into that Court; and that the remuneration to the official assignee was very burthensome, being 51. per cent. on the first 1007. received, and 211. per cent. on the first 5001., and 11. per cent. on the residue, and a further allowance of 21. on the amount divided among the creditors (a), besides charges for examining accounts, and on the dividend warrants; that, in the present case, these allowances would amount to 4001.; and that as very little remained to be done under the present fiat, it was the opinion of the petitioners and the creditors, that the appointment of an official assignee would be entirely unnecessary, and would be productive only of loss and expense, in addition to that already incurred; and that nearly all the creditors, to the amount of 201. and upwards, who had proved, concurred in this opinion and in the present application. The petition was accompanied by a paper signed by several creditors, testifying their concurrence in the prayer of the petition. Mr. Bacon, in support of the petition. The LORD CHANCELLOR desired the matter to stand over, that he might communicate with the Commissioner on the subject. The matter being again mentioned, The LORD CHANCELLOR declined to make any Order, considering the matter as one peculiarly within the discretion of the Commissioner, with which the Lord Chan (a) This is certainly a most extraordinary scale of remuneration, after the General Order of the 12th January 1832, by which it was settled that the official assignees should be allowed one per cent. on the monies they received, and one and a half per cent. more on the monies actually divided, subject to be increased or diminished under special circumstances to be referred to the Court of Review.-E. E. D. 1843. Ex parte BOWKER and another. July 15. 1843. Ex parte BOWKER and another. cellor would not interfere, unless under very strong circumstances. Mr. Bacon then asked that the costs of the petition, which had not been served on any one, might be allowed out of the estate. The LORD CHANCELLOR allowed them on this occasion, but wished it to be understood that the costs of applications of such a nature would not be allowed in future, except a very strong case were made. Lincoln's Inn, Ex parte BALDWIN.-In the matter of BALDWIN. Where the fiat IN this case, the fiat issued before the passing of the and proceedings were, before the act 5 & 6 Vict. c. 122, and was prosecuted at Worcester. passing of the The proceedings were in the custody of the sole assignee. act 5 & 6 Vict. c. 122, left in the possession of the sole as the Court ordered that the Commissioner should be at liberty to proceed without ing the cer tificate. On the passing of the new act, the fiat was transferred signee, who was to the Birmingham District Court; and, on the 3rd of not to be found; May 1843, the bankrupt applied to the Commissioner, requesting him to call a meeting for the allowance of the certificate; but it appeared that the fiat and proceedthem, in allowings were not forthcoming, having been left in the possession of the sole assignee, who was not to be found. The Commissioner thought that he could not act, without having the fiat and proceedings before him. The bankrupt, therefore, now presented his petition, praying that a meeting might be called, for the purpose of allowing his certificate, and that service of the petition on the solicitor of the assignee might be deemed sufficient service on the assignee. Mr. Russell, in support of the petition. The assignee did not appear. The COURT ordered, that the Commissioner should be at liberty to call a meeting, and to proceed, notwithstanding the proceedings had not been recorded, and were not forthcoming. 1843. Ex parte BALDWIN. Ex parte KATE FRANCES COLES, and JESSIE LOUISA THIS was the petition of cestuis que trusts, for leave be tioners, for her life, and after her death, upon trust for the petitioners, equally, as tenants in common, to vested interests, at their respective ages of twenty-one, or days of marriage, subject to a power of appointment by the mother, which had not hitherto been exercised. This sum of stock had been sold out by the trustees; and Robert Welch, who was stated to be in insolvent circumstances, resided at Boulogne. Lincoln's Inn, Infant cestuis que trusts being entitled to a sum of stock stand ing in the names of trustees, sub ject to a life interest in their mother, and to a power of appointment, which has not been exercised, the trustees, in violation of the trust, sell out the stock, and advance the proceeds to the father of the cestuis que trusts. In a instituted by one Chancery suit of the infants, the trustees are ordered to pay into Court the amount which, by their answer, they admit to have received upon such sale. They do not comply with the Order, but become insolvent, and one becomes bankrupt.-Held, that the cestuis que trusts were not entitled to an Order to prove against the estate of the bankrupt, either for the value of the original sum of stock, or for the sum ordered to be paid into Court, but only to an Order to go in and make such proof as they could establish; the dividends on the proof to be paid into Court. 1843. Ex parte COLES and others. The bankrupt, by his answer to the bill in the Chancery suit, admitted that he and his co-trustee had sold out the sum of stock, and received the proceeds, amounting to 18591. Os. 6d., and that they had advanced and lent this sum to the petitioner's father, who had become bankrupt, taking from him, as a security, an assignment, by way of mortgage, of certain shares in the Monmouthshire Coal and Iron Company, and of a policy of assurance on the father's life; but which security was wholly valueless. The Order of the Court of Chancery was dated the 8th of November 1842, and directed payment into Court, within fourteen days, of the sum of 18591. Os. 6d. This amount, or the original value of the sum of stock, the petitioners now sought leave to prove; the fiat having issued on the 13th January 1843, and the sum having never been paid into Court, in pursuance of the Order. Mr. Swanston, in support of the petition. Mr. Russell, for the assignees. The Order for payment into Court is for security only; it does not conclusively fix the bankrupt's estate with any debt, certainly not with the amount of the sum ordered to be paid into Court. The assignees would consent to the petitioners being allowed to go in and make such proof as they can establish. The COURT said, the Order for payment into Court could only be considered evidence as against the assignees, that a breach of trust had been committed, and that, therefore, there was a debt to be proved, although the amount was not ascertained. The ORDER was, for Mr. Monkhouse, on behalf of 1843. Ex parte COLES and others. Ex parte YORKE.-In the matter of MAYS. THIS was the petition of a legal mortgagee, who had bid for, and been declared the purchaser of the property comprised in his security at a sale, which had been made under the Order of the Commissioner. The assignees had had, as usual, the conduct of the sale; but the petitioner had not obtained, previously to the sale, an Order from this Court giving him leave to bid, and he now prayed that an Order for this purpose might be made nunc pro tunc. The bankrupt and the assignees consented to the application. Mr. Messiter for the petition. Mr. Moore for the assignees. Mr. Metcalfe for the bankrupt. ORDERED accordingly, the petitioner paying all the (a) See Ex parte Pedder, 1 M. & A. 327; 3 Deac. & C. 622. Lincoln's Inn, Order, giving a made after the sale, nunc pro tunc. |