1842. BRANCKER v. order made by the lord chancellor under the section in question, whereby, after reciting a petition to him by M., he ordered, that, if the commissioners should MOLYNEUX. be satisfied that M. had proved, under the commission against the bankrupt, a debt sufficient to support the commission, contracted not anterior to the petitioning creditor's debt, the petition should be proceeded in. That order was held to be invalid, inasmuch as it did not find, or call upon the commissioners to find, that the original petitioning creditor's debt was insufficient. That fact, however, is found in the present order. The decision in that case shews what the chancellor considered to be the proper construction of the act. He thought the debt must be proved to his satisfaction. A party may be entitled to prove a debt against the estate, when he could not support a fiat. In Aireton v. Davis (a), although the question came before the court, there was no decision upon that point. [Erskine J. "Having proved," must mean "having proved before the application is made."] It means having proved a debt before the commissioner to the satisfaction of the chancellor. [Tindal C. J. It means having proved a debt of 100l. Erskine J. It may be a legal debt, or an equitable debt.] In Christie v. Unwin (b) it was certainly held, that it must appear on the face of the order, that the creditor applying to have his debt substituted for that of the petitioning creditor, had proved a sufficient debt before making the application. But in that case, the order of the lord chancellor did not, in any way, shew that the debt proposed to be substituted had been proved; but the present order does; for it states that it appears "to the court that the debt of the said petitioners proved by them under the fiat, or so much thereof as is sufficient to support such fiat, was incurred (a) 9 Bingh. 740., 3 Moo. & Scott, 138. (b) 11 A. & E. 373., 3 P.§ D. 204, 1842. BRANCKER v. not anterior to the said debt of the said Thomas Roberts (the petitioning creditor), and is an existing and sufficient debt to support the fiat." (a) [Erskine J. It was formerly usual to recite the whole of the petition in MOLYNEUX. the order of substitution; but it was ordered by the court of Review (b)" that it shall not be necessary to recite such petitions at length in any order pronounced by the court thereon."] It will be sufficient if every material fact appears in the petition as recited; the petition in this case, as recited in the order, states "that the petitioners had duly proved a debt under the fiat, and were creditors of the bankrupts for the sum &c.," so that the debt must have been proved before the petition was presented. [Erskine J. The order merely recites that the petitioners so state in their petition; it does not even recite the fact itself, still less adjudicate it.] Every thing that is necessary to give jurisdiction to the court appears on the face of the order. [Erskine J. The objection is, not to the jurisdiction, but that the order does not shew an adjudication, by the court, that the debt had been proved, as required by the statute. Coltman J. It is like an order of removal under the poor-law, which must contain an adjudication that the pauper had become actually chargeable.] (c) But, generally speaking, the court will intend that the justices have done right, if the contrary does not appear on the face of their order; as in Rex v. Cornish (d), where an order of justices directing A. to pay the churchwardens and overseers of the poor of a (a) An order of the same form as in this case was set out in the replication in Byers v. Southwell, 6 New Cases, 39., and the replication was held sufficient, on demurrer. (b) General rules and orders for regulating the practice of the court of Bankruptcy. R.30. (c) See Stallingburgh_v. (d) 2 B. & Ad. 498. 1842. BRANCKER V. parish a weekly sum for the maintenance of B. and C., his grandsons, as long as they should be chargeable to the parish, was held to be sufficient, without stating that the MOLYNEUX. father was unable, absent or dead. (a) In inferior courts it is necessary that the jurisdiction should appear on the face of the proceedings; but that is not so with regard to superior courts, such as the courts of the county palatine of Durham, or of Chester, or the courts of great session in Wales, or the court of Ely; Peacock v. Bell (b), Pigge v. Gardner. (c) [Coltman J. It may make some difference that this is a parliamentary authority, and therefore that it must be shewn to have been properly exercised.] But will the court presume that it has been improperly exercised? The authority of the justices at sessions, with regard to the poor-rates, is derived from statute; but in Rex v. The Aire and Calder Navigation (d), it was held, that they were the proper judges of the equality of poor-rates, and that the court of King's Bench would not interfere, upon the ground of the rates being unequal, unless the inequality were manifestly apparent on the rate. In this case it may surely be presumed that the court of Review would not have made the order, without proof of the matters set forth in the petition. Secondly, as to the necessity of notice of the amendment. If the court of Review had thought that the defendant was entitled to such notice, they would have directed it to be given to him. It will hardly be contended that every debtor to the estate was to receive notice; and the defendant was not more entitled to receive it than any other debtor; for the pendency of the action would make no difference, the original order (a) See Regina v. Read, 1 P. & D. 413. (b) 1 Wms. Saund. 73., 1 Siderf. 330., 2 Keb. 182. 226. (c) 1 Lev. 208. 1842. BRANCKER v. having been made before the action was commenced. This court will not entertain any question as to the propriety of the amendment made by the court of Review, or as to the practice of that court with regard to what MOLYNEUX. notice thereof should be given; any more than a court of error will inquire into the propriety of rules made by the court below for amending the pleadings, striking out pleas, or the like. Gully v. The Bishop of Exeter. (a) Thirdly, the order, as amended, must be taken to speak from its original date, and not from the date of the amendment only. In all cases of amendment, as of a writ of summons, of a declaration, of pleading, by a judge at the trial, of a record after judgment and writ of error, and in various other instances, the amendment would be wholly nugatory if it were only to operate from the date of such amendment. Where a correct memorial of an annuity had been inrolled incorrectly, and some years after the officer of the inrolment office discovered and rectified the error before any proceedings were had to vacate the annuity, this court, finding the inrolment right when they called for it, would not inquire when the entry was made; though it was a high misprision in an officer to alter the inrolment without the sanction of the court of Chancery. [Tindal C. J. That was the setting right of a mistake made by the officer.] So, where a fine is amended, it continues to be a fine of the term in which it was originally levied.[ Tindal C. J. Otherwise, the five years and nonclaim would be of no avail.] Here, no amendment of the mandatory part of the order is required. It is a mere formal amendment. In Garrick v. Williams (b) an amendment was allowed after error brought; and the court ordered the transcript to be amended. In trespass, a verdict finding (a) 10 B. & C. 584., 5 M. &R. 457. in the King's Bench. S. C. in Chancery, 5 M. & R. 499. (b) 3 Taunt. 540. See Doe dem. Williams v. Lloyd, antè, Vol. I. p. 671. 1842. BRANCKER v. that the defendant is guilty, means that he is guilty as alleged in the record. So here, "as proved," means as stated in the petition. It means so proved, as it is conMOLYNEUX. tended on the part of the defendant that it ought to be proved. [Tindal C. J. I understand that the objection is, that it is not alleged to be the said debt. Erskine J. I suppose the objection is, that it does not appear that the court has decided. At the trial it was objected that the court had not adopted the statement of the petition.] A judgment in an inferior court does not state that the party was indebted, or that he promised, within the jurisdiction. [Cresswell J. There it is admitted by the pleadings, that the cause of action arose within the jurisdiction. Erskine J. Non assumpsit modo et formâ puts in issue the allegation that the cause of action arose within the jurisdiction; therefore a verdict, quod assumpsit modo et formá, shews that the cause of action arose within the jurisdiction. (a) Tindal C. J. The court by which this order was made, is an inferior court.] Here, this court is placed in the situation of a jury. It was shewn that an affidavit was filed in support of the petition. [Erskine J. It does not appear what the affidavit stated.] The court will take notice of the affidavit, as an affidavit verifying the allegations of the petition which it is filed to support. Channell Serjt. (with whom was Crompton) in support of the rule. The order is clearly bad. The court will look at the order as it stands; for it appears, by decided authorities, that no intendment in favour of its sufficiency will be made. The provisions of the act under which it was made, bear very hardly upon parties who contest a fiat, and ought therefore to be construed with great strictness. The order must shew (a) Vide 1 Wms. Saund. 74 a. |