Of the proce. dendo. In what cases granted. As to Vice- lor's au- every thing in the same situation as if the supersedeas had not issued. But there is so much caution now observed by the Court in issuing the supersedeas, that it is seldom . necessary in practice to apply for a writ of procedendo. In two modern cases, where it appears to have been granted — the petitioning creditor was, in one, prevented from prose cuting the commission by the artifices of two persons, whose object was to delay the prosecution of the commission until after two months had expired, so as to give effect to certain transactions between them and the bankrupt, which the commission (if not superseded) would have overreached; and Lord Eldon, under these circumstances, directed the writ of supersedeas to be quashed, and a procedendo to issue. (1) In the other case, where the witness to prove the act of bankruptcy was kept out of the way by the bankrupt and his wife, for the purpose of avoiding the service of the summons to attend the commissioners, and the petitioning creditor was by that means prevented from prosecuting the commission to adjudication, a writ of procedendo was directed by the Lord Chancellor to issue, after the commission had been superseded (upon the petition of the bankrupt) for want of prosecution (2) under the general order. A petition for a writ of procedendo cannot, strictly, be heard before the Vice-Chancellor, unless the Lord Chancellor directs it to be heard before him. (3) But in a case, where a commission was superseded upon the certificate of the Vice-Chancellor, Sir Thomas Plumer thought that he might, of his own authority, hear a petition for a writ of procedendo to issue, and certify the propriety of awarding such writ. (4) (1) Ex parte Knight, 2 Rose, 519. (3) Ex parte Hurd, Buck, 45. (4) Ex parte Crump, Buck, 3. 835 CHAP. XXI. OF THE PRACTICE OF THE COURT ON PETITION IN BANK RUPTCY. THE innumerable applications now made to the Chancellor sitting in bankruptcy by the different parties interested in the administration of a bankrupt's effects, have rendered it highly essential, that certain rules of practice should be adopted by the Court, and strictly acted upon, in order for the due dispatch of the multiplicity of bankrupt business, consuming so large a portion of the time of the Lord Chancellor. Accordingly, during the long period that Lord Eldon has held the Seals, many beneficial regulations have been made with regard to the practice of the Court in various matters of bankruptcy—all of which are left untouched by the recent statute; the 135th section expressly providing, that nothing therein contained shall alter the present practice in Bankruptcy, except where any alteration is expressly declared. The jurisdiction upon petition in Bankruptcy having been already fully considered in discussing the jurisdiction of the Lord Chancellor (1), it is the purpose of the present chapter to treat only of such matters, as relate to the general practice of the Court upon petition- and which have not been touched upon in the previous examination of particular proceedings. With respect, however, to petitions for payment of dividends (2), for staying the certificate (3), and for a supersedeas (4), the reader is referred to the former parts of this work, where the practice under each of these heads has been fully stated. When application by petition, and when by motion. The proper and usual course of making any application to the Lord Chancellor in Bankruptcy is by petition-except, indeed, in cases of contempt, where the application may be by motion (1)—and in cases, also, of applying for a habeas corpus, when the proceedings ought to be by motion(2), though the writ has been granted in some few instances on petition. (3) An application by motion, also, has been sometimes entertained before the commission has been opened (4)—or for the amendment of the minutes of an order (5)—or for a special order as to service. (6) It is a general rule, that a petition When pe- should not be presented, where relief is provided for by a general order otherwise it will be dismissed with costs. (7) A petition may be framed in the alternative; and the respondent cannot call upon the petitioner to elect to proceed for only one of the objects of the petition, unless under special circumstances. (8) tition will not lie. May be in the alter native. Title. Petition should not A petition should be properly entitled in the bankruptcy, or it cannot be heard; for if it is headed in Chancery," no order in bankruptcy can be made upon it. (9) And where a petition by assignees under a joint commission to supersede a separate commission, (which had been issued against one of the bankrupts,) was entitled in the joint com mission only, it was held bad; but the Court, in such a case, will allow the petition to stand over for the purpose of amending the title. (10) No statements should be made in a petition, which are be multi- inconsistent with the legitimate object of the relief it prays. For though an order might be made upon one part of it, yet where there is much groundless imputation against farious. (1) Ex parte Morgan, 1 Rose, 192, Anon. 1 Rose, 230. (2) 7 Ves. 425. Taylor's case, (3) Ex parte James, 1 P. Wms. 610. 240. 1 Swanst. 51. (4) 1 Mont. Dig. 134. (6) Ex parte Anderson, Buck,38. Ex parte Peyton, ibid. 200. (7) Ex parte Watts, 1 Rose, 436. (8) Ex parte Scholey, Buck, 476. (9) Ex parte Glandfield, 1 G.& J. 387. (10) Ex parte Mills, Buck, 230.; and see Ex parte Beddam, 1 Rose, 310. Ex parte Rew, 1 Mad. 309. Ex parte Byron, 2 Rose, 368. - a party, the whole will be dismissed with costs. (1) But when a petition contained only two points, Lord Eldon did not think that he was prevented from making an order as to one, because he could not make an order as to the other. (2) Where the prayer of a petition was to expunge a charge of collusion made in another petition, and to be heard before that petition came on, the last petition was dismissed with costs; for the Lord Chancellor said, that he could not possibly decide whether there was any foundation for the charge or not (3), without previously hearing the matter complained of in the first petition. A petition, also, to expunge the proofs that had been made by various creditors upon certain bills of exchange, was dismissed, on the ground of being multifarious. But the Vice-Chancellor refused to give costs to the creditors who opposed this petition; as that, he said, would be to make those creditors, whose debts were beyond dispute, contribute to the defence of doubtful debts. (4) A creditor cannot present a petition to prove, until the Petition to commissioners have rejected his proof; and the petition prove. must, also, state the grounds of their rejection of it. (5) Therefore, where a creditor, after attempting to prove 5,000l. before the commissioners, petitioned to prove 10,000l., the petition was dismissed. (6) order as to signature, By a general order of Lord Eldon's (7), all petitions in General Bankruptcy presented for hearing must, before they are presented, be respectively signed by the petitioners, except and attestin case of partnership, or absence from the kingdom; in ation of petition. the former of which cases, the signature of one of the parties will be deemed sufficient; and in the latter case, the petition must be signed by the person presenting it on behalf of the person abroad. The signature, also, of each (1) Ex parte Vernon, 13 Ves. 270. (2) Ex parte Ross, 1 Rose, 57. Ex parte Wright, 2 Ves. jun. 41. (6) Ex parte Fry, 5 Mad, 132. When party permitted to sign by his agent. Assignees must all sign. person signing as a petitioner, must be attested by the solicitor actually presenting the petition—or by some person who must state himself in his attestation to be attorney, solicitor, or agent of the party signing, in the matter of the petition. This order will not be dispensed with, except under very special circumstances verified by affidavit. (1) But in one case, where the petitioners lived at York, and their signatures could not be obtained before the petition day, the Lord Chancellor permitted the agents in town to sign it for them, the agents undertaking to be answerable for costs. (2) When a petition is presented by assignees, it must be signed by all who present it, and not by one only as in the case of partners; and a partner signing in the partnerpartners. ship name, instead of individually for himself and partners, has been held insufficient. (3) Aliter Attestation. With respect to the attestation of the signatures of petitions, a subsequent general order (4) has directed, that the attestation shall be strictly according to the directions of the order above mentioned. It has been held, however, that if it appear in any part of the petition, or by the indorsement on it, that the solicitor attesting it was the solicitor actually presenting it, such attestation is sufficient; and that the solicitor need not state himself in his attestation to be solicitor in the matter of the petition. (5) But, if the person attesting the signature of the petitioner is not the solicitor actually presenting the petition, he must then, pursuant to the directions of the above order, state himself in his attestation to be the attorney, solicitor, or agent of the party signing in the matter of the petition. (6) And where there were two petitioners, and the attestation (1) Anon. 1 Rose, 99. (2) In re Boldero, 1 Rose, 231. 109. (4) 6th February, 1816. Buck, (5) Ex parte Champneys, 1 G. & J. 354. (note). (6) Ex parte Wilkinson, 1 G. & J. 353. Ex parte Cor. Ex parte Thomason. Ex parte Thomas, ibid. 355. note (a). |