This latter rule may sioners must pay his own costs. Sir John Cross: I concur in what has fallen from the Chief Judge. As I have heard it questioned whether a petitioner may support his evidence in this Court by further or other evidence than that tendered before the commissioners, I wish to observe that it is quite settled that he may do so, but that the consequence usually will be, that, though successful, he must pay the costs. If, in the case now before us, the evidence now produced had been before the commissioners, and they had still rejected the proof, I am of opinion that we ought to have allowed the petitioner his costs. Sir George Rose:- The petitioner certainly has now established his case, and we have merely to decide who is to pay the costs: as he does not prove the fact of having actually tendered these witnesses to be examined, he must pay his own costs. Proof allowed. Costs of assignees out of the estate. 1833. Ex parte the matter of PRICE. C. R. Nov. 23, 1833. A supersedeas upon consent of all the creditors but one, who In the matter of HALL. MR. MONTAGU, on behalf of the bankrupt, applied was applied for, that the commission might be superseded upon the consent of all the creditors. The Registrar declined giving the usual order, as one of the creditors who had proved and no admini- was dead, and the consent on his part was signed by his son, who made an affidavit that no administration had been taken out, as he had died insolvent. died insolvent, stration taken out; but his son signed the consent: Held, the supersedeas could not issue without a limited administration for this purpose. Per Curiam: - The Court cannot make the order without the consent of the legal representative; and Sir G. Rose suggested that a limited administration under the statute might be obtained for the purpose of assenting to the supersedeas. C. R. Nov. 23, 1833. Ex parte TURNER.-In the matter of MACKENZIE and ABBOTT. Proof by joint IN November 1813 a joint commission issued against estate for frau dulent abstraction, when admissible. Mackenzie and Abbott. Mr. Commissioner Fane admitted a proof for 1,5577. 10s. ld. on behalf of the joint estate against the separate estate of Mackenzie, on the ground that he had fraudulently abstracted that amount from the partnership funds. This was a petition to expunge the proof. From 1811 till July 1813 Abbott and Mackenzie were in copartnership as merchants. Previous to the commencement of the partnership Mackenzie was in 1833. Ex parte In the matter of MACKENZIE debted to various persons, which debts he was to discharge out of his private effects. According to the terms of the partnership Abbott and Mackenzie were respectively authorized to draw sums from time to time from the joint funds by way of maintenance, not exceeding 7001. a year. In December 1812 Abbott dis- and another. covered that Mackenzie had withdrawn bills to the amount of 2,7007. from the joint stock, which he had not entered in the books, but had applied to his own private use, contrary to the terms of the copartnership. Immediately after the discovery, Abbott remonstrated with Mackenzie upon the great impropriety of his conduct, upon which Mackenzie promised he would replace the amount as soon as assets of his private estate should come to hand from the Baltic, West Indies, and other parts; subsequent to which time Mackenzie went to the island of Teneriffe, to collect some property consigned by the partnership to that island; and during his absence his wife and family were in great distress, and, from motives of humanity, Abbott allowed her small sums of money for the subsistence of herself and family. No sums of money were ever repaid to the copartnership to replace the sums abstracted. Ogg, the clerk to the bankrupts from the commencement of their partnership till the issuing of the commission, deposed, that upon settling the account of the partners it appeared, that after giving credit to Mackenzie for various sums paid in by him to the partnership account, he had drawn 3,015l. 16s. 9d., from which deducting 1,4581. 68. 8d., the amount allowed to be drawn by the articles from the commencement of the partnership to 1813, the date of the commission, there remained 1,5571. 10s. 1d. overdrawn by Mackenzie; that part of the sum of 3,0157. 16s. 9d. consisted of the three 1833. Ex parte of MACKENZIE and another. bills of exchange of 1,000l., 1,000l., and 7007., upon Messrs. Graham, belonging to the partnership, which Mackenzie in December 1812 discounted, and applied In the matter the proceeds to his private use; that he believed the three bills were withdrawn without the knowledge or consent of Abbott; that at the time of the conversation between Abbott and Mackenzie, no entry of the transaction had been made in any of the books of the partnership, but Abbott discovered the same from not seeing the bills in the bill drawer; that it was the duty of the partners, or either of them, on disposing of any bills belonging to the firm, to enter in the bill-book of the firm the manner in which such bills had been disposed of; and that there was no entry in the bill-book of the disposal of the three bills so abstracted by Mackenzie. Mr. Swanston and Mr. Marshall for the petition: The question is, whether there was any fraud. Even if there were fraud in the original abstraction of the three bills, it has been waived by the subsequent dealings between the partners in the same manner as before the discovery of the abstraction. The sums said to be abstracted were entered in the books, by which the presumption of fraud is rebutted, ex parte Smith, 1 G. & J. 74; and Mackenzie continued as partner, and was afterwards allowed to draw 4607., part of which Abbott paid to Mackenzie's wife. The proof was not, however, made in respect of any particular sum abstracted, but upon the balance of the general account between Mackenzie and the firm; and the proof must therefore be expunged. Mr. Montagu and Mr. Purvis for the respondent: - be from the joint estate by one partner, a proof may made for the amount; ex parte Harris, 1 Rose, 129, 437. And there has not been any act done in the present case to alter the nature of the original transaction, which must be considered fraudulent within the sense in which the word "fraud" is used on these occasions. It may be admitted, that if the transaction had been duly and openly entered in the books by Mackenzie previous to the detection by his partner that the bills had been taken from the drawer, it might have been a strong circumstance to rebut the fraudulent intent, as in ex parte Smith, 1 G. & J. 74; but such was not the case; and there was no entry made, or communication to the partner, until after the discovery, when he was taxed with the abstraction; and Abbott remonstrated with him on the impropriety of his conduct. It is said that Abbott has acquiesced by his conduct at the time of the detection, and by the subsequent payments to the wife, and entries in the accounts. The transaction was entered in the books after the detection. It was merely to evidence the extent of the abstraction. Suppose the case of Fauntleroy, where the amount of the fraud might probably be 200,000l. Upon detection the partners would enter the sums abstracted, not to testify their approbation, but to ascertain the amount. This was done in ex parte Watkins, 1 Mont. & M. 63, where Sikes had in his own name stock belonging to the firm, which he sold out and appropriated to his own use, without the knowledge of his partners; but on the next day, as soon as his partner came to town, he communicated the fact to him, and he was considered debtor for the amount, and charged half yearly with the dividend; and it was decided that it did not amount to subsequent approbation, 1833. Ex parte In the matter of Mackenzie and another. |