cised in no manner according to the statute. In Ex parte Buckner (2), the certificate was signed by a creditor who had no right to sign, and the Court sent it back. În Ex parte Johnson (3), if the petitioners had sworn that the balance would have been in their favour, the Court would have stayed the certificate.

[The CHIEF JUDGE.-There is no evidence here that the bankrupt was instrumental in the delay, which was the main point in Ex parte Hadley.]

Mr. Bethell and Mr. Bacon, for the bankrupt. When the form of the application is to take the accounts, which cannot be done without the assignees being here, the Court cannot, consequently, grant the other part of the prayer to stay the certificate. Neither does the petition shew that the debt would turn the certificate, and there is no balance sworn to. The petitioner should have asserted his claim before the commissioner, before he came here.

Mr. Swanston, in reply.-The petitioner did not make a formal claim before the commissioner, because, in the state of affairs, it would have been useless. The only reason for the refusal of applications of this kind is, that the pendency of the accounts has arisen from the negligence of the petitioner. In Ex parte Whitchurch, the petitioner suffered two meetings to pass before he claimed.

[SIR G. ROSE. In that case the mortgagee claimed as early as he could: he could not have applied till then.]

The CHIEF JUDGE. The petitioner shews no ground for staying the certificate. First, he says, that a balance is due to him from the bankrupt, and he has had no opportunity of proving his debt, in consequence of the accounts not being adjusted; and that, if he had been allowed to prove, the creditors who have signed would not have been sufficient to have turned the scale. The second ground alleged is, that certain creditors have signed, whose debts ought to have been expunged. The third ground is, that a debt has been expunged without his consent, to the benefit of which he was entitled as a surety, who had paid, and that

(2) Cooke, 462. (3) 1 Atk. 81.

he ought to have had the option of refus ing to sign the certificate. As to the last two grounds, it is quite sufficient that he does not state that, if the two debts were expunged, and if he had a right to sign for the third, that then there would be sufficient to turn the scale; but only says, that if he were admitted to prove the balance due to him from the bankrupt, that then there would be sufficient. What is the other ground upon which he seeks to stay the certificate? Not that the bankrupt had done anything, or committed any fraud, but that the assignees convened a meeting, and at that meeting had one debt expunged, but did not expunge the other two. Before we decide that question, we must have the parties here whom he charges with misconduct; but the assignees are not served. The bankrupt says he was no party. If he were, and the certificate were improperly signed, the Court would not allow it. It appears to me, on both grounds, the petition cannot be supported. The petitioner says, if the accounts were taken properly, there would be a large balance due to him. In the first place, it is a disputed point, whether there is a balance or not; and it is said, that the assignees have taken means to try that question. Then, a party comes to stay a certificate upon a doubtful debt. He must shew that he has taken proper means to have that settled, or that the bankrupt has been guilty of misconduct. In Ex parte Hadley, the ground of the decision was not the laches of the petitioner, but that his attempts had been defeated by the bankrupt himself; and, the Court said, that the bankrupt should not profit by his own wrong. That case does not support the argument of the petitioner, that, wherever there is an unsettled account, the certificate is to be stayed till the accounts are settled. It does not appear that, since the bankruptcy, he has taken any step, except making a demand which he knew could not be complied with-i.e. a delivery to him of the bankrupt's books; and he then states a demand of the account, and an offer of reference, but does not allege that he went before the commissioner, calling upon him to take the account, or to enter a claim. The assignees say they have examined the account, and the balance is on the other

side. The only reason for staying the certificate would be, the probable result of the accounts; and, as the petitioner has taken no steps towards that, the petition must be dismissed.

SIR J. CROSS.-The bankrupt applies for the allowance of his certificate, and a creditor applies to stay it. The only question is, whether there are circumstances before the Court to make it fitting that it should be stayed in the exercise of its discretion. The first objection is, that the petition is not served upon the assignees; but still it is said, that the petitioner is entitled to be heard.

[The CHIEF JUDGE.-Only to see whether the bankrupt has been guilty of some misconduct.]

Ex parte Hadley was a case where a partner, who had not proved, was allowed to apply against the allowance of the certificate; and it does not appear whether the assignees were served in that case. Service on the assignees is only a technical objection here, because they have filed affidavits, and then leave the bankrupt to take the benefit of the objection. Are we to allow this certificate? The petitioner was the person with whom the bankrupt had the largest dealings; and, if the petitioner's statement is true, his debt amounts to all the rest put together. He applied to the bankrupt before the bankruptcy to state the account between them, and has since applied to the assignees. He demands the books. The assignees should have said, 'You may come and inspect them,' and their giving him no answer was either a refusal or a neglect. As he was a partner, and they were partnership books, it might not have been improper to deliver them to him. The assignees send for him, and examine him as their debtor, and then come to the conclusion, that he is their debtor. It was in vain then to attempt a proof before the commissioner. It is quite obvious that the assignees are managing with the bankrupt to hinder him of his proof. Though the bankruptcy was only in February-though no dividend was paid, the creditors sign his certificate in May. The solicitor to the assignees procures a private meeting of the commissioners, and, having obtained a power of attorney from a creditor, makes up the

sum required to entitle the bankrupt to his certificate; and the proof of Harris, which stood in their way, and which the petitioner had paid after the proof was made, is expunged, though the meeting omitted to expunge two other proofs, which were paid, and one of those two was the proof of an assignee, who was present at that meeting, for the purpose of expunging proofs: and yet, though his own debt had been paid in part, he takes no care to reduce his proof accordingly. The assignees have held the petitioner at arm's lengthhave offered him no books-have given him no statement of the account.. It is doubtful whether the petitioner is not a creditor for more than all the debts proved. It seems to me, we ought to stay the certificate, as it is a case of considerable doubt and difficulty. But, however the partnership account may be, the petitioner ought still to stand in the place of Harris, whose proof for 1,2001. he had paid. I am of opinion, that we ought to pause, under the circumstances, because it has been manifestly contrived by the assignees and the solicitor to assist the bankrupt to get his certificate before the partnership accounts were taken. That certificate does not shew that the creditors had not signed before the last examination, and that alone seems sufficient reason for pausing, before we grant this certificate.

SIR G. ROSE.-This petition must be dismissed. The last objection has nothing to do with the bankrupt, and it may be set right by being sent to the commissioners. By a long series of decisions, no rule in bankruptcy is better understood, than that the strictest rules of practice are to be applied to a petition to stay a certificate; though indulgence is granted in other cases, yet none is allowed in this. No allegation is strained to more than it will bear, and even a defect of service cannot be remedied. And it is not an improper rule, because it is a mistake to say, that the bankrupt is applying here for his certificate but, after he has gone through his examination, after the creditors have signed, and the commissioners have certified, he comes here to ask nothing, but merely to get the formal order of the Court. The bankrupt is not an applicant in any sense, but is merely shewing cause against the

application of the creditor. Here is a petition to take an account, and to stay the certificate; and when that petition is met by a statement, that the assignees are not served, it is a matter of course, that the bankrupt should have his certificate, and the petition should be dismissed with costs. If the bankrupt had not waited till the hearing, but had presented a short petition, stating, that the assignees had not been served, the Court would have anticipated the petition, and given him his certificate, and the assignees, if served, could only have been before the Court to have received costs. As to the fraud, there is no evidence that the bankrupt was instrumental in convening the meeting, or was acquainted with it; and, if he were, what is the fraud? If there were that questionable kind of fraud with the concurrence of the bankrupt, it is the duty of the Court to give the certificate, because, if there is fraud, or four-fifths of the creditors have not signed, the certificate is not worth a farthing at law, in any action brought against him. As to the accounts, the petitioner has pledged himself to no specific amount, and there appears to have been a third partner, and there is no allegation that these two have paid all the partnership debts, or have given any indemnity; so that the petitioner could not, under the circumstances, be admitted to prove against the bankrupt's

estate.

Mr. Swanston asked, that no costs might

Where a fiat is sued out upon the same debt, upon which proceedings have been taken in equity, and the answer has been put in, and there are no other creditors, the Court will supersede for want of equity.

Semble-The Lord Chancellor will not interfere, by exercising his original jurisdiction, with an order for a supersedeas made by the Court of Review.

In January 1834, a joint-stock banking company was established at Manchester; and Hall, the bankrupt, was in the same month elected one of the directors, and continued to be such until the 22nd of February 1838. On the 10th of February following, he was elected and registered as one of the public officers of the company, pursuant to the provisions of the 7 Geo. 4, and continued to be such till the 25th of March 1838. On the 10th of February 1834, Hall was appointed one of the trustees of the said company. In January 1834, Hall obtained 100 shares in the said bank, and shortly afterwards obtained another 100 shares in the name of his son Robert Hall. Afterwards, in the same month, he obtained 900 other shares, and in December 1835, other 445 shares in his

own name.

In January 1834, the bankrupt opened an account with the bank as a customer, and at the date of the fiat was indebted to the bank on such account, in the sum of 1,478l. 7s. 8d.

nion in the Court.

bankrupt, it was provided, that every transfer of shares should be made at the office of the company at Manchester, and in such manner as the board of Manchester directors should prescribe, and, when executed, should be deposited in the said office. The method prescribed by the directors, and invariably pursued, was this: A notice in writing requiring the transfer of any shares, was left at the bank by the person requiring the same. On the afternoon of Monday in each week, the board of directors met to allow or disallow the transfers mentioned in such notices; if they were allowed, the transfers were prepared by the chief accountant, and delivered to the parties for execution, and when executed, were returned to the bank,

and the shares were then, and not before, carried from the account of the seller to that of the buyer.

In November 1836, the bankrupt contracted to sell 345 of the shares so taken by him, to Henry Moult, one of the directors, and in December 1836, the bankrupt contracted to sell 500 other of the same shares to the same party. The consideration for the 345 shares was the bill of H. Moult, for 3,937. 10s., payable twelve months after date; and for the 500 shares, a promissory note for 5,5651., payable twelve months after date. Neither of the said contracts was made with the sanction of the directors, or according to the form prescribed. The bill and note were said to be handed over to the then chief accountant of the bank, and by him entered in the bankrupt's pass-book, but were not paid to the cashier in the ordinary course of business. In December 1836, the Bank of England agreed to give pecuniary assistance to the Northern Central Banking Company, on condition of their delivering up their securities, and ceasing partially to carry on business as bankers. Two of the directors of the Bank of England then investigated the accounts of the said company, and found, among other things, that there was due from the bankrupt to the company 18,750l. In January 1837, the Bank of England appointed inspectors, who sent to the directors of the company the following notice:-"Gentlemen,-We beg to give you notice, that we shall not sanction the transfer of any shares by the directors or other parties indebted to the bank, unless the full and entire proceeds of such shares be received at the bank, and placed to the account of the several parties, in discharge of their respective debts." At the same time, the inspectors required the bankrupt to assign as a security for the said debt of 18,750l., the shares held by him in the said company, and other the shares held by him in other companies, to which the bankrupt assented, and promised to deposit also the title-deeds of real estate of the value of about 9,000l., as a farther security. On the 23rd of January 1837, Moult, in consequence of the notice of the inspectors, gave to the bankrupt a letter of indemnity respecting the 845 shares, so agreed to be sold to

him, and the bankrupt delivered to Moult the bill of exchange and the promissory note. After the giving of the letter to Moult, and on the same day, the bankrupt executed a deed made between himself and two trustees on the part of the company, by which, after reciting that the bankrupt was possessed of the said 1,445 shares in the company, and of 60 shares in the Agricultural and Commercial Bank of Ireland, and of 220 shares in the Royal Bank of Ireland, and of 50 shares in the Yorkshire District Bank,-and also reciting that the bankrupt had an account with the company, on the balance of which, he was indebted in the sum of 15,000l. and upwards, the bankrupt assigned all the said shares to trustees of the company, in trust to receive the dividends and profits thereon, to the 1st of May next, and to apply the same in liquidation of the balance then due to the company on such account; and in case such balance should not be liquidated on or before the said 1st of May, then to sell the said shares absolutely, and with the proceeds of such sale, after payment of expenses, to discharge the balance due to the company on such account or otherwise. In August 1837, the bankrupt, in pursuance of his promise, deposited with the solicitor of the company the title-deeds of real estate at Manchester, as a further security. In April 1838, the bankrupt's debt to the company was 17,0761. 7s. In consequence of the bankrupt's refusal to sign the dividend-warrants on the shares so assigned, the trustees were unable to receive the dividends thereon. The bankrupt also refused to join in the sale of the real estate, or to pay the amount due from him to the company, and, in consequence, an action was commenced against him in April 1838, by the company, in the name of Connell, one of the public registered officers, which was discontinued on the 17th of October last. On the 25th of May 1838, a bill was filed in the Exchequer in Equity by Connell, on behalf of the company, which, after stating the account, and the debt, and the deposit of title-deeds, prayed that it might be declared that the real estate mentioned in the title-deeds was a security for the amount due to the company, and that an account might be taken, and

payment ordered by a short day, or, in default, that the premises might be sold, and the proceeds applied in liquidation of the debt; or that the bankrupt might be ordered to execute a valid mortgage to the company for securing payment of the sum due by a certain day, and, in default of payment, that there might be a decree of foreclosure, and in the meantime for the appointment of a receiver. The bankrupt filed his answer to the bill on the 27th of October 1838.

On the 14th of August 1838, the act of the 1 & 2 Vict. was passed, enabling members of joint-stock banking companies established pursuant to 7 Geo. 4, either alone or jointly, to institute proceedings either at law or in equity, against such co-partnerships, in the name of their registered officer, and enabling such co-partnerships, by their public officer, to institute such proceedings against their members, with the same legal consequences as if the party instituting the proceedings, or proceeded against, had been strangers. And it was provided, that no demand of a member in respect of his shares, or dividends on such shares, should be capable of being set off, either at law or in equity, against any such demand of the co-partnership against such member. On the 17th of October 1838, the company, in the name of Connell, commenced a fresh action in the Queen's Bench against the bankrupt.

By the 1 & 2 Vict. c. 110, entitled, An act for abolishing arrest on mesne process,' &c., it was enacted, "that if any single creditor, or any two or more creditors being partners, whose debt shall amount to 100%. or upwards, &c., of any trader within the bankrupt laws, shall file an affidavit in the Court of Bankruptcy, that such debt is justly due to him or them respectively, and that such debtor, as he or they believe, is such trader as aforesaid, and shall cause him to be personally served with a copy of such affidavit, and with a notice in writing, requiring immediate payment of the same; and if such trader shall not, within twenty-one days after personal service of such affidavit and notice, pay such debt, or secure or compound for the same, or enter into a bond with two sufficient sureties, as a commissioner of the Court of Bankruptcy shall approve of, to pay such

sum as shall be recovered in any action which shall have been brought, or shall thereafter be brought, with costs, or to surrender himself to the custody of the gaoler of the court in which such action shall be brought, within such time as the said Court shall direct after judgment, every such trader shall be deemed to have committed an act of bankruptcy on the twenty-second day after service of such affidavit and notice, provided the fiat shall issue against him within two calendar months from the filing of such affidavits."

Stubbs, who was a shareholder of the said company, was, in March 1838, duly appointed and registered one of the public registered officers of the said company, pursuant to the 7 Geo. 4, and on the 1st of October 1838, made the following affidavit, which was sworn at Manchester, before Richard Claye, a Master extraordinary in Chancery:

"J. S. Stubbs, of Manchester, &c., maketh oath and saith, that he is one of the registered public officers of certain persons united in co-partnership, by the name of the Northern and Central Bank of England, for the purpose of carrying on the business of bankers, under the provisions of, and pursuant and according to the statute made in the seventh year of the reign of his late Majesty King George IV., for the better regulating the co-partnerships of certain bankers in England; and this deponent is duly nominated and constituted such officer to sue on behalf of the said co-partnership. And this deponent further saith, that G. Hall, late of Manchester, &c. banker, is justly and truly indebted to the said co-partnership in the sum of 15,000l. and upwards, for money lent by the said co-partnership to the said G. Hall, at his request, and for money paid by the said co-partnership for the use of the said G. Hall, at his request, and for money due and payable from, and contracted and agreed by the said G. Hall with the said co-partnership to be paid by the said G. Hall to the said co-partnership, for interest upon, and for the forbearance by the said co-partnership to the said G. Hall, at his request, of monies due and owing from the said G. Hall to the said co-partnership, and by the said co-partnership forborne to the said G. Hall, for