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same were taken bonâ fide, and with their entire approbation.
The facts stated in the petition were duly confirmed by affidavit.
Mr. J. Russell, and Mr. Mylne, appeared in support of the petition.
Mr. Swanston, and Mr. Glasse, consented, on the part of the assignees.
V. C. Knight Bruce, C. J. after perusing the 133rd and 134th sections of the 6 Geo. 4. c. 16., and being satisfied that the several requisitions of the act, and of the General Order, had been complied with, said, that he had great pleasure in granting the Order for the supersedeas, and that the assignees, at the expense of the petitioners, should execute any release which might be required of the freehold property.
Ex parte Ellis and another. - In the matter of
MUSGROVE. Lincoln's Inn,
March 18. On taxation of This was an application on the part of the bankrupt to costs, a charge review the taxation of a bill of costs, in consequence of for consulting counsel pre
the disallowance of certain items by the taxing officer. viously to presenting the peti
. It appeared that the bankrupt, shortly after the issuing
of the fiat, presented a petition to annul it; and a cross hearing, if the petition was also presented by the petitioning creditors petition is one of a special na- for the same purpose, and praying further, that they ture, ought to be allowed. might be at liberty to issue another fiat (a). Upon the
to a second counsel on the
(a) See ante, p. 386.
ELLIS and another.
hearing of these petitions, an Order was made for annulling the fiat, and directing that the costs of so annulling it, and also the costs of and attending and incident to the petition should be paid by the petitioning creditors. The first item which the taxing officer had disallowed was a charge of 11. 10s. 2d. for obtaining the opinion of counsel after the petitioning creditors had presented their petition, as to the course it would be proper for the bankrupt to pursue.
Mr. Swanston, for the bankrupt, submitted that this was a proper and prudent measure adopted by the bankrupt, as a preliminary step to presenting his own petition.
Mr. Anderdon contended that the rule was not to allow any costs which were incurred antecedently to the presentation of the petition, and that the charge which had been disallowed could not be considered to be any portion of the costs incidental to the petition.
V. C. KNIGHT BRUCE, C. J.-I do not imagine that the practice, of disallowing on taxation any costs incurred before the petition was presented, has become so inveterate as to have the force of a rule. The charge objected to is for consulting counsel, previous to the bankrupt presenting his petition to annul the fiat. A second petition for this purpose might be a superfluous, a litigious proceeding; but, supposing it not to be such, then the question is, whether the charge for taking the opinion of counsel, as to the propriety of such a proceeding, ought to be allowed. The whole matter rests on the expediency of the second petition; the two petitions for the same purpose create all the difficulty
ELLIS and another.
and specialty of the case; and the bankrupt might be reasonably anxious to be advised upon what act of bankruptcy the petitioning creditors could be allowed to proceed, in the issuing of another fiat; and I observe, that the Court on the former occasion intimated its opinion, that the petitioning creditors ought not to strike another docket upon the act of bankruptcy, on which the prior docket proceeded. I think, under these circumstances, that the resort to counsel, before presenting the petition, was discreet, reasonable, and proper. I am perfectly satisfied, that the Court is not bound by any rule on the subject, and that the charge which has been struck out ought to be allowed.
Mr. Swanston. Another charge has been disallowed of 21. 4s. 6d., the amount of a fee to a second counsel, on the hearing of the petition.
Mr. Anderdon contended that there was no necessity for instructing two counsel.
The Chief Judge. I have always felt the injustice of subjecting a successful litigant party to an expense, which has been unavoidably incurred by him. One of the questions in this case was, whether an act of bankruptcy had been committed under a recent statute, that created an entirely new and complex act of bankruptcy. I think that question was of sufficient importance to justify the bankrupt in requiring the assistance of two counsel. The case has been thought worth reporting, and is treated as one of a very special nature. Had it been a frivolous one, there would then have been no need to instruct a second counsel; but, under all the circumn
stances, I see no reason why this charge should not be allowed.
ELLIS and another.
Mr. Swanston then stated, that the officer had disallowed a fee paid to counsel for drawing the petition.
Mr. Anderdon. A mere petition to annul a fiat does not require the skill of a counsel to draw it.
The CHIEF JUDGE.—I am of opinion, that it was very proper to have the petition in this case settled by counsel.
Mr. Swanston. The next items disallowed are for several attendances and letters of the bankrupt's solicitors, occasioned by a proposed variation in the Order, which was the subject of a negotiation between the parties, for the purpose of annulling the fiat by consent, to render unnecessary a contested petition on the subject.
Mr. Anderdon. The proposed variation in the Order was, that the petitioning creditors were to pay to the bankrupt, not only his costs, charges and expenses of and incidental to their application to annul the fiat, but also his costs of and occasioned by the fiat. This was not conformable to the practice of the Court.
The CHIEF JUDGE.—The provision for the payment of the bankrupt's costs of annulling the fiat, and incidental thereto, were, it appears, omitted in the form of the Order proposed on behalf of the petitioning creditors. A proposition is then made by the successful party, who however insisted on such an alteration in the Order as was untenable. But the Order itself, as originally
framed, was not fit to be accepted by the bankrupt. Both parties, therefore, were wrong; and I think the costs attending the negotiation to settle the terms of the Order should have been allowed by the taxing officer; who, however, is not to blame for any of these disallowances, as he appears to have followed what he considered a proper precedent. Each party must pay his own costs of the present application.
Ex parte FRANCIS COLLINS.- In the matter of Thomas
THOMAS Lincolns' Inn,
. April 1. Where an Order This was a petition of the solicitor to the fiat, praying was made by a District Com to rescind an order of the Commissioner, by which the missioner on a solicitor to pay solicitor was ordered to pay to the official assignee a sum a certain sum to the official as
of 571. 13s. 8d., and also to appear before the Comsignee, without missioner on a given day, to show cause why the costs stating the spe which the Order occasioned by that sum having been withheld by the was made, or that the party
petitioner, and incident to that rule, should not also be was a solicitor paid by the petitioner. of the Court, or that he ac- It appeared that in March 1842, a Mr. W. Thomas, quiesced in the Order; held, since deceased, instructed the petitioner to issue a fiat that the Com missioner had against the bankrupt; but, previous to this being done, no jurisdiction to make such
the petitioner required a guarantee for the costs, upon an Order.
which W. Thomas and his son John Thomas signed a guarantee addressed to the petitioner, by which it was stated that, in consideration of the petitioner issuing a fiat upon the petition of W. Thomas against the bankrupt, and prosecuting the same up to the final close thereof, W. Thomas and J. Thomas jointly and severally undertook to pay and guarantee to the petitioner the due pay.