that though ex parte Furnival, 1 Gl. & J. 254, decides that the bankrupt cannot himself waive the necessity of personal service, and is not bound by admission of other service, yet that is because merchants and traders are not expected to know the rules of practice, and are uninformed of the protection they may be entitled to thereunder, and that it might be very different when a professional man is interposed who is aware of the rules of practice. In this case the solicitor, who knew that the petition must be personally served, undertook so to serve it.

It would have been more regular to have brought on the present question on petition, but the Court has entertained it on motion, such being by arrangement, and to save expences

Motion dismissed, with costs against the bankrupt,
but their payment to be suspended till the
hearing of the petition. (a)

(a) On the 12th of January 1834 the petition came on in regular course, and was dismissed, the petitioner not appearing.

1834.

Ex parte HETHERINGTON.

In the matter

of

GLOSSOP.

SITTINGS AFTER TRINITY TERM 1834.

C. of R.

Ex parte MUNK.- In the matter of MUNK.

June 23, THIS

1834.

A commission

held, under the circumstances, not supersedeable, though

there were not

support it.

was a petition to supersede, presented by the bankrupt.

The commission issued in 1824, and was subsequently transferred to C. F. Williams esq., by whom Mr. James Clark was appointed official assignee. In May 1829 the the requisites to bankrupt brought an action against the assignee and messenger, in which he was nonsuited. In October 1827 he presented a petition to supersede, which was dismissed with costs, which were not paid. In February 1831 he presented another petition to supersede or for an issue, which was dismissed with costs, which were not paid.

In January 1833 an action was brought, in order to try the validity of the commission, in which the bankrupt was plaintiff, and the official assignee defendant, to recover rent received by the latter. A verdict was found in favour of the petitioner, on the ground of there being no good petitioning creditor's debt.

In Trinity Term following a new trial was ordered. The case was argued for a new trial on the following case, stated for the opinion of the Court, as reported in 10 Bing. 102.

This was an action brought to recover the sum of 80l. for money had and received by the defendant to the plaintiff's use. A commission of bankrupt issued against the plaintiff, dated 1824, and the defendant was afterwards appointed official assignee under the commission. The 801. claimed in this action was received from the tenant of the plaintiff's estate by the defendant as official assignee, and as such he signed the receipt for the amount. The plaintiff had applied to a commissioner of

bankrupt to appoint an official assignee to investigate if any debt were due to the petitioning creditor, to enable him, the plaintiff, to dispute the validity of the commission. It was agreed to be taken as fact, for the purpose of this case, that the plaintiff was not a bankrupt at the time the commission of bankrupt issued. The question for the opinion of the Court was, first, whether the defendant were liable in this action, the money sought to be recovered having been received by him in his character of official assignee; and, secondly, whether the application made by the plaintiff as above would preclude him from maintaining the action.

The cause was again tried on the 5th of December, when the jury again found that there was not a good petitioning creditor's debt. The bankrupt also brought an action in the Exchequer against the tenant of the same estate, to recover rent due subsequently to that received by the official assignee; the tenant interpleaded, and finally an order was made for payment out of court to the bankrupt of the rent.

In November 1833 the bankrupt petitioned the Court of Review to supersede, but the hearing was stayed till he had cleared his contempt by paying the costs of the former petitions.

This was another petition to supersede.

The two creditors' assignees consented to the supersedeas, but the official assignee refused to consent.

Sir George Rose:- Why did the official assignee defend the action without first coming to this Court to receive directions how he should act?

Mr. Bacon: He took the advice of the commissioners.

Mr. Swanston for the petition:-There have been

1834.

Ex parte
MUNK.

In the matter

of MUNK.

two verdicts against the commission, which is invalid, for want of a petitioning creditor's debt. The assignees are convinced the commission cannot be supported, and consent to the supersedeas; the official assignee alone resists, as he before defended the action, in which he was wrong, as the verdict against him proves. It always was of course, before the Lord Chancellor, to supersede after verdicts against the commission.

Mr. Bacon for the official assignee.

Per Curiam:

This commission issued ten years ago. Two petitions to supersede by the bankrupt have been dismissed, and the hearing of a third stayed, and now he petitions, for the fourth time, on the ground of a verdict against the commission in an action against an official assignee who was appointed on his special application; and on the strength of this verdict in his favour he comes to supersede, without stating any thing to enable the Court to judge of the propriety of the action or of the verdict. It has been urged this Court must supersede after a verdict against the commission. Such is not the case. A verdict is only a strong circumstance of inducement. Even putting the verdict here as a judgment, and therefore conclusive, yet, after ten years have elapsed, after the active acquiescence of the bankrupt in procuring the appointment of an official assignee, and after the dismissal of the former petitions, this Court would do wrong to encourage the present application.

This petition must be dismissed, and, though the petitioner be a bankrupt, with costs to the official assignee.

Petition dismissed, with costs.

Ex parte BALDWIN.- In the matter of DUNCAN
NEIL SMITH.

THIS
was a petition to reverse the decision of a sub-
division court, which had expunged a proof; and a cross
petition to confirm the decision.

It was presented under 6 Geo. 4, c. 16, s. 60, which gives to commissioners power to expunge, but expressly reserves to each party a right to petition against the determination of the commissioners.

Mr. J. Russell and Mr. Bethell, for the creditors who had applied to expunge, objected that the Court had not jurisdiction.

The 1 & 2 W. 4, c. 56, s. 30, enacts, " that any one of the said commissioners, if he think fit, may adjourn the examination of a proof of debt to be heard before a subdivision court, which said court shall proceed with such examination, and finally and without any appeal, except upon matters of law or equity, or the refusal or the admission of evidence, shall determine upon such proof of debts."

This appeal is on a question of fact, not of law or equity, and therefore cannot be entertained. [The CHIEF JUDGE:-That section refers to the admission or rejection of proofs. This is a question as to expunging a proof: is that within the section?] If section 30 relate to proofs only, and have no reference to cases of expunging, then this, which was an expunging, was done coram non judice: but the other side have acquiesced in allowing that it was coram judice, and now seek to appeal as to a matter of fact, which they cannot do.