titioner, and that relief only should be prayed for which the court usually grants in similar cases; but if on the hearing of the petition the prayer is not for the relief consequential on the case made, the court will allow the prayer to be amended instanter, so as not to delay the hearing (d). In cases where the petition is in the nature of an appeal from the commissioner's decision, you can pray only that which was asked of the commissioners; for otherwise it would not be an appeal from their judgment. And therefore it has been holden that a creditor cannot petition for leave to prove for a greater sum than he offered to prove before the commissioners (e). By Ord. Eldon, 12th August, 1809, all petitions in bankruptcy presented for hearing shall, before they are presented, be respectively signed by the petitioners; except in cases of partnership, or absence from the kingdom: in the former of which cases the sig nature of one of the partners is to be deemed sufficient; and in the latter case, the petition is to be signed by the person presenting the same, on behalf of the person so abroad. And it is further ordered, that the signature of each person signing as a petitioner shall be attested by the solicitor actually presenting the petition, or by some person who shall state himself, in his attestation, to be the attorney, solicitor, or agent of the party signing in the matter of the petition. And this order will not be dispensed with, unless under very special circumstances, verified by affidavit (f). Under particular circumstances, indeed, the court has allowed an agent in town to sign a petition for his principal in the country, the agent undertaking to be answerable for the costs (g). If the petitioner reside in Scotland (h), or in Ireland (2), the petition must be signed by the petitioner and not by an agent. A petition by several assignees must be signed by all of them; they do not come within the meaning of the clause in the above order, relating to partners (4); but the petition may be heard as the petition of those only who have signed (1); and if the petition is presented by two assignees on behalf of themselves and a third assignee, the signature of the two actually presenting the petition is sufficient (m). It was holden in one case, that the above order was sufficiently complied with, by the signature of the petitioner being "authenticated," not "attested," by his solicitor, who had not witnessed the signing, but put his name to it from a knowledge of the petitioner's handwriting; the object of the order being to secure the responsibility of a solicitor to the propriety of the application (n), and not as a secu rity for costs (0); and where the petition was " attested" by the solicitor's agent, and "authenticated" by the solicitor, it was holden sufficient (p). But it has since been holden that the attestation (d) Ex p. Cocks, 2 Dea. 14. (e) Ex p. Fry, 3 Mad. 132. (f) Anon. 1 Rose, 97. (g) Re Boldero, 1 Rose, 231: Er p Stone, Buck, 255. (h) Ex p. Paul, Mon. 252. (i) Ex p. Cumming, Mon. 296. (k) Ex p. Morgan, Buck, 109: Ex p. White, 3 Dea. & C. 366. (1) Ex p. Burn, 1 Dea. 194; 2 Mon. & A. 483. (m) Er p. Chester, Mon. & M'A must be to the signature of the petitioner, and not to the petition (q): it is not a sufficient compliance with the above order, that the petitioner's signature be "authenticated" by his solicitor it must be attested" (r). But "I attest this to be the signature of" the petitioner was holden to be sufficient compliance with the order (s). Where the petition was attested by the agent of the solicitor, it was dismissed with costs (t). Where the person attesting the petitioner's signature described himself as his solicitor," and not as his solicitor or agent "in the matter of the petition," the attestation was holden bad (u). "Witness, J. L., solicitor for the petitioner," signed by the country attorney, and presented by his town agent, was held bad (x). But where the petition was actually attested by the solicitor, although he was not described as such,- —as where it purported to be signed "in the presence of T. L., Master Extraordinary in Chancery," --the court, on payment, by the petitioner, of the costs of the day, allowed it to stand over, for the purpose of amendment, and of an affidavit being filed, shewing that T. L., at the time of the signature, was the petitioner's solicitor or agent (y). It is no objection, however, that the solicitor who attests a petition is a prisoner (z), or that the official assignee has signed it, his signature being mere surplusage (a). Nor is an attestation at all necessary, where the solicitor presents a petition on behalf of himself only (b); but then it must appear upon the face of the petition that the petitioner is a solicitor (c); neither is an attestation necessary where the bankrupt himself presents a petition, and appears in person to support it (d). An insufficient attestation is not waived by filing affidavits in answer (e); but it is too late to object to the attestation when an order has been made (ƒ). And the Court of Review inclines against allowing an objection to the attestation (g), and will in some cases allow an attestation to be amended on the hearing of the petition (h); and where the parties are numerous, will allow the petition to be heard if signed by one only (i). And where the petitioner lives so distant from town, that the object of the petition would be defeated if it were to be sent down for signature, the court will order that the solicitor sign on his behalf (k). But the Court of Review has no jurisdiction to dispense with the signature to a petition of appeal, under the 1 & 2 Will. 4, c. 56, s. 32 (1). Where the petitioner was abroad, and an order was obtained for his agent in this country (q) Ex p. Cracklow, Mon. 353. (r) Ex p. Bury, Buck, 394: Er p. Dumbell, 2 Glyn & J. 121. (8) Ex p. Caldecott, Mon. & M'A. 433. (t) Ex p. Hirst, 1 Glyn & J. 76: Ex Id. Weston, 1 Mad. 75. p. Barrow, Mon. 92. (d) Ex p. Bruce, 4 Russ. 223. (e) Ex p. Hutchinson, Mon. 130. (f) Ex p. Tanner, 2 Dea. & C. 563; Mon. & B. 390. (g) Ex p. White, supra. (h) Ex p. Wiggins, Mon. 516: Ex p. Tanner, supra. (i) Er p. Vines, Mon. 516: Anon., Id. 517. (k) Ex p. Craddock, 1 Dea. & C. 487 Er p. Alexander, 1 Dea. & C. 532: Ex p. Helsby, Mon. & B. 265. (u) Ex p. Wilkinson, 1 Glyn & J. 353: Er p. Clapham, Mon. & M'A. 51. (x) Ex p. Rose, 1 Dea. & C. 554. (y) Er p. Rawlinson, 1 Glyn & J. 19 (2) Er p. Thompson, 1 Glyn & J. 308. (a) Er p. Belcher, 2 Dea. & C. 587. (b) Er p. Kingdon, 1 Mad. 446. (c) Ex p. Cole, 2 Glyn & J. 269: Es (1) Erp. Robinson, 2 Dea. & C. 583. to sign on his behalf, the order was discharged with costs, for the general order enabled the agent so to sign (m). If there be any defect in a petition, which may be remedied by amendment, the court will in general on motion let the case stand over, and allow the petition to be amended; usually upon payment of the costs of the motion (n), and, if the petition is called on, the costs of the day (o). Sometimes such costs are ordered to abide the result of the hearing (p). Engross the petition upon plain paper, (see the forms, ii. p. 146), &c., and leave it at the registrar's office, to be answered. By General Order, Jan. 12, 1832, all petitions presented to the Court of Review shall be entered at the registrar's office, and the fiat directing the attendance thereon shall be under the seal of the Court of Bankruptcy, and the original petition shall, when served, be returned to the registrar on or before the hearing, and be filed of record. In cases of emergency, petitions will be answered at the same time the order is made (q). A petition to stay the certificate, once presented, cannot be withdrawn without the leave of the court, and then only upon an affidavit shewing it is not withdrawn from any improper motive (r). If after filing a petition the petitioner himself become bankrupt, his assignees, if they would have the benefit of the petition, must file a supplemental petition, otherwise the first one will be dismissed (s). So, if the petitioner die, the petition must be revived by his personal representative (†). Where a petition to supersede stands over to enable the petitioner to bring an action at law, which he neglects to do, the respondents may apply to the court, to have the petition put in the paper, in order to its being dismissed; but a new petition is now unnecessary (u). To make a special motion requires two clear days' notice; but if the respondent appears, and requests time to oppose, it is a waiver of any irregularity in the notice (x): a notice of motion to rescind an order for irregularity must state the irregularity complained of (y). Service.] By General Order, Jan. 17th, 1832, the fiats upon a petition for hearing, in the Court of Review, must direct the attendance of parties thereon to be on the eighth day from the day of presenting every such petition. The petition to be served four days before the expiration of the time at which the attendance thereon is ordered, except in the case of a petition presented to stay a certificate. The above directions to be without prejudice to any appli (m) Er p. Moore, 2 Dea. & C. 369. (n) Ex p. Story, 4 Dea. & C. 504. (0) Er p. Peyron, 2 Rose, 368: Er p. Mills, Buck, 230: Er p. Rawlinson, 1 Glyn & J. 19: Exp. Rew, 1 Mad. 309: and see Er p. Kirk, Buck, 478. (D) Ex p. Thompson, 3 Dea. & C. 612. (9) Ex p. Moody, 1 Dea. & C. 34: In the mutter of Matthews, Id. 35. cation to the court in respect of either the attendance of or service on parties on the hearing of the petition. And it is to be understood that the eight days and four days respectively, in the directions above mentioned, be taken as inclusive of the days of presenting and of serving such petitions respectively, and exclusive of Sundays, although an intermediate day. The period of eight days mentioned in this order, may be enlarged on motion as of course, but to lessen it requires a special application (z); but if the time for service has elapsed, the petition must be reanswered, and it is of course at the office to re-answer (a); and when two out of three respondents had been served with the petition, the court, on payment of the costs of the day, ordered it to be reanswered for the purpose of serving it on the third respondent (b). A copy of the petition must be served upon the party or parties, whose duty or interest it is to oppose it if necessary (c). A petition to stay the certificate must be served personally upon the bankrupt (d): and if not served before the petition day, the course is for the bankrupt to present a short petition, praying to have his certificate allowed, with costs, if opposed (e); but such a petition cannot be presented after the petition day, for which the petition to stay the certificate is answered (f). The petition to stay a certificate must be personally served on the bankrupt, two clear days at least before the petition day, otherwise it will be dismissed with costs (g), and the certificate goes of course (h). An admission by the solicitor of the bankrupt, that the bankrupt was acquainted with the contents of the petition, is not sufficient (i); and if the only reason for staying the certificate is to enable the petitioner to prove, the petition must be served on the assignees; but otherwise if there are other grounds, as, the misconduct of the bankrupt (j). So also, a petition to annul a fiat, presented by a creditor, must be personally served upon the bankrupt (k). And where the bankrupt died after the petition was presented, it stood over to be served upon his personal representative, or those entitled to representation (1). But if the fiat has not been opened, it is not usual to serve the bankrupt, but the order to annul contains an express reservation of all the rights of the bankrupt, either by action or petition (m); if the petition is presented by the bankrupt, or if the petition imputes fraud in the conduct of the assignees under the fiat (n), it must be served on the assignees, although it be to supersede with consent of creditors (0), unless the assignee is one of (s) Ex p. Beardsworth, 1 Dea. & C. 369. (a) Ex p. Hanks, 2 Mon. & A. 383. (g) Er p. Hopley, 1 Glyn & J. 63; Brenchley, Coop. 97. (h) Ec p. Kendall, supra. (i) Ex p. Levy, 4 Dea. & C. 224. (j) Ex p. Woodroffe, 3 Mon. & A. 114; 2 Dea. 71. (k) Ex p. Barber, Buck, 493. (1) Ex p. Leworthy, Mon. 54. (m) Ex p. Palmer, Mon. & M'A. 211. (n) Ex p. May, 3 Dea. 382; 1 Mon. & C 18. (0) Er p. Rose, 2 Mon. & A. 242. the creditors consenting (p), and though the assignees are chosen after the petition was presented (q); but they need not be personally served (r). And in all cases, save to supersede with consent (s), the petition to annul must be served on the petitioning creditor. Also, it has been ruled, that a petition to supersede a second commission, must be served on the assignees under the first (f); a petition for leave to prove a debt or enter a claim must be served upon the assignees (u). If one of several assignees petition, he must either join his co-assignees as petitioners, or serve them with the petition (x); and if an assignee petition for leave to bid for the purchase of part of the bankrupt's property, the other assignees and the bankrupt must be served with the petition (y). A petition by an equitable mortgagee, for sale of the mortgaged premises, must be served on the assignees, and not on the solicitor to the fiat (z); but where the mortgagees were also the assignees, the court refused to make the order ex parte, but ordered service of the petition on the bankrupt and one of the creditors (a). And a petition to set aside a sale must be served on the purchaser (b). A petition to tax a solicitor's bill, and stay his proceedings at law, must be served on the solicitor (c), and need not be served on the assignees (d); and if the solicitor has taken the benefit of the Insolvent Debtors' Act, the petition must still be served on the solicitor, and not on his assignee (e). A petition to surcharge and falsify the accounts of assignees, with a view of striking out certain payments to an accountant, need not be served on the accountant (ƒ). A petition to set aside a purchase by an assignee, must be served upon the assignees and the bankrupt (g); and a petition to have a fiat, which had been impounded, delivered out, must be served upon the party upon whose petition the fiat was impounded (h); but a petition to consolidate joint and separate estates, presented on the certificate of the commissioners, need not be served on the assignees (i). A petition to refer an affidavit for scandal is against the solicitor who files the affidavit, and need not be served on the respondents to the original petition (k). Personal service on the bankrupt will not be waived by his taking copies of the affidavits (7), or by his applying to advance the petition (m); or even by his admitting the receipt of the copy of the petition (n), or filing an affidavit in answer (o). The service of (p) Er p. Ramsay, 1 Mon. & A. 708: Ex p. Eastcourt, 1 Dea. & C. 458. (q) Er p. Platt, 3 Mon. & A. 62; 2 Dea. 227. (r) Er p. Hanks, 2 Mon. & A. 383. (t) Er p. Irvine, 1 Mad. 74. (x) Ex p. Fosbrooke, 3 Dea. 686; 1 Mon. & C. 176. (y) Er p. Page, 4 Mad. 459. (2) Er p. Cooks, 3 Dea. & C. 24. (a) Re Parker, Mon. & B. 394. (b) Er p. Shepley, Mon. 353. (c) Ex p. Griffith, 1Dea. & C. 41; Mon. 517. (d) Ex p. Payne, Mon. 455; Er f. Christy, 3 Mon. & A. 84. (e) Er p. Simpson, 2 Dea. 400; 3 Mon. & A. 223. (f) Ex p. Knight, 3 Mon. & A. 53. (n) Ex p. Furnival, 1 Glyn & J. 254 |