L. JJ. 1868 Ex parte NATIONAL BANK OF ENGLAND. In re VAN WART. recently adjudicated bankrupt, and that the joint estate was wholly insolvent, and that there was no surplus from the private estate of Harris, and that nothing was due from Van Wart to the separate estate of Harris, nor to the joint estate, and that Van Wart, being liable for the joint debts, and in possession or having the control of the joint estate for the purpose of liquidation, called the joint creditors together, and it was unanimously resolved that the now stating deed should be made, it was witnessed that "O. I. Van Wart hereby conveys all his estate and effects, and all the estate and effects of the said firm, to W. J. Williams, to be applied and administered for the benefit of the creditors of O. I. Van Wart, and of the creditors of the said firm, in like manner as if O. I. Van Wart and W. J. Harris had been at the date hereof duly adjudicated bankrupt." This deed was proceeded with under the Bankruptcy Act, 1861, s. 200, the debtor filing an affidavit to shew that he had the requisite majority of assenting creditors, excluding those who were unknown by reason of his not being able to ascertain by whom various bills of exchange were holden, or who were resident abroad. On the 6th of October, 1868, Mr. Commissioner Bacon made an order by which, after referring to the deed, the notices required. by sect. 200, and the affidavit of Van Wart as read, "it appearing that the said O. I. Van Wart has obtained the consent to such deed of a majority in number representing three-fourths in value of all the creditors of the said O. I. Van Wart and W. J. Harris, with the exception of those creditors who are unknown to him by reason of his being unable to ascertain by whom bills of exchange accepted by them were holden, and by reason of the absence of some of their creditors in foreign countries," he allowed the registration of the deed, and directed it to be registered with the Chief Registrar, provided the other conditions in the Act had been complied with to the satisfaction of the Chief Registrar, and on the following day the learned Commissioner made another order allowing the deed to be registered, though Harris had not made any affidavit in support of the accounts, or tendered any account of his separate debts. The deed was accordingly registered on the 7th of October. On the 21st of October, the petitioners filed a petition in the Liverpool Court for adjudication against Van Wart. He, having obtained information of it, gave notice that he should apply for an order that the proceedings under the petition might be stayed, and the petition dismissed. The Commissioner thereupon declined to adjudicate till the motion was disposed of. On the 29th of October this motion was brought on, and the debtor was examined. The solicitor to the petitioning creditors asked him, "What steps did you take to ascertain the holders of the bills held by the creditors whose assents have been excluded.” This question was objected to on the ground that it was not competent to the petitioning creditor to go behind Mr. Commissioner Bacon's order. The objection was allowed by Mr. Lee; and an order made dismissing the Petition. Mr. De Gex, Q.C., and Mr. Bardswell, for the Appellants First: This order can only purport to have been made under sect. 199 of the Act, for apart from that section all the Court could do would be to refuse to adjudicate. But sect. 199 does not apply, being in terms limited to petitions presented in the interval between the execution of the deed and its registration. That is the only case in which such a remedy is wanted; it is wanted there because the registration of a deed does not relate back to its execution: Stanger v. Miller (1); and an unregistered deed could not be shewn as cause against adjudication. An ex parte adjudication is the statutory right of a creditor, and must be made ex debito justitiæ: Ex parte Lanchester (2); Backwell's Case (3). Secondly: This deed does not comply with the provisions of sect. 200. required certificate by the trustees has not been made. adoption of the form in Schedule D. is imperative, but the deed materially differs from it, containing recitals importantly affecting the rights of creditors. Thirdly: We were not allowed to enter into evidence that the provisions of the Act had not been complied with. The view that the Commissioner's order is conclusive is quite untenable: Bramble v. Moss (4); Ex parte Rawlings (5); Ex parte Page (6); Ex parte Banfield (7). The The L. JJ. 1868 Ex parte NATIONAL BANK OF ENGLAND. In re VAN WART. L. JJ. 1868 Their Lordships desired Counsel for the Respondent to confine himself to the objections to the form of the deed, and the not Ex parte allowing the Appellants to go into evidence. NATIONAL BANK OF ENGLAND. In re VAN WART. Mr. North, in support of the order : Section 65 shews that the schedules to the Act are not given as forms which cannot be in the slightest degree departed from, and this is substantially the same as the form in Schedule D., being an assignment of all the debtor's property to be administered as in bankruptcy without any condition. I contend that there is nothing in the Act to make the recitals estop a creditor who has not executed the deed; nor, indeed, could such recitals take the rights of the creditors against any separate estate of Harris, or against the joint estate. The order of the London Commissioner distinguishes this case from all those which have been cited on the question whether registration is conclusive evidence that the provisions of the Act have been complied with. The London Commissioner has decided the question. SIR W. PAGE WOOD, L.J.: away This case must go back to the Commissioner. I am not influenced by the argument founded on the 199th section of the Act, as I do not think that the order is to be treated as purporting to be made under that section. Mr. De Gex contends that it is the right of a creditor to apply ex parte for adjudication. But the Commissioner has jurisdiction to refuse to adjudicate if he knows anything which makes an adjudication improper, and if any one informs him of something which would make the adjudication void he is not bound to refuse to hear him. The difference between dismissing the petition and simply refusing to adjudicate is too thin to have any importance attached to it. But if a person comes in to inform the Commissioner of something which prevents the adjudication, he is subject to cross-examination, and so the debtor here was liable to be cross-examined, even if it was not incumbent on him to prove affirmatively that all the statutory requisitions had been complied with, which, on the authorities, it seems it was. The debtor produces a registered deed of arrangement with an order amounting to a certificate that the conditions any L. JJ. 1868 Ex parte NATIONAL BANK OF In re VAN WART. of the Act have been complied with. That may be prima facie evidence that they have been complied with, but it cannot be thing more, for the Commissioner can only certify in effect that so far as appears on the materials before him they have been complied with; he has no means of knowing whether every creditor ENGLAND. named is not a fictitious one, nor whether the debtor may not know the name of every creditor he has, although he states he does not. The first question asked of the debtor here was about his creditors, and the examination was stopped on the ground that the London Commissioner had decided the point. The London Commissioner decided nothing, except that the debtor had told him upon oath what, if true, shewed a compliance with the provisions of the staAs the case must go back to the Commissioner in order that the facts may be properly ascertained, we say nothing as to the form of the deed further than that it raises questions requiring grave consideration. SIR C. J. SELWYN, L.J.: I am of the same opinion. As regards Mr. De Gex's first point, assume, for the sake of argument, that he is right in saying that every creditor has, ex debito justitiæ, the right of applying ex parte for an adjudication in bankruptcy. But the Court of Bankruptcy, like every other Court, may decline to adjudicate, or may suspend its decision and require some one else to be summoned. Here the Commissioner declined to adjudicate till a motion by the debtor to stay proceedings and dismiss the petition had been disposed of. I think he had jurisdiction to do this. But the substantial question is, whether, after taking that course, he was right in stopping the examination of the debtor on the ground that he was estopped by the order of Mr. Commissioner Bacon. It is clear on the authorities that an ex parte certificate of this kind is not conclusive, and therefore the matter must go back to the Commissioner. Solicitors for the Appellants: Messrs. Chester & Urquhart; Mr. W. W. Wynne. L. JJ. 1868 Nov. 13. Bankruptcy-Omission to choose Creditors' Assignee at First Meeting—Appeal by Creditor whose Proof was not formally complete at Date of Meeting-Proof of Debt by Declaration—Sufficiency of Statement of Account. Where the first meeting of creditors has passed without the choice of a creditors' assignee, by reason of the majority refusing to nominate any one for election, the Court has power to appoint a fresh meeting to continue the proceedings for the election of an assignee. A creditor whose debt was not objected to at the meeting for choice of assignees, although not formally proved, may appeal from a decision come to at the meeting, provided his debt be proved before the hearing of the appeal. If a creditor who proves his debt by declaration under the 144th section of the Bankruptcy Act, 1861, files a statement of account which is not "full, true, and complete" his proof ought to be rejected. THIS was an appeal from an order of the Registrar of the District Court of Birmingham. Joseph Taylor, the bankrupt, on the 3rd of August, 1868, gave a bill of sale of all his effects to Charles Froggart, being at that time in insolvent circumstances. Froggart took possession of the goods, and kept possession till the 20th of August, when he sold them to the son and son-in-law of the bankrupt. On the 24th of August Taylor was adjudicated bankrupt, and the first meeting of creditors was held on the 9th of September. On that occasion Mr. Griffin appeared as solicitor representing Froggart and two other creditors, whose debts amounted to £187 8s. 7d., of which Froggart's claim was £143 9s. 6d., and Mr. Dale appeared as solicitor representing J. Barnett, the Appellant, and ten other creditors, whose total debts amounted to £203 11s. 2d., but in consequence of the non-production of a bill of exchange in support of one of the debts, the amount was reduced to £184 28. 2d. Dale then objected to the reception of Froggart's claim on the grounds subsequently stated, but the objection was overruled by the Registrar. The effect of this was, that the creditors represented by Griffin had a majority of votes, and were in a position to choose the assignee; but Griffin refused to nominate one, preferring to leave the estate in the hands of the official assignee. To this the Registrar assented, although Dale, on behalf of the |