bankrupt to appoint an official assignee to investigate if any debt were due to the petitioning creditor, to enable him, the plaintiff, to dispute the validity of the commission. It was agreed to be taken as fact, for the purpose of this case, that the plaintiff was not a bankrupt at the time the commission of bankrupt issued. The question for the opinion of the Court was, first, whether the defendant were liable in this action, the money sought to be recovered having been received by him in his character of official assignee; and, secondly, whether the application made by the plaintiff as above would preclude him from maintaining the action. The cause was again tried on the 5th of December, when the jury again found that there was not a good petitioning creditor's debt. The bankrupt also brought an action in the Exchequer against the tenant of the same estate, to recover rent due subsequently to that received by the official assignee; the tenant interpleaded, and finally an order was made for payment out of court to the bankrupt of the rent. In November 1833 the bankrupt petitioned the Court of Review to supersede, but the hearing was stayed till he had cleared his contempt by paying the costs of the former petitions. This was another petition to supersede. The two creditors' assignees consented to the supersedeas, but the official assignee refused to consent. Sir George Rose:- Why did the official assignee defend the action without first coming to this Court to receive directions how he should act? Mr. Bacon: He took the advice of the commissioners. Mr. Swanston for the petition:-There have been 1834. Ex parte In the matter of MUNK. two verdicts against the commission, which is invalid, for want of a petitioning creditor's debt. The assignees are convinced the commission cannot be supported, and consent to the supersedeas; the official assignee alone resists, as he before defended the action, in which he was wrong, as the verdict against him proves. It always was of course, before the Lord Chancellor, to supersede after verdicts against the commission. Mr. Bacon for the official assignee. Per Curiam: This commission issued ten years ago. Two petitions to supersede by the bankrupt have been dismissed, and the hearing of a third stayed, and now he petitions, for the fourth time, on the ground of a verdict against the commission in an action against an official assignee who was appointed on his special application; and on the strength of this verdict in his favour he comes to supersede, without stating any thing to enable the Court to judge of the propriety of the action or of the verdict. It has been urged this Court must supersede after a verdict against the commission. Such is not the case. A verdict is only a strong circumstance of inducement. Even putting the verdict here as a judgment, and therefore conclusive, yet, after ten years have elapsed, after the active acquiescence of the bankrupt in procuring the appointment of an official assignee, and after the dismissal of the former petitions, this Court would do wrong to encourage the present application. This petition must be dismissed, and, though the petitioner be a bankrupt, with costs to the official assignee. Petition dismissed, with costs. Ex parte BALDWIN.- In the matter of DUNCAN NEIL SMITH. THIS was a petition to reverse the decision of a subdivision court, which had expunged a proof; and a cross petition to confirm the decision. It was presented under 6 Geo. 4, c. 16, s. 60, which gives to commissioners power to expunge, but expressly reserves to each party a right to petition against the determination of the commissioners. Mr. J. Russell and Mr. Bethell, for the creditors who had applied to expunge, objected that the Court had not jurisdiction. "that The 1 & 2 W. 4, c. 56, s. 30, enacts, any one of the said commissioners, if he think fit, may adjourn the examination of a proof of debt to be heard before a subdivision court, which said court shall proceed with such examination, and finally and without any appeal, except upon matters of law or equity, or the refusal or the admission of evidence, shall determine upon such proof of debts." This appeal is on a question of fact, not of law or equity, and therefore cannot be entertained. [The CHIEF JUDGE:-That section refers to the admission or rejection of proofs. This is a question as to expunging a proof: is that within the section?] If section 30 relate to proofs only, and have no reference to cases of expunging, then this, which was an expunging, was done coram non judice: but the other side have acquiesced in allowing that it was coram judice, and now seek to appeal as to a matter of fact, which they cannot do. 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. 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 words having been used to deprive us of jurisdiction in present case. the Objection overruled. 1834. Ex parte In the matter of SMITH. 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 vivâ 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 |