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In the matter of LAWRENCE.

THE commission issued in 1830. In October 1833 the bankrupt passed his last examination.

A. B. by his will left C. D., E. F., and the bankrupt trustees of his will, and his (A. B.'s) wife and the bankrupt executors. C. D. and E. F. disclaimed the trust, and the bankrupt, as acting trustee and executor, received sums on account of the testator's estate.

By an order of the Vice-Chancellor, in May 1831, on the petition of the executrix, a reference was made to the commissioners to take an account of what was due by the bankrupt, and the executrix was to prove for the The commissioners found 9,4501. due to the testator's estate, and admitted the proof accordingly.

same.

The executrix died in 1832, leaving the bankrupt and two others executors of her will; the two others renounced probate, and the bankrupt thus became her sole executor.

The debts above 20%. amounted altogether to 19,1427., proved by thirty-seven creditors; the debts under and up to 201. amounted to 1907., proved by thirteen creditors.

Forty-two creditors had signed the certificate, whose debts amounted to 7,5497., being more than three fifths in number and value of those proving for 201. and upwards, excluding the executorship debt.

The bankrupt, as surviving executor, had signed his own certificate, but the commissioners refused to allow it to pass with his signature, and expressed a desire that he should obtain the opinion of the Court thereon.

Mr. Swanston, for the petition, said, if the bankrupt could not sign it was impossible for him to procure his

C. of R. May 8, 1834.

It seems that a sole executor

who becomes bankrupt may sign his own

certificate.

1834.

In the matter of

LAWRENCE.

certificate, as the debt would be included in the calculation of the requisite number and value, and cited ex parte Shaw, 1 Gl. & J. 1.

The CHIEF JUDGE:-I see nothing to prevent the bankrupt signing the certificate; the necessity for this is caused by the death of the executrix and actus Dei nemini faciat injuriam.

Sir John Cross:-In Cooper's case, Cooke, 462, a similar order to that now asked was made. (a)

(a) Cooper's case, Green, B. L. 260, and Cooke, 462, is as follows:

Upon petition preferred by creditors to the late Lord Chancellor, Earl Hardwicke, praying for the removal of a sole as signee, and that his Lordship would not confirm the commissioners' certificate of the bankrupt's conformity, the case, upon the allegations suggested therein, appeared singularly remark able; for they stated (inter alia) that the clerk to the commission was the petitioning creditor, and sued it out; and that the present assignee's father, be ing the principal creditor under the commission, had chosen himself sole assignee, and that he had since departed this life intestate, leaving his said son, the bankrupt (and now sole assignee under his own commission), his only heir at law, whereby the said intestate's said son became his sole personal representative, and thereby, as he insisted, the

principal creditor under his own commission, and as such he had signed the commissioners' certificate of his own conformity, and also chosen himself sole assignee under the commission taken out against himself, and alleges that he is not obliged to render any account, because he cannot do it to any body but himself.

Which petition, on the hearing, was dismissed by the Chancellor, because his Lordship declared that every rule, every maxim, and every principle of law, concurred in recognizing the claim in question. It is well known (said his Lordship) that, by the law of England, the act of God or of the law can do no man any injury or wrong; but in case I was not to dismiss this petition, the act of God, as well as of the law, would do the person against whom it is preferred an irreparable injury; for as the original creditor died intestate, leaving the bankrupt his only son, and consequently universal

Sir George Rose:

In this case there is a difficulty arising from the bankrupt being a trustee under the will, as well as executor.

heir, if I was to be of opinion his representative had no legal right, the person of the present bankrupt could never be released, as no other creditor is qualified to sign for him the commissioners' certificate. Nor can any person be legally qualified for that purpose during the life of bankrupt. Besides, what a strange construction must I put on the right in question? for then I must declare that both the act of God and of the law, viz. the death of the intestate, and the administration granted, and legally granted, to the surviving son and heir, operate so far as to make the residue of the intestate's estates liable to the demands of the administrator's creditors, but that those acts do not discharge his person, whereby the very end and true spirit of the bankrupt laws would be absolutely defeated; for the payment of debts releases the person in all cases; but under the bankrupt laws the bankrupt's all, though ever so deficient towards payment, operates not only to the full discharge of his debts, but also to the absolute release of his person.

they are to be considered as centering in several persons, and as distinct rights; the party therefore entitled to them may exercise them separately; as, for instance, a mortgagee has many remedies to recover his money: the Chancery cannot enjoin such a creditor from proceeding on his bond in ejectment and action of covenant, as also on a bill for a foreclosure on all these at one and the same time; and such injunction hath been refused here, because no court of justice, much less a court of equity, can deprive a subject of his birth-rights, to which he is entitled by the law of his country, one of which is a right to bring an action for recovery of every species of property, though each accrues from one and the same cause. And in answer to the objection that courts of justice, especially those of conscience, should prevent circuity and multiplicity of actions, and more so vexatious suits (which those in question are contended must be considered), his Lordship observed, that discharging the debt would put a stop to all the proceedings at once. But to mention a case rather more in point, the same person may prove a debt under a commission in his own right,

When the law casts (continued the Chancellor) different rights on one and the same individual,

1834.

In the matter

of LAWRENCE.

1834.

In the matter of

A trustee cannot sign without a breach of trust. Powel v. Evans, 5 Ves. 839. I cannot approve of that decision, but such is the law as there decided. If the LAWRENCE. bankrupt, by signing as trustee, commit a breach of trust, that may be dealt with in another court.

The bankrupt is executor, and there is nothing to prevent his proving, and having proved there is nothing to prevent his signing his certificate, only that the Court may refuse to allow the certificate, unless the bankrupt had leave to sign.

On the whole, as the bankrupt is not restrained by positive enactment, I am of opinion that, in this case, the legal right to sign the certificate follows the right to prove.

Per Curiam : We think the commissioners will not act improperly in allowing the certificate to pass with the signature of the bankrupt.

another as executor, a third as administrator, a fourth as assignee to a bankrupt, and a fifth in right of his wife. So one and the same person may be petitioning creditor, represent the whole body of creditors, and choose himself sole assignee under one and the same commission, which is not unusual, for it always happens when no creditor but the petitioning one appears till after such choice is made. His Lordship concluded: "This certificate is legally signed; there is no suggestion of concealment, nor any imputation of fraud; for as to the allegation in the petition, that the clerk to the commission and the father and son

combined together in order to

defraud the creditors of the son, for that the debt of the petitioning creditor (the clerk to the commission) was collusive, and contracted on purpose to support a friendly commission,-as this allegation is not even so much as attempted to be made out by any sort of evidence, it must be totally disregarded; and I cannot presume fraud in any case, especially in such a one as the present appears to the Court. And indeed was there such collusion as suggested, the deceased has made the bankrupt's creditors ample amends, by enabling him perhaps to pay every one of them 20s. in the pound, though,

may be, against his intention."

Ex parte FOULGER.-In the matter of PALMER.

THIS was a petition to supersede, presented by the petitioning creditor.

A judgment creditor, who disputed the validity of the commission on the ground that the bankrupt was not a trader subject to the bankrupt laws, brought an action, and obtained a verdict against the validity of the com

mission.

The petitioning creditor, finding he could not support the commission, petitioned to supersede. The creditors who had proved were eleven in number, to the amount of 14,886., of whom ten, to the amount of 14,1357., consented to the supersedeas. The creditor who refused to consent did not oppose this petition.

The petitioner positively denied any collusion with the bankrupt, and stated, he was solely actuated by the difficulty in which he was placed by his inability to enforce the commission.

It being known that the commission was disputed, no one would consent to become assignee.

Various orders, enlarging the time for the bankrupt's surrender, were obtained by the provisional assignee, the last of which expired after the action had been tried, without the bankrupt having surrendered, whereon the commissioners caused the bankrupt to be proclaimed for non-surrender.

The bankrupt was in Jamaica.

The petition was heard on the 13th of February 1833,

when

Sir George Rose objected, that the petition could not be heard, as the bankrupt had not surrendered.

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