In Adams v. Jones (e) F.C. 1898 the present application was made. Holroyd, J., allowed as matter of discretion costs on the Supreme Court scale. Up to that time the County Court Judges had L. STEVENSON refused. [HOOD, J. A mandamus would have settled the question.] Application for a mandamus was made to your Honor, and was granted, but not proceeded with. I do not ask for costs of this reference. PER CURIAM. We grant costs in this case upon the Supreme Court scale. Solicitors for plaintiff: Goldsmith & Sharp. AND SONS LIMITED v. HARTLE. R. H. C. [INSOLVENCY JURISDICTION.] IN RE CHARLES HENRY JAMES. Insolvency-Certificate of discharge-Death of insolvent―Jurisdiction-Insolvency SPECIAL case under sec. 9 of the Insolvency Act 1897 "1. By order nisi, under sec. 39 of the Insolvency Act 1890, made the 28th day of April 1897, and by subsequent order absolute thereon under sec. 47 of the said Act, the estate of the said Charles Henry James was adjudged to be sequestrated for the benefit of his creditors. "2. Leave, under sec. 144 of the Insolvency Act 1890, to apply for a certificate of discharge under Part VIII. of the Insolvency Act 1890 and Part VII. of the Insolvency Act 1897 was granted to said Charles Henry James by the Court of Insolvency at Melbourne on the 8th day of August 1898. "3. Mr. Duffy, of counsel for said Charles Henry James, applied, on 30th September 1898, for a certificate as aforesaid, and for an order dispensing with the condition imposed by sec. 139 of the Insolvency Act 1890, and also asked for an order dis (e) [1896] Unreported. F.C. 1898 November 15. F.C. 1898 In re JAMES. pensing with attendance of Charles Henry James, on the ground of his then moribund condition. “4. Mr. Braham appeared on behalf of all the creditors (except John Haines, who did not appear) and on behalf of the trustee, and asked for an adjournment for a fortnight, in order that the insolvent might be present and examined by the trustee and creditors on the certificate application, undertaking that if in the meantime it appeared that the said Charles Henry James could not attend, and could not be examined, he would raise no further objection. "5. Thereupon the Court adjourned the application for such certificate and dispensation for fourteen days, that is until 14th October 1898. "6. The said Charles Henry James died on the 2nd October 1898. "7. An affidavit was, on the 12th October 1898, filed in the court on behalf of insolvent, setting out the death of said Charles Henry James, and that the widow of said Charles Henry James, and executrix of his will, the other executors not having elected to act as executors, desired the application to be proceeded with, and setting out the service of notice of intention to proceed as if said Charles Henry James were alive. A copy of this affidavit is annexed hereto. A further affidavit was filed setting out service of the like notices on all the creditors. "8. On the 14th October 1898 counsel appeared on the said adjournment and proceeded with and continued such application as aforesaid, and read the said affidavits. There was no other appearance, neither trustee nor any creditor appearing either personally or by counsel or by attorney. "9. The Court stated that the view of the Court then was that the death of the said Charles Henry James put an end to such application finally, and that such application could not be proceeded with, continued, heard, or granted. 10. At the instance and at the request of counsel, appearing as if the insolvent were alive, and also appearing as instructed by the executrix, the Court consented to transmit the following question of law by way of special case for the determination of the Supreme Court: Has the Court of Insolvency jurisdiction or power to proceed with the hearing of, and to hear and to grant such application, in view of the death of said Charles Henry James? If yea, in what form, and on whose application?" Duffy to move-The Court of Insolvency has power to hear and to grant an application for a certificate of discharge, even although the insolvent is dead: Sec. 130 of the Insolvency Act 1890. This is a matter which may be "proceeded in " under that section. The certificate has the effect of freeing the insolvent and his representatives ever after from his debts. It is a reciprocal benefit. Assuming that the insolvent had made a certain conveyance, and after that the insolvency had occurred and the insolvent had done everything necessary to obtain his certificate, if then some person desired to impeach the conveyance under 13 Eliz., c. 5, the grant of a certificate would mean that no claim could be brought because this particular debt was satisfied. The creditor would have no locus standi. The certificate makes the representative free. The issue of the certificate blots out existing debts. [HOOD, J. They cannot be enforced, but they still exist: See Kirkpatrick v. Tattersall (a).] The debtor is discharged. [HOOD, J. In re Scallan (b) is against your view.] The Court may order judgment to be entered, even though the debtor be dead, nunc pro tunc. The Legislature has gone beyond the personal liability of an insolvent. The Act deals with his estate. Sec. 35 enables a person who has the insolvent estate to surrender it, and all the like proceedings may then be taken. It is the estate which is regarded whether the person be living or dead. There is, however, still left the position of a person who was alive when proceedings for a certificate were first instituted, but who died during the proceedings. The Act does not touch this case. [HOLROYD, J. It used to be a necessary preliminary to the granting of a certificate that the insolvent should be examined. (a) [1845] 13 M. & W. 766. V.L.R., Vol. XXIV. (b) [1876] 2 V.L. R. (I.P. & M.) 2, at p. 8. LL F.C. 1898 In re JAMES. F.C. 1898 In re JAMES. He may still be examined. A dead man cannot be examined. The Judge who hears the application for a certificate is always at liberty to grant the insolvent leave not to appear. [HOOD, J. If a man died immediately after sequestration, to whom can the certificate be granted?] Sec. 42 enables the Court to declare a dead man insolvent. This power was considered in Exparte Sharp, in re Walker (c). [HOLROYD, J. A conditional certificate may be granted to an insolvent-for example, as to the disposal of after-acquired property Insolvency Act 1890, sec, 143. Sec. 95 of the Act of 1897 (No. 1513), provides that even though the conditions of that certificate be not complied with the Court may grant an absolute discharge. If the insolvent's failure to comply arises from his death may his executors then apply for an absolute certificate of discharge?] There are numerous inapplicable provisions of the Act. Counsel referred to Bromley v. Goodere (d); 4 Anne, c. 17, secs. 19, 20. The insolvent before his death had filed an affidavit in this matter. The decision in In re Scallan referred to the meaning to be placed upon the words "on his behalf" in sec. 131 of the Act. Molesworth, J., thought that they referred to someone acting for an insolvent while he was alive. The Court of Insolvency has power to hear an application of this sort, and to antedate the certificate. If delay in applying has arisen through the act of the party, the Court will not assist him, but if the Court has reserved its decision or has adjourned it may act. Counsel referred during argument to Re Neale, exparte Neale (e); Evans v. Rees (f); Moor v. Roberts (g); Shelford's Laws of Bankruptcy (3rd ed.), p. 598. There was no appearance for the trustee or for any creditor. WILLIAMS, J. This is a special case stated by the Judge of the Court of Insolvency in reference to an application by one Charles Henry James, an insolvent, for a certificate of discharge. (c) [1886] 34 W.R. 550. (d) [1743] 1 Atk. 75, at p. 77, per (e) [1851] Fonblanque B. R. 206. It appears that Mr. Duffy, of counsel who appeared on behalf of insolvent, made an application to the Court of Insolvency at Melbourne on 30th September of this year for a certificate of discharge, and for an order dispensing with the condition required by sec. 39 of the Insolvency Act 1890. He also applied for an order dispensing with the attendance of the insolvent for examination. That application was opposed by the creditors and by the trustee of the insolvent's estate. It was upon the hearing of the application proposed that an adjournment for fourteen days should take place, in order that insolvent might be present, if in a condition to be present. That adjournment was granted, and the Court of Insolvency adjourned for a fortnight. During the course of that fortnight insolvent died-viz., on 2nd October. On the 14th October counsel again appeared, and renewed the application for a certificate. The learned Judge of the Court of Insolvency held that the death of Charles Henry James virtually put an end to the application, and it could not therefore be entertained. The question we have now to determine is-Was the learned Judge right? We think he was. The application is based upon two grounds. As I understand counsel's first argument is this:-Sec. 130 of the Insolvency Act provides that "if an insolvent shall die after sequestration under Part III. or adjudication of sequestration the sequestration shall after notice has been given to such persons (if any) as the Court may think fit be proceeded in as if such insolvent were living." It is contended that this application is a matter which can be proceeded with under that section even after the death of the insolvent. We think, however, that this section does not cover an application of this kind-that it is meant simply to effect this: if the insolvent dies after sequestration, the sequestration may be proceeded with as if the insolvent were living-that is to say, any matter in connection with the insolvent estate may be carried on for the purpose of getting in and disposing of the estate. We think that this is the entire scope of that section. If that be so, it does not cover an application of this kind. This application for a certificate appears to us to be a personal matter. The effect of a certificate F.C. 1898 In re JAMES. Williams, J. |