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1843.

then direct that proof shall be made for the amount under his fiat, and that the dividends received under such proof shall be deducted from the amount of the debt.

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VICE-CHANCELLOR KNIGHT Bruce, C.J.-The party, against whom this application is made, sues out a fiat against his debtor, and on the 6th April consents to become assignee. In the course of the same month of April, but on what precise day does not appear, Mr. Butterfield, the assignee's agent at New York, obtains certain property from the bankrupt, converts it into money, and transmits the amount to the assignee in England. The agent, having got possession of this property after the bankruptcy of Thomas, would, of course, be personally liable to refund it, and could not discharge himself from such liability, unless he were discharged by the assignees. Why then is Butterfield, the agent, not so liable ? Simply, because he has paid it over to the assignee, who has given him a discharge, which discharge could only be valid, as being given in his character of assignee. These are the facts; and now the question is, whether the Order of the Commissioner is good, charging the assignee with the amount of the money so received by him, together with interest at 51. per cent. I am of opinion, that the Commissioner was perfectly justified in that proceeding. Let the Order therefore on this petition declare, that at the time when Fawcett became bankrupt, he was indebted to the estate of Thomas, in respect of money retained by him, within the intent and meaning of the 105th section of the 6 Geo. 4. c. 16.-Declare the amount of such debt to have been the sum of 3351. in the petition mentioned, carry

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ing interest at the rate of 51. per cent.

per annum, from the 7th of September 1838, from which day the assignee is to be considered as having so retained the said sum. The Order to be without prejudice to any set-off or claim, which Fawcett may have against the estate of Thomas, in respect of any demand for disbursements or otherwise. Refer it to the Commissioner to inquire, whether Fawcett, in his character of assignee, has any such demand against the estate of Thomas. The petitioner to have no costs up to this time, but to pay 5l. to Fawcett for costs occasioned by the introduction of needless matters into the petition and affidavits; and future costs to be reserved. This Order to be without prejudice to the duty of the Commissioner to remove the assignee, pursuant to the directions of Lord Rosslyn's General Order (a).

The petition in other respects to stand

over,

(a) 8th March 1794. See 2 Deac. Bank. Law, 89.

Ex parle Robert OULTON.--In the matter of John Lincoln's Inn,

OULTON. July 24. Where an as. This was the petition of an assignee for the removal signee peti. tioned for the of his co-assignee, on the ground that, by the misconduct removal of his co-assignee, on

of the latter, the petitioner had been unable to realize the ground of misconduct,

the bankrupt's property. It was alleged, that portions which was des of an estate belonging to the bankrupt had been let to

by laiter, who recriminated,

various tenants, and that the bankrupt had been employed special refer

and paid for collecting the rents, but that his authority rected to the had been subsequently withdrawn. That a part of the Commissioner, to inquire into estate, called the Chamber Hill Farın, was retained by and report the circumstances the bankrupt in his own possession, who claimed it in of the case.

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ence was di.

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right of his wife, under the will of one James Newton. That, notwithstanding the petitioner had given notice to the tenants not to pay any more rent to the bankrupt, the bankrupt still continued to receive the rents, and in one instance caused the goods of a tenant to be distrained for rent, alleged to be due to the bankrupt and his wife; and that Worthington, the other assignee, had caused a counter-notice to be served on the tenants, ordering them to pay the rents to the bankrupt.

In answer to the statements in the petition, it was alleged by the respondent, that the present application had not the authority of the creditors; that all parties had concurred in the appointment of the bankrupt to receive the rents, which he had continued to do for five or six years; that the estate in question originally belonged to the bankrupt’s wife, and that her present claim to it was now the subject of a suit in Chancery; that the reason why Worthington gave counter-notices to the tenants was, that he understood that they meant to replevy if the assignees distrained for the rents, and that he would thereby have been exposed to litigation and expense. The respondent, moreover, charged the petitioner with having fraudulently purchased a part of the bankrupt's estate.

The bankrupt had obtained his certificate, and his estate had paid a dividend of 3s. 3d. in the pound.

Mr. Bacon appeared in support of the petition.

Mr. Swanston, and Mr. Tennant, contrà.

Mr. Bacon, in reply, pressed for an inquiry, as the facts were contradicted; and there was no opportunity

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now afforded, of answering the charge brought against the petitioner, of the fraudulent purchase of the bankrupt's property. He applied also for permission to be granted to the petitioner, to use the name of his coassignee in any proceeding by ejectment, or otherwise, against the bankrupt for the recovery of the estate.

VICE-CHANCELLOR KNIGHT BRUCE, C.J.--Let it be referred to the Commissioner, to inquire what is the nature and extent of the right and interest of the bankrupt in right of his wife to the estate in question, under the will of James Newton, and under what circumstances such right remained unsold, or unconverted; and let the Commissioner ascertain under what circumstances the bankrupt had been continued in the receipt of the rents, or of the property of James Newton, in which the assignees have any interest, and inquire whether the bankrupt had properly accounted for the monies so received by him. Let the Commissioner also take an account of the rents received by the assignees, or either of them, or what they, or either of them, might have received; and report in what state the Chancery suit alluded to in these proceedings now is, and what course therein will be best for the benefit of the estate, and state any other circumstances which he may think material as to the property of Jumes Newton. Let the Commissioner also state under what circumstances the notice of the 6th of May 1813 was given, and whether any loss was occasioned thereby; and inquire whether any, and what, part of the bankrupt's property has been purchased by the petitioner on his own account, or otherwise, and under what circumstances, and whether any course is proper to be taken against the petitioner to annul such

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1843.

Ex parte
OULTON,

purchase. Let the Commissioner also state, whether in his opinion it will be advisable to remove both, or either of the assignees; with liberty to take any immediate steps for the protection of the property, and the receipt of the rents of the estate of James Newton. The rest of the petition to stand over, and costs to be reserved.

Ex parte

Lincoln's Inn,

July 24. This was the petition of a mortgagee for liberty to bid The costs of an

application of a at the sale of the mortgaged property, and that the costs mortgagee, for

leave to bid at of this application might come out of the proceeds of the the sale, will

not be allowed sale.

out of the proceeds, unless

the assignees Mr. Rogers, in support of the petition, cited Ex parte consent. Say (a), and Ex parte Berkeley (6).

Vice-CHANCELLOR Knight Bruce, C.J.- If you will put your application in a definite form, that is, if the assignees will inform me that this petition is presented at their request, I will make the Order as to the costs, but not otherwise ; for I cannot give away the bankrupt's estate.

(a) i Deae. & C. 32. In this case, however, the assignees appeared on the petition, and did not oppose the application for costs.

(b) 2 M. & A. 54 ; 4 Deac. & C. 572.

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