learned Judges, and as the question appears not to have Reversed. (a) C. R. May 30, 1833. If an order, upon a petition by assignees to supersede an invalid commission, does not, through mis take, include the assignees' Ex parte BURNELL and others. In the matter of A PETITION was presented by the assignees, soon after their appointment, stating that the petitioning creditor's debt was was invalid and fabricated, and that the commission was fraudulent, and issued by Malachy, the petitioning creditor, not for the benefit of the creditors, expences of pro- but in collusion with the bankrupt, in order to compel the bonâ fide creditors to consent to a composition; and that various examinations had been had before the commissioners, with respect to the circumstances, by which the assignees had incurred considerable expences. And it the petitioning prayed, that the commission might be superseded, and secuting the commission, the error cannot be rectified by a petition of rehearing Qy. Whether creditor is liable. (a) Since this decision, the case of Woodbridge v. Swann, 4 B. & Ad. 633, has been reported, in which it was decided, that if, after a commission of bankruptcy has issued against one partner, the solvent partner, thinking the firm solvent, continue the business, and bona fide, without contemplation of bankruptcy, pay partnership money into the bankers of the firm, to be discharged of running bills of the firm payable at the bank, and it is so applied, and the solvent partner afterwards become bankrupt, the payment to the bankers is valid at law, and the assignee of the two cannot recover the amount in an action against the bankers. that the costs of and occasioned by the issuing and prosecution of the commission, together with the costs of that petition, and incident thereto, might be paid by the petitioning creditor. The petition was heard on the 12th of May 1832, when it was ordered that it should be referred to the commissioners to inquire and certify whether, at the date and suing forth of the commission, there was due and owing to Malachy a valid and sufficient debt, as petitioning creditor, to support the commission; and, if the commissioners found that the debt of Malachy was not sufficient to support such commission, then it was further ordered that the commission should be superseded, and that the petitioners should be at liberty to take out a new fiat upon their own petition, unless within one calendar month, to be computed from the date of the said certificate of the commissioners, another debt was substituted in support of such commission in lieu of the debt of Malachy; in which latter case it was ordered, that Malachy should pay the costs of the examinations referred to in the petition, and also the costs of all parties of and occasioned by the said application; and, upon the supersedeas of the commission, under the circumstances therein-before mentioned, then it was further ordered, that Malachy should pay the costs of such supersedeas and incidental thereto, together with the costs of the examinations, and also of all parties of and occasioned by the application; it was lastly ordered, that if the commissioners should certify that the debt of Malachy was a valid and sufficient debt to support the commission, then and in such case the parties were to be at liberty to apply to the Court. This was a petition by the assignees, stating, that the commission had been superseded, and a new fiat issued by them; that the petitioners were aggrieved by so .1833. Ex parte BURNELL and others. In the matter of BENNETT and another. 1833. Ex parte In the matter of BENNETT much of the order as directs that, upon the "superseIdeas of the commission under the circumstances hereinbefore mentioned, Malachy do pay the costs of such and others. supersedeas and incidental thereto, together with the costs of the said examinations, and also the costs of all and another. parties of and occasioned by that application;" and that the petitioners were advised, that by such order it should have been directed that, upon the supersedeas of the commission under the circumstances herein-before mentioned, Malachy should pay the costs of the supersedeas and incidental thereto, and all the costs of and occasioned by the issuing and prosecution of the commission, and also the costs of all parties of and occasioned by the said application. The petition prayed, that the original petition might be reheard, and the order varied, by ordering Malachy to pay the costs of such supersedeas and incidental thereto, together with the petitioners' costs, charges, and expences of and occasioned by the issuing and prosecution of the commission, and the costs of all parties of and occasioned by the said application. Mr. Bethell, for the respondent Malachy, objected to the petition being heard, on the ground that it was a rehearing for costs. Mr. Montagu and Mr. Teed for the petition: There is no doubt as to the law, that a rehearing does not lie for costs only. (a) But that rule is only applicable to a case of rehearing as to costs of the particular proceeding upon which judgment has been given. This petition does not ask for a rehearing as to the costs of the original petition, but as to a substantive part of the prayer of the former petition, which the present order (a) Ex parte Arrowsmith, 14 Ves. 209. does not embrace, viz. that the expences occasioned to the assignees by the petitioning creditor having improperly issued the commission and of the prosecution may be paid. In ex parte Baines, 1 Glyn & J. 259, it was decided, that where the question is not as to the costs of the petition, but out of what fund they shall be paid, a rehearing as to costs will lie. A fortiori there may be a rehearing as to expences incurred which were a substantive part of the relief prayed by the original petition. The order was made by arrangement between the counsel, and it was then supposed that a new debt would have been substituted, and the commission have proceeded; and, if such had been the case, the present order would have fully protected the assignees and the bankrupt's estate, as in that case the petitioning creditor is properly ordered to pay the expences of the inquiry before the commissioners as to the validity of the commission. Indeed, the very principle for which we contend is there recognized, by that provision in the order for indemnifying the assignees in the event of the commission proceeding. Any omission in the order arose from the error of the petitioner's counsel, in supposing that it was sufficient in all events. The question is, therefore, What ought to have been the order? If the attention of the Court had been called to all the circumstances of the case, it is quite indisputable that the petitioning creditor must have paid all these expences of prosecuting the commission. As soon as the assignees were appointed they caused inquiries to be made; and, as in ex parte Graves, 1 Glyn & J. 86, the assignees apply instanter upon their discovering that the commission could not be supported. In ex parte Graves the assignees made repeated applications by 1833. Ex parte BURNELL and others. In the matter of BENNETT and another. 1833. Ex parte BURNELL and others. In the matter of BENNETT and another. letter to the petitioning creditor, requiring him to satisfy them of the validity of his debt and the act of bankruptcy. The commission was superseded, and Lord Eldon said, "I shall not be disposed to favour petitions of this nature, unless it be manifest that the assignees have done all in their power before they apply to this Court; but I again say, I am not sorry this discussion has taken place, for it will instruct assignees that their first duty is to satisfy themselves that the commission is well founded." In the present case the assignees did all in their power before they presented the petition, by examining minutely the petitioning creditor, and all the circumstances, before the commissioners. In doing this they have necessarily incurred great expence; and it surely will not be contended, that assignees are not to be indemnified for expences necessarily and properly incurred in the prosecution of the commission. They have only taken a reasonable time for inquiry, and then applied instanter. That the petitioning creditor is liable to all costs and expences cannot be doubted, in a case of fraud, as is the present; and such was the usual order when a commission was superseded for concert. We submit, therefore, that the general rule, not to rehear for costs, is inapplicable; and that the order ought to be amended as prayed. Mr. Twiss, for the co-assignee of the petitioner, cited Jenour v. Jenour, 10 Ves. 562, where, upon an appeal as to costs, they were considered by Lord Eldon as relief prayed, and therefore not within the rule against appealing for costs only. Owen v. Griffith, 1 Ves. 250, of which the marginal note is, "The rule that no appeal lies for costs merely not to be strictly adhered to, if a sound distinction can be made, as where a fair incum |