committed for not fully answering to the Satisfaction of the Commissioners the following Question (a): “As you admit that you have received Goods within the last eighteen Months to the Amount of £14000; that you have suffered a Loss and incurred Expences with Respect to those Goods to the Amount of about £900, as detailed in the Schedule C; that you have no Books or Papers relating to the Losses so stated in the Schedule C, except the Invoices of the Purchases of those Goods; that you have never kept any Books of Account, except some little Memorandum Books which have been destroyed; that a Part of the Goods upon which the Loss had been sustained had been sold Abroad by Auction, the Accounts of which Sales, you formerly stated, you carried to the Continent, and destroyed them in an Enemy's Country, at the same Time giving as a Reason for taking them to the Continent with you, that they would assist your Judgment in selling the Goods you had then with you; but upon being further asked respecting those Accounts, you stated that you brought them to England, and that they must have been destroyed when the Sheriff took Possession of your House; but upon being asked whether you had the least Reason to suspect or believe that such Accounts had been destroyed by any Person acting under the Sheriff, you stated, that your Reason was that you did not find them when you came from Abroad; that you gave no particular Directions about them; that you did not enquire whether they had been destroyed by the Sheriff's Officer, or any other Person"-Have you now any Account to give respecting those Sales? Answer. No; no other Account; but the only Papers I brought Home the second Time, which was the latter End of March, or the Beginning of April, were the Papers about the Goods sold by Auction. The Bankrupt, by his Affidavit, stated, that if the Question had been divided, he should have answered, and went into an explanatory Statement of the Circumstances enquired into. The Lord CHANCELLOR. This Case is in the narrowest Compass. Whether the Commitment was proper, depends upon the Point, whether the Admissions assumed in the Recital are correct. If the Question was proper, and the Answer satisfactory, the Bankrupt is entitled to his Discharge in some Form; but the Commissioners having this Sort of Authority expressly given them by the Act of Parliament, a Doubt has been handed down (a) This Question was a Recapitulation of what had been stated by the Bankrupt on a former, and on his then Examination; his former Examination had been partly taken in private: in that Case the Examination is read to the Creditors at the public Meeting. 1811. HIAMS, Ex parte. by 1811. - HIAMS, Ex parte. by Tradition, whether the Lord Chancellor by that Authority which he has in Bankruptcy, can deal with the Commitment, as he, as Lord Chancellor, and the Judges, can upon the Return to a Habeas Corpus: and I find upon Enquiry at the Office, that for the last twenty-seven Years this Sort of Interference has been uniformly refused. The Difficulty when started has been avoided, by taking the other Course not open to Objection; and in some Instances it has been found salutary to send it again to the Commissioners to be reviewed: the Lord Chancellor not dealing directly with the Commitment; but by his Advice and Order impressing upon the Commissioners the Expediency of reconsidering whether they were perfectly right in the Exercise of their Authority (a). In the View I have taken of this Case, I cannot reach the Conclusion, that if the Truth of the Assertions contained in the Preface to this Question can be established, the Question was improper. I perfectly understand it, and the Drift of the Commissioners in putting it; and the fairest Way of putting it seems to be this, with a Recital summing up the previous Examination. Supposing therefore those Assertions to be true, I could not discharge upon a Habeas Corpus. Considering the Nature of these Questions, and of the Evidence given by himself, I am not sure that I could safely conclude that he had, as he says, made those Admissions. His Evidence, inconsistent and unsatisfactory as it is, does not appear to me to be so represented in these prefatory Admissions, as to form the Foundation of a Commitment. I do not think that he has so predicated as is asserted, with Respect to all the Papers. It is not quite clear, that if the Questions and Answers were distinctly stated to him, he might not reconcile them; that the Result would not be, that some Papers were destroyed on the Continent; and some relating to the Transactions of March were brought over here and lost; a Conclusion which receives Countenance from his Answer as to the Mistake. Under a Persuasion that the Commissioners meant to do their Duty, I propose to intimate to them, which will be sufficient without an Order, that they should review this Case, and re-examine the Bankrupt forthwith; but if pressed to discharge him, doubting whether I can upon Petition, I will have that ascertained: and if the Writ of Habeas Corpus should be necessary, I will issue it immediately. The Bankrupt having been surrendered by his Bail, the Question as to discharging him was therefore immaterial. (a) Oliver's Case, 1 Vol. 407. COOKE COOKE v. MARSH. 18 Vesey, 209 to 211. A PETITION to supersede a Commission of Bankruptcy having 1811. August 2d. After an Order in Bankruptcy, for Liberty to bring an Action, with been ordered to stand over, with Liberty to bring an Action to ascertain the Existence of a Partnership, a Production of all Papers, &c. and the Bankruptcy not to be set up, a Bill of Discovery was filed; special Directions to which a Demurrer was put in. The Lord CHANCELLOR. The single Question is, whether adopting the Form of an Action instead of an Issue, I could mean to give an Opening to Inconveniences which in an Issue could not possibly occur. Take the ordinary Case of a Petition presented by a Bankrupt, and an Order permitting him to bring an Action, and the Petition to stand over; was there ever an Instance of filing a Bill of Discovery without Leave? and could I in Chancery grant an Injunction against a Proceeding at Law, ordered by me in Bankruptcy? I did not leave this Case liable to the Incidents of a common Action: ordering a Production of Papers both in the Master's Office, and at the Trial; and upon a Petition stating, that the Order for that Production had been defeated by a Trick, I should order it to be tried again, though it was put in the Form of an Action. If this Bill can be sustained, it would be impossible to proceed upon a Petition in Bankruptcy; which might be suspended during all the Proceedings in a Cause here, and upon Appeal to the House of Lords. There might be a Case in Bankruptcy, in which I might direct a Bill of Discovery to be filed, or these very Interrogatories to be answered; but, considering the Consequences, I cannot conceive how the Jurisdictions can go on longer; and therefore must stop the Proceedings upon this Bill. for a Production of Bill of Discovery BAKER, Ex parte. 18 Vesey, 246, 247. INTEREST was pressed against the Assignee, under a Commission of Bankruptcy, as being a Partner in a Country Bank, into which Aug. 23. Assignee in Bankruptcy charged with Interest, not as Partner in the Bank into which the Money was paid by Direction of the Creditors, but for keeping it there too long. the 1811. - BAKER, Ex parte. the Money was paid by the Appointment of the Creditors, and remained there three Years. The Lord CHANCELLOR. The Assignee resists the Claim of Interest, on the Ground that the Money really is where the Creditors directed it to be; and though, as a general Regulation, it may be prudent in Creditors never to order their Money to be paid into a Bank, in which an Assignee is a Partner; yet, if they do, it will be too much to say, he shall be charged with Interest, merely on the Ground that he has, as a Banker, that Possession which the Creditors have sanctioned. Here, however, the Assignee is bound to use as much Expedition for the Benefit of the Creditors, by taking the Money out of his own Hands, as if it was in any other Bank. He has, in Fact, been making a Profit at five per Cent. about three Years; and gives no satisfactory Reason for keeping it so long. On that Ground, therefore, being an Assignee, he must account with Interest, to be computed upon the annual Balance. July 25. TAYLOR, Ex parte (a). Creditors to vote in the Choice of 18 Vesey, 284. Order for joint THIS Petition prayed, that joint Creditors might be permitted to vote in the Choice of Assignees, under a separate Commission of Bankruptcy, issued upon a joint Debt for £1000. The separate Debts were inconsiderable, being greatly over-balanced by the single Debt of the petitioning Creditor, who consented to the Application. Assignees, under a separate Commission of Bankruptcy; the petitioning Creditor, a joint Creditor, whose Debt overbalanced the separate Debts, consenting. The Lord Chancellor, with some Difficulty, made the Order; directing it to recite, that it appeared from the State of the Proofs that the petitioning Creditor's Debt over-balanced the separate Debts. (a) Ex Relatione. Vide Ex parte Simpson, in the Matter of Ashton, ante p. 337. COHEN, COHEN, Ex parte (a). 18 Vesey, 294. 3 A BANKRUPT under Commitment, for not answering to the Satis Order on Appli cation of a Bank rupt committed, to faction of the Commissioners, applied to be brought before them again; but the Assignees refusing, unless he would pay the Expenses bring him again of the Meeting, he applied to the Lord Chancellor. The Lord Chancellor directed, that if there were no Effects, the Commissioners should meet gralis; receiving their Fees out of future Effects, if there should be any; adding, that if he should be again committed for not answering fully, he would find it very difficult to obtain another Order to bring him up. before the Com missioners; if no Effects, the Fees to be paid out of future Effects, if any. If recommitted, he would find it difficult to obtain another Order. (a) Ex Relatione. MASTERMAN, Ex parte. 18 Vesey, 298, 299. THE Petitioner sued out a Commission of Bankruptcy a Year ago: but upon an Agreement for a Composition, the Commission was not prosecuted. The Debtor having failed in paying some of the Instalments under the Composition, the Petitioner applied to strike a Docket for another Commission; but an Objection was taken in the Bankrupt Office, upon a Practice founded upon an Order (a), alleged to have been made by Lord Thurlow, and acted upon, that a petitioning Creditor, who neglected to prosecute the Commission within the li mited Time, should not sue out another Commission without special Leave. (4) This Order is mentioned in Mr. Elley's Collection of Orders in Bankruptcy, as a Direction by Lord Thurlow, 6th December, 1788, to the Secretary of Bankrupts, upon the Petition of Sir Richard Arkwright, in the Bankruptcy of Gibson and Johnson, invariably acted upon by the Secretary. Nov. 9. Order by Lord Thurlow, that a petitioning Creditor, who has neglected to prosecute a Commission of Bank ruptcy, shall not have another. The |