brancer is decreed only his principal and interest." And the Lord Chancellor said, " Here the appeal for costs affected the merits of the case, the justness of which is on the defendant's side." The CHIEF JUDGE: :- If this case were now before the Court for the first time, and the question had been, Whether the petitioning creditor should pay all the costs and expences necessarily incurred by the assignees in prosecuting the commission? I should have said that he was liable, and that the assignees should be indemnified. But this is a rehearing, to which there are two objections: 1st, That there cannot be a rehearing as to costs; and, 2dly, That the order was made by arrangement of the parties, by which they are bound, And I think that this application is too late, for I do not see any difference between the costs of the petition and the costs of the proceedings under the commission. It appears to me that the costs of prosecuting the commission were incidental to the main question, which was decided, and the Court will not open the main question for the purpose of setting right any question of costs. In ex parte Baines, 1 G. & J. 259, the Vice Chancellor said, that he was of opinion that the petitioner could not correct a former order in respect of costs, by a separate petition as to costs only. No case has been produced, except where the question has been, Whether the costs were to come out of one fund or another? It is of more consequence that the general rule should be abided by than that we should take into consideration the circumstance of the hardship of the particular case. Sir John Cross: I am always anxious that general rules should not be set up to defeat the justice of a particular case. But on the present application that justice will not be defeated. 1833. Ex parte BURNELL and others. In the matter of BENNETT and another. 1833. Ex parle and others. In the matter of BURNETT and another. If Twelve months ago the petitioners, for themselves, instead of taking the whole prayer of their petition, agreed to the terms of the order of which they now complain. The order was drawn up and acted upon by them, and now they desire it should be amended. the application had been made whilst it was in minutes, and there appeared any error, it might have been rectified, as the record might at common law during term. I have confined my attention to the question of the expediency of permitting such an application after the lapse of so much time. Sir George Rose: - I concur that a petition cannot be reheard as to costs. But considering the substance, I think that the order embraces all the rights of the parties. The original petition was one which was looked at with the greatest jealousy, and the Court has always required the application to be made instantaneously. That petition did not allege any special circumstances of loss or of costs which the petitioners had incurred in prosecuting the commission. Supposing the order could now be opened, they would not have got the costs of the examination of the petitioning creditor, which they have by the order. Nothing will be looked at with more jealousy than assignees coming to supersede, which was countenanced by Lord Eldon with much reluctance. (a) If any damage has been incurred by the assignees, in consequence of the conduct of the petitioning creditor, they may, upon special circumstances, be entitled to recover in an action, or in this Court upon a proper petition presented for that purpose. Petition dismissed with costs. (a) Ex parte Graves, 1 G. § J. 86. Ex parte WILLMENT.- In the matter of WILLMENT. THIS Mr. G. Richards objected, that the application was too late. Mr. Rogers, in support of the petition, said, that the delay had arisen from the default of the solicitor, to whom the petitioner, in 1828, upon receipt of the bill, had given it, who neglected to proceed in obtaining its taxation; that the petitioner had had great difficulty in obtaining the bill from the solicitor, to whom he had made numerous applications; and he contended, that in a case where the fraud was so apparent the Court would now interfere; and cited ex parte Neal, Buck, 111. Per Curiam: - Too long a period has elapsed, and there is no allegation in the petition of any fraud which the petitioner had not long since discovered. Dismissed with costs. C. R. Nov. 5, 1833. After the lapse of five years a messenger's bill cannot be taxed, without a eharge of fraud lately dis covered. C. R. Nov. 6, 1833. A renewed fiat must be taken out by or in the name of a creditor for 100%. Ex parte MAUDE. In the matter of HUDSON. THIS was an application, on behalf of a creditor, for a renewed fiat. Sir George Rose said, a renewed fiat could only be issued upon the petition of a creditor or creditors whose debt would be sufficient to support an original fiat. The Court, therefore, ordered the renewed fiat to issue, if the debt of the petitioner were sufficient, but if not, he was to be at liberty to use the name of any creditor whose debt was sufficient. (a) C. R. Nov. 12, 1833. If money be advanced to a trader, to enable him to com mence a trade, of which the lender is to share the profits, it is a good petitioning cre. ditor's debt. Such debt may be proved. Ex parte NOTLEY.- In the matter of NOTLEY. IN November 1832, Notley, the petitioner, was about to establish a chocolate manufactory, for which he required capital; and an application was made to Emma Briggs, who agreed to advance 2301., upon the petitioner giving her a bond and warrant of attorney for securing the repayment with five per cent. interest. Judgment was (a) 6 Geo. 4. c. 16. s. 20. “If, Q. 1. If the bankrupt re- the commissioners to his certificate, or if he were injured, could he not renew? Q.2. If an assignee is not a creditor, can he not renew? Q. 3. If a creditor for 90%. were injured, could he not renew? entered up forthwith, but payment was not to be required until 1837. 1833. Ex parte of NOTLEY. The petition stated, that Briggs was to have one eighth of the profits to arise from the trade, which the In the matter petitioner then commenced; and that in pursuance of the agreement the petitioner paid to Briggs 51. per month, from the 7th day of January to the 7th day of July, being the estimated amount of one eighth of the expected profits. The fiat was issued by Briggs upon the debt due to her in respect of the advance. This petition was by the bankrupt, and prayed that the fiat might be annulled, on the ground that the debt upon which it was issued arose out of partnership dealings between the parties. Mr. Montagu and Mr. Lovatt for the petition:- The debt upon which this fiat is attempted to be supported arose out of the partnership, being an advance of capital for its formation. For such was the essence of the contract between these parties. (a) (a) Er parte Nokes, June 1801, 2 Montagu on Bankruptcy, p. 148. Petition by the bankrupt to supersede the commission, on the ground that there was not a good petitioning creditor's debt. The petitioning creditor was a partner of the bankrupt; the debt was above 1007., but there had been no statement or balance of the accounts. Romilly, for the bankrupt, contended, that, as no action could be maintained at law for this debt, it would not support Mr. Mansfield and Mr. Cooke, Lord Eldon.-I do not know of any case, and I am strongly inclined to think, when a partnership is subsisting, and there is no liquidation of the accounts, though there is actually a balance of above 100l. due to one partner, that he cannot upon such debt support a commission; but had the partnership been determined, and had the solvent part |