1834. Ex parte Mr. Swanston, Mr. Montagu, Mr. Keene, and Mr. E. Chitty, contrà, were stopped by the Court. Per Curiam : The objection to the jurisdiction is not valid. The 30th section of the 1 & 2 W. 4. is confined to cases of proof, and does not relate to applications to expunge, which are made under section 60 of 6 Geo. 4, c. 16. That this question went before a subdivision court does not prove it to have been adjourned under section 30. The 7th section of 1 & 2 W. 4. enacts, that it shall be lawful for any one or more of the said six commissioners to have, perform, and execute all the powers, duties, and authorities by any act or acts of parliament now in force vested in commissioners of bankrupt. Section 60 of 6 Geo. 4, c. 16, authorizes commissioners to expunge a proof. The result of the two sections is, that any one or more of the commissioners of the Court of Bankruptcy may expunge a proof. Any one, any three, or all six, might sit together for that purpose. As any one might act, the fact of his being assisted by two of his colleagues can make no difference. The object of the legislature in this 30th clause appears to have been to provide for a prompt decision in questions of proof; because, while appeals were pending to the Court, the commissioner could not proceed in the administration of the estate; therefore an instant adjournment to a subdivision court was provided, and the appeal confined to points of law, equity, or evidence; and section 31 provides for the setting apart a sum to answer any dividend in the meanwhile. 1834. Ex parte Section 30 does not apply to cases of expunging which may happen to be referred to a subdivision court, but only to cases of proof so referred; we are consequently bound to hear this petition, no express In the matter words having been used to deprive us of jurisdiction in the present case. of SMITH. Objection overruled. Ex parte BALDWIN.-In the matter of DUNCAN NEIL SMITH. THIS Per Curiam:-You are now too late; the application should have been made before the case was heard on affidavit; the Court cannot permit a party to conclude his case on affidavit, and when he finds the Court against him, then to have a vivá voce examination. Mr. Swanston and Mr. Montagu :-The practice is to hear first on affidavit, and then, if necessary, to have a vivá voce examination, as was settled in ex parte Armsby, 2 Dea. & Ch. 120, where an application was made to issue process for a viva voce examination in the first instance, but the Court refused until the case had first been heard on affidavits, when they would be more competent C. of R. June 24, 1834. An application to examine vivâ voce should be made before the petition is heard 1834. Ex parte BALDWIN. In the matter of SMITH. to decide whether such an examination were necessary and the same was held in Anon., 2 Dea. & Ch. 140. Per Curiam:- An application to have witnesses examined vivá voce may be made at any time before the hearing; such is the general rule of practice, which, like all other general rules, must sometimes give way to circumstances. The cases referred to are not reported sufficiently at length; the Court did not lay down any general rule, but the decisions were in consequence of peculiar circumstances which arose in those cases. Mr. Bethell (amicus Curia): - Having been counsel in ex parte Armsby in the matter of Lord, I am enabled to state that the facts of that case were as follow:Numerous and long affidavits were filed on both sides, which were contradictory, and a motion was made before the hearing, on the ground of this contradiction, that an issue might be had at which the witnesses would be examined vivá voce, instead of the case being heard on petition and affidavit; but the Court said, as the case had gone so far, it would not then order an issue, but would first hear the petition and affidavits; and if any contradiction appeared on the evidence, the Court would then order an issue. The CHIEF JUDGE:-That is my impression of what took place; the expence to which the parties had already been put by the affidavits also influenced me. Ex parte JARVIS, one, &c. In the matter of ELLIOT. MR. SWANSTON:- On the 26th of June a country fiat issued on the petition of Thomas Hazelwood and Thomas Turner. This fiat is not yet opened. The solicitor, in making out the bond and affidavit, described them as Thomas Hazelwood of Withybrooke, in the county of Warwick, farmer and grazier, and Thomas Turner his partner, meaning, by "his partner," that he was his partner in this particular debt, that is, the debt was owing to them jointly. The office thus described the petitioning creditors in the fiat :-" Thomas Hazelwood and Thomas Turner of Withybrooke, in the county of Warwick, farmers and graziers, and partners." This is a petition that the fiat might be amended, altering the description to that in the docket papers. Ordered accordingly. (a) C. of R. July 4, 1834. Unopened fiat amended to agree with docket papers. A CREDITOR had given a power of attorney to A. B. to sign the bankrupt's certificate, which he signed accordingly. When the certificate came to the office, it was discovered that there was no affidavit verifying the (a) It will be observed that the error arose in the office, and that there were the docket papers, which were correct, to amend by. C. of R. July 5, 1834. Semble, that a creditor who has signed the certificate by attor ney, cannot stop the certificate by subsequently withholding an affidavit verifying his signature to the power. 1834. Ex parte DUNSTAN. In the matter of DUNSTAN execution of the power of attorney, whereon the power was sent back to the creditor, accompanied with a draft of the requisite affidavit; these the creditor now refused to return, and endeavoured to make terms. This was a petition for an order on the creditor to deliver up the power and affidavit, or that the certificate might pass without the signature of the creditor. The creditor was served, but did not appear. Mr. Prendergast for the petition. Ordered, That the certificate be received in the office, and remain there, and notice be given to the creditor of this order, and that he may oppose the allowance of the certificate if he think fit; at the end of twenty-one days the petitioner to be at liberty to apply again to the Court, and the petition to stand over in meantime. C. of R. July 5, 1834. Ex parte TUFFNELL.-In the matter of WATTS. WATTS, being mortgagee of an estate under a demise A mortgagee of by way of mortgage for 500 years, deposited the mort a term gave an equitable mortgage deed with Tuffnell, in order to give him an equitable Watts afterwards purchased the gage, and sub sequently pur- of the equity of it be rejected by the assignees. mortgage for 8001. equity of redemption. Watts became bankrupt. Mr. Beaumont :- This is a petition by Tuffnell, praying he may be declared equitable mortgagee, and for a sale, not of the mortgage term only, but of the equity of redemption which had been purchased by Watts, as the deposit of title-deeds is not a conveyance, but a transaction giving a lien for the full amount of the sum |