Billeder på siden
PDF
ePub

Sir George Rose concurred.

Mr. Swanston asked that the petitioner might be allowed his costs out the estate.

Mr. Montagu:-The invariable practice has hitherto been never to allow costs to a petitioner succeeding against the decision of the commissioners when they have properly exercised their jurisdiction; a rule which was followed in ex parte Millington, ante, page 114. The assignees were bound to support the judgment of the commissioners.

-

The CHIEF JUDGE: The assignees, who represent the estate, improperly resisted this proof, and we order the estate to bear the costs. In ex parte Millington we thought the debt doubtful; here we do not. This is a proof which ought not to have been resisted; and the assignees having forced the petitioner to come here, makes this case proper to be brought within the exception to the general rule; which general rule is that a party succeeding against the decision of the commissioners must bear his own costs; a rule which unquestionably exists, and which I think a good rule.

Sir John Cross: Ex parte Millington was a case decided under very peculiar circumstances, and ought not to be considered as breaking in on the general rule, or as being obligatory on the Court on future occasions. I think it injurious to justice to report such cases as ex parte Millington, in which the circumstances were very peculiar. When reported it will have a marginal note, laying down a general rule, which will be cited as proper to guide the Court in future, and thus tend to

[blocks in formation]
[blocks in formation]

deprive the Court of its discretion as to costs, which is expressly given by the statute. (a)

Sir George Rose:- No doubt the general rule of courts of equity is, that the unsuccessful party must pay the costs; but this rule is frequently relaxed when there exists some fund out of which the costs may be paid. In bankruptcy cases the estate is that fund, and enables the successful party to have his costs thereout, though he succeed against the decision of the commissioners. The general rule in bankruptcy is, that the party succeeding against the decision of the commissioner must pay his own costs. That rule has lately been relaxed in certain peculiar cases; but the general rule will always be adhered to, unless the Court thinks the petitioner ought not to have been resisted.

Per Curiam:-The costs of all parties may be taken out of the estate.

Ordered as prayed. Costs of all parties out of the

estate.

(a) That all costs of suit between party and party in the said Court of Review shall be in the discretion of the Court. 1 & 2 W. 4, c. 56, s. 5.

lum? Similiter, si incertam vocem det lex, quis se parabit ad parendum? Ut moneat igitur oportet, priusquam feriat. Etiam illud recte positum est, optimam Q. 1. Were not such costs alesse legem, quæ minimum relinquit ways in the discretion of the arbitrio judicis: id quod certitudo Court? ejus præstat.—Baconis De Aug. Q.2. If so, of what use is this Scien. lib. 8. aphoris. 8. clause?

Legis tantum interest ut certa sit, ut absque hoc, nec justa esse possit. Si enim incerta vocem det tuba quis se parabit ad bel

Etenim optima est lex, quæ minimum relinquit arbitrio judicis; optimus judex, qui minimum sibi.— Ib. Id. aphoris. 8.

Ex parte LUCAS.-In the matter of OLDHAM. MR. SWANSTON and Mr. Stinton moved to amend the minutes of the order in this matter by striking out the words " and the several affidavits which were read;" the case having been argued as on a demurrer (a), and no affidavits being in fact read.

Per Curiam : The order is drawn in the usual form all affidavits filed are considered as read.

[blocks in formation]

Ex parte WYATT. — In the matter of WYATT.
THIS
was a petition to supersede and annul the fiat.
The petition stated that Wyatt was not a trader.

That the petitioner was a creditor of Wyatt to the amount of 2,000l. and upwards, for money lent, &c. That the fiat was issued for the purpose of defeating the rights of the petitioning creditor, in obtaining payment of the said debt.

Mr. Arnold for the assignees.

Mr. Swanston and Mr. Wright for the petitioning creditor.

[blocks in formation]

There are two preliminary objections.

1st. The petitioner is not a creditor; he has stated himself to be a creditor, which the bankrupt has denied ; and the petitioner has not answered the bankrupt's affi

(a) See ante, page 93.

C. of R. April 22, 1834. A petition to supersede by a

creditor, pre

sented a year after the bank

rupt has ob

tained his certi

ficate, cannot be

heard, unless the delay be accounted for.

1834.

Ex parte
WYATT.

In the matter

of WYATT.

The objection that the petitioner is not a creditor is not strictly preliminary.

davit; and the bankrupt's examination taken before the commissioners shows that the petitioner is not a creditor.

It is the constant practice to dispose of this preliminary objection before the petition is heard, not only to save the time of the Court, but to prevent the injustice of harassing the bankrupt, who has seldom means to defend himself, by a party who may have no right to institute proceedings against him. In ex parte Fowles, Buck. 98, a petition was presented to supersede; the preliminary objection was taken that the petitioner had not proved himself to be a creditor, for though he had so sworn in his affidavit, yet that was contradicted by the examination of the bankrupt before the commissioners; the Vice Chancellor permitted the examination to be read, and it being found to contradict the affidavit of the petitioner, an inquiry was directed, whether the petitioner were or not a creditor; and, in ex parte Hudson, 2 Russ. 456, a petition to supersede was presented, and the debt of the petitioner was impeached on the ground of being usurious, and the Court held, the validity of his debt must be established before the Court proceeded to inquire into the validity of the commission on his application.

Per Curiam:
:-

The present objection may occasionally have been treated as preliminary, as a matter of convenience, and to save time; and where it was obvious the party was not a creditor; but it is not strictly preliminary to the hearing the petition.

If it appears to the Court, under all the circumstances stated in the affidavit, that the petitioner is a creditor, it will be sufficient. If the petitioner do not prove himself a creditor, his petition will be dismissed with costs.

1834.

Ex parte
WYATT.

Mr. Montagu: The second preliminary objection is that the bankrupt has obtained his certificate upwards of twelve months, and as the petitioner does not charge him with any fraud, the certificate is a bar; ex parte In the matter Crowder, 2 Rose, 324.

Mr. Twiss and Mr. E. Chitty, for the petitioner, insisted that there was in fact a charge of fraud; the petition stated that the fiat was issued for the purpose of defeating the rights of the petitioner in obtaining payment of his debt; and the affidavits in support distinctly charged the bankrupt with having fraudulently concocted a trading for the purpose of being made a bankrupt, and to obtain a discharge from his debts through his certificate.

Sir George Rose: - Do the affidavits explain why the petitioner has suffered twelve months to elapse without petitioning?

Mr. Twiss admitted they did not.

Per Curiam :

of

WYATT.

obtained under a fraudulent commission is no protection

against a peti

tion to super

sede.

If a bankrupt have concocted a fraudulent bankruptcy The certificate in order to procure a discharge from his debts through a certificate, then the fact of his having obtained such certificate would be no objection to a petition to supersede presented by a creditor. (a) But the only statement in this petition implying fraud is, that "the fiat was issued for the purpose of defeating the rights of the petitioner in obtaining payment of the said debt." Now, even suppose the petition had directly and clearly charged

(a) See ex parte Gillman, 2 Cox, 193; ex parte Poole, 2 Cox, 230; ex parte Moule, 14 Ves. 602.

« ForrigeFortsæt »