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In the matter of JOHN ORAM. Lincoln's Inn,
July 13. The venue of a MR. Swanston, on behalf of the petitioning creditors in fiat will not be this case, moved that the fiat might be directed to the cause the exist. ing means of
Bristol, instead of to the Exeter, District Court of Bankcommunication, between the
ruptcy. place of trading
The bankrupt carried on business at Chard, in Somerand the District Court to which setshire. Of eighteen creditors, being the whole numit belongs, are not so con- ber whose debts respectively amounted to 101. and venient as those between the upwards, six resided at Nottingham, two in London, place of trading and another one in Bristol, one in Taunton, one in Birmingham, and District Court.
seven in Chard. Chard is twenty miles from Exeter, and in the Exeter district, but the only public conveyance between it and Exeter is the Yeovil mail, leaving Chard at a quarter past ten in the morning, and Exeter at half past one in the afternoon; so that going to Exeter from Chard, and attending a meeting and returning, would
occupy two days; whereas from the facility afforded by railway, all parties from Chard could go to Bristol, and attend a meeting, and return the same day; and the creditors from Nottingham and Birmingham would be saved two days, and the creditors from London one day, in attending any meeting.
The CHIEF JUDGE said, these circumstances might be a reason for transferring Chard from the Exeter to the Bristol District, but, not being peculiar to this fiat, would not warrant the Court in changing the venue.
1843. Ex parte LACKINGTON and others. In the matter of HAMLET (a).
July 20. This was an application, on the part of the assignees, On a sale under for leave to fix a reserved bidding at a sale of the mises mort
gaged by the mortgaged estate of the bankrupt under the fiat. bankrupt, leave
given to the assignees to fix
such reserved Mr. H. Prendergast for the petition, cited Ex parte bidding as the
Commissioner might approve of.
Mr. Mylne, and Mr. Steere, consented on the part of the mortgagees.
The Court refused to give the assignees themselves leave to fix a reserved bidding, but made an Order permitting them to fix such reserved price as the Commissioner might approve of.
The Order was not drawn up, as the sale had been appointed for the day following, and there was no time to apply to the Commissioner.
(a) Ex relatione Mr. H. Prendergast. (6) 3 D. & C. 297.
Ex parte JOSEPH RALPH.—In the matter of MARMADUKE
July 22. THIS was the petition of a creditor, for an Order on A., being in
debted to B., one of the bankrupt's assignees to pay over the sum of absconds to
America, upon which B. sends out a power of attorney to an agent there to recover from A. what money he can, B. hearing of a similar proceeding by another creditor, sues out a fiat against A., and is chosen one of his assignees; and afterwards, B.'s agent in America obtains a sum of money from A., and remits it to B. in England. Held, that this money was received by B., in his character of assignee; and that B., having himself become bankrupt, might, under the 6 Geo. 4. c. 16. s. 105., be charged with the amount, together with interest at 51. per cent., notwithstanding he had obtained his certificate.
3351., with which he had been charged in account by the Commissioner. It appeared that, in February 1838, Thomas absconded and went to New York; upon which Mr. Fawcett, one of his creditors, sent out a power of attorney to an agent at New York, to attach any property which Thomas might have carried off with him. Another creditor, however, having pursued the same means of endeavouring to recover his own debt, Fawcett thought it advisable to make Thomas a bankrupt; and accordingly, on the 22d March 1838, sued out a fiat against him, treating the absconding to New York as the act of bankruptcy. On the 6th of April, Fawcett and another person were chosen assignees. Some time afterwards, in the same month of April, Fawcett's agent at New York, a Mr. Butterfield, received of the bankrupt a bill for 3351., which he remitted to Fawcett in England, and which the latter got discounted; and it was the amount of the proceeds of this bill, with which the Commissioner had charged Fawcett, as having received the bankrupt's money in his character of assignee. Subsequent to these proceedings, Fawcett himself had become bankrupt, and obtained his certificate.
Mr. Swanston, and Mr. James, in support of the petition, referred to the 6 Geo. 4. c. 16. s. 105., by which it is declared, that if any assignee, indebted to the estate of which he is such assignee, in respect of money retained by him in his hands, shall become bankrupt, his certificate shall only have the effect of freeing his person from arrest and imprisonment, and his future effects shall remain liable for so much of his debts to the estate, of which he was assignee, as shall not be paid by
dividends under his bankruptcy, together with lawful interest for the whole debt. The present application is made in conformity with this provision of the statute, namely, that the assignee may be ordered to pay the sum of 335l., with which he has been charged by the Commissioner in respect of money retained in his hands, together with interest at the rate of 51. per cent. per annum. This Order will have the effect of a judgment at law, under the provisions of the 1 & 2 Vict. c. 110. s. 18.; and the petitioner is confident of obtaining the money for the benefit of the general creditors of the bankrupt Thomas, by attachment of certain property of the assignee acquired since he obtained his certificate, if the petitioner is only armed with an Order of this Court. In Ex parte Turner (a) a similar Order was made on an official assignee, who had neglected to pay over a sum of money which he had received under the fiat. The assignee has refused to account for this sum, on the ground that he received it in his own right, as a creditor pursuing his own remedy, and not in his character of assignee; but the fact is, that he was appointed assignee, and acted in that character, some time before the receipt of the money in England.
Mr. James Russell, for the assignee. The 105th section of the 6 Geo. 4. c. 16., as well as the 104th section, apply only to cases where the money comes to the hands of the party as assignee. Here the property came into the possession of Butterfield, at New York, as the agent of Fawcett, quite independent of his character of assignee. Fawcett, therefore, having become bankrupt,
(a) 2 Mont. Deac. & D. 481.
we submit that this is a debt from which he is protected by his certificate. But, if the Court should think tha this case comes within the penal operation of the 105th section, the petitioner is not entitled to the Order which he asks, until he shall have proved under the fiat against the assignee, and received dividends in part payment of the debt.
Mr. Swanston, in reply. The only point that can be made in this case is, whether the petitioner is, under the 105th section, entitled to an Order for the full amount of the 3351., or only for so much as shall not be paid by dividends under the fiat against the assignee. Now that section does not impose on the petitioner the burthen of proving the amount under the fiat against the assignee ; and the present application is not inconsistent with the privilege, as to the right of proof given to the creditor against the assignee. No doubt, the debt might be proved; but the question is, whether the creditor is bound to exercise this privilege. The object of the legislature seems to have been, under this state of circumstances, to impose a liability on the future estate of the assignee, notwithstanding his bankruptcy. If this be so, then the inference would be, that the debt was not proveable under his fiat. We submit, therefore, that the petitioner has a right to avail himself, or not, of the privilege given by the act. To hold that he was compelled to prove, the privilege given would be quite illusory. There is, however, an intermediate mode of proceeding that might be adopted by the Court. The Order might be, to declare the future estate of the assignee to be liable for the amount of the debt, and