The question is, is there a sufficient reason assigned why the first fiat was not acted on in 14 days? I think both those assigned are sufficient: First, that it was sued out with a bona fide intention to prosecute it: and second, that by an arrangement being proposed, which to the far greater majority of creditors seemed most beneficial to the general interests of the parties, the delay took place in the first instance, and was protracted by the petitioner himself over the 14 days, at the expiration of which, in breach of every species of good faith, and in evidence of his own sinister motives throughout, he himself surreptitiously attempts to sue out a second fiat. I quite agree that had he been successful we should have been bound to have superseded it. I think we cannot regard this case as if a third and innocent party had sued out the second fiat; we are in this instance to be governed by the bonâ fide of the transaction, and must dismiss this petition, and in regard to the mala fides, with costs. Sir J. CROSS.-There can be no doubt but that the true construction of the General Order is, not that the first fiat is superseded, but that it may be supersedable. The fact of adjudication does not seem to me at all decisive on this case. I think that alone could not have operated as an estoppel to the petitioner, because it was made, as it were, without prejudice. But I think the bad faith that has been evinced must bring upon the petitioner a dismissal of his petition, together with the payment of costs. Sir G. ROSE concurred. The petition was thereupon dismissed, and with costs. 1832. Ex parte 1832. July 20. Ex parte GREENWOOD.-In the matter of Joy. Where on ap- ON the petition of equitable mortgagees for the sale plication for sale of equitable mortgage and liberty to bid, one mortgagee being also an assignee, sepa. rate solicitor must be ap. pointed for the nees not to have conduct of it. of the mortgaged premises, and for leave to bid, where one of such mortgagees is also one of the assignees under the fiat, The COURT, referring to the case of Ex parte sale, and assig- Cowdry (a), directed that the Commissioner should appoint a separate solicitor for the purposes of the sale, and that the assignees should not have the conduct of it. (a) 2 G. & J. 272. Same day. Ex parte ROBINSON.-In the matter of LYON. Order nisi only MR. STUART applied that certain dividends, which in the first in stance made for had been unclaimed for the space of three years, and distribution of unclaimed divi- respecting which all the statutory requisites had been complied with (b), might be forthwith distributed among dends. the other creditors. The COURT thought that although it had been usual to make a peremptory order of distribution on the first application, yet it would be better in future to make an order nisi in the first instance, and directed that the costs of the petition and all costs incurred since the last order of dividend, should be taxed and retained out of the fund; and that advertisements should be inserted in three London papers for the creditors to come in for (b) See 6 Geo. 4. c. 16. s. 110. these dividends within three months, and in default the fund to be divided as prayed (a). (a) In Ex parte Goodhart, on the 5th November 1832, on application of Mr. E. Chitty, the Court declined to make any order till after a final dividend, when very small dividends were unclaimed and advertisements had been inserted and letters sent round to the different creditors, the Court thinking it better to give those creditors the opportunity of applying after the final dividend was declared. 1832. Ex parte ROBINSON, Ex parte BURLES.-In the matter of MAY. THIS July 21. Although all creditors, save one, and the bankrupt and assignees consent, the Court cannot direct that the official assignee be at liberty to award neration for was a motion by Mr. Montagu, which was consented to by the assignees, the bankrupt, and all the creditors, save one, who was willing to abide the order of the Court, that the official assignee might be at 'liberty, out of the estate, to pay the petitioner the sum of 201., as a remuneration for great trouble he had been at in the management of the bankrupt's accounts between the time when the bankrupt stopped payment, bankrupt's esand the issuing the fiat; his prudent conduct having tate between time of stopping produced considerable advantage to the estate and a payment and great diminution of expense. a party a remu trouble incurred touching the issuing the fiat. Nor can it direct the Commissioner to ascer The Court however thought they had no jurisdic- tain if proper. tion to interfere; inasmuch as it was a debt due from the bankrupt for business done for him before his bankruptcy. The creditors, if they thought fit, might arrange it among themselves. Mr. Montagu then asked the Court to refer it to the Commissioner to ascertain whether it was proper to be done. Per Curiam.-We have no such power. Not having jurisdiction over the subject ourselves, it is impossible we can delegate any to another party. Motion refused. 1832. July 26. Where a joint fiat issues against 4. & B., Ex parte CLARKE.-In the matter of CLARKE. ON the 14th March 1832, a joint fiat was awarded against the petitioner John Clarke and Gregory Odell Clarke, who were partners, and on the 2d May following, the Commissioners declared John Clarke alone a bankrupt. On the same day the Commissioners sent a notice in writing, signed by them, to John Clarke the make it good as petitioner, informing him that a fiat in bankruptcy had issued against him, under which he had been duly declared a bankrupt, and calling on him to surrender on and the debt is separate, it is void, and the subsequent superseding it as to A. cannot a separate fiat as to B. In such case a petition pray ing to supersede against B. need not state the objection that is relied on (a). the 18th May and the 15th June following. On the 16th May, however, the petitioner received a letter from the solicitor to the commission informing him that he · need not surrender on the 18th, and that he would receive due notice of the next meeting. These were all the facts stated on the petition, which prayed that the fiat and adjudication might be annulled. It also appeared that the other partner had never been adjudged a bankrupt, and the other facts will be collected from the arguments of the counsel. Mr. Webster in support of the petitioner. The question upon which this petition mainly rests is, whether the separate adjudication of the Commissioners against the petitioner is good in law upon a joint fiat, that fiat, as we have reason to believe, not having seen the proceedings, being founded on a separate debt. If that fact is established, it is quite clear that the fiat was void ab initio, and cannot now be sustained as a separate (a) But in Ex parte Chaffey re Chaffey, 10 November 1832, Mr. Montagu for the petitioner, and Mr. Whitmarsh for the respondents, the Court were inclined to hold that a petition to supersede must state the ground of objec tion to the fiat. fiat. The petitioner having no power to inspect the proceedings, cannot prove his case, but the proceedings being in the power of the Court, the Court may satisfy its own mind by a reference to them, snd will therefore decide according as the fact is. Mr. Swanston for the assignee and the petitioning creditor. On the face of the petition there is nothing to show the precise fact upon which the adjudication is disputed. There is no proof that the fiat is joint, for the affidavit of that circumstance by the petitioner is no evidence. But if it were evidence, the petition states nothing to show the adjudication bad, and the Court cannot travel out of the petition. This commission has by order, dated 2d June, been superseded as to Gregory Odell Clarke, and the bankruptcy was advertised on the 12th June. Mr. Webster in reply was stopped by the Court. The COURT finding the fact to be that the fiat was joint, and the debt and the adjudication separate, and that the supersedeas as to Gregory Odell Clarke did not issue till long after the adjudication, and that no notice of applying for the supersedeas was ever given to the petitioner, thought that the fiat must be superseded. There is no debt on which the fiat is taken out, inasmuch as the fiat is joint, and a separate debt cannot support it. As to the form of the petition in this instance, it ought to be regarded as a mere citation to the other party to appear and support the fiat, and for that purpose it is quite sufficient. There can be no doubt but that a joint fiat cannot be supported by a 1832. Ex parte |