1832.

January 23. Mortgagee's costs to be paid out of the pro

ceeds of the

sale.

Ex parte BROWN, in the matter of CLARK.

THIS was a petition by a legal mortgagee for a sale of the estate, and for leave to bid at such sale, and that the costs might be paid out of the proceeds.

Mr. Montagu, in support of the petition.

Mr. Reynolds, for the assignees, consented to the order for sale and leave to bid, on the terms of the assignees having the conduct of the sale, but stated that he was not authorized to consent to the payment of the costs.

The Court, however, thought that the costs ought to be paid out of the proceeds of the sale; Rose, J. observing, that that was perfectly fair, and was the usual mode of proceeding (a). The order was made, therefore, according to the prayer of the petition, the assignees to have the conduct and management of the sale.

(a) But see Ex parte Atkinson, Mont. & M. 261; Ex parte Hammond, Buck, 464.

January 23.

Ex parte MOODY.

Under special A JOINT commission against two partners had been

circumstances

commission;

and a petition

was answered

time enlarged issued on the 10th instant, the day before the comfor opening a mencement of the jurisdiction of the new Court of Bankruptcy. On the 21st January the petitioning for the same day, creditors were prepared to prove, before one of the commissioners under the new act, a positive act of bankruptcy against one of the alleged bankrupts; but on account of the absence of a witness at Tonbridge, in

on which the

order was applied for.

Kent, the petitioning creditors were not prepared to prove an act of bankruptcy against the other partner. Under these circumstances, the commissioner would not permit them to go into the evidence they had ready, as to an act of bankruptcy by one of the partners. They now therefore petitioned the Court, as their time expired to-morrow, that the time for opening the commission might be enlarged for a week, in order that they might procure the attendance of the witness to prove the act of bankruptcy against the other partner.

Mr. Montagu, in support of the petition, stated that it would save considerable expense if the time was enlarged; and as the petition was not yet answered by the Court, he also prayed that it might be answered for to day.

The Court granted the order as prayed; but desired it might be understood that it was not a matter of course, and that such applications would not in general be countenanced, as the petitioning creditor ought always to be prepared to open the commission at the proper time.

In the matter of MATTHEWS.

January 23.

pired for open

sion, through

of the bankrupt;

MR. MONTAGU applied on behalf of the petitioning When time excreditors, Messrs. Ackerman & Co., for leave to strike ing a commisa docket, and that a fiat might issue, under the follow- the contrivance ing circumstances. In November last the petitioning petitioning crecreditors proceeded to open a commission, but the bankrupt was successful in keeping a servant out of the way, who could have proved the act of bankruptcy, till

D 2

leave to strike a new docket.

ditor obtained

In a case of

emergency, a petition will be answered in

stanter.

1832.

In re MATTHEWS.

the time was expired within which the commission ought to have been opened. The bankrupt, however, had been subsequently arrested, and had remained more than 21 days in prison, so that there was now proof of a complete act of bankruptcy. But as the rule was, that the same petitioning creditor could not strike a fresh docket, after neglecting to proceed under the first, without leave of the Court, he now applied for an order for that purpose, and that a fiat might issue thereupon.

The same application was also made in this case as in the last, that the petition be answered instanter; Mr. Montagu observing, that in cases of emergency it was not unusual for the Lord Chancellor to answer the petition at the same time that he made the order.

His Honor the CHIEF JUDGE.-You may take the order, but without prejudice to the rights of any other parties.

January 23.

Ex parte DONALDSON, in the matter of WRIGHT. MR. Bichner moved, that the petition pending before the Lord Chancellor in this matter might be transferred support of a peti- and set down for hearing before the Court of Review; tion to the Lord and that the affidavit and certificate of unclaimed divi

A party using affidavits already filed in

Chancellor,

which is trans

ferred to this Court, must give notice to the other party.

dends, which had been filed with the Secretary of Bankrupts, might be read on the hearing of the petition.

His Honor the CHIEF JUDGE.-When the matter is brought on, if you mean to use affidavits filed in support of the petition to the Lord Chancellor, you must give notice to the other side of your intention to do so.

Ex parte Rose, in the matter of Rose.

1832.

January 24.

THIS was, a petition of the bankrupt, praying that the An order to entime for his surrender might be enlarged. It appeared, for the bank

large the time

rupt's surrender

that two petitions had previously been presented to the is of course, if Lord Chancellor by a creditor, for the purpose of super- clear days beapplied for six seding the commission, and that an order had been fore the day appointed for his obtained on each petition; but both orders had been abandoned, as the bankrupt had never surrendered.

Mr. Cooper, in support of the petition, said that the application was made under the 6 Geo. 4, c. 16, s. 113, and was a matter of course before the late Bankruptcy Court Act; but he apprehended it was now necessary that the matter should be mentioned to the Court.

His Honor Sir G. ROSE.-If there are six clear days between this application and the time appointed for the bankrupt's surrender, the petition is still of course.

Mr. Cooper stated the fact to be so; upon which

The Court granted the petition.

surrender.

Ex parte JOSEPH OSBORNE.

Same day.

sedeas under the

THIS was a petition of the bankrupt to supersede his Order for supercommission, under the 133d section of the Bankrupt composition Act, on the ground that nine-tenths in number and contract. value of his creditors had agreed to accept a composition upon the amount of their debts, and had consented to the commission being superseded. The com

1832.

Ex parte OSBORNE.

missioners having duly certified to that effect, pursuant to the terms of Lord Eldon's general order, and the assignees consenting to the petition,

The Court made the order as prayed.

Mr. Montagu for the petitioner.
Mr. Burke for the assignees.

January 24. An equitable mortgagee of one partner, for a debt due from the other, may

prove his whole debt against the separate estate

of that other partner, and retain his security against the first. Where a petition to prove is

unnecessary, the petitioner is liable to costs.

Ex parte RODGERS, in the matter of PARKIN the Elder and PARKIN the Younger.

IN this case a joint commission had issued against the above bankrupts, and the petition was filed by an equitable mortgagee, praying a sale of certain leasehold mises on which he had a claim, and for leave to prove

the deficiency under the commission.

Mr. Rogers appeared in support of the petition.

pre

Mr. Turner, for the assignees, stated the facts to be, that Parkin the younger having borrowed a sum of money of the petitioner, Parkin the elder gave the petitioner an equitable lien on the estate in question, which was the sole property of Parkin the elder. Under these circumstances he was instructed to consent to the sale, provided the deficiency was proved against the separate estate of Parkin the younger.

The Court intimated, that if the debt was the debt of Parkin the younger, the petitioner might prove his whole debt against the separate estate of Parkin the younger, and still retain his security.