Ex parte THWAITES. In the matter of C. of R. KNOWLES. Feb. 18, 1834. THIS was a petition to confirm a purchase made by The Court will an assignee of the bankrupt's estate without leave. Certain premises, part of the bankrupt's estate, were put up to sale in 1828, when Baron was declared purchaser. Baron bought on behalf of Thwaites, one of the assignees. Subsequently all the creditors who had proved, or their representatives, consented to the purchase, save one who died in Ireland, and whose representatives could not be discovered. After this purchase, an application was intended to have been made to the Court to confirm the sale, but before that was done, Thwaites, who was the surviving assignee, died. A new assignee was appointed, and consented to the prayer of this petition. The creditors (save the one before mentioned) were of opinion that a more advantageous sale could not be made. This was the petition of the legal personal representatives of Thwaites, praying that the sale might be confirmed, or that a reference might be made to the commissioners to certify whether, under the circumstances, the sale were a proper one. Per Curiam:- The prayer of this petition cannot be granted. This Court will never thus interfere after a sale. You must proceed at your own risk. If, however, all the creditors have consented, who can upset the sale? (a) (a) As to the rule that assignees cannot purchase, see ex parte Reynolds, 5 Ves. 707; ex parte Lacy, 6 Ves. 625; ex parte Tan- not confirm a purchase of part of the bank rupt's estate made by an assignee with out leave, because a meeting consented. of creditors has C. of R. Feb. 18, 1834. A firm composed of A. and B. may prove against a firm composed of B. and C. Ex parte THOMPSON, one of the assignees. (a) — JOHN ECROYD and James Ecroyd were partners as grocers. John Ecroyd entered into partnership with James Wilks, as nail manufacturers. The firm of nail manufacturers was indebted to the grocers. The grocers assigned their property, on the usual trusts, for payment of their debts. A fiat issued against the nail manufacturers. On a former occasion (2d July 1833) a petition was presented by the trustees for the creditors of the grocers, to prove under the fiat against the nail manufacturers. The respondents did not appear. Per Curiam:-Take such order as you can abide by. The petitioners accordingly took an order to prove. The present was a petition for a re-hearing, and to expunge the proof. Mr. Swanston, for the proof, cited ex parte Adams, 1 Rose, 305; ex parte Sillitoe, 1 Gl. & J. 382; and ex parte Cooke, 1 Mont. 258. Mr. Koe and Mr. Sharpe, contrà. Per Curiam: It has been settled law for many years, that if A. and B. and C. are partners, C. cannot prove 238. Lacy, 6 Ves. 625; ex parte James, parte Badcock, Mont. & Mac. (a) The other assignee refused to join in this petition. under a joint commission against all; but that if A. and B. be partners, and B. and C. be partners, the two firms may prove against each other. The proof ordered to stand. Petition for re-hearing dismissed. The respondents' costs out of the estate. No costs to petitioner. In this case the following points of practice arose : On the 2d of July, 1833, the petition was called on, when the respondents did not appear. The Court intimated what order it would be advisable for the petitioner to take, and finally 1834. Ex parte THOMPSON. In the matter of WILKS. When a peti tioner, the re spondent not appearing, takes such order as he can abide by, the other side may open the order any time within about Per Curiam:-Take such order as you can abide by. six months. The petitioners accordingly took an order to prove. On the 8th of July 1833 Mr. Koe, for the respondents, applied that the order might be stayed and the petition be restored to the paper; the respondents were ignorant that the petition was in the paper; the solicitor sent a clerk to examine the list, but he overlooked the case. Sir George Rose : This is an application to stay an order of the Court and to have the petition re-heard. When a party is present a petition desirous of a re-hearing, he must supported by affidavit, stating such circumstances as may induce the Court to think that if the matter be re-heard it is possible the Court may alter its order. Such has not been done in this case, and therefore the application cannot be entertained. When the petition was called on, the counsel for the petitioner was told 1834. Ex parte THOMPSON. In the matter of WILKS. Restoring peti tion to the paper. Practice on petition of rehearing. to take such order as he could abide by. Whenever this is done it should be understood that the other party are at liberty to open the order at any time within six months, and to show that the petitioners had taken an order they could not abide by; that is done by a petition to vary the order. This Court often allows a petition to be restored to the paper, when, through mistake, &c. the parties were ignorant that the petition was coming on; but this is not such a case. There were but five petitions in the paper, and the clerk, who was sent expressly to search, overlooked it; such carelessness must be visited on his employer. And of this opinion were the rest of the Judges, and the application was refused. This was a petition by Thompson, one of the assignees (a), praying for a re-hearing and that the proof already made under the order of the Court might be expunged. Mr. Swanston objected that as this was a petition praying a re-hearing, an order ought first to have been obtained that it should be re-heard, and then it should be set down for re-hearing in pursuance of such order; but no such order had been obtained. Per Curiam:- In bankruptcy, the petition for a rehearing and the petition itself come on at the same time. The present petitioner must now proceed to satisfy the Court that this is a proper case to be reheard. (a) The other assignee refused to interfere. Ex parte PEDDER and another, partners. In the matter of HADWEN. C. of R. Feb. 20, 1834. having bid without leave, an order to bid nunc pro tunc was made. IN this case certain mortgaged property was put up to A mortgagee sale in the usual manner, on the application of the mortgagees. At the sale, finding that the estates were likely to sell for less than the value, the mortgagees bid, and were declared the purchasers; the petitioners stated they had not previously entertained any intention to bid, or they would have obtained an order for leave so to do. This was a petition that the sale so made to them might be confirmed. Mr. Swanston for the petition. Mr. Bethell, for the assignees, submitted to any order the Court might make. Per Curiam: It is quite clear the Court would have given leave to bid in the first instance; nevertheless, there is much difference between giving leave previous to a sale, and confirming subsequently. The petitioners may however take an order to bid nunc pro tunc. Leave to bid nunc pro tunc. |