Ex parte PRICE. In the matter of PRICE.

Nov. 13,

1833.

The costs of a

petition to prove must be paid by the creditor if

he adduces new

succeed on eviwas tendered

dence which

THIS was a petition for leave to prove, which stated, that when the petitioner attended before the commissioners they rejected his proof, all but 201., on the ground, as petitioner understood, that the entries in his evidence. If he accounts were made recently, and for the purpose of making himself appear a creditor. The petition prayed the costs of this application. Affidavits were filed in verification of the account, rejected, it which established the case of the petitioner; and the question which then arose was, whether the commissioners had altogether rejected the proof, or had ordered it to stand over till further evidence was produced.

Mr. Swanston and Mr. O. Anderdon for the petitioner having opened the case, the Court interposed,

Per Curiam:-It appears that the commissioners stated they were not satisfied with the proof adduced, and required further evidence. On the part of the petitioners it is insisted that such further evidence was tendered, but refused. The respondents deny this; and, on examining the proceedings, no memorandum appears of any further evidence having been tendered. Under these circumstances, the proper course would appear to be to refer it back to the commissioners, in order to give the petitioner an opportunity of producing his further evidence. As to the costs of this petition, they would depend upon the fact whether the evidence was or was not tendered; and the affidavits being contradictory on that point, the commissioners should certify to this Court what actually passed on the former occasion. These are only observations thrown out for the consideration of counsel.

before the commissioner and

seems he might be entitled to

costs.

A certificate from the commissioners is wholly unnecessary, it being distinctly sworn by four persons that further evidence was tendered and rejected; and the denial of this is merely by the affidavit of the solicitor of the assignees, which in effect amounts to no more than that he has no recollection that other witnesses were produced. As to costs, they ought to be allowed, because this proof was rejected so improperly as to form one of the exceptions to the general rule, that costs are not given against a decision of the commissioners. (a)

Mr. Griffith Richards and Mr. Bacon for the respondents:

When the petitioner tendered his proof before the commissioners they required evidence in its support; he thereupon produced his books, when all the entries constituting the items of his claim were discovered to be entered together in one place, which the commissioners thought so suspicious that they required further evidence; and there the matter rested, for none was produced.

The CHIEF JUDGE:- It appears to me that the petitioner has established his right to prove, by the affidavits in support of his petition. The question therefore resolves itself into this, who is to pay the costs? No rules are clearer or better established than those which lay down that, when, in cases like the present, the assignees support the decision of the Court below, they take their costs out of the estate, unless a case of suppression of evidence is made out; and that a party who succeeds in this Court against a decision of the commis

(a) Ex parte Fiske, 1 Mont. & Mac. 93.

This latter rule may

sioners must pay his own costs.
sometimes bear hard upon petitioners, but it would be
equally a hardship to make the estate, that is the other

1833.

Ex parte

PRICE.

of

PRICE.

creditors, pay for an error in judgment of the commis- In the matter sioners. If the petitioner had made out the fact that he did actually tender further evidence, which was refused, that might perhaps entitle him to costs out of the estate, but that is not satisfactorily proved. This proof is therefore allowed upon the affidavits of witnesses not proved to have been tendered in the Court below; and there can be no reasonable doubt, that, if they had been examined before the commissioners, this proof would not have been by them rejected. The petitioner must therefore pay his own costs.

Sir John Cross: I concur in what has fallen from the Chief Judge. As I have heard it questioned whether a petitioner may support his evidence in this Court by further or other evidence than that tendered before the commissioners, I wish to observe that it is quite settled that he may do so, but that the consequence usually will be, that, though successful, he must pay the costs. If, in the case now before us, the evidence now produced had been before the commissioners, and they had still rejected the proof, I am of opinion that we ought to have allowed the petitioner his costs.

Sir George Rose:- The petitioner certainly has now established his case, and we have merely to decide who is to pay the costs: as he does not prove the fact of having actually tendered these witnesses to be examined, he must pay his own costs.

Proof allowed.

Costs of assignees out of the estate.
Petitioner to pay his own costs.

C. R.

Nov. 23, 1833.

A supersedeas

upon consent of

In the matter of HALL.

MR. MONTAGU, on behalf of the bankrupt, applied was applied for, that the commission might be superseded upon the conall the creditors sent of all the creditors. The Registrar declined giving the usual order, as one of the creditors who had proved and no admini- was dead, and the consent on his part was signed by his son, who made an affidavit that no administration had been taken out, as he had died insolvent.

but one, who

died insolvent,

stration taken

out; but his son signed the consent: Held, the supersedeas

could not issue without a limited administration for this purpose.

Per Curiam: The Court cannot make the order without the consent of the legal representative; and Sir G. Rose suggested that a limited administration under the statute might be obtained for the purpose of assenting to the supersedeas.

C. R. Nov. 23, 1833.

Proof by joint estate for fraudulent abstraction, when admissible.

Ex parte TURNER.-In the matter of MACKENZIE and ABBOTT.

IN November 1813 a joint commission issued against

Mackenzie and Abbott.

Mr. Commissioner Fane admitted a proof for 1,5577. 10s. 1d. on behalf of the joint estate against the separate estate of Mackenzie, on the ground that he had fraudulently abstracted that amount from the partnership funds.

This was a petition to expunge the proof.

From 1811 till July 1813 Abbott and Mackenzie were in copartnership as merchants. Previous to the commencement of the partnership Mackenzie was in

debted to various persons, which debts he was to discharge out of his private effects. According to the terms of the partnership Abbott and Mackenzie were respectively authorized to draw sums from time to time from the joint funds by way of maintenance, not exceeding 7001. a year. In December 1812 Abbott discovered that Mackenzie had withdrawn bills to the amount of 2,7007. from the joint stock, which he had not entered in the books, but had applied to his own private use, contrary to the terms of the copartnership. Immediately after the discovery, Abbott remonstrated with Mackenzie upon the great impropriety of his conduct, upon which Mackenzie promised he would replace the amount as soon as assets of his private estate should come to hand from the Baltic, West Indies, and other parts; subsequent to which time Mackenzie went to the island of Teneriffe, to collect some property consigned by the partnership to that island; and during his absence his wife and family were in great distress, and, from motives of humanity, Abbott allowed her small sums of money for the subsistence of herself and family. No sums of money were ever repaid to the copartnership to replace the sums abstracted. Ogg, the clerk to the bankrupts from the commencement of their partnership till the issuing of the commission, deposed, that upon settling the account of the partners it appeared, that after giving credit to Mackenzie for various sums paid in by him to the partnership account, he had drawn 3,015l. 16s. 9d., from which deducting 1,4587. 6s. 8d., the amount allowed to be drawn by the articles from the commencement of the partnership to 1813, the date of the commission, there remained 1,5577. 10s. 1d. overdrawn by Mackenzie; that part of the sum of 3,0157. 16s. 9d. consisted of the three