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CHAP. V.

OF THE COMMISSION.

1. Of issuing the Commission.

2. Of the general Effect of the Commission.
3. Of a Second Commission.

4. Of a Joint Commission.

5. Of renewed and auxiliary Commissions.

6. Remedy where Commission maliciously sued out.

For the Costs of issuing the Commission, see post,
Chapter on Costs.

Striking a docket; practical

SECTION I.

Of issuing the Commission.

By sections 12 and 13 of the new act, any one or more of a trader's creditors to the amount required by the statute (1), may petition the Lord Chancellor to issue a commission against him, previously making an affidavit of debt, and giving bond to the Lord Chancellor, for duly proving the debt, and the act of bankruptcy.

If the petitioning creditor reside in London or the vicinity, he must make an affidavit of his debt (2) before a directions. Master in Chancery, in which he swears that he believes his debtor is become a bankrupt, (an allegation, however,

(1) Ante, page 88.

(2) See form, Vol. II. Before this proceeding, however, search should be made at the bankrupt office, in order to ascertain if any docket has been already struck; for which purpose the docket-book

may be had free access to, from ten in the morning till three in the afternoon, and from six to eight in the evening. See General Orders, 29th Dec. 1806, and 15th April 1816, and ex parte Smith, 19 Ves. 473.

which is not required by this or any former statute, but is Striking a docket: merely a practice adopted by the authority of the Great Seal)(1); and the bond to the Chancellor must be executed at the Bankrupt office. If the creditor resides in the country, the affidavit is then made before a Master Extraordinary in Chancery, and the bond executed at the same time, and then both are sent to an agent in London to do what is needful. When the affidavit and the bond are in either case delivered at the Bankrupt office, an entry must be made in the docket-book (2), and the petitioning creditor is then said to have struck a docket. After this, the solicitor must, within the next four days, bespeak the commissionupon which he pays the fees for it, and the clerks make out then a petition to the Chancellor, and procure also a commission from the office of the patentee. These are tacked together, and at one corner of the petition the fiat is written: "Let a commission issue, as prayed, &c." The petition and commission are then taken to the Chancellor, who signs the fiat; after which the commission is immediately sealed with the Great Seal,-and this is done either in private, or at a public Seal. The commission always bears date the day it is sealed; and that date is then entered under the column left for it in the docket-book.

When two parties apply together, must

Where two parties apply at the same time to strike a docket, and both are prepared to issue a commission, they must draw lots at the Bankrupt office for the preference. (3) And where instructions for a docket were received from the country on a Sunday by a solicitor, who before the office opened on the following morning received similar instructions from another client, it was decided that the same rule of practice should be followed. (4) If, however, but if only only one party is prepared to issue the commission, then one prepared, he the commission is directed to be issued to the person who is entitled

1:41) 14 Ves. 88.

*(2) See General Orders, 29th Dec. 1806, and 15th April 1815,

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a docket,

Striking is so prepared (1); for the drawing of lots only applies to those cases, where both parties are equally prepared to issue a commission forthwith. When one party, therefore, was not prepared to certify respecting the intended commissioners in a country commission, as required by the general order (2), the other party was held entitled to the commission. (3)

to the commis

sion.

When commis

Where a commission is ordered to be superseded, sion super- though on the petition of the assignees, any other creditor seded, any may strike a fresh docket against the bankrupt after the may strike order is pronounced, and even before it is drawn up or

creditor

a fresh

docket.

When va

riance in

the name.

-

signed by the Lord Chancellor; and the claim of the assignees to issue a fresh commission, is not greater than that of any other creditor; the rule being, that whoever strikes the first docket will be preferred. (4)

If there is any variation in the spelling of the name of the bankrupt, even of one letter, it is the practice at the Bankrupt office to permit a second docket to be struck by any other creditor, it being taken for granted, that the name is that of a different person (5); and the party having the first regular docket in the office, has been considered as entitled to the priority. (6) But where the solicitor, who struck the second docket in a case of this kind, must have known it was the same person, the Lord Chancellor ordered the second commission to be superseded at the Affidavit, costs of the solicitor. (7) If there is any error in the affidavit, or bond, upon which a commission has issued, it has been determined that they cannot be re-sworn or re-executed having been already used for all the purposes for which they were made; - but that there must be an entire new docket. (8)

&c. cannot

be re

sworn.

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A docket ought not to be struck, merely as a measure of Strikinga docket. precaution, to prevent another creditor from taking out a commission. (1) And where it is used as the means of Docket bartering for some arrangement, it will, as we have already used for an improper : seen, be considered a contempt of the Great Seal. (2) purpose, a When a month has passed from the striking of the contempt. docket, without any thing further being done, the practice was in such a case, not to let a commission issue, without an affidavit that the petitioning creditor's debt had not been paid. (3) But by a subsequent general order of Lord Eldon (4), it is declared, that when a docket has been struck more than one calendar month without a commission having been bespoke, the docket shall be considered as expired, and of no effect for the purpose of issuing a commission.

The affidavit made by the petitioning creditor is general, Affidavit. and need not state the particulars by which the bankrupt became indebted (5); and if it state that the debt is for goods sold and delivered, though the petitioning creditor had at the time entered up judgment in an action for the debt, this has been held sufficient (6); nor will it be any objection to the commission, that the petitioning creditor had not relinquished his judgment. The provision Irreguin the statute is directory only, and not conditional;-there- larity not a good fore, where it appeared upon the face of the affidavits of four ground at petitioning creditors, that their debts did not amount to law for in validating 2007., though their debts proved before the commissioners the comamounted to more than that sum it was held that this mission. irregularity did not make the commission void at law, though it might afford a ground of application to the Lord

(1) 16 Ves. 145.

(2) 18 Ves. 298.; and see ante,

104.

(3) Ex parte Buckley, Buck.367. (4) 28th May 1819. This order, which was made shortly after ex parte Buckley, recites the previous practice at the bankrupt office, as being consistent with the directions

contained in the order; but this
recital does not agree exactly with
what is stated by the Lord Chan-
cellor in that case.

(5) Ex parte Wood, 1 Atk. 155.
Bryant v. Withers, 1 V. & B. 21 t. r
(6) In re Bryant, 1 Rose, 285.
Bryant v. Withers, 2 M. & S. 123.
2 Rose, 8,

Affidavit. Chancellor to supersede it or to stay proceedings till the proper affidavits were made. (1) The affidavit, indeed, is of no use in any period subsequent to the commission; for it is not even prima facie evidence of the debt, either before the commissioners, or in any action where the debt is disproceed. puted-which must be proved by other evidence. (2)

Not evidence of the debt

in any sub

sequent

ing.

As to stating

act of

bankruptcy.

A docket should not be struck without some solid ground of belief, that the trader has committed an act of belief of an bankruptcy (3); and the affidavit, as to this matter, is too often made with a precipitancy which has called for the censure of the Court. (4) But if proof can be made of an act of bankruptcy before the issuing of the commission, though it was in fact committed after the swearing of the affidavit, and the striking of the docket the commission will not on that account be rendered invalid. (5) Thus, where the act of bankruptcy was by lying in prison, and the docket was struck before the requisite period of imprisonment had expired, the commission was nevertheless supported, which was issued after the expiration of such period. (6)

Petition

with the

affidavit.

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The petition must agree with the statement of the debt must agree in the affidavit. Thus, where the secretary to a public company struck a docket for a debt due to the company, but the petition stated the debt to be due to him in his own right-it was held, that the commission could not be sup ported upon a debt due to the company. (7)

Bond.

The bond, which the petitioning creditor is required to give to the Lord Chancellor, is in the penalty of 2001., conditioned for proving his debt as well before the com missioners, as at any trial at law, in case the commission be contested and also for proving the party to have com

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