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ther the one or the other is paid or given with, or without, Signature his knowledge and whether, also, the agreement is to pay ditors. by cremoney to individual creditors, or to all the creditors. (1) In like manner, where the security is given, in consideration of the creditor withdrawing a petition preferred by him against the bankrupt's certificate, the same principle, which applies when money is paid, will render the certificate equally bad. (2)

With respect to the security itself; - it has been decided Note for a in a case, where the bankrupt gave a promissory note, even pre-existing debt, for a pre-existing debt, to a creditor, who afterwards signed void. the bankrupt's certificate - though he did not prove under the commission - that the note was altogether invalid; for that independently of a security being void, which is given to a creditor to induce him to sign the certificate, it was against public policy, that any thing leading to that result should be allowed. (3)

sition.

The principle of these decisions is also extended to the As to the case of an insolvent, who assigns over his effects for the case of an benefit of his creditors. (4) But a further security given or a deed insolvent, by a third person to a creditor for the same amount only, of compoas he would be entitled to in proportion with the other creditors, has been held (in the case of a deed of composi tion) not within the principle; as the creditor was not to receive more than the others. (5) This point, however, it is apprehended, would not be so decided in the case of a bankrupt's certificate, the statute expressly declaring, that any security whatever for the payment of money, with intent to persuade the creditors to consent to, or sign the certificate, shall be void. (6)

Lord Loughborough's judgment,
1 H. B. 655.

(1) Jones v. Barkley, 2 Doug. 695. Holland v. Palmer, 1 Bos. & P. 95. Ex parte Butt, 10 Ves. 359. (2) Sumner v. Brady, 1 H.B. 647. A different doctrine was formerly held in Lewis v. Chase, 1 P. Wms. 620. but that case has been long ̧2 exploded as an authority. See

(3) Haywood v. Chambers, 5 B. & A. 753.

(4) Jackson v. Lomas, 4 T. R.
166.; and see Cockshott v. Bennett,
T. R. 763.

(5) Feise v. Randall, 6 T.R. 146.
(6) Section 125.

Commissioners

must cer

SECTION II.

Of the Signature of the Commissioners.

By section 122. of the new act, it is declared, that no certificate shall discharge the bankrupt, unless the com missioners shall, in writing under their hands and seals, rupt's con- certify to the Lord Chancellor that the bankrupt has made formity,

tify bank

&c.

but must

of credi

tures.

a full discovery of his estate and effects, and in all things conformed himself to the law; and that there does not appear any reason to doubt the truth or fulness of such discovery; and also, that the creditors have sigued in the manner directed by the act. The bankrupt is also required to make oath in writing, that such certificate and consent were obtained without fraud, previous to the allowance by the Lord Chancellor.

And by section 124. the commissioners are directed not have pre- to sign the certificate, unless they shall have proof by affi vious proof davit in writing of the signature of the creditors thereto, tors' signa- or of any person thereto authorised by any creditor, and of the authority by which such person shall have so signed the same. If any creditor resides abroad, the authority must (as we have already seen (1)) be attested by a notary public, British minister, or consul.

Bound to

certify as to certificate

under a former commission, &c.

By a general order of Lord Apsley, the commissioners are directed to inquire, whether the bankrupt ever, and how long before, had obtained a certificate under any former commission, or had been discharged under any act for the relief of insolvent debtors; and in case they have reason to believe either the one or the other of these facts, the commissioners are directed to proceed upon such inquiry, and hear the evidence thereon in the presence of the bankrupt, who is to be informed of the subject of the inquiry, and to be at liberty to lay evidence before them relating thereto. And, in case any

(1) Ante, 564.

missimers.

of such matters appear to the commissioners, they are Signature directed, at the time of making their certificate, also by com separately to certify to the Lord Chancellor such of the said matters as they find to be true, and to transmit such separate certificate to the secretary of bankrupts, to be laid before the Lord Chancellor at the same time with the other certificate.

tation of

By a general order of Lord Eldon (1), the signature and As to attes sealing of the certificate by the commissioners must be certificate. attested in writing by the solicitor to the commission,

or some clerk of the solicitor or by the messenger to the commission, or by some clerk of the commissioners. And, in order to avoid frauds upon the commissioners with respect to the certificate, a list is directed to be made and kept by the commissioners, or one of them, of all creditors above 20l., who shall from time to time prove their debts, and of the amount of their respective debts; which list, as the same shall be from time to time made up, must be signed by three of the commissioners. The signature and sealing of every one of the commissioners must be attested pursuant to the directions of this order, otherwise the certificate will be sent back by the Chancellor. (2)

no con

The discretion of the commissioners, as to signing the Discretion of commisbankrupt's certificate, is (like that of the creditors) subject sioners, as to no control. They are pledged (by the sanction of an to signing, oath) to speak their real sentiments, arising from their ob- subject to servation upon the whole of the bankrupt's conduct; and trol. they ought to be governed entirely by their own opinion, whether he has dealt fairly, or fraudulently, by his creditors. Indeed their jurisdiction, in this respect, is as distinct, as uncontrollable, and as much without appeal, as that of the Lord Chancellor himself; who, though he may render their certificate nugatory by withholding his confirmation, or recommend them to review their judgment, in case they

(1) 8th August, 1809.

(2) Ex parte Jones, 1 G. & J.

by commissioners.

Signature refuse to certify, yet he cannot exercise any controlling authority over them on this subject. (1) And where the commissioners had, on one occasion, given certain reasons in writing to the Lord Chancellor for refusing to sign the certificate, and the bankrupt petitioned that the commissioners should produce them, Lord Erskine dismissed the application. (2) A mandamus, therefore, will not lie to compel commissioners to sign a bankrupt's certificate. (3) And where a certificate has been signed by the commissioners, and is sent back to them by the Lord Chancellor for the purpose of letting in the proof of other creditors, the commissioners are not confined to that object; and if they cannot conscientiously and judiciously re-certify what they have certified before, they are not compellable to do so; neither are they bound by their former certificate. As to sup- They may, therefore, in such case refuse to sign a suppleplemental mental certificate. It seems that the original and supplemental certificates are considered but as one act, the supplemental one giving the date to the whole; so that if the commissioners were to certify with reference to the subsequent proceedings, they would be understood to recertify all that was contained in the original certificate. (4)

certificate.

Commis

sioners

confined in their

The commissioners, however, in examining the bankrupt's conduct previous to their signing his certificate, are confined to his conduct since he became a bankruptconsider their duty being merely to consider, whether he has bankrupt's in their opinion duly conformed to the provisions of the statute. (5)

ation of

conduct.

Where proceed

ings are lost.

In a case where the proceedings under the commission were lost, and it appeared by the report of the commis

(1) Ex parte King, 11 Ves. 417. mory, applied upon four different 13 Ves. 181. 15 Ves. 126.

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occasions to two successive Chancellors, as well as the Court of King's Bench, to compel the commissioners to sign his certificate.

(5) 1 V. & B. 47, 48. 1 Rose,

190.

sioners, that the loss was not occasioned through any de- Signature fault of the bankrupt, the commissioners were, upon the missioners. by competition of the bankrupt, authorized by the Lord Chancellor to sign the certificate, after certifying a list of the. creditors who had proved under the commission, pursuant to the directions of the general order. (1)

4

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Of the Allowance of the Certificate by the Lord Chancellor ; and herein of opposing the Allowance, and recalling the Certificate after Allowance.

the bank

When the certificate is signed by the commissioners, in order to be of any effect, it must be allowed and confirmed by the Lord Chancellor; before which formality it is in law considered as no certificate. (2) Previous to this proceed- Previous ing, however, the bankrupt must make oath in writing, that affidavit of the certificate of the commissioners, and the consent of the rupt. creditors were severally obtained without fraud (3) Every affidavit, authority, and attestation, also, as to the signature of the creditors (which are required to be exhibited to the commissioners before they sign the certificate) must be laid before the Lord Chancellor, along with the certificate, previous to its allowance. Notice must then be given in Notice the Gazette, that the certificate will be allowed by the Lord Chancellor, unless cause is shown to the contrary, on or before a particular day (which must be above twentyone days from the notice in the Gazette), and the certificate,

(1) Ex parte Lushbrooke, 1 Mont. Dig. 339.

(2) Ex parte Sawyer, 1 Rose, 141. 7 T. R. 296. Ex parte Ansell, 19 Ves. 208. The former statutes of 4 & 5 Ann. 5 G. 1. and 5 G. 2. enabled two of the Judges (as well as the Lord Chancellor) to allow and confirm the certificate, upon

the consideration of it being refer-
red to them by the Great Seal;
but the practice of referring it to
the Judges has for a long time be-
come obsolete. (Ex parte Saume-
rez, 1 Atk. 84. 87.) The new act,
also, contains no such provision.
(3) Section 122.

in the

Gazette.

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