party (h). If two or more dockets be struck, the first regular one in the office shall have priority (i); and it is the practice of the bankrupt office to consider the variation of a letter in the name of the bankrupt (k), or any mistake in the description (1), to be sufficient to allow a second docket to be struck. Where there are competing dockets, the court will not interfere, unless the office refuse to issue the fiat, or refer the parties to the court (m). In general the fiat is issued to the place at or near the place where the bankrupt resides, or has carried on his trade; unless there is special reason for having the fiat worked at another place (n), and where there is a competition between two creditors for a town or country fiat, the court will grant the one or the other, as may seem most convenient, and most beneficial for the creditors (o). But the court will not order a town fiat to issue against a country trader, merely because a majority of the creditors reside in town (p), but where all the creditors save two resided in London, a town fiat was ordered (q), and a country fiat previously issued against the same trader was ordered to be impounded (r); and where the petitioning creditor's witnesses, to prove the act of bankruptcy, and also a majority in value of the creditors resided in town, a town fiat was ordered (s). The court also ordered a town fiat, where the trader resided at Oxford and most of the debts were due from the University students, and could more easily be collected by the official assignee of a town fiat (t); and where the bankrupt, a country trader, had absconded from his place of business with a considerable part of his property, which was on board a vessel about to sail from London, the court, with a view of saving the property, ordered a town fiat to issue (u). But it is not sufficient to obtain a town fiat against a country trader, that the act of bankruptcy is fraudulent, and that working the fiat in the country would facilitate the practice of fraud against the town creditors (x); and where a town fiat is ordered against a country trader, the petitioning creditor has to pay the expenses of the Bankrupt's journey to, and attending in, town, the same to be repaid out of the estate (y): and where most of the creditors, and also the witnesses to prove the act of bankruptcy lived in London, the court transferred a country fiat to a London commissioner (z). But to remove a fiat from the country to a town commissioner, it is not sufficient that a majority in value of the creditors desire the removal (a), or that the petitioning creditor and witnesses to the act of bankruptcy reside in London, and the object of the fiat was to invalidate a security given by way of preference (b), or that twelve (h) Er p. Dakins, 1 Mon. & A. 417. (i) Er p. Stocker, 1 Glyn & J. 249. (k) Ex p. Ward, 1 Rose, 314. (1) Er p. Layton, 6 Ves. 434: Ex p. Beckwith, 1 Glyn & J. 20. (m) Inre Lees 3 Dea. 36: S. C. Ex p. Thorpe, 3 Mon. & A. 395. (n) Er p. Brett, 1 Mon. & C. 70. (0) Er p. Bowdler, 1 Rose, 48. (p) Er p. Leonard, 3 Dea. & C. 182; Er p. Rawlinson, 3 Dea. 535; 1 Mon & C. 59: In re Hugo, 1 Mon. & C. 74: Anon., Id. 142, 146. (q) In re Gregg, 3 Dea. 381: 3 Mon. & A. 684: Er p. Johnson, 1 Dea. & C. 321; Er p. Ellis, 1 Mon. & C. 39. (r) Ex p. Johnson, supra. (t) Er p. Trowers, 3 Mon. & A. 484. (x) Er p. Meeking, 1 Mon. & C. 71. (y) Er p. Gregg; Er n. Rawlinson; Er p. Trowers; Er p. Ellis; supra. (3) In re Snelling, 2 Dea. 557. out of the eighteen creditors of the bankrupt reside in town, and the commissioners twenty-five miles from the residence of the bankrupt (c); or that no creditors reside at the place to which the fiat was directed and a majority reside in town (d); but the fiat was ordered to be removed where two of the commissioners were creditors, two resided at a considerable distance from the place to which the fiat was directed, and out of creditors to the amount of 60,0007. four only resided at that place (e). Where the bankrupts had traded at two places in the country the court ordered the fiat to be issued at a place centered betweer the two, and nearer to the majority of creditors (ƒ); and where thirty-four of the creditors resided at Bristol, and but twenty-four and of small amount resided at Newport, the fiat was directed to the former place (g); but the court refused to allow a fiat to be directed to a place where the bankrupt had carried on his trade till within about two years of issuing the fiat, since which period he had had no permanent place of abode, and had lived in five different places, and a few months only at each (h). Where the major part of the creditors, the witnesses to prove the requisites of the bankruptcy, and one of the bankrupts, resided in the counties of Durham and Northumberland, and all the property of the bankrupts was there, the court on motion ordered the fiat to be directed to commissioners at Hexham, in Northumberland (i); and where the bankrupt had a house of business in London, and also at Manchester, and the majority of the creditors resided at Manchester, the fiat was ordered to be opened at the latter place (k); and the court will not arrest a town fiat in favour of a country fiat on an ex parte application, though where the bankrupt lives in the country, liberty may be given to issue a country fiat, notwithstanding the docket papers for a town fiat; leaving the parties, if they think proper, to apply to annul the town fiat (1). And where, in the docket papers sent from the country immediately after the statute 1 & 2 Will. 4, c. 56, came into operation, the word "commission " was used instead of the word "fiat," and the papers being sent back to the country to be corrected, before their return a new docket was struck; the fiat was ordered to issue to the first applicant (m). So, if a fiat be not bespoke within one calendar month after the docket has been struck, the docket is then to be considered as expired and of no effect (n). (Ord. Eld. 28th May, 1819). But where a fiat is not prosecuted in due time, an order is necessary to enable the same party to sue out a new fiat (0). No docket shall be considered as struck until the same shall be entered in the docket-book; to which docket-book all solicitors of (c) In re Allen, 1 Mon. & C. 146. (g) In re Johnston, 2 Dea. 290; 3 Mon. & A. 132. (h) Ex p. Hewitt, 3 Dea. 586. (i) Ex p. Bolan, 2 Dea. & C. 331. (k) Ex p. Wood, 1 Dea. & C. 410. (1) In re Ings, 2 Mon. & A. 671; 2 Dea. 8. (m) Ex p. Lechmere, Mon. 510; 1 Dea. & C. 10. (n) See Ex p. Buckley, Buck, 367. (0) In the matter of Edwards, Mon. & B. 263. the Court of Chancery may, during office-hours, that is, from ten in the morning till three in the afternoon, and from six till eight in the evening, have free access, upon payment of the usual fee of 1s. (Ord. Ersk. 29th Dec. 1806). The Fiat.] By stat. 6 Geo. 4, c. 16, s. 12, the Lord Chancellor shall have power, upon petition made to him in writing against any trader having committed any act of bankruptcy, by any creditor or creditors of such trader, by commission under the great seal, to appoint such persons as to him shall seem fit, who shall by virtue of this act and of such commission, have full power and authority to take such order and direction with the body of such bankrupt, as hereinafter mentioned, as also with all his lands, tenements, and hereditaments, both within this realm and abroad, as well copy or customary-hold as freehold, which he shall have in his own right before he became bankrupt, as also with all such interest in any such lands, tenements, and hereditaments as such bankrupt may lawfully depart withal; and with all his money, fees, offices, annuities, goods, chattels, wares, merchandize, and debts, wheresoever they may be found or known, and to make sale thereof in manner hereinafter mentioned, or otherwise order the same for satisfaction and payment of the creditors of the said bankrupt. By 1 & 2 Will. 4, c. 56, s. 12, in every case wherein the Lord Chancellor, by virtue of any former act, hath power to issue a commission of bankrupt under the great seal, it shall and may be lawful for him, and also for the Master of the Rolls, the ViceChancellor, and each of the Masters of the Court of Chancery acting under any appointment by the Lord Chancellor to be given for that purpose, on petition made to the Lord Chancellor against any trader having committed any act of bankruptcy by any creditor of such trader, and upon his filing such affidavit and giving such bond as is by law required, to issue his fiat under his hand in lieu of such commission, thereby authorizing such creditor to prosecute his said complaint in the said Court of Bankruptcy, or to prosecute the same elsewhere before such discreet and proper persons as the Lord Chancellor, or as the Master of the Rolls, ViceChancellor, or one of the Masters of the Court of Chancery, acting as aforesaid, by such fiat may think fit to nominate and appoint; and that the persons so appointed shall thereby have the like power and authority to all intents and purposes as if they were assigned and appointed special commissioners by virtue of a commission under the great seal; and by section 13, every such fiat, prosecuted in the said Court of Bankruptcy, shall be filed and entered of record in the said court, and shall thenceforth be a record of the said court, and it shall thereupon be lawful for any one or more of the commissioners thereof to proceed thereon in all respects as commissioners acting in the execution of a commission of bankrupt, save and except as such proceeding may be altered by virtue of this act. By Gen. Order, (Jan. 12, 1832), every fiat issued by the Lord Chancellor, to be prosecuted in the Court of Bankruptcy, shall be filed of record in the registrar's office, within seven days from the date thereof, and no appointment for the opening of any such fiat shall be made until it shall have been so filed. When the fiat has not been filed within the seven days, the court will give leave to another creditor to take out a new fiat (p). The statute 1 & 2 Will. 4, c. 56, provides for entering of record fiats to be prosecuted in the Court of Bankruptcy only, but by 2 & 3 Will. 4, c. 14, s. 5, provision is made for entering of record in the Court of Bankruptcy fiats to be prosecuted elsewhere than in the Court of Bankruptcy, and all proceedings under the same. (See the stat., post). The fiat is a power or authority to the court or commissioners to whom it is directed, to proceed not only as to the bankrupt and his property, but as to all other persons who by concealment, claim, or otherwise, shall offend touching the premises, and to do and execute all things towards satisfaction and payment of the creditors. (See the form, ii. p. 5). A commission of bankrupt, until it was acted upon, as by being opened, was considered as an escrow (g); but after it had been opened, the Chancellor has in many instances refused to order it to be amended and re-sealed, as altering a deed without a new stamp would be to defeat the revenue laws (r). But the 6 Geo. 4, c. 16, s. 98, by repealing the stamp duties on proceedings in bankruptcy, seems to have obviated this objection, and theChancellor has ordered commissions to be amended and re-sealed, either before or after they have been opened, to supply a defect of form, as a mistake in a name (s). But not to alter the teste for the purpose of admitting the proof of a subsequent act of bankruptcy (t). Nor even to correct the wrong spelling of the bankrupt's name, if the affidavit or bond of the petitioning creditor contained a similar error(u); nor to correct a misdescription of the bankrupt (x). In such cases new docket-papers are necessary. But the Chancellor has intimated that he was unwilling to order a commission to be amended after it had been opened; and where, after a commission had been opened, a clerk of the solicitor, and without his knowledge, had erroneously altered the name of the bankrupt from "Stammers" to "Stammer," the Lord Chancellor refused to order it to be amended (y). And where the commission was issued by four partners, one of whom died before the date of the commission, but which was nevertheless issued and opened, the Chancellor refused to order the petition and commission to be amended, but ordered it to be superseded, with liberty for the surviving partners to issue another commission (z). And (p) Ex p. Gerothwohl, 4 Dea. & C. 48. (q) Fisher's case, 13 Ves. 191. (r) Ex p. Thompson, 9 Ves. 297: Fisher's case, 10 Ves. 190: Burrow's case, 10 Ves. 286: Er p. Thwaites, 13 Ves. 325: In the matter of Rutledge, 2 Rose, 369. (8) Ex p. Cheesewright, 18 Ves. 480: 1 Rose, 228: Ex p. Sutton, 1 Rose, 85: Ex p. Guthrie, 1 Glyn & J. 245: In the matter of Barber, 2 Glyn & J. 81: where the petitioning creditor's debt was a debt to three persons as executors, and in the bond, the petition for the commission, and the commission itself, the debt appeared as due to one person only, and the bankrupt had obtained a verdict in an action at law impeaching the commission, the Lord Chancellor refused to order the commission to be amended (a). But in this case another debt may now be substituted, under the 18th section of the statute (see p. 74, ante). And where there is not a petitioning creditor's debt at the date of the fiat, the court will not alter the date to let in a debt subsequently accrued (b). By the 1 & 2 Will. 4, c. 56, the fiat is the fiat of the Lord Chancellor, and when filed it is a record of the Court of Bankruptcy (see supra). The Court of Review, therefore, cannot order a fiat to be amended, nor it seems can the Lord Chancellor order a fiat to be taken off the file for the purpose of amendment (c); but if the fiat has not been opened, or no proceedings have been taken under it, the Court of Review, to remedy a defect of form merely, will order it to be taken off the file for the purpose of the Lord Chancellor amending it if he shall think fit (d). Thus, where no proceedings have taken place under the fiat, it has in this manner been amended by adding a Christian name (e). And by altering the date of the fiat (f), and by altering the description of the petitioning creditor (g), and by altering the name of the parish in which the bankrupt resided (h); but not to alter the date of the fiat to let in a subsequent act of bankruptcy (i), and when the docketpapers are wrong, the fiat cannot be amended; a new fiat is necessary (k). Recently, where the fiat had been opened, the Court of Review refused to order the fiat to be taken off the file, with a view to its being amended as to the description of the bankrupt (1); or after adjudication to alter the name of a quorum commissioner which had been misspelt (m). By stat. 6 Geo. 4, c. 16, s. 26, no commission shall abate by reason of a demise of the crown: and if, by reason of the death of commissioners (n), or for any other cause, it becomes necessary, any commission may be renewed, and only half the fees usually paid upon obtaining commissions shall be paid for the same. A renewed fiat can only be issued upon the petition of a creditor or creditors whose debt would be sufficient to support an original fiat (0); and the place to which it is to be directed is in the discretion of the party taking it out, but subject to the control of the court. So, where the renewed commission was directed to a place distant from (a) Er p. Forshaw, 1 Glyn & J. 368. (b) Er p. Shaw, 2 Dea, 74; 3 Mon, & A. 17. (c) In the matter of Rudd, Mon, & B. 264. (d) In the matter of Walker, 1 Dea, & C. 381; Mon. 510. (e) In the matter of Graham,1 Dea. & C. 458; Mon. & B. 264. (f) In re Roberts, 3 Dea, & C. 315. (g) Ex p. Jarvis, 1 Mon. & A. 619; 4 Dea. & C. 27. (h) Ex p. Elliott, 1 Mon. & A. 664; S. C. In re Humphrey, 4 Dea. & C 484. (i) In re Jacob, 4 Dea. & C. 277. (k) Er p. Hawes, 1 Mon. & A. 708: Ex p. Graves, 1 Mon, & A, 315. (1) Ex p. Todd, Mon. 455; 1 Dea. & C. 319; Mon. & B. 264. (m) In re Bell, 3 Dea. & C. 326. 3 Dea, &C.365. |