HENRY PRICE (suing by George, his Guardian) v. JAMES EDWARD DUGGAN.

May 6, 1842.

To bring a party into contempt for not paying the amount of taxed costs, pursuant to the master's allocatur, where payment is demanded under a power of attorney, it is necessary to leave a copy of the power of attorney at the time of the demand.

Costs having been taxed for the defendant, upon the verdict obtained by him (a)1, the amount of the master's allocatur was demanded under a power of attorney.

Channell Serjt. moved for an attachment against the guardian, for his contempt in not paying the amount of the allocatur. The allocatur had been served upon the guardian, by shewing it to him and leaving with him a copy thereof. The power of attorney had also been shewn to the guardian; but of this it did not appear that any copy had been left. He contended, that although in the case of an award, the service would have been insufficient, the same strictness is not required in the case of a refusal to pay costs after taxation. The party was bound to pay the moment the demand was made.

TINDAL C. J. The reason is the same in both cases. The object for which the delivery of a copy of the [226] power of attorney is required, is to afford an opportunity of ascertaining whether the party who demands the costs really has authority to receive them.

Rule refused.

BRANCKER AND ANOTHER, Assignees of C. Humberston and Another,
Bankrupts, v. E. MOLYNEUX. May 6, 1842.

An order was made by the court of Review substituting another debt in lieu of that of the petitioning creditor (under 6 G. 4, c. 16, s. 18), stating that the court "doth declare that the debt of the said T. R. (the petitioning creditor), &c., is an insufficient debt to support the fiat, &c.; and it appearing that the debt of the said petitioners, proved by them under the said fiat, &c., was incurred not anterior to the said debt of the said T. R." &c. An action having been subsequently brought by the assignees, the order was amended by the court of Review, on the eve of a new trial, by introducing a recital contained in the petition upon which the order had been made, "that the said petitioners had duly proved a debt under the said fiat;" but no statement to that effect was inserted in the mandatory part of the order. The amendment was made without notice to the defendant :-Held, that it was not necessary to give notice of the amendment to the defendant.-Held also, that the amended order must be taken to operate from its original date, and not from the date of the amendment.-But held further, that such amended order was insufficient, inasmuch as it did not adjudicate, as required by the statute, that the debt of the petitioners had been proved prior to their petition.

Trover for 400 bales and 400 bags of cotton, of the plaintiffs, as assignees (a)2. The third trial of the cause (b) took place before Lord Denman C. J., at the summer assizes for the southern division of Lancashire, in 1841. The defend-[227]-ant had given notice to dispute the bankruptcy. It was proved that the fiat issued against the bankrupts on the 9th of June 1837, on the petition of one Roberts; and that the plaintiffs were appointed assignees on the 12th of July following. The plaintiffs also put in the following order of the court of Review, dated the 25th of March 1839 (before action brought), substituting (under the 18th section of the 6 G. 4, c. 16 (a)3),

(a)1 Vide ante, vol. ii. p. 641.

(a) See the pleadings, ante, vol. i. p. 710.

(b) The rule was made absolute for the first new trial in Trinity vacation, 1840, ante, vol. i. 710; for the second new trial, in Trinity term, 1841, ante, vol. iii. p. 84. (a) Which enacts "that if, after adjudication, the debt or debts of the petitioning creditor or creditors, or any of them, be found insufficient to support a commission, it shall be lawful for the Lord Chancellor, upon the application of any other creditor or creditors, having proved any debt or debts sufficient to support a commission, provided such debt or debts has or have been incurred not anterior to the debt or debts of the

a debt due to Fletcher and Cravy, for that owing to Roberts. In this order, as originally framed, the clauses printed below in italics were not inserted. About ten days before the third trial, however, upon an application to the court of Review, the order was amended by inserting those clauses, and erasing the words placed between brackets. No notice of the application or of the amendment, was given to the defendant.

"In the Matter of C. Humberston and S. Frodsham, bankrupts.

"Whereas Robert Andrew Fletcher, of Liverpool, in the county of Lancaster, merchant, and Edward Charles Cravy, of Flushing, in the state of New York, in the United States of America, merchant, and late copartners, did, on or about the 4th of May instant, prefer unto this court their petition in the above matter, setting forth, among other matters, that a fiat in bankruptcy, bearing date the 9th day of June 1837, was, on the petition of Thomas Roberts, duly awarded and issued [228] against the said bankrupts, under which they were duly found and declared bankrupts, and that the said petitioners had duly proved a debt under the said fiat, and were creditors of the said bankrupts, for the sum of 1501., being the balance of an account for money lent and advanced to the said bankrupts, by the said petitioners, on the 13th day of May 1837; and that the same debt was incurred by the said bankrupts not anterior to the debt of the said petitioning creditor under the said fiat; and praying that this court would be pleased to order and allow the debt of the said petitioners to be substituted for that of the said Thomas Roberts, [in the said petition mentioned] in the proceedings under the said fiat [therein also mentioned], and that it might be proceeded in and deemed valid, and that the costs of the said application might be paid out of the estate and effects of the said bankrupts: now, upon hearing the said petition, and the affidavit of Robert Frodsham, gentleman, filed in support thereof, read, and what was alleged by Mr. S. of counsel for the said petitioners, and upon reading the affidavit of Frederick Frodsham, also filed in this matter, of the due service of the said petition upon the said Thomas Roberts, and also upon the said bankrupts, and upon Thomas Brancker the younger, and Thomas Martin, the assignees of the estate and effects of the said bankrupts; and no person appearing before this court on their behalf, this court doth declare that the debt of the said Thomas Roberts, and on which the adjudication of the bankruptcy of the said C. Humberston and S. Frodsham was made, is and was an insufficient debt to support the fiat issued against the said bankrupts; and it appearing to the court that the debt of the said petitioners Robert Andrews Fletcher and Edward Charles Cravy, proved by them under the said fiat, or so much thereof as is sufficient to support such fiat, was incurred not anterior to the said debt of [229] the said Thomas Roberts, and is an existing and sufficient debt to support such fiat: the court doth order that the said fiat be proceeded in, and that the costs of and occasioned by this application be paid out of the estate of the said bankrupts, being first taxed by the commissioners under the said fiat; but this order is not to prejudice any action pending under such fiat."

It was contended on the part of the defendant-first, that this order was inoperative against him, inasmuch as it had been made without notice to him; secondly, that, as then produced, it must be taken to speak from the time of the amendment, and not from the original date; and thirdly, that it contained merely a recital, and not an adjudication, that the substituted creditors had proved a debt under the fiat previously to their petition; and that, for these reasons, no sufficient petitioning creditor's debt was made out to support the fiat. His lordship declined to direct a nonsuit, but he reserved leave to the defendant to move to enter a nonsuit; and the case having gone to the jury, a verdict was returned for the plaintiffs, with 20861. damages.

Channell Serjt., in last Michaelmas term, obtained a rule nisi, pursuant to the leave reserved, or for a new trial. He cited Muskett v. Drummond (10 B. & C. 153, 5 M. & R. 210), Aireton v. Davis (9 Bingh. 740, 3 Moo. & Scott, 138), Christie v. Unwin (11 A. & E. 373, 3 P. & D. 204), and In re Clarke (3 Mont. & Ayrt. 609).

Bompas Serjt. now shewed cause. First, it sufficiently appears on the face of the order, that the substituted debt had been proved previously to the petition. In

petitioning creditor or creditors, to order the said commission to be proceeded in, and it shall, by such order, be deemed valid."

By the 1 & 2 W. 4, c. 56, the general jurisdiction of the Lord Chancellor in bankruptcy, is transferred to the court of Review.

Muskett v. Drummond (10 B. & C. 153, 5 M. & R. 210) the plaintiff produced an [230] order made by the lord chancellor under the section in question, whereby, after reciting a petition to him by M., he ordered, that, if the commissioners should be satisfied that M. had proved, under the commission against the bankrupt, a debt sufficient to support the commission, contracted not anterior to the petitioning creditor's debt, the petition should be proceeded in. That order was held to be invalid, inasmuch as it did not find, or call upon the commissioners to find, that the original petitioning creditor's debt was insufficient. That fact, however, is found in the present order. The decision in that case shews what the chancellor considered to be the proper construction of the act. He thought the debt must be proved to his satisfaction. A party may be entitled to prove a debt against the estate, when he could not support a fiat. In Aireton v. Davis (9 Bingh. 740, 3 Moo. & Scott, 138), although the question came before the court, there was no decision upon that point. [Erskine J. "Having proved," must mean "having proved before the application is made."] It means having proved a debt before the commissioner to the satisfaction of the chancellor. [Tindal C. J. It means having proved a debt of 1001. Erskine J. It may be a legal debt, or an equitable debt.] In Christie v. Unwin (11 A. & E. 373, 3 P. & D. 204) it was certainly held, that it must appear on the face of the order, that the creditor applying to have his debt substituted for that of the petitioning creditor, had proved a sufficient debt before making the application. But in that case, the order of the lord chancellor did not, in any way, shew that the debt proposed to be substituted had been proved; but the present order does; for it states that it appears "to the court that the debt of the said petitioners proved by them under the fiat, or so much thereof as is sufficient to support such fiat, was incurred [231] not anterior to the said debt of the said Thomas Roberts (the petitioning creditor,) and is an existing and sufficient debt to support the fiat" (a). [Erskine J. It was formerly usual to recite the whole of the petition in the order of substitution; but it was ordered by the court of Review (b) "that it shall not be necessary to recite such petitions at length in any order pronounced by the court thereon."] It will be sufficient if every material fact appears in the petition as recited; the petition in this case, as recited in the order, states "that the petitioners had duly proved a debt under the fiat, and were creditors of the bankrupts for the sum, &c.," so that the debt must have been proved before the petition was presented. [Erskine J. The order merely recites that the petitioners so state in their petition; it does not even recite the fact itself, still less adjudicate it.] Every thing that is necessary to give jurisdiction to the court appears on the face of the order. [Erskine J. The objection is, not to the jurisdiction, but that the order does not shew an adjudication, by the court, that the debt had been proved, as required by the statute. Coltman J. It is like an order of removal under the poor-law, which must contain an adjudication that the pauper had become actually chargeable (c).] But, generally speaking, the court will intend that the justices have done right, if the contrary does not appear on the face of their order; as in Rex v. Cornish (2 B. & Ad. 498), where an order of justices directing A. to pay the churchwardens and overseers of the poor of a [232] parish a weekly sum for the maintenance of B. and C., his grandsons, as long as they should be chargeable to the parish, was held to be sufficient, without stating that the father was unable, absent or dead (see Regina v. Read, 1 P. & D. 413). In inferior courts it is necessary that the jurisdiction should appear on the face of the proceedings; but that is not so with regard to superior courts, such as the courts of the county palatine of Durham, or of Chester, or the courts of great session in Wales, or the court of Ely; Peacock v. Bell (1 Wms. Saund. 73, 1 Siderf. 330, 2 Keb. 182, 226), Pigge v. Gardner (1 Lev. 208). [Coltman J. It may make some difference that this is a parliamentary authority, and therefore that it must be shewn to have been properly exercised.] But will the court presume that it has been improperly exercised? The authority of the justices at

(a) An order of the same form as in this case was set out in the replication in Byers v. Southwell, 6 New Cases, 39, and the replication was held sufficient, on demurrer.

(b) General rules and orders for regulating the practice of the court of Bankruptcy. R. 30, A.D. 1830.

(c) See Stallingburgh v. Horley, 1 Sess. Ca. 131; Rex v. Fisherton Delamere, ib. 45; Rex v. Maulden, 8 B. & C. 78, 2 M. & R. 146.

sessions, with regard to the poor-rates, is derived from statute; but in Rex v. The Aire and Calder Navigation (2 T. R. 660), it was held, that they were the proper judges of the equality of poor-rates, and that the court of King's Bench would not interfere, upon the ground of the rates being unequal, unless the inequality were manifestly apparent on the rate. In this case it may surely be presumed that the court of Review would not have made the order, without proof of the matters set forth in the petition. Secondly, as to the necessity of notice of the amendment. If the court of Review had thought that the defendant was entitled to such notice, they would have directed it to be given to him. It will hardly be contended that every debtor to the estate was to receive notice; and the defendant was not more entitled to receive it than any other debtor; for the pendency of the action would make no difference, the original order [233] having been made before the action was commenced. This court will not entertain any question as to the propriety of the amendment made by the court of Review, or as to the practice of that court with regard to what notice thereof should be given; any more than a court of error will inquire into the propriety of rules made by the court below for amending the pleadings, striking out pleas, or the like. Gully v. The Bishop of Exeter (10 B. & C. 584, 5 M. & R. 457, in the King's Bench. S. C. in Chancery, 5 M. & R. 499).

Thirdly, the order, as amended, must be taken to speak from its original date, and not from the date of the amendment only. In all cases of amendment, as of a writ of summons, of a declaration, of pleading, by a judge at the trial, of a record after judgment and writ of error, and in various other instances, the amendment would be wholly nugatory if it were only to operate from the date of such amendment. Where a correct memorial of an annuity had been inrolled incorrectly, and some years after the officer of the inrolment office discovered and rectified the error before any proceedings were had to vacate the annuity, this court, finding the inrolment right when they called for it, would not inquire when the entry was made; though it was a high misprision in an officer to alter the inrolment without the sanction of the court of Chancery. [Tindal C. J. That was the setting right of a mistake made by the officer.] So, where a fine is amended, it continues to be a fine of the term in which it was originally levied. [Tindal C. J. Otherwise, the five years and nonclaim would be of no avail.] Here, no amendment of the mandatory part of the order is required. It is a mere formal amendment. In Garrick v. Williams (b) an amendment was allowed after error brought; and the court ordered the transcript to be amended. In trespass, a verdict finding [234] that the defendant is guilty, means that he is guilty as alleged in the record. So here, "as proved," means as stated in the petition. It means so proved, as it is contended on the part of the defendant that it ought to be proved. Tindal C. J. I understand that the objection is, that it is not alleged to be the said debt. Erskine J. I suppose the objection is, that it does not appear that the court has decided. At the trial it was objected that the court had not adopted the statement of the petition.] A judgment in an inferior court does not state that the party was indebted, or that he promised, within the jurisdiction. [Cresswell J. There it is admitted by the pleadings, that the cause of action arose within the jurisdiction. Erskine J. Non assumpsit modo et formâ puts in issue the allegation that the cause of action arose within the jurisdiction; therefore a verdict, quod assumpsit modo et formâ, shews that the cause of action arose within the jurisdiction (vide 1 Wms. Saund. 74 a.). Tindal C. J. The court by which this order was made, is an inferior court.] Here, this court is placed in the situation of a jury. It was shewn that an affidavit was filed in support of the petition. [Erskine J. It does not appear what the affidavit stated.] The court will take notice of the affidavit as an affidavit verifying the allegations of the petition which it is filed to support.

Channel Serjt. (with whom was Crompton) in support of the rule. The order is clearly bad. The court will look at the order as it stands; for it appears, by decided authorities, that no intendment in favour of its sufficiency will be made. The provisions of the act under which it was made, bear very hardly upon parties who contest a fiat, and ought therefore to be construed with great strictness. The order must shew [235] upon the face of it, all the facts necessary to give jurisdiction to the court of Review all those facts which are required by the eighteenth section of the 6 G. 4, c. 16; without which the court of Review, which now exercises the functions of the 671.

(b) 3 Taunt. 540. See Doe dem. Williams v. Lloyd, ante, vol. i.

p.

lord chancellor, in matters of bankruptcy, would have had no jurisdiction. These orders, therefore, must be construed by the same rules that are applicable to the order of justices in matters regulated by act of parliament (see Brook v. Jenney, 2 Q. B. Rep. 265). Now there are four conditions imposed by the bankrupt act (6 G. 4, c. 16, s. 18), which must be complied with before the court of Review can pronounce a valid order; first, the petitioning creditor's debt must be sufficient to support the commission; secondly, the creditor, whose debt is to be substituted for that of the petitioning creditor, must, prior to the application, have proved a debt sufficient to support the commission; thirdly, such debt must not have been incurred anterior to the debt of the petitioning creditor; and fourthly, the party applying for the substitution, must himself have proved a debt against the estate. All these facts must appear, on the face of the order, to have been adjudicated by the court. Now the present order adjudicated only the first and third of these; the second and fourth being mentioned merely by way of recital in the petition. The cases cited when the rule was obtained, especially Muskett v. Drummond and Christie v. Unwin, are strong authorities to shew that the order is invalid. Muskett v. Drummond is also important, as shewing that the present order, as amended, is not binding upon the defendant, no notice of the amendment having been given to him. In that case it was unnecessary to decide whether the order itself was valid; but it was considered that the order was bad, in not shewing that the former debt had been adjudged to be invalid. The [236] court, in giving judgment, intimated a doubt whether even a valid order of the lord chancellor, under the above-mentioned act, would support a commission, by relation, in an action already commenced, and especially when the opposite party in that suit had no notice of such a proceeding" (10 B. & C. 161). Now, in this case, though the order was originally made after action brought, yet the amendment was not made till after two trials had in fact taken place, and upon the eve of a third trial. In Aireton v. Davis (9 Bingh. 740, 3 Moo. & S. 138) the decision turned upon another point; but the court expressed itself, as strongly as could be expected, in favour of the objection. [Tindal C. J. In that case a new title was made pending the action. Here, the parties are the same. There, the defendant might come down prepared to contest the original petitioning creditor's debt; but that cannot have been the case here. Erskine J. The court of Review will either require an affidavit stating that no action is pending, or restrict the order to the particular action.] In Ex parte Watson, In re Clarke (3 Mont. & Ayrt. 609), where a debt was substituted for that of the petitioning creditor, the court, when making the order, expressly said, that notice thereof must be given to the defendant in an action which had been previously commenced, and in which the validity of the petitioning creditor's debt was disputed. The same principle which would apply to an original order, will apply to an amended order; otherwise the greatest injustice may be produced. The order in this case was clearly bad before the amendment, and was in fact admitted to be so; otherwise the amendment would not have been sought for. But the amendment is confined to a recital in the petition to obtain the order, stating that the petitioner had alleged that there was a debt; and no alteration has been made [237] in the mandatory or adjudicating part. It is consistent with every thing that appears upon the face of the order, that the substituted debt may have been proved only the day before the order was made. It is said on the other side, that you may look at the recital to explain the mandatory part. But if the allegation is not direct in itself, it must be so by necessary inference. The insertion of the word "said" in the mandatory part might have connected the order with the recital, and have given the plaintiffs a case. It has been said that this is like a verdict upon a plea of not guilty in an inferior court. To make the cases parallel, it should be supposed that the jury merely found that the plaintiff had said that the defendant was guilty. In Ex parte Hall, In re Elliott (1 Mont. Deac. & De Gex, 217) the order, which had been held invalid in Christie v. Unwin, was amended by the court of Review in the following form, prepared by Sir George Rose-after reciting the substance of the petition-" and it appearing to this court, upon due proof thereof laid before it, that, after the adjudication of the bankruptcy of the said Thomas Elliott, and before the presenting the aforesaid petition, the debt of the said J. C., the petitioning creditor, and on which the adjudication of the bankruptcy of the said T. E. proceeded, was duly found to be, and is, an insufficient debt to support the said fiat against the said T. E.; and that, before and at the time of presenting the said petition, the said Northern and Central Bank (the petitioners) had, by one of their public C. P. XII.-4