However, the petitioning creditors being wrong in striking the docket, and being under a primâ facie liability to pay all the costs, on them is the burthen of making out that they were clearly in the right, when they proposed a course, with a view of preventing the case from coming before the Court and terminating it by consent or submission. This they have not done; and, although the alleged bankrupt did not give the right reason for not acceding to the proposed Order, yet, as the proposed Order was in itself erroneous, and moreover, as the petitioning creditors avowed their intention of issuing another fiat, I think, on these united grounds, that I ought not to make any difference in the form of the Order on account of what has taken place. I will reconsider, however, this part of the case, and state tomorrow morning, if I take a different view of it. If I should say nothing more on the subject (a), the Order will be drawn up in the usual form. With respect to the other petition, for leave to issue another fiat, I think the petitioning creditors should pay the costs of it, and should be at liberty to strike another docket, without prejudice to any question whether it may, or may not, be struck without the leave of the Court. But both parties have concurred in submitting to the Court this question-whether the Court would allow the new fiat to stand, if no other act of bankruptcy were established than that now before the Court. Upon the joint application of both parties, I have considered, and have no objection to state my opinion on this question. The alleged act of bankruptcy depends upon the 14th section of the act 5 & 6 Vict. c. 122. It appears, that Musgrove is a trader,-that he has been (a) His Honour did not mention the case again. 1843. Ex parte MUSGROVE. 1843. Ex parte MUSGROVE. served with notice according to the provisions of the 11th section of that act,-that he appeared and signed an admission of debt according to the 13th section,—and that he has not, within fourteen days after filing such admission, paid, or tendered and offered to pay, to the creditor the amount of the demand, or secured or compounded for the same to the satisfaction of the creditor. If, therefore, there were no more in the case, this would constitute an act of bankruptcy. But it now appears, that, before the fourteen days had elapsed, and while the law allowed the trader the power of preventing the inchoate act of bankruptcy from becoming complete, the petitioning creditors, through error, took a step, which, at the very least, interposed very great doubt embarrassment and difficulty in the way of the alleged bankrupt doing what the law allowed him to do, for preventing an act of bankruptcy from taking place. Without therefore saying, whether, in point of legal strictness, an act of bankruptcy has, or has not, in fact been committed (a point on which I entertain an opinion), and without deciding what is the true construction of the 6 Geo. 4. c. 16. s. S., I think, considering the principles by which the Court is guided in exercising its discretionary jurisdiction to annul fiats, that it would be its duty to annul a fiat, which might be issued by these petitioning creditors, founded upon such an act, or supposed act, of bankruptcy,—they themselves having created the species of obstruction to which I have referred. If therefore they shall think fit to issue a fiat, founded on the alleged act of bankruptcy now suggested, they will do so, with the knowledge of the present opinion of the Court, given at the request of both parties upon the subject. Ex parte WILLIAM MITCHELL and others.-In the mat ter of PHILIP BEYFUS, and SOLOMON BEYFUs. 1843. Lincoln's Inn, Where a fiat has been opened, and the bank rupt's examina it is a THIS was the petition of five of the creditors of the bankrupts, resident at Birmingham, for the transfer of the fiat from the Court of Bankruptcy to the District tion has com Court of Birmingham. The fiat had been opened in menced, sufficient anLondon, and two of the petitioners had been chosen swer to a petiassignees. The grounds on which it was sought to change the venue of the fiat were, that of 3500l., the amount of the debts, 6007. only was due to London creditors, while upwards of 2000l. was due to creditors residing at Birmingnam, or in the immediate neighbourhood of that town; that one of the petitioners, who was an accountant, had offered his services gratuitously on the investigation of the accounts, if the fiat were prosecuted in Birmingham; that the bankrupts, who carried on business as importers of French goods and manufacturers of steel pens in Houndsditch, in the city of London, had also a house for the reception of goods in Pershore Street, Birmingham. The fiat issued on the 3rd August 1843, and the debts already proved amounted to 15927. 13s. 11d. of which 14491. 7s. 8d. had been proved by Birmingham creditors. Mr. E. James, in support of the petition, cited In re Snelling (a). The CHIEF JUDGE.-Can I change the judge who is to decide upon questions materially affecting the interests of the bankrupts after the judge has commenced the tion, to change the venue of the fiat, that the petitioners do not make out a grave case of benefit to the estate, com bined with the absence of injustice to the bankrupt. 1843. Ex parte MITCHELL and others. course of adjudication, especially now, when the Commissioner's decision as to the certificate may be conclusive? Mr. Swanston, for the bankrupt, contrà. No precedent has been produced for such an Order as is now sought, where the fiat has been opened. Here the assignees have been chosen, and the bankrupt has been examined. It would be most indecorous and inconvenient to change the tribunal after the investigation into the affairs of the bankrupt has commenced. He cited Ex parte Fellowes (a). VICE-CHANCELLOR KNIGHT BRUCE, C. J.-The burden lies upon the petitioners to show a grave case of benefit to the estate, combined with the absence of injustice to the bankrupt, in the proposed transfer of the fiat. Here they have not made out such a case, and, therefore, for that reason alone, I think the petition must be dismissed. ORDERED accordingly. Costs out of the estate. (a) 2 Mad. 141. Ex parte WOODIN.-In the matter of DANIEL WADE THIS was an appeal from the decision of the Com- The following were the circumstances of the case, as they appeared from the affidavits, and from admissions at the bar. A sum of 2000l., secured by the bond of Henry Hawkes to John Acraman, since deceased, and Henry Watson, was, by the settlement, made previously to the marriage of Mr. and Mrs. Hawkes, in the year 1829, declared to be vested in John Acraman and Thomas Watson, upon trust to invest the same, when received, in parliamentary or public funds or government or real securities, for the benefit of the wife for her life, for her separate use, but without power of anticipation, with remainder to the husband for life, and remainder to the children of the marriage. In May 1834 this bond-debt was paid, and the money was, in the month of June following, lent John Acraman, with the sanction, as it was alleged, of his co-trustee, Mr. Watson, to the firm of the bankrupts, who were merchants, at interest at five per cent., but without security. by The interest appeared to have been paid by the firm to the trustee, John Acraman, until his death, which 1843. Lincoln's Inn, By a marriage settlement a sum of money was to be re ceived by the trustees, and invested in go vernment or real securities, and the interest was to be paid to the wife for life for her separate use, without a power of anticipation, with re mainder to the children. One of the trustees receives the mo ney, and ad vances it to a He receives the interest from the partnership, and pays it over to the wife regu larly up to the time of his death; afterwards, the part nership pays the interest to the wife directly, and without the intervention of the surviving trustee. In the partnership books the ac counts relating to the whole transaction are entered, as be tween the wife and the partnership only. Upon the partnership becoming bankrupt; Held, that the partners had constituted themselves directly trustees, and that the proof on behalf of the trust estate might be made either against the joint estate, or the separate estates. Quære, whether there would have been a right of proof against the separate estates, if the firm had been constructive trustees only; or whether the term "constructive trust" is sufficiently definite to admit of any general rule being laid down upon the point. |