G. 4, c. 57. call some person from the Court itself to prove the acts of the Insolvent Court. Sir G. A. Lewin and R. Hall, for the prosecu The bankrupt was never discharged under the Insolvent Tindal, C. J.—“ On the construction which I put on the act of parliament, the act of bankruptcy was not complete till the 29th of Oct., at two o'clock, P.M., when Dance took the proceedings to the office where they were to be filed; but the sale under the execution was complete by twelve o'clock on that day. "It is urged, that the instrument was virtually filed as soon as the officer had it in his possession. But in this case it is manifest, that Dance was not the person in whose custody it was to remain; for, after such an instrument is signed, Dance says, it is carried to the public office in Lincoln's-Inn Fields, attested, numbered, and handed to the officer of the Town Department, with whom it remains; so that he does not consider it filed till it is carried to the office and delivered there." Park, J.-" Filing means putting in the proper place of deposit; and Dance was not the officer with whom the instrument was to have been deposited. "When affidavits are filed at a judge's chambers, the placing them in the hands of the clerk does not complete the deposit in the place of legal custody; until they arrive there they are not filed." Gaselee, J., concurred. Bosanquet, J.-" Sect. 10 directs, that the petition shall be subscribed by the prisoner, and be forthwith filed in the said Court;' and having so directed that the petition shall be subscribed, it directs, in sect. 13, that the filing shall be an act of bankruptcy. But it cannot be considered that tion, contended, that the proof adduced was sufficient to satisfy the words of the statute, which was intended to obviate the inconvenience that was found to attend the ancient practice, by a too strict adherence to which justice was constantly defeated*. Williams, J.—“ As regards the first point, I think the seal of the court having been proved, and also the signature of H. W. Lamb, that the evidence is sufficient. As regards the second point, I think the same reasoning applies. The seal is on the indorsement as well as on the copy of the petition. He could not procure a subsequent indorsement. I must give credit to the certificate; and I am of opinion, that the act of the filing and subscribing are the same thing. The instrument cannot be said to be filed till it becomes a record of the Court." s. 76. 7 Geo. 4, c. 57, s. 76.-" A copy of such petition, 7 G. 4, c. 57, schedule, order, and other orders and proceedings, purporting to be signed by the officer in whose custody the same shall be, or his deputy, certifying the same to be a true copy of such petition, schedule, order, or other proceeding, and sealed with the seal of the said Court, shall at all times be admitted in all Courts whatever, and before commissioners of bankrupts and justices of the peace, as sufficient evidence of the same, without any proof whatever given of the same, further than that the same is sealed with the seal of the said Court as aforesaid." Ante, p. 62. s. 13. filing was certainly a proceeding' within the meaning of that word, as used in the act of parliament. These statutory requisitions are not uncommon, as for instance, certificates of previous convictions*.” The indictment alleged that the fiat was “issued" by the Lord High Chancellor. Dundas objected, that the allegation ought to have been that it was duly issued. Williams, J.-"I think the word duly is better omitted. I am bound to presume, if it was issued by competent authority, that it was duly issued." Το prove that the fiat was duly inrolled agree *The petitioning creditor's debt and the trading were principally proved by the petitioning creditor himself: no objection was made to this; but query, if, as regards the debt, the petitioning creditor is a competent witness, since, under 6 G. 4, c. 16, 6 Geo. 4, c. 16, s. 13, he must give a bond to the Lord Chancellor, in the penalty of 200%., conditioned for proving his debt, as well before the commissioners as upon any trial at law in case the due issuing forth of the commission be contested, and also for proving the party to have committed an act of bankruptcy at the time of taking out such commission, and to proceed on such commission. In Rex v. Warlters, 5 Car. & P. 138, on the Oxford circuit, the point was raised before Park, J., who, after conferring with Patteson, J., said, that "he would receive the evidence, subject to further consideration." The debt was, however, proved by another witness, and consequently no judgment was given. ably to the statute, the fiat itself was put in, bearing the seal of the Court of Bankruptcy *. Dundas contended, that there ought to be some proof given that the seal was the seal of the Bankruptcy Court. Williams, J.-"By the 9th section of the act of parliament, I have only to see, whether this purports to be the seal of the Bankruptcy Court; and on looking at it, I find that it does so purport+." Dundas next objected, that there was neither allegation nor proof that the fiat had been filed in the Court of Bankruptcy as required by 1 & 2 Will. 4, c. 56‡. c. 114, s. 8. * 2 & 3 Will. 4, c. 114, ss. 8 & 9. Sect. 8. "Be it enacted, 2 & 3 W. 4, that no fiat issued in lieu of a commission of bankrupt, whether prosecuted in the Court of Bankruptcy or elsewhere, shall be received in evidence in any court of law or equity, unless the same shall have been first entered of record in the Court of Bankruptcy aforesaid." Scet. 9. "Be it enacted, that, upon the production in s. 9. evidence of any commission, fiat, adjudication, assignment, appointment of assignees, certificate, deposition, or other proceeding in bankruptcy, purporting to be sealed with the seal of the said Court of Bankruptcy, or of any writing purporting to be a copy of any such document, and purporting to be sealed as aforesaid, the same shall be received as evidence of such documents respectively, and of the same having been so entered of record as aforesaid, without any further proof thereof." Intituled "An Act to establish a court in Bank- 1 & 2 W. 4. ruptcy." c. 56. Ante, p. 63, 64. 1 & 2 W. 4, c. 56. Williams, J.-"That provision is confined to fiats prosecuted in the Court of Bankruptcy*.” In the engrossing of the indictment, the word "administered," had been written "administrated." Dundas objected, that this was a variance. Williams, J., gave it a reading that made sense of it, and overruled the objection. The memorial, when put in, was found to describe the oath as that required by 1 & 2 Will. 4, c. 56, whilst the indictment described it as the oath required by 2 Will. 4. Dundas objected, 1st, that the oath ought to have been the oath prescribed by 6 Geo. 4, c. 16. 2. That the statute under which it was alleged to have been administered, was the 1st and 2nd year, and not the 2nd. 3. That the description in the memorial varied from that in the indictment. Sir G. A. Lewin and R. Hall.-It is a settled point of law, that an indictment, describing a * 1 & 2 W. 4, c. 56, s. 13. "Every such fiat prosecuted in the said Court of Bankruptcy, shall be filed and entered of record in the said Court, and shall thenceforth be a record of the said Court; and it shall thereupon be lawful for any one or more of the commissioners thereof to proceed thereon in all respects as commissioners acting in the execution of a commission of bankrupt." |