1834. Ex parte In the matter of WYATT. The objection that the petitioner is not a creditor is not strictly preliminary. davit; and the bankrupt's examination taken before the commissioners shows that the petitioner is not a creditor. It is the constant practice to dispose of this preliminary objection before the petition is heard, not only to save the time of the Court, but to prevent the injustice of harassing the bankrupt, who has seldom means to defend himself, by a party who may have no right to institute proceedings against him. In ex parte Fowles, Buck. 98, a petition was presented to supersede; the preliminary objection was taken that the petitioner had not proved himself to be a creditor, for though he had so sworn in his affidavit, yet that was contradicted by the examination of the bankrupt before the commissioners ; the Vice Chancellor permitted the examination to be read, and it being found to contradict the affidavit of the petitioner, an inquiry was directed, whether the petitioner were or not a creditor; and, in ex parte Hudson, 2 Russ. 456, a petition to supersede was presented, and the debt of the petitioner was impeached on the ground of being usurious, and the Court held, the validity of his debt must be established before the Court proceeded to inquire into the validity of the commission on his application. Per Curiam: The present objection may occasionally have been treated as preliminary, as a matter of convenience, and to save time; and where it was obvious the party was not a creditor; but it is not strictly preliminary to the hearing the petition. If it appears to the Court, under all the circumstances stated in the affidavit, that the petitioner is a creditor, it will be sufficient. If the petitioner do not prove himself a creditor, his petition will be dismissed with costs. 1834. Ex parte Mr. Montagu: The second preliminary objection is that the bankrupt has obtained his certificate upwards of twelve months, and as the petitioner does not charge him with any fraud, the certificate is a bar; ex parte In the matter Crowder, 2 Rose, 324. Mr. Twiss and Mr. E. Chitty, for the petitioner, insisted that there was in fact a charge of fraud; the petition stated that the fiat was issued for the purpose of defeating the rights of the petitioner in obtaining payment of his debt; and the affidavits in support distinctly charged the bankrupt with having fraudulently concocted a trading for the purpose of being made a bankrupt, and to obtain a discharge from his debts through his certificate. Sir George Rose: - Do the affidavits explain why the petitioner has suffered twelve months to elapse without petitioning? Mr. Twiss admitted they did not. Per Curiam: WYATT. of WYATT. obtained under a fraudulent commission is no protection against a peti tion to super sede. If a bankrupt have concocted a fraudulent bankruptcy The certificate in order to procure a discharge from his debts through a certificate, then the fact of his having obtained such certificate would be no objection to a petition to supersede presented by a creditor. (a) But the only statement in this petition implying fraud is, that "the fiat was issued for the purpose of defeating the rights of the petitioner in obtaining payment of the said debt." Now, even suppose the petition had directly and clearly charged (a) See ex parte Gillman, 2 Cox, 195; ex parte Poole, 2 Cox, 250; ex parte Moule, 14 Ves. 602. a "fraud," (a) yet who would have been charged with fraud? Why, the petitioning creditor, not the bankrupt. And where is the fraud in such a purpose in the absence of collusion with the bankrupt? But it is said, that though on the face of the petition there be no direct charge of fraud against the bankrupt, yet that it is established by the affidavits; but the office of affidavits is to support the allegations of the petition, and cannot be used to supply an absolute want of allegation. Nevertheless, if this were the only objection, we might probably, in our discretion, permit the petition to stand over to be amended by inserting an allegation of fraud on the part of the bankrupt. But as no reason is given for the petitioner's delay in not coming here till twelve months after the certificate was obtained, this petition must be Dismissed with costs. C. of R. April 22, 1834. Quare, whether the commis sioners can con vey an estate Ex parte SOMERVILLE.—In the matter of IN 1783 a commission issued against Loscombe; he was before his bankruptcy to his partners, who were bankers. The usual bargain and sale to the assignees was not executed under this commission. In 1796 the bankrupt died. In 1826 a renewed commission issued, and in 1827 the common bargain and sale was made to the assignees. In 1833 the mortgaged premises were sold under the usual order of the commissioners, and produced only about one-fourth of the mortgage money. (a) As it was in ex parte Crowder, 2 Rose, 524. 1834. The purchaser contended that the premises, being entailed, did not vest in the assignees by the common barEx parte gain and sale, and insisted on a special conveyance from SOMERVILLE. the commissioners, under the 65th section of 6 Geo. 4, In the matter c. 16. (a) The commissioners declined to execute such conveyance. Their reasons are set forth in the following memorandum, entered with the proceedings. "We, whose names are hereunto subscribed, being the major part of the commissioners, &c. being informed by Messrs. Clarke and Sons, the solicitors to the renewed commission, that they have received from the solicitors to the mortgagees a case laid before Mr. Swanston, together with his opinion, and having heard the said case and opinion read, and having referred to our memorandum of the fifth of September last, we think that whether we ought to execute a conveyance to the purchasers, depends on the question whether that conveyance, if executed, would bar the issue in tail, and we think it would not, for the following reasons. First, the 6th George the 4th, chapter 16, section 65, enacts: "That the commissioners, by deed indented and enrolled, shall make sale for the benefit of the creditors of any lands, &c. whereof the bankrupt is seised, of any estate tail in possession, reversion, or remainder, and whereof (a) That the commissioners shall, by deed indented and enrolled as aforesaid, make sale for the benefit of the creditors as aforesaid, of any lands, tenements, and hereditaments situate either in England or Ireland, whereof the bankrupt is seised, of any estate tail in possession, reversion, or remainder, and whereof no reversion or remainder is in the crown, the gift or provision of the crown; and every such deed shall be good against of LOSCOMBE. 1834. Ex parte SOMERVILLE. In the matter of LOSCOMBE. no reversion is in the crown; and every such deed shall be good against the bankrupt and the issue of his body, and against all persons claiming under him after he became bankrupt, and against all persons whom the said bankrupt, by fine, common recovery, or other means, might cut off or debar from any remainder, reversion, or other interest, in or out of the said lands,' &c.; and we think that this clause does not extend to bar the issue in tail, where the conveyance to the purchaser shall not have been executed until after the death of the bankrupt; the statute speaks of a seisin by the bankrupt at the time when a conveyance is executed to bar an entail, and has no retrospective words, and therefore we think it does not authorize the commissioners to convey. "In the case of Pye v. Daubuz, 3 Bro. C. C. 595, and also in the case of Edwards and Appleby, 2 Bro. C. C. 652, it does not appear that the bankrupt died before the bargain and sale was executed, and in each of these cases the decisions were, as to the first, in favour of the trustees, and, as to the second, in favour of the mortgagees, on the ground that there was a covenant for further assurance, by which the estate in each case was bound; but in the present case, though there is a covenant for further assurance, yet we think it would bind only the bankrupt and his general heirs, and not the issue in tail after the death of the bankrupt; and we infer from the case of Beck v. Welch, 1 Wils. 276, that the death of the bankrupt before the execution of a conveyance to bar the estate tail, would, upon the reasoning there held, put an end to the mortgagee's title. It may also be observed, that the provisions of the act for abolishing fines and recoveries, 3d and 4th William 4th, chapter 74 (a) (not yet in force), sections 55 to 73, confirmatory of the opinion above expressed, inasmuch (a) Sec Appendix to Mont. & Bli. |