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into that Court; and that the remuneration to the official assignee was very burthensome, being 5l. per cent. on the first 1001. received, and 2}l. per cent. on the first 5001., and 1l. per cent, on the residue, and a further allowance of 21. on the amount divided among the creditors (a), besides charges for examining accounts, and on the dividend warrants; that, in the present case, these allowances would amount to 4001.; and that as very little remained to be done under the present fiat, it was the opinion of the petitioners and the creditors, that the appointment of an official assignee would be entirely unnecessary, and would be productive only of loss and expense, in addition to that already incurred; and that nearly all the creditors, to the amount of 201. and upwards, who had proved, concurred in this opinion and in the present application. The petition was accompanied by a paper signed by several creditors, testifying their concurrence in the prayer of the petition.
Mr. Bacon, in support of the petition.
The LORD CHANCELLOR desired the matter to stand over, that he might communicate with the Commissioner on the subject.
The matter being again mentioned,
The LORD CHANCELLOR declined to make any Order, considering the matter as one peculiarly within the discretion of the Commissioner, with which the Lord Chan
(a) This is certainly a most extraordinary scale of remuneration, after the General Order of the 12th January 1832, by which it was settled that the official assignees should be allowed one per cent. on the monies they received, and one and a half per cent. more on the monies actually divided, subject to be increased or diminished under special circumstances to be referred to the Court of Review.-E. E. D.
cellor would not interfere, unless under very strong circumstances.
Mr. Bacon then asked that the costs of the petition, which had not been served on any one, might be allowed out of the estate.
The LORD CHANCELLOR allowed them on this occasion, but wished it to be understood that the costs of applications of such a nature would not be allowed in future, except a very strong case were made.
Lincoln's Inn, Ex parte BALDWIN.- In the matter of Baldwin.
July 10. Where the fiat. In this case, the fiat issued before the passing of the and proceedings were, before the act 5 & 6 Vict. c. 122, and was prosecuted at Worcester. passing of the act 5 & 6 Vict. The proceedings were in the custody of the sole assignee. c. 122, left in the possession On the passing of the new act, the fiat was transferred of the sole assignee, who was to the Birmingham District Court; and, on the 3rd of not to be found; the Court or- May 1843, the bankrupt applied to the Commissioner, dered that the Commissioner requesting him to call a meeting for the allowance of should be at liberty to pro
the certificate; but it appeared that the fiat and proceedthem, in allow. ings were not forthcoming, having been left in the posing the certificate.
session of the sole assignee, who was not to be found. The Commissioner thought that he could not act, without having the fiat and proceedings before him. The bankrupt, therefore, now presented his petition, praying that a meeting might be called, for the purpose of allowing his certificate, and that service of the petition on the solicitor of the assignee might be deemed sufficient service on the assignee.
Mr. Russell, in support of the petition.
The assignee did not appear.
The Court ordered, that the Commissioner should be at liberty to call a meeting, and to proceed, notwithstanding the proceedings had not been recorded, and were not forthcoming.
Ex parte BaldwIN.
of stock stand
Ex parte Kate FRANCES COLES, and Jessie LOUISA
Coles, infants, by WILLIAM JACKSON MONKHOUSE, their next friend. In the matter of WILLIAM INMAN WELCh.
July 10. THIS was the petition of cestuis que trusts, for leave Infant cestuis
que trusts being to prove for the value of a sum of stock, alleged to have entitled to a sum been sold out by the bankrupt and a co-trustee, in breach ing in the names of the trust, or else for the amount which the bankrupt ject to a life
of trustees, sube had been ordered to pay into Court in a suit in Chan- interest in their cery, instituted against him by one of the petitioners.
a power of ap
pointment, The bankrupt, and one Robert Welch, were trustees which has not
been exercised, under a marriage settlement, of (among other things) -the trustees,
in violation of a sum of 20481. 6s. 9d. three per cent. consols, upon the trust, sell
out the stock, certain trusts, for the benefit of the mother of the peti- and advance the
proceeds to the tioners, for her life, and after her death, upon trust for father of the the petitioners, equally, as tenants in common, to be trusts. In a vested interests, at their respective ages of twenty-one, instituted by one
Chancery suit or days of marriage, subject to a power of appointment the trustees are by the mother, which had not hitherto been exercised.
ordered to pay
into Court the This sum of stock had been sold out by the trustees; amount which,
by their answer, and Robert Welch, who was stated to be in insolvent they admit to
have received circumstances, resided at Boulogne.
upon such sale. They do not
comply with the Order, but become insolvent, and one becomes bankrupt.--Held, that the cestuis que trusts were not entitled to an order to prove against the estate of the bankrupt, either for the value of the original sum of stock, or for the sum ordered to be paid into Court, but only to an Order to go in and make such proof as they could establish ; the dividends on the proof to be paid into Court.
The bankrupt, by his answer to the bill in the Chancery suit, admitted that he and his co-trustee had sold out the sum of stock, and received the proceeds, amounting to 18591. Os. 6d., and that they had advanced and lent this sum to the petitioner's father, who had become bankrupt, taking from him, as a security, an assignment, by way of mortgage, of certain shares in the Monmouthshire Coal and Iron Company, and of a policy of assurance on the father's life; but which security was wholly valueless.
The Order of the Court of Chancery was dated the 8th of November 1842, and directed payment into Court, within fourteen days, of the sum of 18591. Os. 6d. This amount, or the original value of the sum of stock, the petitioners now sought leave to prove; the fiat having issued on the 13th January 1843, and the sum having never been paid into Court, in pursuance of the Order.
Mr. Swanston, in support of the petition.
Mr. Russell, for the assignees. The Order for payment into Court is for security only; it does not conclusively fix the bankrupt's estate with any debt, certainly not with the amount of the sum ordered to be paid into Court. The assignees would consent to the petitioners being allowed to go in and make such proof as they can establish.
The Court said, the Order for payment into Court could only be considered evidence as against the assignees, that a breach of trust had been committed, and that, therefore, there was a debt to be proved, although the amount was not ascertained.
The Order was, for Mr. Monkhouse, on behalf of
the infant petitioners, to make such proof as he
COLES and others.
Ex parte YORKE. - In the matter of Mays.
July 15. THIS was the petition of a legal mortgagee, who had Order, giving a
legal mortgages bid for, and been declared the purchaser of the property leave to bid,
made after the comprised in his security at a sale, which had been made sale, nunc pro under the Order of the Commissioner. The assignees had had, as usual, the conduct of the sale; but the petitioner had not obtained, previously to the sale, an Order from this Court giving him leave to bid, and he now prayed that an Order for this purpose might be made nunc pro tunc.
The bankrupt and the assignees consented to the application.
Mr. Messiter for the petition.
Mr. Moore for the assignees.
Mr. Metcalfe for the bankrupt.
ORDERED accordingly, the petitioner paying all the
(a) See Ex parte Pedder, 1 M. & A. 327 ; 3 Deac. & C. 622.