Page:The English Reports v1 1900.pdf/761

On the other side it was said (D. Ryder, N. Fazakerley), that the facts on which the present question turns, stand thus: The appellants have charged by their bill, that John Ward was a bankrupt before the making of any of the deeds therein stated, the first of which are dated in the year 1720; and they have proved, by Joseph Savage, whose deposition was read, the he denied Ward to several of his creditors in the year 1726, by his express order, which was unquestionably an act of bankruptcy; they also proved, that Ward caused himself to be denied to several of his creditors in 1730, and in the intermediate time between these two acts, became debtor to Surtees, on whose application alone the commission of bankruptcy issued. The question therefore is, Whether this commission, thus issued, can be maintained? If it cannot, then the bill is clearly improper, and the order for dismissing it right; but if the commission can be maintained, then the appellants will have a right to proceed. On the part of the respondents however it must be contended, that the commission is not maintainable; for no commission can issue, but upon the petition of some person, who has by few a right to sue for it; and every commission issuing otherwise, and all the proceedings under it, are illegal and void. None have a right to sue out a commission but creditors, and such creditors only who can be intended to be defrauded by the bankruptcy; but this cannot be the case of those who do not become creditors till after the act of bankruptcy is com-[543]-mitted, unless a man can abscond to avoid creditors when he has none. Besides, those who become creditors after the bankruptcy committed, cannot be admitted to prove their debts, or receive a dividend with the rest under the commission issued; and it would be an absurdity to allow a man to be a petitioning creditor, and yet not capable of relief under the commission he applies for. Now though John Ward did cause himself to be denied in the year 1730, to a creditor, after the debt contracted to Mr. Surtees, yet this was apprehended to be wholly immaterial; since he became a bankrupt by the first act, which over-reached all intermediate transactions between that and the time of the commission; and as be continued a bankrupt to the time of his second denial of himself in 1730, this could not make him more a bankrupt than he was before, or prevent his estate from vesting in legal assignees, as from the time of the first absconding. But the appellants were so far from making that to be their case by their bill, that they carried the act of bankruptcy so far back as the year 1725, and proved it on purpose to destroy the intermediate deeds and settlement, under which the respondents claimed as purchasers on a marriage contract. It was therefore hoped, that the appeal would be dismissed with costs.

After bearing counsel on this appeal, the following question was put to the Judges, who attended according to order, viz. "Whether the commission of bankruptcy issued on the 20th of November 1730, against John Ward, on the petition of George Surtees, was good and valid in law?" And the Judges having delivered their unanimous opinion in the affirmative, it was ordered and adjudged, that the decree of dismission should be reversed; and that the Court of Chancery should proceed to hear the cause upon the merits, according to the course of that Court.^[1] (Jour. vol. 25. p. 174–176.)