Page images

goods of A, and sells them to B, in his own name, they were then at home : Held, that, in the absence of is a trader.

evidence of the bankrupts' having actually tried to But a person wbo sold goods by commission was get the bills discounted, the jury were warranted in not, previous to the 6 Geo. 4. c. 16, subject to the finding they had left the place to delay creditors. bankrupt laws. Doe d. Barraud y. Lawrence, 2 C. Deffle v. Desanges, 8 Taunt. 671. & P. 134. [Abbott]

If a trader absents himself, not in order to avoid The widow of a livery-stable-keeper and horse- a creditor, with whom he has made an appointment, dealer purchased borses to let out to hire, and occa- but merely to avoid the execution of a bail-bond, sionally sold some, but had taken out no licence : wbich he had undertaken, on being discharged out Held, that this was sufficient to constitute a trading of custody from an arrest, to execute, this is not an within the meaning of the bankrupt laws; and act of bankruptcy. Schooling v. Lee, 3 Stark. 149. where, on the judge's intimating such an opinion, (Abbott) the defendant's counsel acquiesced, and the question A trader appointed a creditor to meet him at his of trading was not left to the jury, the Court refused house on a particular day, the creditor accordingly to grant a new trial. Martin v. Nightingale, 4 Law went, when the trader's wife said that her husband J. C.P. 127, s. c. 3 Bing. 421.

was gone out; and having waited for more than A husband being, in right of his wife, seised of a half an hour, the creditor went away, the bankrupt farm during the coverture, converts the soil into not having returned : Held, that it was properly bricks, of which he manufactures and sells great left to the jury to say, whether the trader had left quantities : be is not a trader within the meaning his house to avoid or delay a creditor; and they of the bankrupt laws. Ex parte Burgess, 5 Law J. baving found in the affirmative, the Court refused Chanc. 182, s. c. 2 G. & J. 183.

to disturb the verdict. Charrington v. Brown, 4 A commission of bankrupt cannot be supported Law J. C.P. 141. against a person under age. O'Brien v. Currie, 3 C. & P. 283. [Burrough]

(c) Beginning to keep house. (B) Acts of BANKRUPTCY.

An act of bankruptcy is committed by a denial to

a collector of the King's taxes. Sanderson v. Lafe[See the several acts of bankruptcy specified in rest, 1 C. & P. 46. [Burrough] the third and five following clauses of 6 Geo. 4. o. The denial of a trader to a person who calls to 16,—3 Law J. Stat. 15.]

inform bim of the dishonour of a bill, is an act of

bankruptcy, without further proof of the party be(a) Departing the realm.

ing a creditor, if the bankrupt so considered him. Going abroad being an equivocal act, and depart. Bleasby v. Crossley, 2 C. & P. 213. (Best] ing the realm being a continuing act of bankruptcy: A, a trader at W, on coming to London, went to the Held, that letters written by the party absconding, counting-house of C, where he generally transacted during his departure and absence, shewing the mo- business with other persons; however, he desired C tive of bis departure, were admissible in evidence, to deny him to a creditor, and concealed bimself in and sufficient to establish an act of bankruptcy; but

C's house when the creditor called : Held to esta. statements or declarations of a bankrupt made at a blish an act of bankruptcy. Curteis v. Willes, 4 D. time long subsequent to the departure, or uncon- & R. 224, s. c. 1 R. & M. 58, s. c. 1 C. & P. 211. nected with the state of his mind at the time, are If a man has a private house and a place of businot receivable. Rawson v. Haigh, 2 Law J. C.P. ness, a denial at the former to a creditor, is an act 130, s. c. 2 Bing. 99, s. C. 1 C. & P. 77, s. c. 9 B. of bankruptcy. Park v. Prosser, 1 C. & P. 176. Mo. 217.


A trader ordered his servant to say, that he was (b) Departure from dwelling-house and otherwise

not at home if any creditors called, and he was acabsenting himself.

cordingly denied, but was at that period ill in bed : To constitute an act of bankruptcy, by a debtor Held, that it was properly left to the jury, whether absenting himself, in order to delay creditors, it is this was a beginning to keep house with an intent not indispensably necessary that a creditor should to commit an act of bankruptcy, and that they were be delayed. Hallen v. Homer, 1 C. & P. 108. [Park] warranted in finding that it was. Lasarus v.

An omission to keep an engagement to meet a Waithman, 5 B. Mo. 313. creditor at a given place, without any intention to On the 20th of May a partner in a banking firm delay creditors, is not an act of bankruptcy. Tucker having been arrested at his private dwelling, distant v. Jones, 2 Bing. 2, s. c. as Tolemun v. Jones, 9 B. several miles from the bouse of business, and having Mo. 24.

promised to execute a bail-bond when required, imIf a debtor make an appointment to meet and pay med ly ordered his servants not to let into the his creditor, at a certain time and place, and fail in house any person whom they did not know, as he keeping his appointment, this will be an act of bank- was fearful of being arrested again ; on the 21st tbe ruptcy, with intent to delay the creditor, unless the doors were kept shut, and no person was admitted cause of failure be satisfactorily explained. Widger until it had been ascertained from the window who v. Browning, 5 Law J. K.B. 77.

the applicant was : Held, that although no creditor l'wo partners left their shop, under the pretence was actually denied, an act of bankruptcy was comof getting bills discounted to pay their creditors, and mitted on that morning. Harvey v. Rumsbottom, 1 told their shopman, if any person called, to make Law J. K.B. 25, s. c. 1 B. & C. 55, s. c. 2 D. & R. some excuse, and say they were not in the way. 142. On the following day, the shopman, without any Where a trader confined in the King's Bench further directions, denied them to a creditor, although prison obtained a day-rule and went to his place of


business, and instead of returning to the rules, slept at his house, and caused the shop to be closed earlier

(f) Compounding with Petitioning Creditor. than usual, and ordered bimself to be denied to the Where the bankrupt's assets in the hands of the clerk of a creditor : Held, that this was sufficient assignee are greater than the amount of his debts, evidence to constitute an act of bankruptcy; and and the creditors who have proved consent to the that it was properly left to the jury to say, whether supersedeas, and the petitioning creditor receives the the shutting up the shop at an earlier hour than whole amount of his debt, interest, and costs, it is usual, was not done as a colour to enable the party not a compounding within the 8th section of 6 Geo. to cause himself to be denied to his creditors. 4. c. 16. Ex parte Smith, 2 G. & J. 291. Hughes v., Gilman, 3 Law J. C.P. 199, s. C. 10 B.

(C) OF THE PETITIONING CREDITOR. Mo. 480, s.c. 1 C. & P. 32.

(a) Who may be. (d) Fraudulent conveyance or transfer.

A commission is not valid, where a married [See post, L.)

woman, as petitioning creditor, in respect of a debt

due to her in autre droit, strikes the docket alone, An act of bankruptcy is committed within the without the husband joining. Er parte Mogg, 6 meaning of the 1 Jac. 1. c. 15, by a trader convey- Law. J. Chanc. 162, s. c. 2 G. & J. 397. ing all his property to a particular creditor. Wors- To enable a secretary to a company to sue out a ley v. Demattos, 2 Ken, 218, Š. c. 1 Burr. 467. commission, particular words must be used ; there

Where a lease was to become void, upon assigo- fore, wbere a private statute authorized an insurance ment without the lessor's consent,-it was holden, society to sue and be sued in the name of tbeir secrethat the lessee baving assigned all his property, tary, and to commence all actions and suits in his real and personal, to the trustee, for the benefit of name as nominal plaintiff, - It was held, that those bis creditors, bad not thereby forfeited the lease, words did not comprehend a petition for a commis. such deed amounting to an act of bankruptcy. Doe sion. Guthrie v. Fiske, 3 B. & C. 178, s. c. 5 D. & d. Lloyd v. Powell, 5 B. & C. 308, s. c. 8 D. & R. R. 24, B, C. 3 Stark. 153. 35. A fair and bona fide sale of the whole of a trader's

(6) Duties and Liabilities. property is not, of itself, an act of bankruptcy. Where a petitioning creditor, previous to issuing

The party wbo impeaches the sale of the whole of a commission, bad taken out execution against the a bankrupt's property, must shew some facts from bankrupt, for part of the debt on which the commiswhich fraud may be inferred. Rose v. Haycock, 5 sion issued, the Court directed bim to fui nish the Law J. K.B. 210,

assignees with the particulars of his debt, and the Where A and B, being in embarrassed circum- time at wbich it was contracted. Er parle Glover, stances, conveyed to C all the machinery in their 2 G. & J. 60. mills, and all the machinery to be substituted in A petitioning creditor, under a separate commislieu thereof, to secure 3,0291. 9s. 7d., with interest, sion, will be ordered to exhibit the proceedings, in defeasible, however, upon the payment of that sum order to support a subsequent joint commission. with interest, by instalments of 501. in each succeed. Ex parte Harrison, 2 G. & J. 135. ing month, but had other property : Held, that this Where the bankrupt's assets in the hands of the was not per se an act of bankruptcy, but that it assignees are greater than the amount of l'is debts should bave been left to the jury to say, whether and the creditors who have proved consent to the the conveyance was a fraudulent preference. Balme supersedeas, and the petitioning creditor receives the v. Hutton, 2 Y. & J. 101.

whole amount of bis debt, interest and costs, it is

not a compounding within the 8th section of 6 Geo. (e) Lying in Prison.

4. c. 16. Ex parte Smith, 2 G. & J. 291. To constitute an act of bankruptcy, by lying in The petitioning creditor is liable to the messenger prison for two months, the whole of the day of arrest for his charges for services before the party is domight be reckoned. Saunderson v. Gregg, 3 Stark. clared a bankrupt, although there be a due declara72. [Abbott]

tion of bankruptcy, and the messenger's bill is ordered An act of bankruptcy was complete by lying in by the commissioners to be paid by the assignee out prison two months, even though the bankrupt had of the estate. Burwood v. Cant, 2 C. & P. 123. the benefit of day-rules, and was seen once at his [Abbott] own shop during that period. Soames v. Wutts, 1

(c) Debt, umount and nature of. C. & P. 400. (Best] [See 6 Geo. 4. c. 16. s. 5, whereby lying in prison for 21 days is declared Interest cannot be added to the principal due on an act of bankruptcy.]

a bill of costs, so as to constitute a valid petitioning An escape is not constituted within 21 Jac. 1. c. creditor's debt. In re Burgess, 8 Taunt. 660, s. C. 19. s. 2, by a prisoner being carried through another 2 B. Mo. 745. county, with permission of the sheriff, and calling To prove a good petitioning creditor's debt, it must upon his attorney ; bence the bankruptcy will run be shewn, that on the specific day, as much as 1001. from the day of the arrest. Buby v. Rose, 2 Ken. was due. Gresley v. Price, 2 C. & P. 48. ( Abbott) 173, s. c. 1 Burr. 437.

A good petitioning creditor's debt is not proved Quære, whether the act of bankruptcy, by lying by shewing that the bankrupt has drawn or indorsed in prison twenty-one days, under the stat. 6 G. 4. a bill for £100, which is dishonoured, unless it apc. 16. s. 5, hare relation back to the first day of the pear, that the acceptor has made default. Giles v. imprisonment? Tucker v. Barrow, 3 C. & P. 85, Powell, 2 C. & P. 259. [Best] 8. c. 1 M. & M. 137. [Tenterden)

The petioning creditor baving given a cheque on

bis bankers, to a person who afterwards became bankrupt; and such petitioning creditor being appointed one of his assignees, and becoming possessed of his papers: Held, that the payment of the cheque must be proved, in order to constitute the petitioning creditor's debt. Bleasby v. Crossley, 4 Law J. C.P. 136, s. c. 3 Bing. 430, s. c. 2 C. & P. 213.

A commission may issue at the instance of a creditor, whose debt has been omitted in the schedule by an insolvent who had obtained bis discharge. Er parte Shuttleworth, 2 G. & J. 68.

Before application for the substitution of a new petitioning creditor's debt to support the commission, the one on which it was founded must be expunged. Ex parte Chappell, 2 G. & J. 131 : S. P. In re Williams, 5 Law J. Chanc. 76.

(d) When contracted. A debt barred by the Statute of Limitations is not a valid debt, to support a petition for a commission of bankruptcy. (But by the new Bankrupt Act, 6 Geo. 4. c. 16. S. 18, if, after adjudication under a commission, the petitioning creditor's debt be found insufficient to support the commission, the Lord Chancellor, upon the petition of any creditor who has proved a sufficient debt, may order the commission to be proceeded in; provided the debt of the second petitioning creditor has not been incurred anterior to that of the first.) Gregory v. Hurrill, 4 Law J. K.B. 262, s. c. 5 B. & C. 341, S. C. 8 D. & R. 270.

Where a writ has been issued and continuances entered, the Statute of Limitations does not apply, so as to deprive the creditor of his right to issue a commission of bankruptcy against his debtor. Gregory v. Hurrill, 1 Law J. Č.P. 115, s. c. 1 Bing. 324.

Where, in an action by the assignee of a bankrupt, for goods sold by the latter to the defendant before the bankruptcy, it did not appear that a petitioning creditor's debt, amounting to £100, had been contracted within six years before the suing out of the commission, and the jury found a verdict for the assignee,-the Court refused to disturb it. Mavor v. Pyne, 4 Law J. C.P. 36, s. c. 3 Bing. 285, s. C. 2 C. & P. 91.

The petitioning creditor's debt must have arisen whilst the trader was in business; but the circumstance of his discontinuing trade, does not prevent the issuing of a commission. Doe d. Barraud v. Lawrence, 2 C. & P. 134. [Abbott]

Where a petitioning creditor's debt arises on a note indorsed, or a bill accepted, by the bankrupt, evidence must be given that the indorsement or acceptance was prior to the act of bankruptcy : the mere production of the instrument, bearing an earlier date, is insufficient. Cowie v. Harris, i M. & M. 141. [Tenterden]

(D) OF THE COMMission.

(a) Striking the Docket. The circumstance of the affidavit of debt, on striking the docket, having been sworn before the solicitor suing out the commission, is po ground of supersedeas. In re Elford, 2 G. & J. 65.

Where a commission issued on the petition of a solvent partner, who was one of the assignees of bis bankrupt co-partner, in respect of a partnership

debt; it was held regular, though the other assignees were not joined in the affidavit. Er parte Blakey, 1 G. & J. 197.

In order to make a sufficient petitioning creditor's debt, A and B had to join ; and in making their affidavit, upon striking the docket, tbe amount of one of the debts was misstated : Held, that a supplemental affidavit might be made without new bonds; and that it was not essential that the bond and affidavit should bear the same date. Er parte Maughan and Smith, 1 G. & J. 365.

After a valid act of bankruptcy, a commission may issue at the instance of the bankrupt. Shaw v. Williams, 1 R. & M. 19.

The first regular docket in the office has the priority. Er parte Stocker and Collins, 1 G. & J. 249.

Held, that a docket was regularly struck after the V. C. bad pronounced an order for the superseding of a commission against the same party, on the production of the necessary consents, but before the order was drawn up. Ex parte Bower, 1 G. & J. 262.

A docket struck with an act of bankruptcy, upon the belief by the creditor that an act of bankruptcy bad been committed, will support a commission under a subsequent act. Ex parte Webster-Ex parte Stonehouse, 2 G. & J. 252.

A commission of bankrupt, sued out after the statute 6 Geo. 4. C. 16, came into operation, on an act of bankruptcy committed before the passing of that statute, cannot be supported. Maggs v. Hunt, 5 Law J. C.P. 130, s. C. 4 Bing. 212.

A statute authorizing a company to sue and be sued in the name of their secretary, does not empower the secretary to sue out a commission of bankruptcy as upon a debt due to himself. Guthrie v. Fiske, 3 Stark. 151. [Abbott]

(b) Opening the Commission. The time for opening a commission will be enlarged, where the witness, who is to prove the act of bankruptcy, secretes himself in concert with the bankrupt. In re Hayes, 1 G. & J. 253.

(c) Declaring the Bankruptcy. The advertisement of bankruptcy in the Gazette will be delayed upon an affidavit made by the creditors for that purpose. But it will not be delayed on the application of the bankrupt. Anon. 1 Law J. Chanc. 92.

In the absence of a defect on the face of the proceedings, the Court will not suspend the advertisement of the bankruptcy in the Gazette. Er parte Ainsworth, 2 G. & J. 89.

(d) Errors. A commission against L. H. M. of Finsbury Square, in the city of London, instead of the county of Middlesex, not a material misdescription. Ex parte Smith, 1 G. & J. 256.

A misnomer in the bankrupt's name, in a commission, may be amended before it has been proceeded in. E.x parte Harman, 2 G. & J. 25.

But a description in a commission consistent with the one in which the bankrupt carries on bis trade, is sufficient, though it be not the legal description of residence. Ex parte Wride, 2 G. & J. 99.

Wbere a commissioner was misnamed in a com. mission, and after the bankruptcy declared, motion was made for leave to amend, the Court ordered the other commissioners to proceed to a new adjudication. In re Barber, 2 G. & J. 81.

A commission wholly omitting to describe the bankrupt of the place where he had chiefly been known as a trader, is bad, though the last place of trading be correctly described. Ex parte Parrey, 2 G. & J. 225.

The omission to describe the bankrupt, as of the place where be actually traded, is fatal. Ex parte Beadles, 2 G. & J. 243.

(e) Validity of, when and how to be disputed. As to what is a fraudulent commission, see E.. parte Gane, ? G. & J. $19.

The Court allowed a general demurrer to a bill for want of equity, by the assignees of a bankrupt, to restrain an action by him, to try the validity of the commission. Kirkpatrick v. Dennett, 1 S. & S. 408.

Where the parties to an alleged concert make affidavits to support the commission, which are not so satisfactory as to enable the Court to come to a conclusion, the Court will direct an issue to try the concert, and will direct the parties thereto to be examined at law. Ex parte Carter, 1 G. & J. 526.

An issue, directed upon the bankrupt's petition for a supersedeas, to try the validity of a commission of bankrupt, baving been found against the bankrupt, and he having submitted to the verdict, and his petition having been dismissed, he will be restrained from afterwards bringing any action to question the validity of the commission. Anon. 1 Law J. Chanc. 28.

A person who has obtained his discharge out of custody, on the ground of bankruptcy, cannot afterwards dispute the validity of the commission in a court of law: the commission, if objectionable, must be superseded in equity. Watson v. Wace, 5 B. & C. 153, s. c. 7 D. & R. 633.

Wbere a party intends to dispute the validity of a commission, and brings an action against the person who caused it to be issued : Held, that he cannot require particulars of the act of bankruptcy, on which such commission is to be supported. Hughes v. Gilman, 3 Law J. C.P. 120.

No objection can be taken to the validity of a commission of bankrupt, unless the requisite notice be given, although the objection appears upon the proceedings, and requires no evidence to support it. Beran v. Lewis, 1 Sim. 376.

Where the bankrupt acquiesces, the Lord Chan. cellor will, upon petition, restrain him from disputing his commission at law. Ex parte Leigh, in re Claughton, 2 G. & J. 332.

A petitioning creditor, on whose affidavit a commission issues, cannot afterwards dispute the validity of the commission. Ledbetter v. Scott, 6 Law J. C.P. 147, s. c. 4 Bing. 623. 5. c. 1 M. & P. 597.

Where a commission of bankrupt is impeached by a creditor, and the debt which he claims is alleged to be usurious, it ought to be ascertained that the bankrupt is indebted to him, before the validity of the commission is inquired into at his instance. Es parte Hudson, 2 Russ. 456.

A reference to the commissioners to review the

proof of the trading, and of the petitioning creditor's debt, substituted for the trial of an issue as to the validity of the commission. Ex parte Hudson, 2 Russ. 450.

(1) Effect of a Commission. The Statute of Limitations does not run against a debt after a commission of bankrupt has issued. Ex parte Ross, 2 G. & J. 46.

(8) Second Commission. A second commission against a bankrupt who has not obtained his certificate under a previous subsisting commission, is void at law. Hill v. Wilson, 6 Law J. K.B. 127.

One set of commissioners not being able to proceed, from the death of one on their list, the Court permitted another commission to issue upon the same docket, directed to another list. Ex parte Stead, 1 G. & J. 301.

Under a second commission, the writ of supersedeas of the first, is sufficient proof of its having issued. Ledbetter v. Scott, 6 Law J. C.P. 147, s. c. 4 Bing. 623, s. c. 1 M. & P. 597.

After a bankrupt had not paid 15s. in the pound, under a second commission, he became a bankrupt again: Held, that the last commission was voidable, and not absolutely void. Todd v. Maxfield, 3 B. & C. 222, s. c. 5 D. & R. 258.

In an action to try the validity of a second commission of bankruptcy, the former having been su. perseded, as being founded on a concerted act of bankruptcy, the Court refused to order the bank. rupt's books and papers to be produced to the assignees, under the second commission, on the ground that the application should bave been made to the Lord Chancellor. Wilson v. Legge, 7 B. Mo. 400.

Although it may appear from the depositions, that a prior act of bankruptcy has been committed, the Court will not, in the absence of evidence, presume, that the petitioning creditor was cognizant of the fact. Thackrah v. Wood, 3 Stark, 141. [Abbott)

Quære-- Whether the assignees under a second commission of bankrupt, (tbe first commission having been superseded) can, by petition, call the messenger under the first, to account for property possessed and disposed of by him under the first commission, without bringing the assignees under the first commission before the court? In re Howard 8 Gibbs, 1 Law J. Chanc. 31.

A commission directed to new commissioners, cannot issue after judgment by another list of commissioners against the bankruptcy. Ex parte Nicholls, in re Summersett, 2 G. & J. 266.

(h) Costs. The commissioners have no right to decline to tax bills of costs, on the ground that the whole business of the commission is not concluded. E. parte Gore, 2 G. & J. 117.

At the taxation of costs, before the commissioners, the parties have a right to attend. Ex parte Palmer, 2 G. & J. 34.

(E) OF THE MESSENGER. Where a bankrupt has abandoned a petition for a supersedeas, and has joined in a conveyance of part of his property, and solicited and procured the re

quisite signatures to his certificate, the Court will the commissioners books and accounts relating to his restrain him from proceeding in an action against dealings with the bankrupt's estate, to produce then the messenger, impeaching the validity of the com- before the commissioners. mission. Ex parte Cutten, 1 G. & J. 317.

Semble--That the commissioners have power to The inessenger, under a commission, may main- examine him, with respect to the statements and tain an action against the petitioning creditor, for entries in his books, and, in default of satisfactory his charges as messenger due before the choice of answer, to commit him. assignees, although the party has been declared a The Great Seal cannot give the commissioners a bankrupt, and the messenger's bill bas been ordered, power, which the law has not given them; but it by the commissioners, to be paid by the assignee will lend its assistance to enforce obedience to the out of the estate. Burwood v. Kant, 2 C. & P. 123. authority given them by the statute, where they [Abbott)

have not power to punish for disobedience. Er The assignee of a bankrupt is not liable to the parte Woolley, 2 Law J. Chanc. 147, s. c. 1 G. & messenger for fees due to him before the choice of J. 395. the assignees, although he continue to employ him The allowance by the commissioners of the asafterwards. Burwood v. Felton, 2 Law J. K.B. 204, signees' accounts can only be revised by the Court 8. c. 3 B. & C. 45, s. C. 4 D. & R. 621.

as to the principle upon which they have proceeded, The messenger cannot sustain an action for his and not as to the consideration of the quantum of fees, if he was privy to a fraud in respect of wbich the allowance. Ex parte Anthony, 2 G. & J. 55. the coinmission has been superseded. Ex parte If the creditors consent to a supersedeas, and all Ruwlinsim, 3 Law J. Chanc. 54.

the commissioners, except one, are dead, the sur. Where a messenger is possessed of property, viving commissioner will be directed to certify to under a commission which has been superseded; the Lord Chancellor the names of the creditors who the Court will order him to account for the same to have proved. En parte Wallis, 1 G. & J. 25. the assignees under a subsequent commission. Er Commissioners of bankrupt, under the statute parte Sluw, 2 G. & J. 73.

6 Geo. 4. c. 16. s. 33, may issue a warrant for the The 6 Geo. 4. c. 16, authorizing magistrates to apprehension of a person who bas failed to appear grant warrants to search for the goods of a bank- before them in obedience to a summons, although rupt, in the houses of third persons, means, that the fact of service of the summons has not been the warrant is to be given to the messenger, and not verified upon oath. But in such a case they take a constable. Sly v. Stevenson, 2 C. & P. 464. (Best) upon themselves the responsibility of shewing the (F) OF THE PROVISIONAL ASSIGNEE.

fact, that the person was summoned.

The question as to the reasonableness of the notice A & Co. and B & Co. respectively carried on given by summons to a person to attend the comthe business of bankers at M. B & Co. became bank- missioners, is a question for a jury. Grocock v. rupts; and at the period of the act of bankruptcy, Cooper, 1 Law J. K.B. 265, s. c. 8 B. & C. 211, the two banks held notes and other securities of 8. c. 2 M. & R. 78. each other, to nearly the same amount. The provi

(6) Duty. sional assignee of B & Co. knowing that fact, presented and obtained payment of the notes of A & Co. It is the duty of the commissioners to proceed in partly at their bank, and partly at their agent's the commissions as they come before them, without house in L, who did not know in wbat situation the reference to any other commission against the same parties stood : Held, that A & Co. might recover party. Ex parte Pryce, 2 G. & J. 161. the amount so received, against the provisional It is the duty of the commissioners, under whose assignee, in an action for money had and received. direction a sale is to be held, to ascertain the expenses Edmeults v. Newman, 1 B. & C. 418, s. c. 2 D. & of the sale, as directed by the general order of R. 568.

March, 1794. Ex parte Mathew, 1 G. & J. 312. Where the commissioners execute a provisional assigninent, the reasons for adopting that measure

(c) Liability. ought to be stated on the proceedings. Ex parte An action of trespass does not lie against comNorris, 1 G. & J. 237.

missioners of bankrupt for committing a witness, (G) OF THE COMMISSIONERS.

who does not answer to their satisfaction, when

examined by them concerning the estate and effects (a) Authority.

of a bankrupt. Doswell v. Impey, 1 Law J. K.B. Cominissioners of bankrupt are not authorized by 99, 8. c. 1 B. & C. 163, s. c. 2 D. & R. 350. the 5 (leo. 3. c. 30, to enlarge the time for the disclosure of the bankrupt's estates and effects, beyond

(d) Examination before. the limited period. Claughton v. Leigh, 1 Law J. Where a question is put to a bankrupt, whether K.B. 183, s. c. 1 B. & C. 652, s. c. 2 D. & R. 831. he had not within six months prior to the commis

A bankrupt who has been apprehended under a sion, executed two conveyances of his estate and judge's warrant, may be examined by the commis- effects, or part thereof, to his son, and he answered sioners, although the time for his surrender has ex- “not to my knowledge;" it was held, that this pired ; and if the answers given by him are satis- answer was sufficiently explicit, no further question factory, he may be discharged, unless indicted; or being put to him. Norris's case, 2 J. & W. 437. they may when necessary commit him for another examination. Ex purte Hunt, 2 J. & W.560.

(e) Commitment by. The Court will not order a creditor, whose proof In the warrant of the commissioners committing has been admitted, and who refuses to produce to a bankrupt, the whole of the examination ought to

« PreviousContinue »