trial may be moved in the Court of Review, which new trial shall be granted or refused according to the rules of the common law and the practice of the courts of Westminster in granting or refusing new trials. Besides these instances, especially authorized by the statute, the Court of Review under the general jurisdiction in bankruptcy may direct an issue or inquiry, in the same manner as the Lord Chancellor did previously to the statute. Upon a doubt on a point of law, the court may send a case for the opinion of a court of law (y); or upon a doubt on a matter of fact, may send an issue to a court of law, to be there tried by a jury (2). Sometimes, instead of an issue, the court will direct an inquiry as to the trading and petitioning creditor's debt (a), or as to the sale or disposition of the property. (See p. 256, ante). But it is only in cases of doubt, where the material facts of the case are disputed in the affidavits on both sides, that the court will direct an issue (b); and consequently not until after it has heard all the evidence read, and the case fully argued; unless the counsel on both sides agree that such must ultimately be the result if the case were gone into (c). And if, upon the hearing, the matter appear clear, the court will at once decide upon the petition and affidavits, without directing an issue, although the petitioning creditor may be desirous of trying it (d). Where, upon a petition for a supersedeas, the act of bankruptcy upon the proceedings appeared to be insufficient, and there was no affidavit of any other act which would support the commission, and no question raised which could make a trial at law useful, the court superseded the commission without an issue (e). Even in such case, although the trading, petitioning creditor's debt, and act of bankruptcy, appear on the face of the proceedings to be sufficient, yet, if the court be satisfied of the insufficiency of any of them, from the affidavits, it will annul the fiat without an issue (ƒ). Nor will the court direct an issue in any case where felony is imputed to one of the parties by the petition, or where a matter of criminal charge would necessarily form the subject of the issue, if directed (g). Nor will the court (unless under particular circumstances (h)) direct an issue, on the petition of a bankrupt, where the petition goes to impugn the validity of the fiat; because the bankrupt can at any time bring an action to try its validity (2), after which he may apply by petition, and the fiat will be annulled as of course (k). Or if, in any case, the subject of the petition, as, for instance, the validity of the fiat, be in a course of litigation before a jury, the court will retain the petition, and defer the

(y) See Ex p. Cottrell, Cowp. 742. (s) See Ex p. Gulston, 1 Atk. 139. (a) Ex p. Hudson, 2 Russ. 456: see infra.

(b) See Ex p. Williamson, Buck, 546: Er p. Billiald, Id. 220.

(e) Er p. Heygate, Buck, 441: see Ex p. Trustrum, Buck, 550.

(d) Er p. Gallimore, 1 Mad. 67: Ex p. Guiston, 1 Atk. 193: Ex p. Wilson,

Id. 217.

(e) Er p. Burgess, Buck, 233.
(f) Ex p. Gallimore, 2 Rose, 234.
(g) Ex p. Scott, Buck, 275.

(h) See Ex p. Collins, 1 Rose, 273.
(i) Ex p. Nutt, 1 Atk. 102: Ex p.
Gulston, 1 Atk. 193: Ex p. Balliald,
Buck, 220: and see Ex p. Marks, 1
Glyn & J. 70.

(k) Ex p. Dick, 1 Rose, 51.

further consideration of it until the event of the trial at law be

known (2).

Upon directing an issue, the court will state the terms of it in the order, and direct who shall be made plaintiff and defendant, and, if necessary, what shall be deemed admissible as evidence, and who shall be examined as witnesses, &c. (m); and this, without much regard for the strict rules of evidence in courts of law, wherever the observance of such rules would prevent a thorough and complete examination of the question in dispute (n). In the meantime, the petition is ordered to stand over to a particular day, to give time for the issue to be tried; and if the plaintiff do not proceed to trial before that time, or account satisfactorily for his not having done so, the court will dismiss the petition (0). The court will not order an advance to the bankrupt, to enable him to meet the expenses of the trial of an issue to try the validity of the fiat, unless the assignees consent (p).

After the issue is tried, the court will proceed and make its order upon the petition, and will not in general direct another issue or trial, unless for very special reasons (q). And if the issue be decided against the petitioner, it is not necessary for the other party to present a counter-petition, in order to have the decision of the court, but the court will dismiss the original petition upon motion (r). Upon an application for a new trial of an issue, it is not a motion of course that application be made to the judge who tried the issue for his notes of the trial; some ground must be shewn for the application (s). And where, upon an issue to try if there was a good petitioning creditor's debt, the bankrupt obtained a verdict upon an objection he had not alleged in his petition, the court directed a new trial (†).

The Order.] When the court have decided upon the petition, the order thereupon is afterwards drawn up at the office of the secretary of bankrupts, from minutes taken at the time. An application may be made to the court, on motion, to vary the minutes, but not until they have been settled in the registrar's office (u). And minutes cannot be varied after the order is drawn up, and although drawn up after notice of motion to vary the minutes (x); no minutes are drawn up of an order to dismiss a petition with costs (y); and the court will not vary the minutes of an order which has been made more than three months; the petition must be re

heard (z). So, also, if any essential alteration is required in the order, the court will not make it on a motion to vary minutes; there must be a petition of re-hearing (a). The order should be drawn up without delay; and, by General Order, Jan. 12th, 1832, it shall not be necessary to recite petitions at length in any order pronounced by the court thereon. And by Order, Loughb. 22nd March, 1796, it is ordered, that if any solicitor shall refuse or neglect to draw up and take away from the office, the order made upon the hearing of any petition presented against the allowance of a bankrupt's certificate, within three months from the time such order is made, then that such bankrupt's certificate should be laid before the Lord Chancellor, for his allowance and confirmation, any order pronounced for staying the same notwithstanding. A petition to revive a former order is of course, unless hardship or injury will arise from the reviver (b). An order irregularly obtained cannot be set aside on motion; a petition is necessary (c).

If the order require anything to be done by a party, he must be served personally with a copy of it, the original being shewn to him at the same time; and if it be for the payment of money, a demand of the money must be made of the party personally, by the person to whom it is to be paid, according to the terms of the order, or by some person deputed by him by power of attorney for that purpose; in which latter case the power of attorney must be shewn at the time the money is demanded, and if not then paid, the usual four-day order must be obtained (d); and a demand must be made for payment under this order, or the order for commitment thereon will be irregular (e). And where costs were directed to be paid to the bankrupt or his solicitor, a personal demand by the bankrupt alone was held sufficient to ground an application to commit (f). But if it appear that the party keeps out of the way, in order to avoid being served with the order, the court will, on motion, dispense with personal service, and allow of some other service being substituted for it: as, for instance, where it appeared by affidavit, that an attorney and another were keeping out of the way, in order to avoid being served with an order in bankruptcy to pay money, the court ordered that service of the order at the office of the attorney should be deemed good service (g). But the motion must be supported by an affidavit that the party wilfully keeps out of the way to avoid service, and is not to be found (h). And an order nisi, for striking an attorney (who has no place of residence in this country) off the rolls, may, by order, be served at his last place of residence in this country (i); the four-day order is obtained on petition, not on motion (); and if the

(2) Ex p. Wilson, 4 Dea. & C. 156. (a) Ex p. Soper, 4 Dea. & C. 275; 2 Mon. & A. 58: Er p. Dolly, 3 Dea. 51.

(b) Er p. Evans, 3 Dea. 381; 1 Mon. & C. 92.

(c) Er p. Haward, 3 Dea. 324; 3 Mon. & A. 608.

(d) Er p. Davison, 1 Glyn & J. 227: Ex p. Ferrers, Mon. 513.

R

(e) Ex p. Dicas, Mon. 215.
(f) In re Diack, 3 Dea. 53.
(g) Ex p. Anderson, Buck, 38.

(h) Er p. Blandy, 4 Dea. & C. 518; 2 Mon. & A. 24.

(i) In re Mark, 4 Dea. & C. 28.

(k) Ex p. Myers, 2 Mon. & A. 87; 4 Dea. & C. 579: Ex p. Murray, infra.

original order is for production of books, &c., the four-day order is obtained on the registrar's certificate of the non-production, which certificate must bear the same date as the four-day order (1); and if this new order is disregarded, an attachment or order of committal issues as of course, on motion to the court, and the party in contempt is taken into custody (m). If the contempt is nonpayment of money, the affidavit in support of the motion for committal must state that the party, or any person on his behalf, has not paid, and that the money is still due and owing; but this strictness is not required on the application for the four-day order (n). The attachment does not issue in the vacation unless in an urgent case, as where the party against whom the order is made is likely to abscond (o); and where the party is under commitment for non-payment of costs, the court will not suspend the order, pending an appeal, except upon payment of the costs into court (p Where a warrant of committal is issued against a party for noncompliance with an order of the court, and is lost, the renewal of the warrant is quite of course (q); but it is doubted whether the Court of Review can issue a distringas against a member of Parlia ment to enforce an order (r). The Court of Review has authority to make an order to enforce an order made by the Lord Chancellor in bankruptcy. A party committed by the Court of Review for contempt may petition for his discharge; but if he fail to prove the invalidity of his commitment, his petition will be dismissed with costs (8).

Costs, Security for.] Where a petitioner resides abroad, or ou of the jurisdiction, the respondents may apply to have security costs, and the application is of course, if made before the respond ent who applies has filed any affidavit, or taken any other step f but the application is considered strictissimi juris; and where respondents, the assignees, had examined a witness before commissioners, with respect to the petition, and had applied tot court for an order on the registrar to attend with the examinatis at the hearing of the petition, the application for security was be to be too late (u). A bankrupt plaintiff in an action at lav resident abroad, will not be required to give security for cost although he has not surrendered to the fiat (x), more especial if he has obtained an order to enlarge the time for his render; for the court cannot presume that he will commit felony (y); and the Court of Review will not require a bankrup petitioner to give security for the costs of his petition befor hearing (z).

(1) Ex p. Myers, 4 Dea. & C. 579; 2 Mon. & A. 87.

(m) See Ex p. Malachy, 1 Mon. & A.

257.

(n) Ex p. Murray, 1 Mon. & A. 475. (0) Ex p. Hunt, 4 Dea. & C. 503; 2 Mon. & A. 18.

(p) Ex p. Fox, 2 Mon. & A. 18.
(9) Ex p. Giles, 3 Dea. & C. 620.
(r) Ex p. Grimwood, 3 Dea. 465; 3

Mon. & A. 293.

(8) Ex p. Green, 3 Dea. 700 (t) Ex p. Scott, 2 Dea. 556; 3 Mon A. 393.

(u) Ex_p. Tull, 1 Mon. & A. 30 Dea. & C. 503.

() M'Cullock v. Robinson, ? N. A

852.

(y) Roper v. Philips, 3 Mon. & R (z) Ex p. Munk, 2 Dea. & C. IN

12.