Act, 1849, differs from the former enactments with respect to these societies. Former statutes required that the bankrupt should have been appointed" to an office in the society to entitle the society to payment in full. But the present Act only requires that he should be "appointed to or employed in" any office in the society. This distinguishes the case from Ex parte Harris.(a)

They also referred to Ex parte Riddell.(b)

Mr. Swanston and Mr. J. V. Prior, for the respondents, were not called upon.

The Court held that the bankrupts were not employed in any office within the provision of the Act, and dismissed the appeal with costs.

* 486

*Ex parte SAMUEL BEAN.

In the Matter of JOHN WILKINSON, a Bankrupt.

1852. March 11. Before the LORDS JUSTICES.

A petition to annul an adjudication may be presented by a creditor to the commissioner, and it is sufficient if he appeal from the commissioner's decision upon it, within twenty-one days, although much more time may have elapsed since the adjudication.

The circumstance that an order to annul will leave unimpeached an assignment of all the bankrupt's effects to the creditor applying for the annulling order is not sufficient ground for refusing to annul an adjudication unsupported by the legal requisites.

THIS was the appeal of a creditor from the decision of the commissioner, dismissing the appellant's petition seeking to have the adjudication annulled.

or shall become bankrupt, the Court shall, upon application made by the order of any such society or any committee thereof, or the major part of them assembled at any meeting thereof, order payment and delivery over to be made to such society, or to such person as such society or committee may appoint, of all moneys and other things belonging to such society, and shall also order payment out of the estate and effects of the bankrupt of all sums of money remaining due, which the bankrupt received by virtue of his said office or employment before any other of his debts are paid and satisfied."

(a) 1 De G. 162.

(b) 3 M. D. & D. 80.

The adjudication took place on the 12th of May, 1851, upon the petition of Thomas Bittleston and John Watson, the assignees of another bankrupt, named Thomas Wakefield. On the 30th of June the appellant presented his petition to have the adjudication annulled for want of an act of bankruptcy, or of a sufficient petitioning creditor's debt. On the 11th of July, 1851, the day appointed for hearing his petition, he attended the District Court. On the same day a sitting took place for the proof of debts, and the petitioning creditors tendered proof of their alleged debt, which was opposed by the assignees. The commissioner, after hearing evidence and examining witnesses thereon, ordered the proof to be admitted for 12917. 148. 3d.

At the rising of the Court the commissioner directed the appellant's petition to stand over until the 15th of August.

On the 15th of August, 1851, the petition came on for hearing, but was further adjourned on account of the * pendency of an appeal of the assignees from the admission of the proof of the petitioning creditors' alleged debt.

*

487

The appeal of the assignees was heard by the Lords Justices on the 11th of December, 1851, when an order was made thereon, whereby it was declared that no evidence had been brought before the Court on which the proof of the sum of 12917. 148. 3d. could be sustained. And it was amongst other things ordered that the proof should be expunged from the proceedings, and that the costs of the appeal should be paid out of the estate of the bankrupt Thomas Wakefield.

On the 20th of February, 1852, the appellant's petition again came on before the commissioner, who dismissed it with costs.

In giving judgment the commissioner referred to Ex parte Maxwell, (a) and said that, upon this authority, it appeared that the Court had a discretion to accede to or refuse the application, and that it would not be exercising a proper discretion if it annulled the adjudication. The commissioner then referred to an assignment which had been referred to as having been made in the month of August, 1847, to Bean of all the bankrupt's property, which the commissioner regarded as an act intended to operate in favour of the appellant, and to operate certainly to the prejudice of all the other creditors. As the effect of annulling the proceed

(a) 3 M. D. & D. 708.

ings would be immediately to give to the appellant the benefit of this transaction, the commissioner held that the circumstances of the case were such as to cause him to exercise his discretion unfavourably to the application made by the appellant. The *488 commissioner considered it proved that an act of

bank

ruptcy had been committed. The commissioner said there were cases of successful applications of this kind, although the interest of the creditor was adverse to that of the creditors at large; and that the case of Ex parte Jones (a) proved this, but that still there must be a grievance on the part of the creditor,something of which he had a personal right to complain, that there must be merits on his part, so that if his application were not acceded to, he would have a right to say he was aggrieved. This the commissioner thought could not be said in the present The commissioner considered that the application was intended to give the appellant the advantage of what the commissioner did not hesitate to pronounce a fraudulent act as regarded the creditors; namely, a secret conveyance, where the bankrupt was permitted to remain apparently the owner after his ownership had terminated. Upon this account he refused to annul the bankruptcy, and directed the costs to be paid by the appellant.

case.

Mr. Swanston and Mr. Daniel appeared in support of the appeal.

Mr. Glasse and Mr. Hardy, for the petitioning creditor, took a preliminary objection that, according to Ex parte Carter, (b) this was an appeal from the adjudication, and that the twenty-one days for appeal ought to be reckoned from the day on which the adjudication was made.

It was arranged that the whole case should be argued together, and on the petitioning creditor's counsel being. called on to show

the existence of the legal requisites, they admitted that * 489 they were not then in a position to establish them, and asked for the decision of the Court upon the preliminary objection and upon the discretionary grounds upon which the application had been refused by the commissioner.

In the course of the argument,

(a) 3 Deac. & Ch. 697.

(b) Ante, p. 212.

The Lord Justice KNIGHT BRUCE said, he agreed that the statutory provision with regard to reputed ownership, so far as it went beyond the common law, had been probably productive of more injustice than justice, although in some instances it had no doubt done good.1

The Lord Justice Lord CRANWORTH said that there appeared to have been nothing deceptive in the transaction in question as to the assignment. The creditor had left the debtor in possession, and had, when he thought the property in jeopardy, taken possession himself. It might be that he had done so too late, but the proceeding did not appear to be fraudulent.

Mr. Bacon and Mr. T. H. Terrell, for the assignees, did not oppose the appeal.

Mr. Swanston replied.

THE LORD JUSTICE KNIGHT BRUCE. This petition for adjudication appears, so far as the evidence before us goes, to be unsupported by the legal requisites. That, however, is not decisive. Still, when a bankruptcy appears legally unsustainable, it lies upon those who attempt to support it here to show equitable grounds for it. There appear in this case to be no such grounds shown.

It is contended that the learned commissioner had no * *490 jurisdiction to annul this adjudication, and that Mr. Bean's petition of appeal to this Court is in substance an appeal from the order of adjudication, and, so regarded, cannot be entertained, inasmuch as it was not presented till after an interval much beyond twenty-one days. We are of opinion that this is not a case of appeal from the order of adjudication, but that the appellant's original application to have the adjudication annulled was properly made to the commissioner under the general jurisdiction conferred upon him by the Act of Parliament, and that it was not until he had adjudicated upon that application of Mr. Bean that a case for appeal arose. So far as Mr. Bean is concerned, from the moment when Mr. Bean's application to the commissioner was rejected,

Ex parte Boulton, 1 De G. & J. 163, 168.

and not before, it became a case for an appeal. He has appealed within twenty-one days after the decision. That is the way in which we view the case.

The Lord Justice Lord CRANWORTH Concurred.

The adjudication was accordingly annulled.

* 491

1

*Ex parte GEORGE RIMELL.

In the Matter of JOHN WILLIAM COWLES BREWER, a Bankrupt.

1852. March 28. Before the LORDS JUSTICES.

A creditor is not entitled to inspect the proceedings for the purpose of enabling him to impeach the validity of the adjudication.

THIS was a petition of appeal presented by a creditor against the refusal of the District Court of Bankruptcy for the Bristol District, to allow the petitioner to inspect the proceedings.

The decision was that of the registrar sitting for the commissioner, and the grounds of it appear from the following memorandum upon the proceedings:

"Memorandum: That Mr. Wilkes, having this day applied to me for an order to permit him, as attorney for George Rimell, a creditor, who has proved his debt under the petition for adjudication of bankruptcy against the said bankrupt, to have inspection at all reasonable times, or at such times, as the Court shall direct, of the affidavit of the petitioning creditor, the proofs of the act of bankruptcy and the other proofs filed in court on which the adjudication was made; and Mr. Abbot, solicitor to the assignees of the said bankrupt, having requested Mr. Wilkes to state what was the object of the application, and I having required him so to do, and having referred him to a memorandum of a similar application on behalf of a different creditor made to Mr. Commissioner Hill, at his sitting on the 10th day of February instant, and to which