1843. May 31. 1. The Com. missioner has power to dispense with the attendance of the petition. ing creditor at the opening of the fiat. 2. The circumstance that the affidavit of debt was sworn before the solicitor to the petitioning creditor, held not sufficient ground for annulling the fiat; but it is an improper prac tice, and, if it become general, Ex parte THOMAS WRIGHT.-In the matter of THOMAS WRIGHT, RICHARD BURGESS, and RALPH TAYLOR. THIS was the petition of one of the bankrupts to have the fiat annulled, on the following, among other grounds; that at the opening of the fiat, the attendance of the petitioning creditor had been dispensed with, without an Order of the Court, and that the affidavit of debt was sworn before the solicitor to the petitioning creditor. Mr. Bacon, in support of the petition. Mr. Lovat, for the other bankrupts. Mr. Swanston, for the assignees, referred to In re may be hereafter Elford (a). considered sufficient 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 (b) seems either to recognize a power in the Commissioner to dispense with the attendance of 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 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. Petition dismissed; costs of all parties out of the estate, and petitioner to be at liberty to bring an action, if so advised. 1843. Ex parte WRIGHT. Ex parte EAST.-In the matter of EAST. of THIS was the bankrupt's petition for the allowance Lincoln's Inn, The Court de clined allowing the certificate of a bankrupt, who had passed his last examination before the 42nd dered another At the day, and orfirst of these meetings the bankrupt finished his exami day to be adver tized 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. 1843. Ex parte 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. Lincoln's Inn, Where short bills had been Ex parte FROGGATT.-In the matter of HUGH PARKER, OFFLEY SHORE, JOHN BREWIN, and JOHN RODGErs. THE bankrupts were bankers at Sheffield, and this was the petition of a person who had deposited with them a and had been by bill of exchange, praying for payment in full of the amount. The bill, which was dated Madras, October deposited with country bankers, them indorsed to their agents in London, who them for ad vances to the had a lien upon 19th, 1842, and was drawn upon Messrs. Fletcher, Alexander & Co., London, payable at thirty days' sight, 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, bankers, that the who was not a customer of the bankrupts, inquired at proceeds of the the country bills, after satis- their banking-house how he was to procure payment of fying the lien of the bill, and was informed by a clerk, that the bill must the London 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 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. 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. (a) 2 G. & J. 371. (c) 1 B. & P. 648. ORDERED accordingly. (b) See ante, p. 103 1843. Ex parte FROGGATT. 1843. Lincoln's Inn, July 1 and 15, before the Lord Chancellor. The appoint ment of an offi Ex parte JOSEPH BOWKER and JAMES WHITELEGG.— In the matter of RICHARD POTTER, JOHN POTTer, and JAMES POTTER. THE fiat in this case issued before the passing of the 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 with which the Lord Chan cellor will not under very strong circumstances. There fore, although an estate had been nearly wound up, before the passing of the 5 & 6 Vict. c. 122, and it was stated that Commissioner, This was a petition to the Lord Chancellor, presented by the creditors' assignees, who had been chosen before the interfere, unless passing of the act (a), praying that no official assignee might be appointed of the bankrupts' estate. The bankrupts passed their last examination on November 22d, 1841, when it appeared that the debts amounted to 34,6037. 1s.9d., and the liabilities to 53771. Os. 3d. The assets, besides the outstanding debts due to the bankrupts, amounted to 20961. 4s. 1d., and consisted of stock in trade and machinery, which had been seized under an execution. No dividend had been declared, nearly the whole of the assets having been expended in the prosecution of proceedings on the part of the assignees to dispute the validity of the execution. The result of the proceedings was a verdict for the assignees, with 23401. damages, which were ordered to be invested in exchequer bills, all that remain ed to be got in consisted of the damages re covered in an action by the creditors' assig. nees, who had expended large sums out of pocket in the prosecution of the action, the Lord Chancellor refused to direct that no and constituted nearly the whole of the assets for dis official assignee tribution among the creditors. 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. |