Kav, Assignee of Sherwin, v Goodwin

JurisdictionEngland & Wales
Judgment Date18 May 1830
Date18 May 1830
CourtCourt of Common Pleas

English Reports Citation: 130 E.R. 1403

IN THE COURT OF COMMON PLEAS, AND OTHER COURTS

Kav, Assignee of Sherwin, V. Goodwin

S. C. 4 Moo. & P. 341; 8 L J. C. P. (O. S.) 212. Discussed, Attorney General V. Lampleigh, 1878, 3 Ex. D. 217.

[576] kay, Assignee of Sherwin, v. goodwin. May 18, 1830. [S. 0. 4 Moo. & P. 341 ; 8 L. J. C. P. (0. S.) 212. Discussed, Attorney-General v. Lampleigh, 1878, 3 Ex. D. 217.] The proceedings under a commission of bankruptcy sued out in 1822, were not enrolled till after the repeal of the 5 G. 2, c. 30, in 1825 : Held, that they were not admissible in evidence, the 6 G. 4, c. 16, not applying to the enrolment of proceedings under commissions anterior to the act. Sherwin became bankrupt, and a commission was issued against him in 1822, when a deposition of one Button, proving an act of bankruptcy, was made before the commissioners. Button died about three weeks afterwards. Subsequently to the passing of the 6 G. 4, c. 16, and the repeal of 5 G. 2, c. 30, Button's deposition was enrolled in the way prescribed by the 5 G. 2, c. 30, and in the way prescribed by 6 G. 4, e. 16. Being offered in evidence, in support of the Plaintiff's case, on the trial of the above cause, it was objected that it had never been duly enrolled, and ought not to be received. The 5 G. 2, c. 30, having been repealed at the time the document was carried in, there could be no enrolment under that statute ; and the 6 G. 4, c. 16, s. 95, applied only to proceedings subsequent to the passing of the act. A verdict having been found for the Defendant, Taddy Serjt. obtained a rule nisi for a new trial, on the ground that the deposition ought to have been admitted in evidence, either under the ninety-fifth or ninety-second sections of 6 G, 4, c. 16. Adams Serjt. shewed cause. By the ninety-fifth section of 6 G. 4 it is enacted, " That all things done pursuant to the act passed in the fifth year of king George II., and hereby repealed, whereby it was enacted that the Lord Chancellor should appoint a place where [B77] all matters relating to commissioners of bankruptcy should be entered of record, and should appoint a person to have the custody thereof, be hereby confirmed : and the Lord Chancellor shall be at liberty, from time to time, by writing under hia hand, to appoint a proper person who shall, by himself or his deputy, (to be approved by the said Lord Chancellor,) enter of record all matters relating to commissions, arid have the custody of the entries thereof : " And by s. 96, " That, in all commissions issued after the act shall have taken effect, no commission of bankruptcy, adjudication of bankruptcy by the commissioners, or assignment of the personal estate of the bankrupt, or certificate of conformity, shall be received in evidence in any court of law or equity, unless the same shall have been first so entered of record as aforesaid." The enrolment of Button's deposition not having taken place till after the repeal of 5 G. 2, c. 30, it cannot be confirmed, under s. 95 above, as a thing done pursuant to that act ; and the enrolment, under s. 96, is of no avail, Sherwin's commission having issued long before the 6 G. 4 took effect, while the clause is confined in its oparation to commissions issued after. By s. 92 of that statute, it is enacted, "That, if the bankrupt shall not (if he was within the United Kingdom at the issuing of the commission), within two calendar months after the adjudication, or (if he was out of the United Kingdom,) within twelve calendar mouths after the adjudication, have given notice of his intention to dispute the commission, and have proceeded therein with due diligence, the depositions taken before the commissioners at the time of, or previous to, the adjudication of the petitioning creditors' debt or debts, of the trading and act or acts of bankruptcy, shall be conclusive evidence of the matters therein respectively contained in all actions at law, or suits in equity, brought by the [578] assignees for any debt or demand for which the bankrupt might have sustained any action or suit." 1404 KAY V. GOODWIN 6 BIHO. 879- But the Court will not give a retrospective operation to this section. Under the 5 G. 2, c. 30, the proceedings of bankruptcy were recorded, like depositions taken before magistrates, merely for the purpose of preserving testimony; and when produced they were open to the same observations as any other evidence: but, under the new statute...

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