1834. Ex parte MURRAY and others. In the matter of SMITH. and that when an order is made that several shall pay, either may be selected. Mr. Bethell for the respondent: There are three objections to this application: 1st, the petition does not state that the money "is still due and owing." Moreover it states, that neither Hicks, Alexander, nor Kitchener have paid; it should have gone on," nor any person on their behalf." 2d, Neither Hicks nor Alexander have been served with this petition, and non constat but they might pay if they had. 3d, The Court will not permit solicitors, officers of the court, to resort to the official assignee, also an officer of the court, unless they previously apply to the other parties. At the hearing I objected to the order including the official assignee, but the Court stated there would be no objection, as if Messrs. Murray proceeded against the official assignee, it would be at their peril. Mr. Russell, in reply, said this was an application for an intermediate order only, not for the final order of committal; if the order of committal be asked, then the affidavit must strictly state that the money is still due and owing, and that the respondent has not paid the money, or any person on his behalf; but such strictness is not required on an application for an intermediate order, and when the party is served, it might be different if the application were ex parte. The CHIEF JUDGE:-I have no recollection of having intimated that the official assignee was not to be proceeded against. It is not now a question, whether he should be ordered to pay the costs; he was included in the order made twelve months ago, and no steps have been since taken to rescind it. On occasions like the present, no distinction can be made in favour of the official assignee; supposing the Court inclined to protect, it has not now the power. An order has been made against three persons to pay a sum of money; a demand is made on one, and he has not paid, and the order now asked is of course in regular practice. Sir John Cross:-I doubt whether the order contemplated that the official assignee would be alone called on to pay the costs. If the attention of the Court had been called to the point at the hearing, I, for one, should have been of opinion that he should have been protected. His counsel state that he did ask protection, and that the Court intimated the petitioners would proceed against him at their peril; if so, the order ought to be reconsidered before it is enforced against him by a second order. Under the peculiar circumstances of the case, I am desirous of ascertaining what the real intent of the Court was; till then I will suspend my judgment. Sir George Rose : The order asked is of course, unless the respondent, being an official assignee, creates any distinction. I have no recollection that any such intimation as that alluded to fell from the Court; indeed I feel a difficulty in conceiving how the suggestion could have been made, considering that the fiat was superseded, under which, if in existence, the official assignee might perhaps have been sheltered. If the fiat existed, the Court might work out the equity of the official assignee against the other assignee; but this is a case of adverse litigation, independently of any fiat. In this case there is certainly no foundation in law, and I perceive none in equity, for protecting the official assignee. The distinction taken by Mr. Russell, as to the 1834. Ex parte MURRAY and others. In the matter of SMITH. 1834. Ex parte and others. In the matter of SMITH. If an order of committal be asked, the affi davit must state that the money owing, and that the party has not paid, nor any person on his behalf; but is still due and the same strict ness is not required on an intermediate order. form of the affidavit on intermediate or final orders, is Ordered as prayed, with liberty to the official assignee to use the names of Murray and Co. on an indemnity. C. of R. Ex parte BELCHER and others. In the matter of May 30, 1834. not interfere to direct assignees estate. MABERLY. The Court will MR. SWANSTON:- This is an application for the order of the Court as to the mode in which the assignees how to sell the should sell portions of the bankrupt's property, part having been his absolutely, and in part he had but qualified estates, and the boundaries had been confused. Lord Eldon frequently made similar orders in the nature of intimations to the assignees, when any difficulty existed as to the proper mode of acting. Per Curiam: The assignees must act on their own responsibility. The Court sits to adjudge, not to act as counsel and advise; besides, it is due to the profession not to anticipate their advice. Though Lord Eldon sometimes made such orders, it was constantly with a declaration that it ought to be done reluctantly. The statute leaves the assignees a discretion and imposes a responsibility, and the Court ought not, on an ex parte application, to interpose what might appear a protection, though in fact the order, if made, would be mere waste paper. Sir John Cross dissentiente. No order. 1834. Ex parte BELCHER. In the matter of MABERLY. Ex parte GIBSON.-In the matter of PHILLIPS. (a) THE assignees, with consent of a meeting of creditors, instituted a suit in equity. The cause was heard in April last, and the bill dismissed with costs. (a) In the matter KINDERSLEY CASTLE.* April 25, 1834. The owner of a ship had given a bottomry bond, whereon a suit was instituted against him. He became bankrupt, and his assignee continued to defend the suit, in which the decision was ultimately against him, and a judgment pronounced in favour of the validity of the bond, with costs. The ship was sold, but the proceeds were not sufficient to discharge the bond and costs of suit, and the assignee had no assets in his hands. The question was, whether the assignee was personally liable for the costs? The assignees elected to continue to costs, even though they have no In Whitcombe v. Minchin,5 Mad. It is peculiarly expedient to hold assignees liable to costs in such cases. Money being frequently advanced by foreigners Dr. Adams contended, that if on bottomry bonds, to enforce *Er relatione. which they are occasionally com- C. of R. May 24, 1834. If a bill in equity by as signees be dis missed with If the assignees continue to defend a suit in stituted against the bankrupt, which is decided in favour of the plaintiff with costs, and they have no assets, they are not personally liable, unless they vexatiously continued the defence. 1834. Ex parte In the matter of PHILLIPS. assignee asked for these costs out of the estate. (a) The Lord Chancellor said he had no jurisdiction so to give them, and that the application should be made to the Court of Bankruptcy. This was a petition by the assignee, praying that the costs, they must costs incurred by him might be paid out of the estate. apply to the commissioner in the first instance to allow them out of the estate. Mr. Stinton for the petitioner. Per Curiam:-In this case the assignees should apply to the commissioners in the first instance. If this Court were now to make the order, it would deprive the commissioner of that wholesome supervision which the legislature intended they should exercise. resisted by the obligor on the costs. Dr. Dodson, on the other side, said the sentence of the Court had condemned "the ship, her tackle, and freight," and not the assignee, who had no assets of the bankrupt's, and who would have been liable to the credi Petition dismissed. tors if he had abandoned the defence of a suit which he ought to carry on. Sir John Nicholls :—There can be no doubt as to the propriety of the dictum of the Vice-Chancellor in Whitcombe v. Minchin. Assignees would be personally liable if they improperly resisted any demand. In this case I shall not give costs against the assignee, unless it can be proved that he has acted improperly and vexatiously in continuing the defence. (a) See Turner v. Hibbert, ante, 245. |