1834. MARSH v. KEATING. actually received, whether the Bank have in the meantime advanced the dividends or not. Upon the whole, therefore, we beg to state our opinion to be, that upon the question which has been proposed to us by your Lordships, Ann Keating has the right to recover the produce of her stock against the surviving partners of the firm, who received it under the circumstances stated in the special verdict in an action for money had and received to her use. The Lord Chief Justice of the Common Pleas desires to have it expressly understood that he fully concurs in the opinion now delivered. The Judges having given judgment in another case, the following observations were made by the Lord Chancellor : LORD CHANCELLOR:I was not present when the Learned Judges gave their opinion in the case of Marsh and Keating, which was a case of considerable importance, and on that account was very fit to be brought here, and it was in consequence of that I recommended it should come here when it was before me in the Court of Chancery. The Learned Judges have all agreed in opinion, in support of the judgment below; I therefore move your Lordships, that the judgment be affirmed, but at the same time without costs, in consideration of the importance of the question, and the opinion of the Court below having been in favour of taking the sense of your Lordship's House. Judgment affirmed, without costs. Ex parte HETHERINGTON.- In the matter of GLOSSOP. MR. BLIGH for the bankrupt (Glossop):- In this case a petition to stay the bankrupt's certificate has been presented by a creditor named Hetherington, but only served one day before the day for which it was answered. The present application is for leave to present a cross petition for its allowance on the ground of non-service, and that it may be heard to-morrow. Sir George Rose:- In reply to the affidavits filed by the petitioner in support of the petition to stay, the bankrupt has filed an affidavit alleged to be scandalous, and a reference is pending as to that; but for that the petition would have been heard before this, consequently Under these cir the delay is caused by the bankrupt. Mr. Bligh: The order of reference was improperly obtained, not having been made on the application of the party scandalized. Ex parte Pelham, Mont. 209, decides that the party scandalized must apply. C. of R. Dec. 20, 1833. Where, on a petition to stay the certificate, the bankrupt's quested delay, solicitor re and undertook to serve the petition on the bankrupt, the latter cannot afterwards have the petition called on, out of turn, to be dis missed for want of personal ser vice, according to ex parte Moore, 1 Gl. & J. 253, and er parte Brenchly, 1 Mont. & Gregg. Dig. 161. Semble, that the rule, that a bankrupt cannot waive the necessity of personal service of a petition to stay his certifi cate, does not apply when a professional man is inter The CHIEF JUDGE:-There certainly is a dictum posed. to that effect by the Vice-Chancellor in ex parte Pelham (a), but there is also a dictum the other way by Lord Eldon. (b) (a) Mont. 209. (b) In ex parte Simpson, 15 Ves. 476, "I do not think, with reference to this subject of scandal in proceedings, that any application by any person is necessary. The Court ought to take care that either in a suit or in this pro- 1833. Ex parte HETHERINGTON. In the matter of GLOSSOP. Dec. 21. Sir George Rose: - And I always have understood the practice to be, that any person might apply. The CHIEF JUDGE:- But I am of opinion, that the objection of want of service overrules all questions connected with affidavits. But notice has not been given to the other side. Let notice be given, and renew this application. (a) Mr. Montagu and Mr. Bligh renewed the application: The rule always has been, and it is to be hoped always will continue strictissimi juris, that a petition to stay the certificate must be personally served on the bankrupt two clear days before that appointed for the hearing; ex parte Notley, 1 Gl.&J. 63, S. C., 2 Jac. & W. 220; ex parte Kendall, 1 Ves. & B. 544, S. C., 2 Rose, 115; ex parte Coulbourn, 2 Rose, 187; ex parte Bosanquet, 1 Mont. & Gregg. Dig. 161. So strict is this rule that the bankrupt cannot, by any act of his, waive the necessity of personal service, admitting the receipt of the petition is not a waiver; ex parte Furnival, 1 Gl. § J. 254 nor is filing affidavits or applying to have the petition advanced; ex parte Groom, Buck, 40; ex parte Kendall, 1 Ves. & B. 544; ex parte Harford, Buck, 38. The bankrupt might have waited till the petition was called on, when it would be dismissed with costs; ex parte Hopley, 2 Jac. & W. 222: but he preferred making the present application, that his certificate may be forthwith allowed, following ex parte Moore, 1 Gl. & J. 253, and ex parte Brenchly, 1 Mont. & Gregg. Dig. 161. Mr. Chandless for the petitioner:- As to the service, the petition was answered on the 29th of November. (a) In strictness a cross petition was necessary, but it was agreed to waive that form in order to save expence. 1833. Ex parte of GLOSSOP. On that day a letter was sent to Braham, the solicitor to the bankrupt, stating that the petition had been presented, and requesting that a day might be appointed HETHERINGTON. when the bankrupt might be served. On the 5th of In the matter December the solicitor to the bankrupt came to Rawlin's office, requesting that the hearing might be postponed on account of a domestic affliction; and he wrote a letter, in order to furnish evidence of his request, at the same time he expressly undertook to serve his own client the bankrupt. Under these circumstances it is submitted the application cannot be entertained. Mr. Bligh in reply (Mr. Montagu having left the Court): The general rules of practice are not denied; and the question is, whether the bankrupt were personally served two days before, or whether any thing has been done to waive service. The petitioner was aware of the existence of the rule, and knowing it, and that the bankrupt could not be found, he ought to have applied to substitute service. Ex parte Harrison, 1 Gl. & J. 71; ex parte Hopley, 2 Jac. & Walk. 222. The letter in question, which asks the bankrupt's own solicitor to serve the petition on him, was dated the 7th, and the petition was answered for the 9th, so that in any event the petition was not served in time. The CHIEF Judge: I understand the facts of the case to be as follow: On the 5th, Braham, the solicitor to the respondent, called on Rawlins, the solicitor to the petitioner, and asked that the petition might stand over on account of a domestic affliction; whereon Rawlins requested him to write a VOL. I. R R 1833. letter, in order that he might be furnished with evidence of the fact; this letter was accordingly written by BraEx parte HETHERINGTON. ham, and sent on the 6th, on which day Rawlins reIn the matter quested Braham to serve his (Braham's) own client, the bankrupt, which he verbally agreed to do. of GLOSSOP. As to the general rule there is no doubt. But none of the cited cases apply where the want of service arises from the conduct of the bankrupt or his solicitor. On the 5th an application for delay was made by the bankrupt's solicitor, by which the petitioner was lulled into security, and moreover the bankrupt's solicitor then gave a verbal undertaking to serve his client. Under all these circumstances, this is not a case in which the petition ought to be called on, out of its turn, in order to be dismissed. Sir John Cross:-The first step towards delay was taken by the bankrupt's solicitor. When the respondent asked for a week's delay, did he not give a week more to serve in? If so, he was served in time. I therefore can perceive no reason for granting the present application. Sir George Rose: The Court ever has been, and probably ever will be, indulgent in cases of certificates. The rule is, that the bankrupt must be personally served at least two clear days before the day appointed for the hearing, and that the bankrupt himself cannot waive the necessity for such service. But it is very different when the bankrupt moves to advance the petition, in order to have it dismissed for want of service. When the petition comes before the Court in regular course, the objection of want of service may be started and will be disposed of. But I would beg to suggest, |