1834.

Ex parte
BARRETT.
In the matter

of

BARRATT.

Mr. Swanston for the petitioner, who was both petitioning creditor and assignee.

Mr. Koe for the respondent: - One sixth is taxed off the aggregate amount of the four bills; but they ought to be taken separately, in which case, as one sixth was not taxed off the 1957. bill, the respondent ought not to pay the costs of its taxation. The bills were for distinct matters: the 1957. bill was for business done under the bankruptcy for the petitioner, first in his character of petitioning creditor, and second in his character of assignee; the 787. bill was for conveyancing business transacted for the petitioner as a mortgagee under the bankruptcy; and the 147. bill was for the costs of an action, quite independent of all the other transactions.

The CHIEF Judge:

The rule in the common law courts is, that if one sixth be taxed off, the solicitor is to pay the costs of taxation; if less, the costs are in the discretion of the Court. (a) 1 Tidd. Prac. K. B. 337, edit. 5. This rule is followed in equity, 1 Turn. & Ven. Ch. Prac. 864, and adopted in bankruptcy. (b)

This rule is not contested, but it is urged that the bills, being for separate matters, are to be taxed separately, and the costs to depend on the taxation of each.

(a)" And the said respective Courts are thereby authorized to award the costs of such taxation to be paid by the parties, according to the event of the taxation of the bill; that is to say, if the bill taxed be less by a sixth part than the bill delivered, then the attorney or solicitor is to pay the costs of the taxation; but if it

shall not be less, the Court in their discretion shall charge the attorney or client in regard to the reasonableness or unreasonableness of such bill." 2 Geo. 2, c. 23, s. 25, made perpetual by 30 Geo. 2, c. 19, s. 75.

(b) Ex parte Westall, 3 Ves. & Bea, 141.

If one of these bills had been against Barrett as petitioning creditor, and another against Barrett and some other person as assignees, &c. it might create some such distinction.

In the present case it is immaterial that the matters are distinct. The sum taxed off must be calculated on

the aggregate amount of all the bills.

Sir John Cross:- If the three bills had been proved to have been distinct I should have felt some doubt, but that is not established. I concur.

Sir George Rose: This is a question of general practice, not in bankruptcy only, which on this point is adopted from that of Chancery and the other courts. If one sixth be taxed off, the costs are of course; if less than one sixth, then they are in the discretion of the Court. This rule was always followed by Lord Eldon in bankruptcy; and I feel convinced that there have been cases where the same rule has been followed when there were several bills. The present objection was never before taken, which is a strong circumstance, though not conclusive, against its validity. The order for taxation restrains an action. Suppose the bills distinct, did they not nevertheless furnish one entire ground of action which was restrained by the order? Only one account was ordered to be taken.

Costs of the original petition, of this taxation, and of and incidental to this petition, to be paid by the respondent.

1834.

Ex parte BARRETT.

In the matter

of BARRETT.

C. of R. May 7, 1834.

After the choice

Court will not make any order as to the bank rupt's allowance for mainte

nance.

Ex parte HALL. In the matter of HALL.

THE petition stated that a fiat issued on the 21st of of assignees, the June 1832 against the petitioner and others; that on the 28th of August 1832 the commissioners, under the direction and at the request and recommendation of the assignees, made the following order: "That John Hall the elder, Joseph Hall, and Thomas Hall shall receive the sum of 21. per week, until they have passed their final examination." That the final examination of the petitioner had been postponed from time to time, and that on the 14th of February 1833 he attended to pass his final examination, and produced his balance sheets, but they were rejected by the commissioners, and the examination of the petitioner and the other bankrupts was adjourned sine die. That the ground of the rejection was, because the petitioner would not alter them so as to make them correspond with the balance sheet of Joseph Hall, which the petitioner could not conscientiously do, as he believed that his balance sheets were correct. That since the 4th of October 1832 the allowance had been withheld by the assignees. That he could not recommence in business for want of his certificate, which he otherwise could do with the assistance of his friends, and that he had been compelled to apply to the parish officers for relief.

This was a petition by Thomas Hall for the arrears of his allowance, and that the commissioners might be ordered to pass the last examination under the balance sheets already produced.

The reason given by the assignees for discontinuing the allowance was want of funds.

The petitioner had paid 16s. in the pound on his separate estate.

Mr. Montagu for the petition:

By 6 Geo. 4. c. 16. s. 114. it is enacted, "That it shall be lawful for the commissioners, before the choice of assignees, and after such choice with the approbation of the commissioners testified in writing under their hands, from time to time to make such allowance to the bankrupt out of his estate, until he shall have passed his last examination, as shall be necessary for the support of himself and family."

The order made by the commissioners for the allowance being on the proceedings, the assignees have no right to refuse to pay it regularly.

The examination is indeed adjourned sine die. But why? Because the bankrupt cannot alter his balance sheet, which is correct, to tally with one which is incorrect. This custom of adjourning an examination sine die, because the commissioner is dissatisfied, is highly improper, and never could have been contemplated by the legislature. If the bankrupt did not satisfy the commissioners, he should have been at once committed, and then the question, whether he were bound to act as required? could be brought before some court on habeas corpus.

The intent of an adjournment sine die was to prevent the bankrupt harassing the assignees by continued examinations, and not to be used as a means of punishing the bankrupt.

But it is quite a mistake to imagine that a commissioner should not pass the last examination, because he perceives the bankrupt has not given a true account of his property; that may be a reason for passing, as an

1834.

Ex parte
HALL.
In the matter

of

HALL.

1834.

Ex parte
HALL.

In the matter
of

HALL.

indictment cannot be preferred till after the bankrupt has passed his last examination.

Mr. Swanston, contrà, contended, the Court had no power over the assignees in respect of the allowance.

The CHIEF JUDGE: If the act authorized the commissioners to make the allowance, and they did so, and the assignees refused to pay it, the Court might interfere; but the act only enables the commissioners to make the order till the choice of assignees, after which the assignees may make the order with the consent of the commissioners. It is clear that the commissioners could not alone make the order on which this bankrupt claims, and the Court cannot make any order on this petition.

Sir John Cross:- Putting the case most favourably for the bankrupt, granting that the assignees and commissioners agreed, in the regular way, that an allowance should be made, how then would the case stand? The bankrupt says, the commissioners ought to have passed his last examination. The moment he passed his allowance ended, and yet he demands the arrears because he has not passed; that is to say, he asks an annuity of 1007. a year for not passing.

Petition dismissed. Costs not asked.