Re Bartholomew Courtney, a Bankrupt

• Jurisdiction: Ireland
• Judgment Date: 14 February 1861
• Date: 14 February 1861
• Court: Court of Bankruptcy and Insolvency (Ireland)

Banktcy., &c.

In re BARTHOLOMEW COURTNEY, a Bankrupt.

Ex parte CassidyUNK 2 Rose, 217.

Ex parte Lee 2 M. & Ayr. 217.

Walker's caseUNK 1 Gl. & J. 371.

Ex parte BlackstoneENR 7 B. & C. 674.

Ex parte Fitzhenry Mol. 35.

Ex parte OliverUNK 1 Rose, 407.

Miller v. Seare 2 W. Bl. 1149.

In re WardUNK 1 Bail Ct. Rep. 126; S. C., 10 Jur. 433.

Ex parte Ramsden 1 Bail Ct. Rep. 133.

Ex parte WardENR 6 m. & W. 642.

Ex parte Martin 2 Bail Ct. Rep. 33.

Ex parte HickieUNK 10 Ir. Eq. Rep. 432.

Ex parte Downing 8 Ir. Law Rep. 492.

Ex parte BradburyUNK 18 Jur. 189.

In re LordENR 16 M. & W. 462.

In re NolanENR 6 T. R. 119.

Langhorne's case 2 W. Bl. 918.

Ex parte CassidyUNK 2 Rose, 217.

Ex parte Leggge 1 Low. & M., B. C., 163.

Ex parte OliverUNK 1 Rose, 413.

Ex parte Caulfield 5 Ir. Law Rep. 358.

Ex parte NolanENR 6 T. R. 118.

Ex parte Miller 3 Wil, 420.

Ex parte Langhorne 2 W. Bl. 919.

410 CHANCERY REPORTS. 1861. Banktcy., In re BARTHOLOMEW COURTNEY, a Bankrupt.* Feb. 13 14. It is not necesÂsary that the warrant comÂmitting a bankrupt for unsatisfactory answering should state that the quesÂtions were put by the Judge, or that such should have IN this case the bankrupt had been committed for unsatisfactory answering, relative to his property, on the 3rd of February. A writ of habeas corpus having issued, he was, on this day, brought up pursuant to the writ. The facts of the case appear sufficiently from the several judgments.-[For the judgment of BERWICK, J., see note.] Mr. D. C. Heron, with him Mr. Levy, for the bankrupt, cited been the fact. Ex parte Cassidy (a); Ex parte Lee (b); Walker's case (c); Ex The words "by and before parte Blackstone (d); Ex parte Fitzhenry (e) ; Ex parte Oliver CD ; me," at the commence- Miller v. Scare (g); In re Ward (h); Ex parte Ramsden (i); went of the Ex parte Ward (k); Ex parte Martin (l). deposition, are sufficient. In order to discharge the Mr. Kernan, in support of the committal, cited .Ex parte bankrupt, the Court before Hickie (m); Ex parte Downing (n). which he is brought on habeas corpus must be fully Mr. Levy, in reply, cited Ex parte Bradbury (o); In re satisfied that Lord (p); In re Nolan (q); Langhorne's case (r). the Judge be- low was wrong in committing him. The question to be decided in each else is, whether the answers of the bankrupt are such as would satisfy the mind of a reasonable man. (a). 2 Rose, 217. (b) 2 M. & Ayr. 217. (c) 1 Gl. & J. 371. (d) 7 B. & C. 674. (e) Mol. 35. (f) 1 Rose, 407. (g) 2 W. EL 1149. (h) 1 Bail Ct. Rep. 126; S. C., 10 Jur. 433. (i) 1 Bail Ct. Rep. 133. (k) 6 M. & W. 642. (1) 2 Bail Ct. Rep. 33. (m) 10 Ir. Eq. Rep. 432. (a) 8 Ir. Law Rep. 492. (o) 18 Jur. 189. (p) 16 M. & W. 462. (q) 6 T. R. 119. (r) 2 W. El. 918. * Coram FITZGERALD, J., in the Queen's Bench Chamber. CHANCERY REPORTS. 411 FITZGERALD, J. 1861. Banktcy., In this case, in which a writ of habeas corpus had been issued on In re a former day, an application has been made to me, on the return of COURTNEY. that writ, to discharge the bankrupt, Bartholomew Courtney, who Judgment. has been committed under an order from the Court of Bankruptcy and Insolvency, for unsatisfactory answering, on two several days, before Judge BERWICK in that Court. An objection has been made, in the first instance, which, if well founded, I should consider a substantial objection ; namely, that it appears from the depositions in respect of which this committal has been made, and which I am to consider as incorporated with the. warrant, that the questions, upon the answers to which the comÂmittal was founded, were not put by the Judge of the Bankrupt Court ; and it has been argued that it is absolutely necessary that they should have been so put. In support of this proposition the ease of Ex parte Cassidy (a) has been cited ; but, as I intimated in the course of the argument, I do not consider that case as at all ruling such a point ; and I should certainly require express authorÂity for holding such to be the law. I have been unable to find any such authority, nor have I found in the text-books or in the Act of Parliament any foundation for such a proposition. Such a rule may have prevailed when commissions of bankruptcy were ' carried into operation by officers whose duty was merely minisÂterial ; but now the Legislature has thought fit to alter that, and the Judges of the Court of Bankruptcy are Judges of a Court of Record, with the fullest powers of such a Court ; and the objection made is, that it does not appear that the Judge, with his own mouth, put these questions to the bankrupt. However, I am relieved from any difficulty, for, on looking at the deposition itself, I find it comÂmences, " Bartholomew Courtney, the bankrupt in this matter, being sworn and examined, the day and year and at the place first mentioned, by and before me ; " and this is the language of the Court itself, the depositions being signed by the Judge. The greater number of the questions were, of course, put by Counsel, as is absolutely necessary for the ends of justice, the Counsel (a) 2 Rose, 217. 412 CHANCERY REPORTS. being conversant with, and the Judge ignorant of, the facts of the case, and the Judge merely interposed where he thought it necesÂsary ; and I find the concluding question in these depositions, covering the whole of them in fact, is put by the Judge, " Have - you no other or fuller explanation to give of the loss of that £600, between the 1st of October and the 7th of December, mentioned in your special balance-sheet, than what you have already given ? " This being the state of the depositions, I should be prepared to hold that every question in them was put " by the Court," if such a ruling were necessary ; but I do not hold it to be so. But it is further contended that, this person being committed under section 388, for unsatisfactory answering, his answers, looking at the whole deposition, are satisfactory, and that I should, therefore, discharge him. It will be well to see what is exactly the question which I have to determine here ; and it is conveniently laid down in the case of Ex parte Legge (a). Coleridge, J., in page 170, says, " Without going the length of saying that the Commissioner would have been wrong in coming to a different conclusion, I think it sufficient that I do not see that he was wrong in deciding as he did ; and I, thereÂfore, think that this rule must be discharged." The question is not whether, if I were originally hearing the examination of this bankrupt, in the Court of Bankruptcy, I might not have come to a different conclusion ; but whether I am now satisfied that the Judge was wrong in coming to the conclusion he has arrived at ? The rule in the above case is substantially taken from the language of the Lord...