1834. Ex parte LUCAS. of OLDHAM. done as done, Edge would stand as lessee for fourteen years, subject to be called on to give a legal effect to his liability as such by the acceptance and execution of a formal lease, according to the terms of the agreement. In the matter In equity, therefore, the respondents' relation to the lessor would be that of assignees of his lessee, involving them in the same responsibility that would have resulted from a lease actually granted to Edge before his bankruptcy, and adopted by them, in which case their liability to the payment of rent, &c., and the performance of the other covenants of the intended lease, would only endure so long as the property remained in their hands; and upon a sale and assignment of the bankrupt's interests they would be released from all further responsibility. The only reasonable application against them, as assignees in possession of premises thus situated, would be, to compel them to take the term contracted for upon the same conditions as would have attached to them if the lease had been actually executed before Edge's bankruptcy, and they had elected to adopt it. But this application by the petitioners is of a very different character; and when it was distinctly asked of their counsel whether they would be satisfied with an order that would bind the respondents to that extent, they as distinctly answered in the negative, and pressed for a lease to the purport of the draft set out in the petition. By that draft the demise is proposed to be by the mortgagees, by the direction and appointment of Oldham and his assignees, to the respondents, their executors, administrators, and limited assigns; and the covenants for payment of rent, for repairs, and not to assign without leave, are expressed to be by the respondents, for themselves, their heirs, executors, administrators, and 1834. Ex parte In the matter of OLDHAM. assigns; thus rendering themselves and their personal representatives responsible for the fulfilment of all the covenants for the whole term of fourteen years, even after they should have sold it, as they were bound to do, for the benefit of Edge's creditors: a proposal too unreasonable to be entertained by any court. But it was urged in argument, that the respondents had expressly agreed to take a lease to themselves upon their own personal responsibility, upon which two questions arise: first, whether, assuming every allegation on the face of the petition to be true, any such agreement has been made out in fact? and second, if made out, whether this Court has power to enforce it? I should very much question the jurisdiction of this Court to enforce the performance of any such agreement, if it had been established by the clearest evidence, because the responsibility thus incurred by the personal engagement of the respondents seems to me a fitter subject for a bill in equity than a petition in bankruptcy. But it is unnecessary to discuss this question further, because I am satisfied that there is no allegation in the petition of any agreement under which the respondents ought to be compelled in any court to accept and execute any such lease as that suggested by the petitioners. The only statement pointing to such an agreement is the allegation that Slatter represented that the assignees had determined to take the lease of the premises. What lease? Does it necessarily follow that a lease to the assignees, binding them personally to the covenants for the whole term, was intended? Is it not more reasonable to suppose that a lease commensurate with their interest and liabilities as assignees was all that was required? The landlord indeed might not be bound to grant any such lease, and might have put an end to the tenancy by a regular notice to quit, or might have applied to the Court under the provisions of the 46th section of the Bankrupt Act. But suppose Slatter had expressly said that the assignees would take a lease to themselves, and personally bind themselves by the covenants as lessees, where is the evidence that Slatter had authority thus to bind his co-assignees? There is no admission by them of their assent; there is no evidence of it; possession was not taken under any such agreement; Slatter was already in the occupation of the premises, and there is no one fact stated in the petition from which any inference of the assent of the other two assignees to any such arrangement can be fairly drawn. Assuming, therefore, for the Court the widest range of jurisdiction, and taking every fact stated on the petition to be true, there is no case established for calling on the respondents to accept such a lease as that now tendered. The petition must, therefore, be dismissed with costs. Sir John Cross:-This case involved two questions; one as to jurisdiction, the other as to the merits. The question of jurisdiction was disposed of before, and the case stood for judgment on the merits: these are embodied in the petition, and the point is, whether on the face thereof the petitioners are entitled to relief. After a careful perusal of the petition, I am of opinion that the petitioner is not entitled to relief on the merits. Sir George Rose-I have already delivered my opinion at the close of the argument. Petition dismissed with costs, C. R. Dec. 12, 1833. -When the com exercised their judgment with respect to a proof of debt, and have refused to admit it, the Ex parte MILLINGTON. — In the matter of -- HUDSON. THE commissioners had refused to order a sale of missioners have mortgaged premises, on the ground that the mortgage debt was usurious; the mortgagee petitioned against this decision. (a) The petition was ordered to stand over to give the petitioner an opportunity of trying an action at law. He succeeded at law. The assignees offered to pay the principal and interest, and all the costs incurred after the order made the petition. This was an application for the costs of the petition of appeal from the decision of the commissioners. successful petitioner against their decision is not entitled to costs, it being a general rule that costs cannot be so given when commissioners exercise their jurisdic tion. upon Mr. Swanston and Mr. Quin, for the applicant, submitted, that as the general rule with respect to costs not being allowed against the decision of the commissioners no longer existed (b), it was but just that the petitioner should not be at the expense of the costs which had been incurred by the mistake of the commissioners; and that such costs ought, therefore, to be allowed out of the estate. Mr. Montagu, contrá, was stopped by THE COURT:-Who said, that although in particular cases where the commissioners had not exercised jurisdiction the general rule had been relaxed, it was never intended that the general rule should be annihilated. That in this case the commissioners had very anxiously exercised their jurisdiction. And as far as appeared on the proceedings, the debt was, to say the least, very doubtful. Application dismissed with costs. (a) The petition was heard the 5th of July 18533. (b) See 1 Mont. & Greig, 301; and ex parte Fisk, Mont. & Mac. 93. Ex parte HARDING.—In the matter of BARRATT. MR. MONTAGU moved to advance a petition for leave to prove, which had not been answered, the dividend meeting being on the 9th of January 1834, and the Court not sitting before the 11th of that month. Per Curiam:-The Court will not advance a petition not yet served. The petitioner should get the petition answered, and served, and then he may apply to the registrar, who will communicate with the Judges, and, if necessary, they will appoint a special sitting for the hearing. C. R. Dec. 21, 1833. Petition not served cannot be advanced. Ex parte CARTER. IN this case a joint certificate had been duly signed, C. R. Jan. 12, 1834. after which one partner died. This was an application A joint certificate is, upon the that it might be advertized and allowed as the separate death of one of certificate of the survivor. In ex parte Cossart, 1Gl. & J. the bankrupts, 248., a similar order was made by Lord Eldon. a separate certi. ficate. Ordered. (a) («) And see ex parte Currie, 10 Ves. 51. |