ex p. Foulkes, 1 Mon. & C. 68.

the bankrupt will again by 1 & 2 Will. 4, c. 56, s. 25, 26, vest in the new assignees by virtue of their appointment, without any conveyance by the provisional assignee.

A provisional assignee is usually appointed where an extent is apprehended, or where the bankrupt's business is of such a nature as to require it to be continued and carried on, or to require an immediate interference in it for other reasons. And the commissioners should state on the face of their proceedings their reason for the appointment (n).

The provisional assignee, under a fiat issued against an insolvent debtor within two months limited by 7 Geo. 4, c. 57, s. 13, may apply by motion in the Insolvent Debtors' Court for receipt of money out of the insolvent's estate (o).

A provisional assignee is not responsible for the fraud of an agent appointed with due care (p).

Advertisement in the Gazette.] By stat. 6 Geo. 4, c. 16, s. 25, the commissioners, after they have so adjudged as aforesaid, shall forthwith cause notice of such adjudication to be given in the London Gazette, and shall thereby appoint three public meetings for the bankrupt to surrender and conform, the last of which meetings shall be on the forty-second day hereby limited for such surrender. By 1 & 2 Will. 4, c. 56, s. 20, it shall be lawful for any commissioner who shall make any adjudication of bankruptcy to appoint two or more public meetings, instead of the three meetings directed by the said recited act, for the bankrupt to surrender and conform, the last of which said meetings shall be on the fortysecond day after the publication of his bankruptcy in the Gazette; and the choice of assignees shall take place at the first of such two meetings (q). (See the form of the Advertisement, ii. p. 24). The court, however, upon petition, will order the publication of this advertisement in the Gazette to be suspended (r), if there is a defect in one of the requisites of the bankruptcy (s). Upon a primâ facie case against the validity of the fiat, and under special circumstances, the advertisement was stayed for a few days, upon a strong probability that by that time the commission would be superseded with the consent of all the creditors (t) Upon a positive affidavit of the bankrupt that there was no petitioning creditor's debt or act of bankruptcy, and that the fiat was issued for a vexatious purpose, the advertisement was stayed on an ex parte application of the bankrupt (u); The advertisement will not be suspended unless the bankrupt show probable cause that he can succeed in his petition to annul (x); but generally the court requires the proceed

(n) Ex p. Norris, 1 Glyn & J. 257. (0) In re Tucker, Cress. 7.

(p) Raw v. Cutten, 9 Bing 96; 2 M. & Scott, 123.

(q) See Ex p. Soppit, Buck, 81. (r) Er p. Lavender, 1 Mon. & A. 699; 4 Dea. & C. 486.

(8) Er p. Proston, 1 Rose, 259: Ex p.

Fletcher, 1 Rose, 336; 1 V. & B. 350: Ex p. Forster, 17 Ves. 414: Ex p. Nokes. 1 Mon. & A. 461.

(t) Ex p. Ogilby, 1 Glyn & J. 250. (u) Ex p. Fletcher, 2 Dea. & C. 90, 317: Er p. Foulkes, 1 Mon. & C. 68. (x) Ex p. Rhodes, 3 Dea. 696.