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CHAPTER III.

OF THE PRACTICE IN BANKRUPTCY.

SECTION I.

Of the Proceedings to Adjudication.

WE have already noticed what are sufficient acts of bankruptcy, and what is a sufficient petitioning creditor's debt to support a joint fiat. We have likewise seen, that a joint fiat cannot be supported, unless each of the partners has committed an act of bankruptcy, but that it may be supported against all or some of the members of a firm (a).

Formerly, if one of the partners were an infant (6), or lunatic (c), or uncertificated bankrupt (d), it was necessary to issue separate commissions against each, and not a joint commission against all the other partners; but, under the present law, a joint commission or fiat may issue against such of the partners as are under no disabilities. As against these, even a joint fiat issuing against all may be made available (e).

It has been before observed, that a joint creditor may take out a separate fiat (f); but where all the partners have committed acts of bankruptcy, and there are no separate creditors, it seems to be irregular for a joint creditor, at the same time and for the same debt, to proceed separately against each member of the firm, instead of proceeding jointly against all the members (g).

Where there are several partners, and the partnership pro

(a) Ante, pp. 573, 575.

(b) Ex parte Henderson, 4 Ves. 163; Ex parte Liddell, 2 Rose, 34. (c) Ex parte Layton, 6 Ves. 434. (d) Ex parte Martin, 15 Ves. 114.

(e) 6 Geo. 4, c. 16, s. 16.

(f) Ante, p. 575.

(g) Ex parte Gardner, 1 Ves. & Bea. 74.

perty belongs to some of them only, the others having an interest in the profits but no share in the capital, a joint fiat may, nevertheless, be supported against all, their creditors taking the joint property as the promiscuous property of them all (a). But it has been doubted whether joint proceedings can be supported against partners, where there is no joint property. And in a case where the firm consisted of two partners only, one of whom was a dormant partner, enjoying a share of the profits but not of the capital, Lord Eldon expressed himself uncertain whether a joint commission could be upheld, such a commission being in the nature of an execution against joint property, of which, in this case, there was none (b).

II. Bankrupts should be described in the proceedings according to their known description (c). And where joint proceedings are had against persons who have been partners, but whose partnership is dissolved, it is necessary that the separate description of each since the dissolution, should be added to their joint description. Therefore, where the bankrupts were described as "late of the Kent Road, coal-merchants," and it appeared that they had quitted that trade three years previously to the issuing of the commission, and had since been separately engaged in farming, the description was held insufficient, and the commission superseded (d).

A commisssion or fiat against A., "as surviving partner of B.," is, in effect, joint (e).

III. Upon the opening of a fiat, the commissioners must, at the first private meeting, take the oath prescribed by the 1 & 2 Will. 4, c. 56, s. 8. It will then be necessary to summon the witnesses, to admit proof of the petitioning creditor's debt, the trading, and acts of bankruptcy. The rest of the business con sists of the adjudication, the ordering the advertisement in the

(a) Ex parte Hunter, 2 Rose, 382. (b) Ex parte Hamper, 17 Ves.

418.

(c) Ex parte Beckwith, 1 Glyn & Jam. 20; Ex parte Horsley, 2 Madd. 11. The popular description of a bankrupt's residence is sufficient. Ex parte Wride, 2 Glyn & Jam. 99.

But the omission to describe him as of the place where he actually traded, is fatal. Ex parte Beadles, 2 Glyn & Jam. 243.

(d) Ex parte Day, Mont. & M'A. 208.

(e) Ex parte Barned, 1 Glyn & Jam. 309.

Gazette, the summoning of the bankrupt, and sometimes the receiving of his surrender.

The Commissioners may, before adjudication, summon and compel the attendance of any person whom they shall believe capable of giving any information concerning the trading or any acts of bankruptcy committed by the persons against whom the fiat is opened. They may also require any person so summoned to produce any books, papers, deeds, writings, and other documents in his custody, which may be necessary to establish such trading or acts of bankruptcy. They may likewise examine such person vivá voce (a). And it seems clear, that, to aid the proof in these cases, the production of partnership books in the custody of a solvent partner may be compelled (b), even though the partnership may have been for some time dissolved; for the assignees of the bankrupt have the same right of inspection as the bankrupt himself had (c). But we have seen that the books cannot be taken permanently out of the custody of the solvent partner (d).

To the observations which have already been made regarding the petitioning creditor's debt (e), we may here add, that by Lord Apsley's order, which provides for duly ascertaining the reality of the petitioning creditor's debt, the Commissioners are desired, if it be a single commission, to inquire whether the bankrupt was concerned in any partnership at the time of his bankruptcy; and in case the same be a joint commission, then to inquire of how long standing the partnership has been, and whether any separate commission has before issued, and be then depending, against either of the partners; and to inquire, whether the bankrupt ever obtained a certificate under any former commission, or has been discharged under any act for the relief of insolvent debtors; and if such be the case, to certify the same separately to the Lord Chancellor, and to transmit such separate certificate to the secretary of bankrupts.

The trading and acts of bankruptcy must be proved by witnesses who attend before the Commissioners, and make depositions of the fact; and this personal attendance will not be dispensed with without an order from the Court of Review (ƒ).

(a) 6 Geo. 4, c. 16, s. 24.

(b) Ex parte Levett, 1 Glyn &

Jam. 185.

(c) Ex parte Trueman, 1 D. & C.

(d) Ante, p. 160.
(e) Ante, p. 575.

(f) As to the death of witnesses, see 2 & 3 Will. 4, c. 114, s. 7.

The petitioning creditor under a separate fiat may in some cases be ordered to exhibit the proceedings under that fiat, in order to aid the proof of bankruptcy under a subsequent joint fiat (a). But the act of bankruptcy must be proved as strictly under the subsequent as under the original proceedings; and therefore, where a person had proved an act of bankruptcy against one of several partners under a separate commission, he was not permitted under a subsequent joint commission against all the partners to prove the same act of bankruptcy by affidavit (b).

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 (c). But if the bankrupt dispute the adjudication, and shall, within two calendar months from the date of such adjudication, present his petition for the reversal thereof to the Court of Review, that Court may proceed to hear and decide on such petition; or may, at the option of the bankrupt, and on his finding security for costs if required, direct an issue to try the adjudication (d).

After adjudication, the Commissioners may summon before them any person known, or suspected, to have any of the estate of the bankrupt in his possession, or who is supposed to be indebted to the bankrupt, or any person whom the Commissioners believe capable of giving information concerning the person, trade, dealings, or estate of such bankrupt, or concerning any act or acts of bankruptcy committed by him, or any information material to the full disclosure of the dealings of the bankrupt. They may likewise require such person to produce any books, papers, deeds, writings, or other documents in his custody, which may appear necessary to the verification of the deposition of such person, or to the full disclosure of any of the matters which the Commissioners are authorized to inquire into. They are also empowered, by warrant

(a) Ex parte Harrison, 2 Glyn & Jam. 135.

(b) Ex parte Rowe, 2 Rose, 339. But this mode of proving the act of bankruptcy was opposed by the

Y Y

partner against whom the separate commission had issued. See Wood's case, 1 Rose, 298.

(c) 6 Geo. 4, c. 16, s. 24.

(d) 1 & 2 Will. 4, c. 56, s. 17.

under their hands and seals, to arrest any person refusing to attend (a).

Under this enactment, as under a similar one before mentioned (b), the Commissioners, under a fiat against one partner, may compel the attendance of the solvent partner, and the production of the partnership books, in order to a full disclosure of the bankrupt's estate and circumstances. Before the 6 Geo. 4, c. 16, it was held that this could only be done upon petition (c).

The Commissioners may summon the bankrupt, and may examine him upon oath touching all matters relating either to his trade, dealings, or estate, &c. (d); and if under a joint bankruptcy there is a dispute whether a debt is joint or separate, an issue may be directed, with a declaration that the bankrupts, or either of them, and the creditor, shall be examined at the trial (e).

SECTION II.

Of Proofs under Joint and Separate Fiats.

THE proof of debts takes place at the public meetings only. It may be made either at the two public meetings appointed for the surrender of the bankrupt (f), or at any other meeting appointed by the Commissioners for proof of debts, "whereof, and of the purport whereof, ten days' notice shall have been given in the London Gazette" (g). Proof may now be made by affidavit (h).

II. 1. The rule regarding proof by joint and separate creditors, so far as it affects the joint and separate estates of the

(a) 6 Geo. 4, c. 16, s. 33.

(b) Ante, p. 688.

(c) Ex parte Levett, 1 Glyn & Jam.

185.

(d) 6 Geo. 4, c. 16, s. 36.

(e) Ex parte Williamson, Buck, 546.

(ƒ) 1 & 2 Will. 4, c. 56, s. 20.
(g) 6 Geo. 4, c. 16, s. 46.

(h) 1 & 2 Will. 4, c. 56, s. 34.