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with the defendant for ten years, during the greater portion of which time the defendant had been a prisoner in the King's Bench Prison, or in the rules thereof; that about the beginning of the year 1821 the defendant occupied premises within the rules of that prison, and continued there till about Midsummer 1823, and during that time either carried on or superintended the management of a manufactory for making revolving heels for boots and shoes, for which a patent had been obtained; but that deponent had been informed by the person who obtained such patent, and believed, that such business was carried on in the name of George Wilson, a brother of the defendant, and not in the name of the defendant, and that the defendant had not at any other time during the period deponent had known him, carried on or been concerned in any other business, the defendant having resided part of such time at the house of deponent, situate within the rules of the King's Bench Prison, and having been at several other times confined within the walls of the said prison; that deponent had been informed by the defendant, and believed, that some time in the latter end of the year 1823, the defendant applied to take the benefit of the Insolvent Act, but did not obtain his discharge under the same, and that the defendant had frequently since that period lamented to deponent his inability so to obtain his discharge, and had repeatedly told deponent that it was his intention to procure a commission of bankrupt to be issued against him, at the same time stating that he had secured his property to a Miss Jackson, with whom he then did and still continued to live; that deponent was well acquainted with Mr. Wallis, one of the assignees under the defendant's second commission, the said Wallis having been in the habit of attending almost daily on the defendant while he resided at deponent's house ; that the defendant was in the habit of representing himself as residing at the house of Wallis, and having his letters and communications dated, and directed there while he was such prisoner as aforesaid; and that about twelve months since the defend




ant applied to deponent to negociate the sale of some premises he represented himself to be interested in, on which occasion the defendant desired deponent to give bis address as residing at the house of Wallis, and not to mention that he was a prisoner in the King's Bench, but which property was not disposed of; that the debt for which this action was brought was for clothes furnished by deponent previous to his bankruptcy to the defendant, and for money lent by deponent to the defendant; but that deponent positively denied that at the time such debt was contracted he knew, or had any reason to believe, that the defendant was an uncertificated bankrupt, or that he had ever been a bankrupt; and that deponent had lately conversed with several of the creditors under the defendant's first commission, who had severally declared it to be their determination immediately to prosecute that commission with effect, and secure to themselves any property the defendant might be possessed of or entitled to. Mr. Dodd's affidavit stated, that having lately ascertained that the defendant was an uncertificated bankrupt under a commission issued against him in the year 1816, deponent advised the plaintiffs not to prove their debt under the defendant's second commission, under the impression that such second commission was wholly inoperative; that on receiving a copy of the rule nisi in this cause for the defendant's discharge, deponent sent to Messrs. Paterson and Peile, the attorneys for the defendant in this cause, and also under his second commission, the following letter:

« Till v. Wilson. In order to put the court in possession of the whole of the facts connected with this case, upon shewing cause against the rule nisi served in this cause for the defendant's discharge, I beg to request you will permit me to inspect the proceedings under the commission of bankrupt against the defendant, or furnish me with the following particulars, viz.; the time and for what the petitioning creditor's debt was contracted, the time and nature of the act of bankruptcy, the period at which and the place




where the trading was carried on, and the name and address of the assignees, and when their debts were contracted. My reason for requesting this information is because I have been informed that the whole of the above facts occurred during the period of the defendant's imprisonment in the King's Bench, and with full knowledge of the different parties of his being an uncertificated bankrupt, of which citcumstance I conceive the court ought to be apprized.”

To which deponent received the following answer :

« Till v. Wilson. We have received your letter requesting us to allow you to inspect the proceedings under the commission of bankrupt against the above defendant, or to furnish you with certain particulars. As your clients are not creditors under the commission, and being satisfied that the information required by you in their behalf is only for the purpose of assisting them in their endeavours to defeat the commission, we feel it our duty, as representing the assignees and the creditors under the commission, who are materially interested in securing to themselves by virtue of the commission the property of the defendant, to refuse the request you made. We think you may be quite satisfied the commissioners would not have adjudged the defendant a bankrupt, had there not been a good petitioning creditor's debt, and sufficient evidence of a trading and an act of bankruptcy. We see no objection to inform you the names and addresses of the assignees; they are,” &c.

That deponent was informed by Mr. Paterson, one of the defendant's said attorneys, that the defendant obtained his certificate upon the 42d day after the opening of such second commission against him, being the time of passing his final examination.

Tindal, S. G. and Chitty, shewed cause. This rule must be discharged. Looking at the facts of the case altogether, as disclosed by the affidavits on the one side and on the other, it is clear that the second commission is void, both at law and in equity. The new bankrupt act, 6 Geo. 4, c. 16,




has made no alteration in the law. bearing at all upon this question; therefore the case may be considered independently of that act, and with reference exclusively to the old Jaw.. There are many cases, both in this court and in the courts of equity, which are decisive to shew that the second commission in this case is absolutely void. In Ex parte Proudfoot (a), though there were special circumstances which induced the Lord Chancellor to abstain from setting aside the second commission, the law was clearly laid down in favour of the present argument. It was there said, that when assignees are chosen under a first commission, all the estate and effects of the bankrupt are vested in them, and he is incapable of carrying on any trade, and all his future personal estate is affected by the assignment, and every new acquisition will vest in the assignees. The bankrupt is incapable of acting, and therefore no second commission can be taken out before he has his certificate under the first, for till then nothing can pass under the second, at least of personal estate; consequently the certificate under the second commission can have no operation at all, and would be void at law. In Martin v. O'Hara (6), Lord Mansfield said, “ an uncertificated bankrupt is incapable of trading or contracting for his own benefit; all the property he acquires belongs to his creditors. If he cannot trade for himself, he cannot be the object of a second commission.” And Buller, J., said, “I take it to be perfectly clear that a second commission cannot be taken out against an uncertificated bankrupt; and for this reason: it would be entirely idle and nugatory.” In Ex parte Crew (c), Lord Eldon said, “I am aware of all the difficulties that belong to the case of two commissions subsisting against the same person. The assignee cannot bring an action, or protect himself under it; in short, the second commission cannot have any operation except under direction of arrangement here. If a joint commission issues against persons, one of whom has

(a) 1 Atk. 253.
(6) Cowp. 823.

(c) 16 Vesey, jun. 236.




been declared a bankrupt under a separate commission
against him, the joint commission is a nullity; one of the
parties being already a bankrupt under a prior commission.
So, a joint commission subsisting, a separate commission
against one of those bankrupts is a nullity. We are now
in the habit of making an arrangement; superseding the
one or the other, as may best answer the ends of justice :
but in Lord Hardwicke's time, both the joint and the sepa-
rate commissions stood together; and that being permitted,
the necessity was felt of giving the bankrupt, by arrange-
ment, the benefit of a certificate to be signed by some
creditors of a class who, strictly speaking, could not
come in.” That shews, conclusively, that a certificate
obtained under a second commission, in the ordinary course,
and without the special authority and arrangement of the
great seal, cannot be available. Where, indeed, there is
negligence or misconduct on the part of the creditors under
a first commission, the Lord Chancellor will not interfere
to stop a second ; but that is not the case here.
held by Lord Eldon, in Ex parte Bullen (a), that a second
commission sued out while a first was subsisting was,
strictly speaking, void; but that such first commission could
only be set up against a subsequent one while it was in legal,
operation. Therefore the present question being raised in a
court of law, the second commission must be held void, and
there is nothing upon the affidavits to shew that the first com-
mission is not in legal operation. In Ex parte Pachelor (6),
the existence of a prior separate commission was held by
Lord Eldon to invalidate a subsequent joint one; and in
Warner v. Barber (c), the assignees under a second com-
mission were held entitled to recover against a third

person, only on the ground that the first commission was not in legal operation. In an earlier case of Troughton v. Gilley (d), before Lord Camden, the same principle seems to have been had in view. There, creditors under a commission having

It was

(a) 1 Rose's B. C. 134. (6) 2 Rose's B. C. 26.

(c) 2 J.B. Moore, 71.
(d) Ambler, 630.

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