die, and the bankrupt is declared to be free from arrest or imprisonment for such time, not exceeding three calendar months, as they shall by indorsement upon such summons appoint. This is the first statutable provision, which gave the Commissioners power to adjourn the examination sine die; and it became then an incidental practice, that after the examination was adjourned sine die, the Commissioners appointed another day. The 117th section of the act declares, that the bankrupt shall be free from arrest or imprisonment by any creditor, in coming to surrender during the forty-two days, and such further time as shall be allowed him for finishing his examination; provided he was not in custody at the time of such surrender. We contend, on the part of the bankrupt, that the period during which his examination was adjourned sine die was "further time,' within the meaning of the last section. It is true, the Commissioners did not indorse the bankrupt's summons, when his examination was adjourned sine die; but it is unnecessary to argue, that it is either the indorsement, or the summons, that protects the bankrupt; it is clear that it is neither the one, nor the other, but the statute. The giving the indorsement, or withholding it, does not in any way affect his protection from arrest. [Erskine, C. J. The indorsement on the summons is evidence of the fact, although that alone does not give the protection. Under the 118th section, I take it, there must be an indorsement to give a protection. The protection under the 117th section is wholly independent of any indorsement of the Commissioners. Then the only question is, whether a mere appointment of the Commissioner on the 9th June, for the bankrupt's examination on the 23rd, is sufficient to give the bankrupt a protec 1837. Ex parte 1837. Ex parte tion during the whole of that interval.] Supposing that the Commissioner had adjourned the examination from December to the 9th June, and had then adjourned it again to the 23d June, would not the bankrupt, in that case, have been protected? We are not contending, that if the Commissioner had appointed a private meeting for examining the bankrupt, an appointment of this description would have given the bankrupt a protection. But here the Commissioner appointed a public meeting, for the express purpose of the bankrupt passing his last examination. [Sir J. Cross. Was there a summons issued in the present instance? For the bankrupt is not bound to attend without a summons.] That may be the case in the original proceedings under the fiat. But if we show, that the bankrupt knew of the appointment, and that it was made by the Commissioner at the bankrupt's own instance, this would be tantamount to a summons being served upon the bankrupt. He applied to the Commissioner to be permitted to pass his last examination, and notice was given him of the meeting appointed for that purpose. By the terms of the 116th section of the Bankrupt Act, the bankrupt is at liberty "at all seasonable times before the expiration of the forty-two days, or such further time as shall be allowed him to finish his examination, to inspect his books, papers, and writings," for the purpose of making out the accounts of his estate. Now this purpose would be defeated, if any creditor might arrest the bankrupt in the interval between the time of the Commissioner making the appointment, and the day fixed for the last examination. [Erskine, C. J. The act says, that the Commissioners cannot give the bankrupt protection for more than three calendar months, after an adjournment sine die.] [Sir G. Rose. The Commissioner also himself names the day, in the first instance, for an adjournment of the examination, unless he adjourns it sine die.] Although the adjournment sine die might not protect the bankrupt, before the Commissioner had appointed a definite time for the examination; yet when the adjournment sine die, which was at first indefinite, had afterwards become definite, the bankrupt was, from that moment, entitled to his protection. It is not necessary that the period of time, for the adjournment of the bankrupt's last examination, should be continuous from the end of the forty-two days. [Sir G. Rose. When the adjournment in December was sine die, what reason is there for saying, that that was giving time till June ?] [Erskine, C. J. My view of the case is, that after an adjournment sine die, the Commissioners have no power to give the bankrupt a protection for more than three months from the time of such adjournment.] We submit, that after an adjournment sine die, the Commissioners have still power to take the bankrupt's last examination, and to give such time as may be sufficient for that purpose. The Commissioner, on the 9th June, by appointing a meeting for the 23rd June to take the bankrupt's last examination, did, in effect, give the bankrupt further time for finishing his examination, within the meaning of the 117th section of the Bankrupt Act. There is no pretence, that the creditor who arrested the bankrupt was not aware of the ajdournment of the examination. Mr. Anderdon, contrà, was stopped by the Court. ERSKINE, C. J.-The Court is of opinion, that the bankrupt's application cannot be acceded to. The 1837. Ex parte 1837. Ex parte 117th section declares, that the bankrupt shall be only free from arrest "during the said forty-two days, and such further time as shall be allowed him for finishing his examination." It is quite clear, therefore, that the legislature, by thus expressing itself, was contemplating one protection for the forty-two days, and such continuous time as the Comissioners might allow. The subsequent sections do not alter this construction. The 118th section gives the Commissioners power to adjourn the examination sine die; a provision, which was intended to remedy the evils that might arise from continuous fruitless adjournments. But the legislature, cautious to prevent the abuses which might arise if an adjournment sine die gave the bankrupt a protection from arrest for an unlimited period, expressly declares that the protection shall not exceed three calendar months. It has been contended, that the subsequent appointment of a special day for the bankrupt's examination brought the case again within the 117th section, and that such appointment was the allowance of further time, within the meaning of that section. It appears to me, however, that the 117th section will not bear the interpretation contended for. Suppose the bankrupt had been arrested after the adjournment sine die, and before the fixing a day for his last examination; then, according to the argument, he would have been entitled to be discharged, as soon as a day was fixed for his last examination. But I think this is contrary to the meaning of the act; and that, in the present instance, the bankrupt was only protected eundo, morando, et redeundo. Sir J. CROSS.-My first impression was, that the bankrupt was protected from arrest, on the ground that the adjournment sine die was giving further time by an indefinite adjournment; but I am now of a different opinion. And I think that the circumstances of the case are against the application, independently of the law. When the Commissioner adjourned the bankrupt's examination sine die, he made no indorsement on the bankrupt's summons; which shows that he did not think very favorably of the bankrupt's conduct. The bankrupt then lies by for half a year; and just before the arrest, he asks the Commissioner to appoint a day for finishing his examination; and then, upon being arrested, he turns round on the plaintiff, and insists on his exemption from arrest. This, I own, appears to me very like a contrivance of the bankrupt to defeat the writ. Sir GEORGE ROSE.-This petition, on the face of it, carries with it its own dismissal. The strongest argument in favor of the application was, that unless the adjournment in June was held to be "further time," within the meaning of the 117th section, the bankrupt would lose. the benefit of the 116th section, which declares that he shall be at liberty, during the further time that may be allowed him to finish his examination, to inspect his books and papers for making out his accounts. But this consequence does not necessarily follow. The act of parliament contemplates two cases: 1st, where the bankrupt passes his last examination; 2dly, where he does not. The 117th section provides for the first case; and I ask any one conversant with the practice in bankruptcy, whether the expression "further tine" in that section has not always been understood to mean some continuous period after the 42d day; and whether the practice of allowing further time is not with a view of 1837. Ex parte |