tified their consent on the same parchment; at the foot of which the Commissioners certified that the creditors had consented according to the act. (a) And it is observable, that the statute of 5 G. 1. was the same as 5 G. 2.,. which till lately was the act in force. (b)

It is a clear doctrine, that these signatures cannot, more than those of the creditors, be obtained through compulsion; and thus Lord Hardwicke declared, that he did not know that a mandamus would lie to compel an allowance. (c) Since his time, however, the principle has been incontrovertibly established by the united decisions of the Lords Eldon and Erskine in the Court of Chancery, and by the Court of King's Bench. The result of the opinions of those learned Lords was, that the Commissioners have a judicial discretion, and that the Lord Chancellor cannot control, advise, or counsel them upon the subject. (d) And when the same applicant moved the Court of Law for a mandamus, they held, that the legislature had vested a discretion in the Commissioners to judge of the bankrupt's conformity or nonconformity, with which discretion they could not interfere. (e) Nevertheless, Lord Hardwicke expressed the equity of the maxim, when he said, that it ought not to be arbitrary in the Commissioners or the Chancellor, to allow or refuse a certificate; but that they ought to be governed entirely by fairness or fraudulent behaviour in

(a) 7 Ves. Ab. 132. in Burdock's case.

(b) 1 Chr. B. L. 335.

(c) 1 Atk. 82. In ex parte Williamson. 2 Ves. sen. 250. (d) 11 Ves. jun. 417. Ex parte King. 13, Ves. jun. 181. Ex parte King, by Lord Erskine... 15 Ves. jun. 126. Ex parte King, by Lord Eldon.

(e) 7 East, 92. Ex parte John King, a bankrupt.

How examined.

the bankrupt. (a) And Lord Eldon is represented as having frequently said, that the Commissioners have no concern with the bankrupt's conduct before the Commission, however infamous it may have been; but that if he has conformed and acted fairly in his character of a bankrupt, they are not justified in withholding their signatures, provided a sufficient number of creditors testify their assent. (b)

It has been holden, that if a certificate be sent back for the admission of other creditors, the discretion of the Commissioners revives to the same uncontrollable extent as though they had not signed the first. For the proofs of subsequent creditors may satisfy such Commissioners that the bankrupt had not made a full discovery, and he, therefore, could not be certified as having conformed to the provisions of the act. (c) And the Commissioners must sign the second certificate, and give the time of their new signatures and seals as precisely as before. (d)

When the certificate is examined, it is customary and prudent for the three Commissioners to meet together, but when it is desired that the certificate should be advertised before three Commissioners can meet, it is the practice to carry the proceedings and certificate to one Commissioner, who carefully examines and signs it; it is then carried to two others, who sign it on the credit and authority of the first. (e)

(a) 1 Atk. 82. In ex parte Williamson. 2 Ves. sen. 250. (6) 1 Chr. B. L. 335.

(c) 15 Ves. jun. 126. Ex parte King.

(d) 1 Chr. B. L. 336.

(e) Chr. Instr. 211.

When to be signed, and how

There is not any particular period fixed for the solemnity of the Commissioners' signatures; but as soon as the examination of the bankrupt is fully finished (a), attested. the assent of the creditors obtained, and sufficient time has elapsed for the proofs of distant creditors, supposing that there may be such, it seems, that the certificate may be forwarded to the Chancellor with great propriety. But the convenience of creditors residing abroad must be consulted. So, that where the parties lived at Guernsey, and the Commissioners signed soon after the bankrupt's last examination, Lord Hardwicke censured the act as too precipitate, and stayed the document, that the Guernsey creditors might come in and prove. (b) Again, the same learned Lord considered three months too short a delay where the bankrupt had been a trader in Ireland. (c) So, where it did not appear that any creditors resided abroad, and the certificate was not signed until three months after issuing the commission, the Chancellor (d) declared notwithstanding, that he extremely disapproved of precipitation in signing certificates. (e)

By the general order before referred to, the solicitor to the commission, or his clerk, or the messenger to the commission, or some clerk of the Commissioners, must attest the signature and sealing of the Commissioners; and by the same instrument, for the purpose of avoiding

(a) 1 Chr. B. L. 335.

(b) 1 Atk. 84. Ex parte Saumarez.

(c) Id. 82. Ex parte Williamson. 2 Ves. sen. 249. S. C. (d) Lord Hardwicke.

(e) 1 Atk. 84. Anon. See the observations of Mr. Christian on this subject. 1 Chr. B. L. 339.

E

Creditors assenting to, or dissenting

from, the certificate

frauds upon the Commissioners, they, or one of them, is directed to keep a list of all creditors above 20%. who prove their debts from time to time, and of the amount of their respective debts; which list is to be made up and signed from time to time by three of such Commissioners. Where there was a want of conformity to these provisions the certificate was sent back for the Commissioners to recertify, although the Commissioner who had signed it had subsequently acknowledged his signature. (a)

The certificate being now prepared, it must be taken to the bankrupt's office and left there, with the affidavits of seeing the creditors' signatures, and an affidavit to be made by the bankrupt, certifying his conformity and the consent of his creditors; and that the assent so given has been obtained fairly and without fraud. (6)

If there be any letters of attorney they should also be left; and by a late order of the Chancellor, the certificate cannot be received at the office without all the other necessary papers. (c)

We mention this subject here briefly with reference only to joint and separate commissions. Thus, for the purposes of assent or dissent, a joint creditor may prove his debt under a separate commission, and so may a separate under joint creditor under a joint commission. But a creditor who is proceeding at law must waive all benefit resulting from his action and the action itself before he can prove for any purpose whatsoever, although the old law enabled him to avail himself of both advantages. (d)

and sepa

rate commissions.

(a) 1 G. & J. 186. Ex parte Jones.

(6) Christian Instr. 226. 1 Chr. B. L. 341.
(c) Ibid. 5 G. 2. c. 30. s. 10.

(d) See 49 G. 3. c. 121. s. 14. Co. B. L. 442.

SECT. III.

Of the Allowance of the Certificate by the Lord Chancellor, Lord Keeper, &c. and the Grounds of Opposition to it, &c.

As soon as the certificate is duly signed and deposited, an advertisement is inserted in the Gazette by the messenger, to the effect, that it will be allowed and confirmed unless cause to the contrary be shown before a certain day, which is generally three weeks after the notice so given. (a) And, although not material, a memorandum of the Commissioners, certifying the bankrupt's conformity, may be made. (b) If, after this public advice, no petition be presented within twenty-one days, the discharge and allowances will be confirmed by the Great Seal. (c) And if an order be made for staying the certificate, and it be not drawn up and taken away within three months after it issues, the certificate will be allowed. (d)

The Court of Chancery is very strict with respect to the time. Where, therefore, a petition to stay a bankrupt's certificate on the ground of fraud was sent up from the country, but for want of a regular signature could not be received on the day in question, being the last day for presenting a petition against the certificate, the Court refused to allow it to be received two days after

(a) Chr. Instr. pp. 227. 229. (c) Id. 229.

(b) Id. 228.

(d) 2 Chr. B. L. 201. General Order, March 22. 1796.