1812. Nov. 13. 18. Commission of Bankruptcy dence out of an Attendance had been or dered upon a Petition to tendance of Witnesses under the first Commission, TH FREEMAN, Ex parte. (1) HE Petition stated, that on the 25th of September, 1812, a Commission of Bankruptcy issued against Davis and Lloyd; and on the 30th the Commissioners met, at Melksham, for the Purpose of opening the Commission; when Evidence was given of the petitioning Creditor's Debt, and the Trading; and an Act of Bankruptcy was proved against Davis; but Lloyd, having obtained Information of the Commission, removed out of the Way, and concealed Two Persons of the Names of Stratten and Osman; who were capable of proving an Act of Bankruptcy on his Part. The Commissioners, not being attended by either of those Persons, adjourned their Meeting until the 8th of October; to give a farther Opportunity of proving an Act of Bankruptcy against Lloyd. The Commissioners' Summons was served on the 6th of October upon Stratten, requiring his Attendance on the 8th; which he did not obey; but wrote to his Friends; acknowledging his Determination not to appear as Evidence against Lloyd; admitting his Concealment to be with that View expressly; and requesting the Answers to his Letters to be sent to Lloyd. Of Osman's Place of Residence no Trace could be discovered. In conse compel the At- quence no Act of Bankruptcy could be proved against Lloyd. On the 8th of October the Commissioners farther adjourned their Meeting, in order that a Petition might be presented to the Great Seal, to compel the Attendance of Stratten and Osman; and to enlarge the Time for opening and proceeding in the Commission. On the 13th of October an Application was made for a special Order to enlarge the Time for opening the Commission: but the Agent was informed, that such Application was unusual. the Writ was quashed, and the second Commission superseded. No second Commission of (1) 1 Rose's Bpt. Cases, p. 380. Bankruptcy to be sent to the Lord Chancellor without a Note of what has passed in the first. The The Petition was presented; and was on the 16th of October answered for the next Day of Petitions; and Copies were served on Lloyd and Stratten. Osman and Stratten continuing to absent themselves, and no Act of Bankruptcy being proved against Lloyd, the Bankruptcy had not appeared in the Gazette, when the Twenty-eight Days, under the General Order (a), expired, on Friday, the 23d of October: but Notice was given at the Bankrupt Office of the Intention to proceed in the Commission without Delay; when the Attendance of the Witnesses could be obtained under the Lord Chancellor's Order; with the Commissioners' Certificate of the Facts. The Solicitor to the Commission, finding on Monday the 26th of October, that another Docket was struck against Davis and Lloyd, entered a Caveat; and served the Solicitor, who struck that Docket, with a Copy of the Petition, presented and answered; giving him Notice, that an Application would be made to the Great Seal on the 31st of October to hear that Petition; and, that the Commission, already taken out, would be proceeded in, as soon as the Attendance of Stratten and Osman could be obtained under the Lord Chancellor's Order. On the same Day, the Solicitor, who struck the second Docket, gave Notice to the Solicitor under the existing Commission, that a Docket was struck; and that a Commission of Bankruptcy had been accordingly prepared by the Secretary of Bankrupts; and would that Evening be forwarded to the Lord Chancellor. On the 28th of October the Commissioners, finding, that Stratten could not be prevailed upon to attend them, notwithstanding he was within Three Miles of the Place of Meeting, and a Chaise had been sent for the Purpose (a) 26th June, 1793. 2 Cooke's Bank. Law, 372, and 2 Ves. Jun. 190. 1812. FREEMAN, Ex parte. 1812. FREEMAN, Ex parte. of conveying him, proceeded to take the Evidence of another Person, Ann Davis; and upon that Evidence declared both Davis and Lloyd Bankrupts. A Copy of that Declaration was forwarded to Town; to be inserted in the Gazette: but, when the Agent applied at the Bankrupt Office, the necessary Signature was refused; on the Ground, that a Writ of Supersedeas and a new Commission had been sealed. On the Evening of the 26th of October a special Messenger was sent to the Lord Chancellor, then in Dorsetshire; and on the 28th of October an Order was made to supersede the first Commission, and for the issuing of the second Commission; the Circumstances not being disclosed to his Lordship. This Petition, alledging, that Lloyd had kept back the Witnesses to prove the Bankruptcy against him under the first Commission, in order to prevent its being opened within the Time required by the General Order, and that another Commission might be executed in London, in the Vicinity of his immediate Friends, and conducted by his own Solicitor; that the principal Creditor and principal Part of the Partnership Property were in the Neighbourhood of Melksham; that the first Commission was proceeded in, as far as under the Circumstances it could be ; and was intended to be prosecuted without Delay, as soon as the Attendance of the Witnesses could be compelled; prayed, that the Writ of Supersedeas may be quashed; and a Writ of Procedendo may issue upon the first Commission; and that the second Commission may be superseded. Sir Samuel Romilly, and Mr. Wray, for the Petitioners There has been no Neglect whatever on the Part of those, taking out the first Commission. This Application falls, therefore, immediately within the Case Er parte Ellis ; Ellis (a); where your Lordship held, that a Declaration in the Gazette was not in every Instance necessary under Lord Loughborough's Order. Where a Party has Notice of the Intention to proceed in the first Commission, he shall not avail himself of the Circumstance, that it has not been inserted in the Gazette. The Spirit of the Order has been complied with; and your Lordship will determine on the Circumstances; as in Ex parte Leicester, Ex parte Layton and Hardwicke (b), and Ex purte Sanden (c). This Point seems to have been decided in a Case, cited at the Bar in the Argument of Ex parte Leicester. What is the Meaning of the Words "Want of "Prosecution" in the General Order? Do they import all possible Diligence and Exertion? Mr. Leach, and Mr. Heald, against the Petition. The second Commission issued comformably to Lord Rosslyn's General Order, which gives an absolute Right to sue it out after the Expiration of the Twenty-eight Days; and there is no Principle, upon which an innocent Party can be deprived of the Advantage he has so obtained. What Means had the Solicitor, suing out this second Commission, of trying the Truth of the Assertions, contained in the Notice, given to him? Those Assertions might be a mere Instrument of Delay. Can the mere Circumstance of presenting a Petition repeal the General Order? The Case Ex parte Ellis has no Application. There was an effectual Prosecution of the first Commission; and the Advertisement in the Gazette was there physically impossible. In Ex parte Sanden the Creditor was acting in the Breach of his own Engagement. The Circumstances of the Case, cited in the Argument of Ex parte Leicester, do not appear: but it seems to have (a) 7 Ves. 135. (c) Rose's Ba. Ca. 85. 1812. FREEMAN, (b) 6 Ves. 429. 434. D 3 turned 1812. FREEMAN, Ex parte. turned solely upon this: that the Order merely was obtained; but the Writ of Supersedeas was not actually sealed. Nov. 18. The Lord CHANCELLOR. Under the first of these Commissions a Meeting took place within Five Days for the Purpose of prosecuting that Commission; and was adjourned on the Ground, that the Attendance of these Witnesses could not be procured; and upon a Petition to me I made an Order for the Hearing of that Petition; which in Consequence of the Season of the Year, when that Order was made, could not possibly take place before the Expiration of the Twenty-eight Days under the General Order. As far therefore as that can be considered the deliberate Act of the Lord ChanParticular cellor, it amounts to this; that particular Circumstances Circumstances would take a Case out of the General Order; and there is no Doubt, that, if this Court had been then sitting, or if I had been in Town, or at a Distance which admitted Access to me, I should have made an Order for an almost immediate Attendance; with the View to give Effect to the clear Purpose bonâ fide to execute that Commission. would take a Case out of the General Order, 26th June, 1793, Proof of an Act of Bank easy Upon the Affidavits more Diligence could not have been applied for that Purpose, after the Discovery, that ruptcy, &c. Ann Davis could prove an Act of Bankruptcy by Lloyd. warranting the Her Deposition proves unquestionably one or more Acts Adjudication, a of Bankruptcy. That therefore would have been within sufficient Pro- the Authorities a Proceeding; if the Writ of Superceeding within sedeas, and the second Commission, had not been prethe General Orviously sealed. From Recollection of the Time of the Day, when I ordered the Seal to be put to that Writ and Commission, it was previous to the Declaration of Bankruptcy upon that Evidence; and though I do not ap der (26th June, 1793); preventing a Supersedeas. prehend, |