1833. Ex parte HETHERINGTON. In the matter of GLOSSOP. Dec. 21. Sir George Rose:- And I always have understood the practice to be, that any person might apply. The CHIEF JUDGE:- But I am of opinion, that the objection of want of service overrules all questions connected with affidavits. But notice has not been given to the other side. Let notice be given, and renew this application. (a) Mr. Montagu and Mr. Bligh renewed the application: The rule always has been, and it is to be hoped always will continue strictissimi juris, that a petition to stay the certificate must be personally served on the bankrupt two clear days before that appointed for the hearing; ex parte Notley, 1 Gl.&J. 63, S. C., 2 Jac. & W. 220; ex parte Kendall, 1 Ves. & B. 544, S. C., 2 Rose, 115; ex parte Coulbourn, 2 Rose, 187; ex parte Bosanquet, 1 Mont. & Gregg. Dig. 161. So strict is this rule that the bankrupt cannot, by any act of his, waive the neces sity of personal service, admitting the receipt of the petition is not a waiver; ex parte Furnival, 1 Gl. § J. 254 nor is filing affidavits or applying to have the petition advanced; ex parte Groom, Buck, 40; ex parte Kendall, 1 Ves. & B. 544; ex parte Harford, Buck, 38. The bankrupt might have waited till the petition was called on, when it would be dismissed with costs; ex parte Hopley, 2 Jac. & W. 222: but he preferred making the present application, that his certificate may be forthwith allowed, following ex parte Moore, 1 Gl. & J. 253, and ex parte Brenchly, 1 Mont. & Gregg. Dig. 161. Mr. Chandless for the petitioner :- As to the service, the petition was answered on the 29th of November. (a) In strictness a cross petition was necessary, but it was agreed to waive that form in order to save expence. 1833. of GLOSSOP. On that day a letter was sent to Braham, the solicitor to the bankrupt, stating that the petition had been preEx parte sented, and requesting that a day might be appointed HETHERINGTON. when the bankrupt might be served. On the 5th of In the matter December the solicitor to the bankrupt came to Rawlin's office, requesting that the hearing might be postponed on account of a domestic affliction; and he wrote a letter, in order to furnish evidence of his request, at the same time he expressly undertook to serve his own client the bankrupt. Under these circumstances it is submitted the application cannot be entertained. Mr. Bligh in reply (Mr. Montagu having left the Court): The general rules of practice are not denied; and the question is, whether the bankrupt were personally served two days before, or whether any thing has been done to waive service. The petitioner was aware of the existence of the rule, and knowing it, and that the bankrupt could not be found, he ought to have applied to substitute service. Ex parte Harrison, 1 Gl. § J. 71; ex parte Hopley, 2 Jac. & Walk. 222. The letter in question, which asks the bankrupt's own solicitor to serve the petition on him, was dated the 7th, and the petition was answered for the 9th, so that in any event the petition was not served in time. The CHIEF JUDGE: I understand the facts of the case to be as follow: On the 5th, Braham, the solicitor to the respondent, called on Rawlins, the solicitor to the petitioner, and asked that the petition might stand over on account of a domestic affliction; whereon Rawlins requested him to write a VOL. I. R R 1833. letter, in order that he might be furnished with evidence of the fact; this letter was accordingly written by BraEx parte HETHERINGTON. ham, and sent on the 6th, on which day Rawlins reIn the matter quested Braham to serve his (Braham's) own client, the bankrupt, which he verbally agreed to do. of GLOSSOP. As to the general rule there is no doubt. But none of the cited cases apply where the want of service arises from the conduct of the bankrupt or his solicitor. On the 5th an application for delay was made by the bankrupt's solicitor, by which the petitioner was lulled into security, and moreover the bankrupt's solicitor then gave a verbal undertaking to serve his client. Under all these circumstances, this is not a case in which the petition ought to be called on, out of its turn, in order to be dismissed. Sir John Cross-The first step towards delay was taken by the bankrupt's solicitor. When the respondent asked for a week's delay, did he not give a week more to serve in? If so, he was served in time. I therefore can perceive no reason for granting the present application. Sir George Rose : The Court ever has been, and probably ever will be, indulgent in cases of certificates. The rule is, that the bankrupt must be personally served at least two clear days before the day appointed for the hearing, and that the bankrupt himself cannot waive the necessity for such service. But it is very different when the bankrupt moves to advance the petition, in order to have it dismissed for want of service. When the petition comes before the Court in regular course, the objection of want of service may be started and will be disposed of. But I would beg to suggest, that though ex parte Furnival, 1 Gl. & J. 254, decides that the bankrupt cannot himself waive the necessity of personal service, and is not bound by admission of other service, yet that is because merchants and traders are not expected to know the rules of practice, and are uninformed of the protection they may be entitled to thereunder, and that it might be very different when a professional man is interposed who is aware of the rules of practice. In this case the solicitor, who knew that the petition must be personally served, undertook so to serve it. It would have been more regular to have brought on the present question on petition, but the Court has entertained it on motion, such being by arrangement, and to save expence. Motion dismissed, with costs against the bankrupt, (a) On the 12th of January 1834 the petition came on in regular course, and was dismissed, the petitioner not appearing. 1834. Ex parte HETHERINGTON. In the matter of GLOSSOP. SITTINGS AFTER TRINITY TERM 1834. C. of R. Ex parte MUNK. In the matter of MUNK. June 23, THIS 1834. A commission held, under the circumstances, not supersedeable, though there were not support it. was a petition to supersede, presented by the bankrupt. The commission issued in 1824, and was subsequently transferred to C. F. Williams esq., by whom Mr. James Clark was appointed official assignee. In May 1829 the the requisites to bankrupt brought an action against the assignee and messenger, in which he was nonsuited. In October 1827 he presented a petition to supersede, which was dismissed with costs, which were not paid. In February 1831 he presented another petition to supersede or for an issue, which was dismissed with costs, which were not paid. In January 1833 an action was brought, in order to try the validity of the commission, in which the bankrupt was plaintiff, and the official assignee defendant, to recover rent received by the latter. A verdict was found in favour of the petitioner, on the ground of there being no good petitioning creditor's debt. In Trinity Term following a new trial was ordered. The case was argued for a new trial on the following case, stated for the opinion of the Court, as reported in 10 Bing. 102. This was an action brought to recover the sum of 80% for money had and received by the defendant to the plaintiff's use. A commission of bankrupt issued against the plaintiff, dated 1824, and the defendant was afterwards appointed official assignee under the commission. The 801. claimed in this action was received from the tenant of the plaintiff's estate by the defendant as official assignee, and as such he signed the receipt for the amount. The plaintiff had applied to a commissioner of |