1834. SMITH บ. lawfully removed, and a new assignee duly appointed, all such personal estate as was then vested in such deceased or removed assignee shall, by virtue of such DE TASTET. appointment, vest in the new assignee, without any deed of assignment for that purpose." This construction has apparently been adopted by the Court of Review, and their practice is to refuse the order which the decision of the Vice-Chancellor in this case would render necessary. Ex parte Forster, 1 Mont. & Bli. 87, was a petition presented to their Honors, praying an order vacating the assignment to an assignee who had absconded; and it was contended, as here, that the act contemplated future fiats. But their Honors refused to vacate the assignment, holding it unnecessary, and that the new choice was sufficient. There is undoubtedly great weight due to this construction given to the section, and acted upon by the Court of Review. That it is also a construction recommended by considerations of manifest convenience needs hardly be added. In disposing of this case upon the construction of the act merely, I give no opinion on the other question, whether, supposing Rubichon's interest as assignee had not been divested by operation of law, it would have been a ground of demurrer that he had not been made a party. The necessity for considering that point would only have arisen in case I had concurred in opinion with his Honor on the other point. Demurrer over-ruled. IN this case a petition had been presented, and an order made thereon, for the reference of certain bills of costs to the deputy registrar, for taxation. The deputy registrar had made his certificate of taxation. C. of R. April 14, 1834. A motion may be made that the registrar may review his certificate of taxation of costs. A petition may be neces or amend it. Mr. Swanston, with whom was Mr. Montagu:sary to oppose This is a motion that Mr. Gregg may be directed to Per C. J. review his taxation. Non-payment of the taxed costs into Court not a prelimi Mr. J. Russell, contrá, objected that this application nary objection could not be entertained on motion, a petition being necessary. This is a report, or equivalent to a report, to deal with which on motion is at variance with all rules of practice. When an objection is intended to be made to a taxation of costs, the course is either, 1. To present a petition of exceptions, Pitt v. Mackrith, 3 Brown, 321, or 2. To petition for leave to file exceptions, Fenton v. Crickett, 3 Madd. 496. To entertain such applications on motion would lead to two inconveniences. 1. The items objected to are not accurately specified. 2. The motion may be (and in this case is) made on affidavits containing evidence not before the officer. In Jenkinson v. Royston, 9 Price, 215, a motion was made for leave to file exceptions. The notice of motion to the motion. 1834. Ex parte RICHARDSON. In the matter of CONSITT was in general terms, merely stating that such a motion would be made, and that the parties intended to read affidavits filed on former motions. The Lord Chief Baron said: " In this case I think it is unnecessary to inquire what has been the practice, which seems to and another. be doubtful; we may proceed on principle, and the reason of the thing. The Master has made his report. A motion is then made for leave to except. We must suppose the Master to be right, and the Court ought not to give leave to except, without being informed what are the exceptions intended to be taken, and on what they are founded. They may be frivolous and idle, and without any sort of foundation; and it is a proceeding calculated to create injurious delay. These exceptions only state, that the Master, having reported as he has done, ought to have reported otherwise. But that gives us no information; it is not stated why he should have reported otherwise, or wherein he has done wrong, or why, if he had reported otherwise, he would have done right. The whole proceeds on mere assertion. Before I make an order that the Master review and alter his taxation, as I am in effect required to do, surely I ought to have some reasonable ground for making such an order. Not being apprized of there existing any good cause for making such an order, I certainly shall do no such thing. In Lucas v. Temple, 9 Ves. 299, Lord Eldon expressly decided that exceptions did not lie for costs, but that a petition must be presented; and in Pitt v. Mackreth, 3 Bro. C. C. 321, Lord Thurlow said that exceptions were never admitted, but "that the regular method was to state the articles the party meant to object to on petition, and pray leave to except." Such is the practice in equity; and the practice of this court is to follow that of equity till altered by a general order of this Court. (a) 1834. Ex parte RICHARDSON. of CONSITT Mr. Ching, for another party against whom a similar In the matter motion was made: If a petition were presented, it would state the objections to the taxation, and we should and another. at once perceive if the taxation were erroneous, and if so, should not come here to oppose the review thereof; but, a notice of motion being in general terms, we are compelled to come here to ascertain what is asked against us. If the motion be granted, the Registrar, having nothing to guide, no beacon, will not know how to act. Mr. Swanston and Mr. Montagu: The affidavits filed in support of the motion contain all the facts that would have been embodied in a petition, and more. Ex parte Crockwell (b) decides that it is not necessary to present a petition for leave to except (a) That the practice in the Court of Review shall, until otherwise ordered, be conformed as nearly as may be to the present practice in matters before the Lord Chancellor.-Court of Review, Jan. 12, 1832. Order 25th. (6) Court of Review,July 26,1832. Ex parte CROCKWELL.-In the matter of CROCKWELL. This was a petition for the confirmation of Mr. Gregg's certificate of taxation of a bill of costs, which was opposed, and exceptions now tendered in Court. Mr. Montagu, for the petition, objected to the respondents being heard in opposition to the certi- Per Curiam:-On a reference Not necessary to obtain leave to except to the registrar's certificate of taxation. 1834. to a report or certificate of taxation. The third section of the 1 & 2 W. 4, c. 56, enacts that all matters to be deEx parte RICHARDSON. termined in the Court of Review shall be brought on by of petition, motion, or special case, according to the way rules and regulations to be established as therein-after provided. In the matter of CONSITT and another. Though the practice in Chancery was to proceed on petition, yet in courts of common law it was always done on motion, and this, being a court of law and equity, may pursue either course, and will adopt that which is attended with least expence to the parties. We might abandon the affidavits, and proceed on the allocatur of the Registrar alone. Mr. Russell, in reply:- The order asked has never yet been made in bankruptcy on motion. Affidavits should be used to support a case, not as a means of stating the case itself. The CHIEF Judge: There can be no doubt as to the power of the Court to entertain such applications on motion, the only ques tion which could arise would be as to the expediency of so doing. If the objection appear on the face of the certificate, or report, there never was any necessity for a petition for leave to except; this was held by the Vice-Chancellor in ex parte Farquharson. (a) The principle of the objection does not apply to a (a) Ex parte Farquharson, in the matter of Starkie, 17 June 1831. MS. VICE CHANCELLOR: "It is not necessary to except in the regular way; if it appear on the face of the report that the Master is wrong, the Court can decide." |