person who is aggrieved thereby. (See post). A power of attorney to transact business in courts of law authorizes the attorney to apply for a supersedeas (0). The bankrupt may apply to annul his fiat, even although under a commitment by the commissioners for not answering, &c. (p). And he may petition in formâ pauperis (q). But when the bankrupt concocts a fraudulent fiat, and three days before it issues abandons his intention, and other parties issue the fiat, the bankrupt cannot petition to annul (r); and if the bankrupt brings an action to try the validity of the fiat, and then prefers his petition to annul on the same ground, he must abandon the action before he can proceed with the petition (s); and if there have been purchases under the fiat, the application must be accompanied with affidavits that the bankrupt has joined in or confirmed the conveyances of the assignees (t), or have given an indemnity in cases where the bankrupt cannot confirm the purchases (u); at least the court will make that one of the conditions of annulling the fiat. And as the bankrupt can try the validity of the fiat at any time by action, the court often, in doubtful cases, leaves him to that remedy, and refuses to annul until after the trial. It has been decided also, that a person attainted of felony cannot be heard by petition to the Lord Chan cellor to supersede a commission of bankruptcy issued against him, whether his attainder arose out of the commission or not (v). Where the petitioning creditor petitions to annul a fiat, a cross petition of the bankrupt cannot be presented, except for an assignment of the bond (x). The assignees may apply to annul the fiat, even for defects appearing upon the face of the proceedings; but such an application will be watched with great jealousy, and the assignees must first do all in their power to clear away the doubts as to the validity of the fiat, before they apply (y). Where the assignees, being satisfied that the evidence on the proceedings of the act of bankruptcy, &c., would not support the commission, if contested, applied to the petitioning creditor, and pressed him to produce such other evidence before the commissioners as would support it, saying, that in the event of his not doing so they should be obliged to petition to supersede the commission, and at his costs; but the petitioning creditor took no notice of these applications of the assignees: the Lord Chancellor held, that it was competent to the assignees to petition for a supersedeas in such a case; but he referred it in the first place to the commissioners to call a meeting for the purpose of receiving information from the petitioning creditor, upon the sufficiency or insufficiency of which would depend the awarding of the super (0) Ex p. Crowther, 4 Dea. & C. 31. (p) Ex p. Browne, 2 Swans. 290: Er p. Magennis, 1 Rose, 60; 18 Ves. 289: Ex p. Chambers, 1 Dea. 197. (g) Er p. Northam, 2 Rose, 140; 2 V. & B. 124. (r) Ex p. Nainby, 3 Dea. 121; 3 Mon. & A. 452. (8) Ex p. Burgess, Jac. 559. (t) Ex p. Milner, 19 Ves. 204: and see ante, p. 308. (u) Ex p. Latour, Mon. & B. 89. (y) Ex p. Graves, 1 Glyn & J. 86: Er p. Burnell, 1 Mon. & A. 44. sedeas (2). But an assignee who has a sufficient petitioning creditor's debt ought not to petition to annul without praying for a new fiat (a): and where the petition was by one of two assignees, and the other assignee was willing to prosecute the fiat, and the petitioning creditor offered to indemnify the petitioning assignee, the court refused to annul (b). The assignees under a second fiat, under which the bankrupt has not paid fifteen shillings in the pound, may petition to supersede a third fiat taken out against him (c). A creditor may apply to annul the fiat, even although privy to the very act on which he grounds his objection to the fiat (d). But the court will not annul a fiat on the ground of fraud on the petition of a party to the fraud (e). The petition ought to allege him to be a creditor, not only at the time of issuing the fiat, but also at the time of presenting his petition; it has been held insufficient that that fact is stated in the affidavits (ƒ). And the petitioner must shew himself to be a creditor, by swearing to his debt, either under the fiat or in support of the petition (g); and he must be a creditor at the time his petition is actually heard (h); for if a creditor, suing at law, petitions to annul, and he recovers at law, and fixes the bail, who pays the debt before the petition comes on for hearing, the petition cannot be heard (i). A creditor may petition to annul although he has not proved under the fiat; for his claim to supersede is adverse to the commission; but his having proved will not preclude his petitioning to annul (k); and even a creditor who has been bankrupt can petition to annul if his assignees neglect to prove the debt (1). And if the validity of the petitioner's debt is impeached, as for usury, the court will direct a previous inquiry to ascertain if the petitioner is a creditor of the bankrupt (m); or any party not a creditor, who can shew he sustains a grievance from the fiat, as a trustee under a deed which the fiat will overreach (n); but a party whose debt is usurious is not in fact a creditor, and therefore cannot petition to supersede, even in a case of fraud (0). So it has been decided, that the plaintiff in an action, in which an attorney, the bankrupt, had been attached for not putting in bail in pursuance of his undertaking, had a sufficient interest to enable him to petition to supersede the commission (p): even a stranger summoned to give evidence before the commissioners can petition to supersede the commission (q). As to the petition itself, and the practice relating to it, see the (s) Er p. Graves, supra. (a) Ex p. Biggs, 2 Dea. 549; 3 Mon. & A. 393. (b) Er p. Booker, 3 Dea. 232, 346; 3 Mon. & A. 643. (c) Er p. Alexander, Mon. 14, n. (f) Er p. Oxley, 1 Glyn & J. 12: Ex p. Flight, 1 Dea. & C. 78; Mon. 515: but see Er p. Wyatt, 1 Mon. & A. 406: Ex p. Robinson, Id. 705. (g) Anon., 2 Mad. errata, viii. (1) Ex p. Taylor, 2 Mon. & A. 36. (m) Er p. Hudson, 2 Russ. 456. (n) Ex p. Jones, 1 Mon. & A. 442; 3 Dea. & C. 697. (0) Ex p. Hudson, 2 Russ. 456: Er p, Jarman, 4 Dea. & C. 393; 2 Mon. & A. 119. (p) Ex p. Bold, Cox, 423. next section. If a single creditor petition to annul for fraud or collusion, the petition must pray that a new fiat may issue, or, without praying to annul, that the assignees may be removed and new assignees chosen; but a petition of a single creditor simply to supersede was dismissed with costs (r). If it be a petition with the consent of the creditors, the consent is written at the foot of it, and must be signed by all the creditors who have proved. An affidavit must be made of the signatures of the creditors, and laid, together with the petition, before the commissioners; and the commissioners then, having first ascertained that all the creditors have signed the consent, will sign a certificate to that effect, which must accompany the petition when presented. (See the form of the Petition, ii. p. 139; of the Consent, ii. p. 140; of the Affidavit, ii. p. 135; and of the Commissioner's Certificate, ii. p. 141). If, upon the hearing, the matter appear clear, the court will at once decide upon the petition and affidavits, without directing an issue to try the validity of the fiat, even although the petitioning creditor should be desirous of trying it (s). Where the act of bankruptcy on the proceedings appeared to be insufficient, and there was no affidavit of any other act which would support the commission, and no question raised which could make a trial at law useful, the court superseded the commission without an issue (f). Even where the trading, petitioning creditor's debt, and the act of bankruptcy, appear on the face of the proceedings to be sufficient, yet, if the court be satisfied of the insufficiency of any of them from the affidavits, it will annul the fiat, without an issue (u). But if the court have any doubts of the facts of the case, then, if the application is made by a creditor, an issue will be directed to try the validity of the fiat; but if the application is made by the bankrupt himself, the court will not (unless under particular circumstances (x)) direct an issue; because the bankrupt can at any time bring an action to try the validity of the fiat (y); if the bankrupt, however, bring an action, and thereby establish the invalidity of the fiat, the court will immediately annul it, and will not delay doing so until after another trial, unless under very special circumstances (z). Or if, in any case, upon a petition for a supersedeas, it appear that an action hath been already commenced to try the validity of the fiat, the court will retain the petition, and defer the consideration of it until the event of the trial at law be known (a). Upon directing an issue, the court will state the terms of it in the order, and direct who are to be made plaintiff and defendant, what shall be deemed admissible as evidence, and who shall be examined as witnesses, &c. (b); and if any other act of bankruptcy than what is stated on the proceedings is to be allowed in evidence, (r) Er p. Shum, 1 Dea. & C. 260. (s) Ex p. Gallimore, 1 Mad. 67: Ex p. Gulston, 1 Atk. 193: Ex p. Wilson, Id. 217. (t) Er p. Burgess, Buck, 233. (y) Exp. Nutt, 1 Atk. 102. (z) Ex p. Dick, 1 Rose, 51: but see Er p. Eager, p. 310, ante. (a) Er p. Price, Buck, 230; 3 Mad. 228. (b) See Ex p. Carter, 1 Glyn & J. 326. to support the fiat, the defendant will be ordered to give a notice to the plaintiff of the acts on which he relies, and of the evidence by which he intends to prove them, in order that the latter may not be taken by surprise (c). When the issue is directed, the court will order the petition to stand over to a particular day, so as to allow the issue to be tried in the mean time; and if the plaintiff do not proceed to the trial before that time, or account satisfactorily for his not having done so, the court will decide against him (d). When the issue is tried, the court will immediately annul the fiat, or dismiss the petition, according to the result of the trial: and it will not direct another issue or trial, unless for very special reasons (e). (See further, as to trial of issues, p. 358; and as to costs, see p. 363, post). Care must be taken that the order to annul correspond with the fiat, in the names and description of the bankrupt and the petitioning creditor; a variance in this respect would be fatal (ƒ). the form of the Order, ii. p. 143). (See Lastly, an advertisement of the fiat being annulled must be inserted in the Gazette. (See the form ii. p. 144). Its Effect.] The annulling a fiat in bankruptcy will have the same effect as a supersedeas would have in the case of a commission, that is, it renders the certificate and all the proceedings had under the fiat of no effect (g), and the estates conveyed to the assignees are thereby divested (h); and as the assignees of a bankrupt are not bound by sales made under a former superseded commission, they may recover back the property though purchased bonâ fide (i). But by stat. 6 Geo. 4, c. 16, s. 87, the titles to property sold under a commission shall not be impeached, "unless the bankrupt shall have commenced proceedings to supersede the said commission, and duly prosecute the same, within twelve calendar months from the issuing thereof" (ante, p. 260); and we have seen that in all cases where application to annul is by the bankrupt, the inconvenience likely to arise in this respect is obviated, by making the bankrupt join in or confirm the conveyances of the assignees. (See ante, p. 334). And by 6 Geo. 4, c. 16, s. 16, where a joint commission is sued out against two or more persons, it may be superseded as to some and stand good as to the others; in which case the latter's certificate will not be thereby affected. (See post, ch. ii.) Lastly, by sect. 59, where a creditor abandons proceedings in any action or suit for his debt, and elects to prove under the commission, if the commission be afterwards superseded, he may proceed in the action as if he had not so elected; and in bailable actions shall be at liberty to arrest the defendant de novo, if he has not put in bail below, or perfected bail above, or if the 66 (c) Er p. Bogen, Buck, 137. (d) Er p. Ranken, 3 Mad. 371. (e) See Er p. Prosser, Buck, 77: Ex P. Bryant, 2 Rose, 1. (f) Matthews v. Dickinson, 1 Moore, 104. (g) Everitt v. Backhouse, 10 Ves. 94. (h) Ex p. Bowler, Buck, 358: Ex p. Smith, Buck, 262, n. (i) Gould v. Shayer, 4 Moo, & P. 635. defendant has put in or perfected such bail, to have recourse against such bail, by requiring the below bail to put in and perfect bail above within the first eight days in term, after notice in the London Gazette of the superseding such commission, and by suing their bail upon their recognisance, if the condition thereof is broken. (Ante, p. 154). Upon a fiat being annulled, a new fiat may be sued out against the same trader; and this may be done immediately after the court has pronounced its decision, and before any order be actually drawn up(k). So also, upon annulling a fiat, upon the reversal of an adjudication of bankruptcy, the Lord Chancellor, by 1 & 2 Will. 4, c. 56, s. 18, can issue another fiat in the manner therein directed. (See the section). Procedendo.] If a writ of supersedeas have been awarded where it ought not, it may be rendered ineffective by awarding a writ of procedendo. The petition for a procedendo is in the nature of a petition for re-hearing, or an appeal. The effect of the writ of procedendo is to place every thing in the same situation, precisely, as if the supersedeas had not been awarded and issued (1); and if a fiat issued under the 1 & 2 Will. 4, c. 56, has been improperly annulled, the Court of Review, on petition of re-hearing, would either order a procedendo, or effect the same object by another order; and if the ground of the application is matter discovered since the order to annul was made, a supplemental petition, stating the newly discovered facts, must also be presented (m). SECTION 17. Petitions and Motions. In what Cases.] We have seen (p. 21, ante) that all matters to be heard and determined in the Court of Review shall be brought on by way of petition, motion, or special case; but the usual mode is by petition, whether by original application, or on appeal from the decision of the commissioners: and as the Court of Review exercise the jurisdiction in bankruptcy as it was usually exercised by the Lord Chancellor, the old cases upon the jurisdiction by petition will still be applicable. Where creditors who had proved under a commission brought an action, the court, upon petition, granted an injunction, restraining them from proceeding in it, or permitting their names to be used for the purpose(n); and where a bankrupt is improperly proceeding to dispute the fiat at law, the court (k) Ex p. Bower, 1 Glyn & J. 262. 338. (m) Ex p. Lavender, 2 Mon. & A. 103; 4 Dea. & C. 496. (n) Ex p. Grant, Buck, 90. |