in reply. Where a party has an objection of form to a petition, he should come prepared also to argue the matter of the petition upon the merits, in case the objection be overruled; and the court in such a case will allow the petition to stand over, only upon payment of the costs of the day by the party causing the delay (g); and when called on for hearing, it is no objection to the respondent's right to have the petition referred for impertinence that on a former occasion he had taken and succeeded in a formal objection to the petition (h). But the pendency of a petition before the Lord Chancellor to annul a fiat is not sufficient to induce the Court of Review to decline hearing a petition on a collateral matter under the same fiat (i); and the pendency of a petition to annul a separate fiat in favour of a joint fiat is no objection to the hearing an application to appropriate funds under the separate fiat (k). Where the assignees are chosen after the bankrupt has presented a petition to annul, the petition may be heard without a supplemental petition if the assignees have been served (1). The bankrupt cannot be heard on a question of proof, as his estate is represented by the assignees; but if served, he is entitled to ask for his costs (m).

The court judges of the case from the affidavits and evidence, and (in the case of a petition to annul) from an inspection of the proceedings. And therefore, upon the hearing of a petition to annul a fiat, the file of the proceedings should be in court, in order that they may be referred to, if necessary. But although the petitioning creditor's debt, trading, and act of bankruptcy, appear on the face of the proceedings to be fully established, yet, if the court be satisfied of their insufficiency by affidavit, it will annul the fiat, even without an issue (n). On the other hand, where the bankrupt petitions to annul upon an affidavit of there having been no act of bankruptcy, the court, although there be no affidavit in answer, or there have been no notice that the proceedings would be produced, will look into the proceedings to ascertain the sufficiency of the act of bankruptcy (0).

After hearing the counsel on both sides, the court either makes an order, or directs an issue; or, where the case requires it, an examination vivâ voce (see ante, p. 366); or the court directs an inquiry upon a reference, reserving further directions. On a petition of the bankrupt to annul for want of the requisites of the fiat, it lies on the respondents to prove the affirmative (p); and the assignees may rely upon the depositions in the proceedings, and, in strictness, even without giving the bankrupt notice, or allowing him to see them, though the court will not enforce this rule against a bankrupt petitioning bonâ fide to annul, but will allow him to answer the depositions (q); and if the assignees rely

(g) Ex p. Bellott, 2 Mad. 261.
(h) Ex p. Cunningham, Mon. & M'A.

193.

(i) Ex p. Higgs, 3 Dea. 474; Mon. & C. 94.

(k) In re Haddon, Mon. & C. 42.
(1) Er p. Ansten, 1 M., D. & D. 247.
(m) Ex p. Fairman. 3 Dea. 467; Mon.

& C. 125.

(n) Ex p.Gallimore, 2 Rose, 235. (0) Ex p. Vypond, 1 Mad. 624. (p) Ex p. Welden, 3 Dea. 240; 3 Mon. & A. 493.

(q) Er p. Foster, 3 Dea. 175; 3 Mon. & A. 592.

on the depositions upon the proceedings, and they are insufficient, the fiat is annulled: and if sufficient, then the bankrupt is entitled to an opportunity of controverting the statements therein (r). If the affidavits are contradictory, the court will offer an examination vivâ voce, or an issue; but if taken by the bankrupt, it must be under his liability for costs (s). If the objection is to the petitioning creditor's debt, and the bankrupt swears the debt is not due, this is sufficient to put the respondents upon proof; but if the existence of the debt, two years before, is proved, it is on the bankrupt to prove it has been paid (t). A petitioner attending the hearing of a petition is privileged from arrest; and where the petitioner is a married woman, her husband accompanying his wife to attend the hearing of her petition, is in like manner privileged eundo and redeundo (u).

Reference.] When the court orders a reference, it was formerly either to one of the commissioners, or to one of the masters of the Court of Chancery; but the practice now is, for one of the judges of the Court of Review to take the references which formerly were made to the masters (x); and by General Order of the Court of Review, March 19, 1832, all matters referred by this court to any judge or commissioner of the Court of Bankruptcy, such judge or commissioner may in his report state such special circumstances as he shall think fit, without being specially directed so to do: in the case of a reference or an issue, the further consideration of the petition by the court is suspended, until the report is made, or the issue have been tried, and then an order is made. Where the matter is referred, the affidavits already filed, which might have been read at the hearing, may be used upon the reference (y). In proceeding on a reference to the registrar, a party is not bound to bring in a state of facts unless it is required by the registrar (z). A statement of facts before the registrar cannot be amended; the report must be made (a). When further directions have been reserved, the petition can be set down again for hearing by application at the registrar's office (b).

Issue.] By 1 & 2 Will. 4, c. 56, s. 4, it shall be lawful for the said Court of Review to direct any issue of fact arising therein to be tried by a jury before one of the judges thereof, or before a judge of assize, and to issue process to compel the attendance of jurors and witnesses, and to enforce the orders and decrees of the said Court of Review, and to that end to exercise all the powers vested for such purposes in any of his Majesty's courts of record at Westminster; also, by sect. 17, in case the bankrupt disputes the adjudication in manner therein mentioned, (see p. 22, ante), the Court of Review, at the option of the bankrupt, and on his finding

(r) Ex p. Field, 3 Dea. 24; 3 Mon. & A. 375.

(8) Er p. Bunn, 3 Dea. 120.
(t) Er p. M'Intosh, 2 Dea. 35.
(u) Er p. Britten, 1 M., D. & D. 278.
(x) Ex p. Jeffrey, 1 Dea. & C. 206.

(y) Er p. Smythies, 4 Dea. 110.

(z) Ex p. Jackson, 1 Rose, 45: Er p. Smythies, 4 Dea. 113.

(a) In re Turner, Mon. & C. 73.
(b) Ex p. Cooper, 3 Mon. & A. 1.

security for costs, shall direct an issue to try any matter of fact affecting the validity of such adjudication by a jury to be duly impannelled and sworn for that purpose before the chief judge, or any one or more of the other judges of the Court of Bankruptcy; also, by sect. 30, in case, before the said commissioner or Subdivi sion Court, both parties, the assignees or the major part of them, and the creditor, consent to have the validity of any debt in dispute tried by a jury, an issue shall be prepared under the direction of the said commissioner or Subdivision Court, and sent for trial before the chief judge or one or more of the other judges; and if one party alone applies for such issue, the said commissioner or Subdivision Court shall decide whether or not such trial shall be had, subject to an appeal as to such decision to the Court of Review. And by sect. 33, after any issue, by this act authorized, shall be tried, a new 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 1 & 2 Will. 4, c. 56. Upon a doubt on a point of law, the court may send a case for the opinion of a court of law (c); 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 (d). Sometimes, instead of an issue, the court will direct an inquiry as to the trading and petitioning creditor's debt (e), or as to the sale or disposition of the property. (See p. 264, 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 (ƒ); 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 (g). 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 (h). 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 (i). 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 (k). 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

(c) See Er p. Cottrell, Cowp. 742. (d) See Erp. Gulston, 1 Atk. 139. (e) Ex p. Hudson, 2 Russ. 456: see infra

(f) See Er p. Williamson, Buck, 546: Er p. Billiard, Id. 220.

(g) Ex p. Heygate, Buck, 441: see Er

p. Trustrum, Buck, 550.

(h) Er p. Gallimore, 1 Mad. 67: Er p. Gulston, 1 Atk. 193: Er p. Wilson, Id. 217.

(i) Ex p. Burgess, Buck, 233.
(k) Ex p. Gallimore, 2 Rose, 231.

criminal charge would necessarily form the subject of the issue, if directed (1). If the bankrupt dispute the validity of the fiat by an action at law, it is at the peril of costs in case he fail; but if he fail in an issue directed upon his petition, he does not pay costs; the court, therefore, in some cases, will refuse to direct an issue on the petition of the bankrupt to annul, but leave him to his action (m): the bankrupt can at any time bring an action to try its validity, and, if he succeed, may apply by petition, and the fiat will be annulled as of course (n); but in cases of doubt as to the requisites of the fiat, the court, even upon the petition of the bankrupt to annul, will direct an issue or inquiry (o). 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 further consideration of it until the event of the trial at law be known (p).

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. (q); 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 (r). In the mean time, 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 (s). Where the court orders a trial at law upon two issues, there need be but one record and one trial (t). 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 (u).

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 (x). 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 (y). 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 (z). 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 (a).

(1) Ex p. Scott, Buck, 275.

(m) Ex p. Billiard, Buck, 220: Er p. Nutt, 1 Atk. 102.

(n) Ex p. Dick, 1 Rose, 51: Ex p. Marks, 1 Glyn & J. 70.

(0) Ex p. Collins, 1 Rose, 373: Ex p. Gulston, 1 Atk. 193.

(p) Ex p. Price, Buck, 230; 3 Mad. 228.

(q) See Ex p. Carter, 1 Glyn & J. 326. (r) See Ex p. Williamson, Buck, 420: Er p. Carter, supra.

(s) Ex p. Ranken, 3 Mad. 371: Ex p. Window, 2 Glyn & J. 280.

(t) Ex p. Fisher, 1 M., D. & D. 209. (u) Ex p. Chambers, 1 Dea. 197.

(x) See Ex p. Prosser, Buck, 77: Er p. Bryant, 2 Rose, 1: Ex p. Dick, 1 Rose, 51.

(y) Er p. Caponhurst, Buck, 476. (2) Ex p. Church, 2 Dea. 72: S. C., Ex p. Chuck, 5 Mon. & A. 15. (a) Ex p. Christie, 2 Dea. & C. 461.

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 (b). And minutes cannot be varied after the order is drawn up, and although drawn up after notice of motion to vary the minutes (c); no minutes are drawn up of an order to dismiss a petition with costs (d): and the court will not vary the minutes of an order which has been made more than three months; the petition must be reheard (e). 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 (ƒ). 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 revivor (g). An order irregularly obtained cannot be set aside on motion; a petition is necessary (h).

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. If the order 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 upon affidavit of demand and non-payment (i); and a demand must be made for payment under this order, or the order for commitment thereon will be irregular (k). 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 (1). If the order for payment has been made on two persons jointly, the four-day order will not be made against one unless the other also has been brought into contempt (m). But if it appear that the party keeps

(b) See Er p. Vittery, Mon. & M'A. 455.

(c) Ex p. Bell, 1 Dea. 690; 2 Mon. & A. 578.

(d) Er p. Sidebotham, 3 Dea. 221; 3 Mon. & A. 495.

(e) Ex p. Wilson, 4 Dea. & C. 156. (f) Ex p. Soper, 4 Dea. & C. 275; 2 Mon. & A. 58: Er p. Dolly, 3 Dea. 51. (g) Ex p. Evans, 3 Dea. 381; 1 Mon.