1812.

FREEMAN,
Ex parte.

sideration of Cases, where the Purpose was defeated, not by an Intention to abandon it, but by Means, adopted to make au honest Intention to prosecute it ineffectual.

It is proved, that there are a Debt, a Trading, and an Act of Bankruptcy, that will sustain this Commission. It is not denied, that there are Witnesses, who could prove various Acts of Bankruptcy by Lloyd. Was the Party not prosecuting the Commission with Fidelity, when, knowing, there were Two Witnesses, who could prove Acts of Bankruptcy, he had not found out a Maidservant; whom he afterwards discovered by Accident; and within Forty-eight Hours produced before the Commissioners at Melksham; and by her Evidence, within an Hour or Two after the new Commission issued, proved an Act of Bankruptcy: the other Witness acknowledging, that he kept out of the Way for the Purpose of avoiding giving Evidence against his old Master: Conduct, certainly not to be justified; though proceeding from an excusable Feeling?

Under these Circumstances upon the Authorities my Opinion is, that the first Commission must proceed; and the second must be superseded (1).

The Lord Chancellor on a subsequent Day said, he had given Directions, that in future a second Commission should not be sent to him without a Note of what had been done in the first Commission.

(1) On the Order of the

Henderson, Coop. Rep. 227. 26th June 1793, See Ex parte 2 Rose's Bkpt. Ca. 190.

THE

GARDNER, Ex parte (1).

1812,

Nov. 17.

Petition to su

HE Petition prayed, that a Commission of Bankruptcy might be superseded, at the Expense of the persede a Competitioning Creditor; and the Certificate, in the mean mission of Time, be stayed; and, in case the Commission should Bankruptcy, not be superseded, that the Petitioner might prove, and and stay the the Certificate, in the mean Time, be stayed.

Certificate, dismissed for want

of Proof of Collusion; but in a suspicious Case, without

Costs.

Proprietor of a Quarry,

The Petition stated, that in February, 1812, the Petitioner and the Bankrupt entered into Partnership together as Stone-delvers; the Petitioner making Cash Advances; and in May following he gave Notice to determine the Partnership; brought an Action against the Bankrupt; and obtained an Interlocutory Judgment, in respect of what was due to him for his Advances: alledging getting the Collusion between the Bankrupt and the petitioning Stone for Sale, Creditor in taking out the Commission, in order to de- is not a Trader feat the Execution; that there was no good petitioning within the Creditor's Debt; that the Bankrupt was not a Trader; Bankrupt his only Occupation being that of delving or cutting Laws; and the Stones from Quarries on his own Estate, and selling them Effect of Purto Stone-merchants; that there was no Act of Bank- chases of ruptcy; that the whole, or the greater Part, of the Debts, proved under the Commission, were Debts proved

(1) 1 Rose's Bpt. Ca. 377.

Stone must depend upon

the Circumstances.

Act of Bankruptcy by leaving his House to avoid a Creditor, without Collusion, complete the Instant of Departure; and therefore not affected by subsequent Residence with the petitioning Creditor.

Commission, concerted with the Bankrupt, cannot stand: but, that

the Object is to defeat an Execution, is no Objection.

No Inference of Fraud from Debts proved by Relations.

Authority of the Commissioners and the Lord Chancellor over the Certificate confined to Conduct under the Commission: not like the general Discretion of Creditors to sign or refuse.

by

1812.

GARDNER,

Ex parte.

by the Bankrupt's Relations and Friends; and that the Certificate was signed by the Creditors on the Day the Bankrupt passed his last Examination.

The Affidavits were very contradictory: that of the Bankrupt stating, that he had for many Years been a régular Trader in buying Stones of all Sorts, after they had been taken from the Quarry, and selling them, besides his Occupation of delving; and the Affidavit of a Stone Merchant stated, that he had purchased from the Bankrupt Stones, not produced at his Stone Quarries. The Affidavits in support of the Petition, one of which was filed, since the Petition was presented, denied that the Bankrupt had dealt in any other Way than it stated.

Mr. Leach, and Mr. Cullen, in support of the Petition.

A Person, getting Stone in his own Estate for Sale, is not a Trader within the Bankrupt Laws; and, if occasionally, by Accident, or for any particular Purpose, he purchased Stone, those occasional Acts would not make him a Trader.

It is true, one of these Affidavits was filed, since the Petition was presented: but, this is a Petition, not merely to stay the Certificate, but also to supersede the Commission; and therefore not within the general Rule (a).

The Bankrupt's Certificate being signed on the Day of the last Examination, consistently with your Lordship's Order (b) the Hour of the Day ought to appear.

Sir Samuel Romilly, and Mr. Newland, for the Assignees.

The Distinction cannot be maintained, that, where a Petition to stay a Certificate, happens to pray a Supersedeas, it does not fall within Lord Rosslyn's Order. That Order would be useless; if it is to be departed from on such a Ground. Another Objection to this Affidavit is, that it is made by a Person, who has proved a Debt under the Commission; and, therefore, cannot dispute it.

Mr. Leach, in Reply.

Lord Rosslyn's Order was founded on the Fact, that Petitions, presented solely to stay Certificates, generally proceed from vindictive Motives. It does not apply, where that is, as in this Instance, only a secondary, collateral Object. The other Objection might avail, if the Affidavit was made by the Petitioner: but it cannot invalidate his Affidavit in support of the Petition of another Person.

1812.

GARDNER,
Ex parte.

The Lord CHANCELLOR.

This Petition represents, on the Part of the Petitioner, the Conduct he experienced from the Bankrupt between February and June, 1812; and, taking those Representations to be substantiated, I am not surprised, that the Petitioner should be indignant. I repeat, that I apprehend the Duty I have to discharge, as Chancellor, is dryly this: if the Bankrupt has conformed himself, I have no Right to refuse him his Certificate. On the other Hand, the Legislature has left it to the Discretion of the Creditors, whether they will, or not, sign his Certificate. If, in the Exercise of the Power, with which they are invested, they sign the Certificate, the Commissioners have no Duty, but

to

1812.

GARDNER,

Ex parte.

to see, that the Bankrupt has conformed to the Statutes: but that Duty is confined to his Conduct, since he became Bankrupt. I put it on the dry Question, whether I can with-hold the Certificate; and disclaim all Authority to with-hold it on antecedent Conduct I state this, with a Desire, that it should be generally understood: as it is supposed, that I have such Authority.

I have no Hesitation in saying, that, if a Commission is satisfactorily proved to be the Commission of the Bankrupt, I will not suffer it to stand: but it is no Ground whatever to affect a Commission of Bankruptcy, that it is taken out by other Creditors, in order to defeat an Execution (a); and to give to all the Creditors an equal and rateable Proportion of the Estate and Effects. This also it is necessary to repeat; as such Petitions are daily pre

sented.

With respect to the Bankrupt's selling the Stones from his own Quarry, it is clear, that could not make him liable to the Bankrupt Laws. Whether indeed, his purchasing Stones could make him a Trader, must depend on the Circumstances (b). This Petition does not state, that the Bankrupt's Relations were not Creditors; but that the Debts proved are the Debts of his Relations; that, if Creditors, they are Relations. On what Ground am I to say, that they are to be excluded? To whom is a Man in distress so likely to apply as to his Relations for that Assistance he wants? I am clearly of Opinion, that there is not in this Petition Allegation enough to require me to consider, whether, or not, these Debts of the Family Creditors are good; even supposing, that they had not been strictly looked into by the Commissioners.

(a) Ex parte Arrowsmith,

14 Ves. 209.

(b) 14 Ves. 603.