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1843.

Ex parte Thomas WRIGHT.-In the matter of THOMAS

WRIGHT, Richard Burgess, and Ralph Taylor. May 31. 1. The Com. This was the petition of one of the bankrupts to have missioner has power to dis.

the fiat annulled, on the following, among other grounds; pense with the attendance that at the opening of the fiat, the attendance of the petiof the petition ing creditor at tioning creditor had been dispensed with, without an the opening of Order of the Court, and that the affidavit of debt was 2. The cir

sworn before the solicitor to the petitioning creditor. cumstance that the affidavit of debt was sworn before the soli. Mr. Bacon, in support of the petition. citor to the petitioning creditor, held not suffi. cient ground for Mr. Lovat, for the other bankrupts. annulling the fiat; but it is an improper practice, and, if it

Mr. Swanston, for the assignees, referred to in re become general, may be hereafter Elford (a). considered suf. ficient ground.

Vice-CHANCELLOR KNIGHT BRUCE, C. J.-As far as the objections to the fiat are legal, I shall leave the petitioner to sustain them at law. But, with regard to the petitioning creditor not having been present at the adjudication, the 12th of the new Orders (6) seems either to recognize a power in the Commissioner to dispense with the attendance nf the petitioning creditor, or to confer, although impliedly and indirectly, such a power, if it did not previously exist. And I must conclude that special cause was shown, to the satisfaction of the Commissioner, for the course which he has taken.

The objection, that the affidavit was sworn before the solicitor to the petitioning creditor, is not one, to which the Court is bound to accede, nor one to which I shall

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1843.

Ex parte

accede, in the present case. It is an objection, however, for which the Court might in its discretion direct the whole of the proceedings to be annulled; and if the practice should become frequent, the Court will perhaps consider that circumstance a sufficient cause for annulling the fiat.

WRIGHT.

Petition dismissed; costs of all parties out of the

estate, and petitioner to be at liberty to bring an
action, if so advised.

Ex parte East.—In the matter of East.

Lincoln's Inn,

June 26. This was the bankrupt's petition for the allowance of The Court de

clined allowing bis certificate. Notice had been given in the Gazette of the certificate of two public meetings for the bankrupt to surrender and had passed his

a bankrupt, who conform, the last of which meetings was appointed for before the 42nd

last examination the 42nd day, after the giving of such notice. At the day, and or

dered another first of these meetings the bankrupt finished his exami- day to be adver

lized for his last nation. An advertisement for the allowance of the certi- examination. ficate on the 6th of December, was inserted in the Gazette on the 15th of November.

On applying at the bankrupt office after the 6th of December, the bankrupt's solicitor was informed that the certificate was defective, as it stated that the bankrupt passed his last examination on the first of the meetings, instead of the second. The prayer was, that the certificate might be allowed, or that the Court would direct the Commissioners to appoint a time and place for taking the bankrupt's last examination, and that the same might be duly advertized.

Mr. Swanston, in support of the petition.

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1843.

Ex parte

EAST.

Vice-CHANCELLOR KNIGHT BRUCE, C. J.-I do not at present doubt, though I give no judicial opinion on the subject, that, in point of form, the bankrupt might pass his last examination before the 42nd day. But the substantial difficulty is, that some creditors, who might intend to oppose the bankrupt's passing, might wait till the 42nd day. It will be to the bankrupt's advantage, that the proceedings should be clearly regular. Let another day be appointed.

Ex parte FroggATT.-- In the matter of Hugh Parker, Lincoln's Inn,

OFFLEY SHORE, JOHN BREwIn, and John RODGERS. June 28. Where short THE bankrupts were bankers at Sheffield, and this was bills had been deposited with the petition of a person who had deposited with them a country bankers, and had been by bill of exchange, praying for payment in full of the them indorsed to their agents in amount. The bill, which was dated Madras, October London, who had a lien upon 19th, 1842, and was drawn upon Messrs. Fletcher, them for ad.

Alexander & Co., London, payable at thirty days' sight, vances to the country bankers: had been remitted to the petitioner, indorsed to his Held, on the bankruptcy of order. On the 12th of December 1842, the petitioner, the country bankers, that the who was not a customer of the bankrupts, inquired at proceeds of the bills, after satis, their banking-house how he was to procure payment of fying the lien of the London the bill, and was informed by a clerk, that the bill must bankers, ought to be distributed be sent up to London, and remain there till it was paid; rateably among the depositors of and the clerk then told the petitioner to indorse the bill, the short bills.

and to call again on the 16th of January at the bank, when he might expect to receive the amount of the bill. The bankrupts made no advance on the bill, but indorsed it specially to their London agents, in whose possession it was at the time of the bankruptcy. The fiat issued

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1843.

on the 16th of January, and the amount of the bill was received by the London agents on the 18th, and was placed by them to the bankrupts' credit.

Ex parte FROGGATT.

Mr. Smale, in support of the petition, cited Ex parte Armistead (a), and Ex parte Atkins (b).

Mr. Bigg, for the assignees, cited Collins v. Martin(c), and Ex parte Pease (d).

VICE-CHANCELLOR KNIGHT BRUCE, C. J.-I have always considered it plainly settled, that, when a country banker sends bills to his London agent, indorsed generally to receive payment of them, those bills, on the bankruptcy of the country banker, are not lost to the owners of them, although the London banker has usually a lien for the balance due to him from the country banker. It has long been settled, that, if the parties entitled to the bills come in and make application here, that species of equity can be administered in bankruptcy; and it does not lie with the assignees to object. There must be an account of how much is due, in respect of the lien of the London bankers, and how many other bill-holders there are in a similar situation with the petitioner; and, after satisfaction of the lien out of the proceeds of the bills, the residue must be distributed rateably among the bill-holders, without any preference of one over another.

ORDERED accordingly.

(a) 2 G. & J. 371.
(c) 1 B. & P. 648.

(b) See ante, p. 103
(d) 19 Ves. 25; 1 Rose, 242.

under very

an estate had

1843.

Ex parte Joseph Bowker and James WHITELEGG.-
Lincoln's Inn,
July 1 and 15, In the matter of Richard POTTER, John POTTER,

before the
Lord Chan- and James Potter.

cellor. The appoint. The fiat in this case issued before the passing of the ment of an offi. cial assignee is act 5 & 6 Vict. c. 122, and, after the passing of that act a matter pecu. liarly within the was transferred to the District Court of Manchester. discretion of the Commissioner, This was a petition to the Lord Chancellor, presented by with which the Lord Chan- the creditors' assignees, who had been chosen before the cellor will not interfere, unless passing of the act(a), praying that no official assignee might strong circum- be appointed of the bankrupts' estate. The bankrupts stances. Therefore, althoughi passed their last examination on November 220, 1841, been nearly

whenitappeared that the debts amounted to 34,6031. 1s.9d., wound up, be- and the liabilities to 53771. Os. 3d. The assets, besides fore the passing of the 5 & 6 the outstanding debts due to the bankrupts, amounted Vict. c. 122, and it was stated that to 20961. 4s. 1d., and consisted of stock in trade and all that remaia

to be got in machinery, which had been seized under an execution. consisted of the damages re- No dividend had been declared, nearly the whole of the covered in an action by the

assets having been expended in the prosecution of procreditors' assig. nees, who had ceedings on the part of the assignees to dispute the expended large validity of the execution. The result of the proceedings pocket in the

was a verdict for the assignees, with 23401. damages, prosecution of the action, the which were ordered to be invested in exchequer bills, Lord Chancellor refused to di. and constituted nearly the whole of the assets for disrect that no official assignee tribution among the creditors. should be appointed.

The petitioners stated, that they had incurred great personal liability in the proceedings, and had paid large sums out of their own monies, the funds in hand being altogether insufficient for the prosecution of the proceedings.

It was stated to be the invariable practice of the Manchester District Court of Bankruptcy to appoint an official assignee, under every fiat transferred and removed

(a) 5 & 6 Vict. c. 122. s. 53. See Appendix, p. xxii.

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