1834. SMITH v. lature had intended to divest old assignees of their legal title without such assignment, express words would have been used to that effect. The first part of section 25 enacts, that when any person hath been adjudged DE TASTET. a bankrupt, all his personal estate and effects, present and future, which might be assigned by commissioners, shall become absolutely vested, &c. These words cannot apply to the present case, for at the time this statute came into operation, there was not any property of the bankrupt which might have been assigned by the commissioners; the whole had been previously assigned by them, and was duly vested in Rubichon. The commissioners could not make any further assignment, until that prior assignment had been vacated. This first part of the section, therefore, only applies prospectively to assignees appointed under that act; and the plaintiff is not aided by the second branch of the clause, for the words are, " as often as any such assignee shall die, or be lawfully removed," &c., which must mean assignees to be appointed in pursuance of the first branch of the clause, and can only operate in case of the death or removal of any "such" assignee. We submit that the property is vested in Rubichon ; and if not absolutely, yet that he has such an interest as to be a necessary party to this suit. As to the decision of the Court of Review in ex parte Forster, Mont. & Bli. 88, the point does not appear to have been fully considered, as it was an ex parte application. The property might have been assigned by the commissioners; the vacating the previous assignment was a mere formal act and mode of conveyance, which could not affect the right. 1834. SMITH V. DE TASTET. March 27. But even if, to perfect the plaintiff's legal title, the original assignment should have been vacated, yet all Rubichon's interest being divested, he was neither a necessary or proper party, as will appear from an analogous case of Lloyd v. Lander, 5 Mad. 288, which was a bill by a mortgagee of copyhold against the assignees of the mortgagor, who had become bankrupt, and the bankrupt was made a party, as no bargain and sale had been made to the assignees of the equity of redemption; but a demurrer by the bankrupt as an unnecessary party was allowed, Sir John Leach saying, "the equity of redemption is not an estate, but an interest, and may well be considered as substantially vested in the assignees before bargain and sale.” This was an appeal from a decision of the ViceChancellor allowing a demurrer for want of parties. The alleged defect in the suit is, that Rubichon, the original assignee under the commission of bankrupt against Eliseé, was not made a party. Now Rubichon was regularly dismissed under the authority of the late act, 1 & 2 W. 4, c. 56, by an order of the Court of Review, and the plaintiff Smith was duly chosen and appointed a new assignee. But as the bankruptcy existed long before that act passed, it is contended that the 25th section does not apply to this case. If the interest be divested from Rubichon, it is clear there was no occasion for making him a party, and I have no doubt that it was; and that the whole interest was vested in Smith by operation of law, so as to render any assignment from Rubichon to Smith unnecessary. It was therefore unnecessary that Rubichon should be a party to this suit. In support of the order it is said, first, that the 25th section of 1 & 2 W. 4, c. 56, only vests in the assignees, by the earlier branch of that section, all the estate and effects which the commissioners by the laws now, that is at the date of the act, in force might assign, and that by those laws then in force, an order of the Court was required to transfer the property, which it is confessed was not obtained in the present case. But that is not the sound construction; the plain meaning of the words in the first branch of the clause, "all the estate which may be assigned by the commissioners," being all that falls under their power as commissioners, in whatever way the assignment is to be made by them. It may even mean, that if there be any thing to be done for the purpose of transferring, by means of an order of the Court: but there is no occasion for resorting to this supposition. The words are general, and vest in the assignees, without any assignment, whatever an assignment could, as the law before stood, have carried. The object of the provision is to supersede the necessity of any assignment. Secondly, It is said that the second branch of the clause, by the use of the word "such," as a word of reference, applies to assignees in future to be appointed, and not to those already appointed, as Rubichon was. But I am of opinion that the words "such assignees " mean only to avoid the repetition of the expression immediately before employed, namely, 66 assignee or assignees for the time being." It appears to be manifest that this second branch of the section transfers all interest from the assignee dying or removed to the new assignee, and that its object is to avoid the necessity of any act being done beyond the appointment of a new assignee. The transfer is made to depend on, and flow immediately from that appointment, "as often as any such assignees shall die or be 1834. SMITH V. DE TASTET. 1834. SMITH v. DE TASTET. 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 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. Ex parte RICHARDSON.In the matter of 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. Mr. Swanston, with whom was Mr. Montagu :This is a motion that Mr. Gregg may be directed to review his taxation. C. of R. April 14, 1834. A motion may be made that the registrar may review his certificate of Per C. J. 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 spe cified. 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. |