make out his case, and then he asked for the expenses of that particular creditor. In reference to those cases, he might state the rule of the Court in the words of one of his learned brothers, "The payment of costs in individual cases of opposition must be the exception and not the rule."

Re

F. HALFACRE.

INSOLVENT DEBTORS' COURT.

January 7, 1847.

(Before the CHIEF COMMISSIONER REYNOLDS, and MR. COMMISSIONER

PHILLIPS.)

Re FRANCIS WALL.

Vexatious Defence-Evidence.

In oppositions for vexatiously defending actions, as the expense constitutes the offence, the bill of costs and the Master's allocatur must be produced.

THIS

WALL.

THIS insolvent was the country traveller and agent of Mr. Re FRANCIS Clifton, a deceased wine-merchant of Token-house-yard, London. He had accepted certain bills for his employer, who had given them in payment to a Mr. Laforest, by whom (upon the death of Mr. Clifton) an action was brought against the insolvent for the amount of the bills. He obtained a verdict for the full amount claimed, including noting and interest, amounting to 6107. 7s.

The insolvent having pleaded to the action, was opposed by Nichols, upon the ground of a vexatious defence.

Kirkman, attorney, gave in evidence the record in the action; but to save his client further expense, he had not had the costs taxed, although he affirmed that they amounted to above 1007., and, indeed, no bill of costs was produced.

Dowse objected that such evidence was inadmissible. It was necessary to produce, not only the bill of costs, but the Master's allocatur, to show the amount at which the costs had been taxed. This was the more necessary, as the action was tried in the country (Maidstone), and an attorney's notion of costs was often of a very enlarged character.

Nichols replied.

The CHIEF COMMISSIONER said that the ground of opposition in these cases was thus stated in the words of the statute (1 & 2 Vict. c. 110, s. 76), "If any such prisoner shall have put any of his creditors to any unnecessary expense, by any vexatious or frivolous

WALL.

Re FRANCIS defence or delay to any suit for recovering any debt or sum of money due from such prisoner." The offence was the expense, and certainly in ninety-nine cases out of a hundred that expense was attested by the officer of the Court in which the action was brought, competent to decide upon the subject, and we take that (the Master's allocatur) as the test. But the offence is not the putting in such and such pleas; the offence is the expense. As for this gentleman (Mr. Kirkman) saying that it would cost a good deal to tax the bill, if he has not thought fit to prosecute his suit to the utmost, and has not even made out a bill, he cannot complain if he does not succeed. No doubt he adopted what he thought was the prudential course; but when a party comes here, and the insolvent is to be affected by the statute, we must see that it is strictly adhered to.

MR. COMMISSIONER PHILLIPS said, that the power of the Court was to be exercised upon certain data,—that is, the difference proved between the costs upon taxation and what they would have been if the action was undefended. If that was not so, solicitors would differ as to the proper amount of costs, and they would have no certain data upon which to proceed in fixing the period of remand.

The attention of the Court was here directed to Cooke's Practice, p. 216, which states, that the expense "may be shown either by the Master's allocatur, if the costs have been taxed, or by the evidence of the plaintiff's attorney, if they have not been taxed."

Dowse said, if that it was so, it would be admitting evidence of a very dangerous character indeed; for when an attorney made out his bill of costs, he might put in every possible charge, and every expense which he imagined he had a right to claim. That is not a case in which he can himself be allowed to be a judge, and that was more especially the case at the assizes, where the expense was always more considerable.

MR. COMMISSIONER PHILLIPS.-Where no bill of costs has been made out at all, are we to take the evidence of a solicitor? He should rather think that it was a reason for rejecting the evidence altogether.

The CHIEF COMMISSIONER said that the great difficulty in such a case as this was how to fix the length of the remand. Should they send the insolvent back for six weeks or three months? How could they know? There was no bill made out. They had not had an opposition for years where a remand was sought under such circumstances.

Nichols said that a solicitor could state the extra expense caused by pleading. He submitted whether the rule might not be reconsidered.

The CHIEF COMMISSIONER said that it might be argued again fully if required.

MR. COMMISSIONER PHILLIPS inquired if an instance was ever known in which the Court acted penally in a case of this kind, where a bill of costs had not been made out.

Nichols being unable to produce a case in point,

MR. COMMISSIONER PHILLIPS said that he thought if such evidence was admitted, it would be necessary for the Court to act upon the capricious opinion of every solicitor who might be brought to give evidence on the subject.

The objection was sustained, and the opposition
on that ground disallowed.

Re FRANCIS
WALL.

INSOLVENT DEBTORS' COURT.

August 4 and 11, 1843.

(Before the CHIEF COMMISSIONER REYNOLDS, and COMMISSIONERS HARRIS and POLLOCK.)

Re CHARLES JAMES JOHNS.

Former Insolvencies-Property Dividend.

An insolvent had been discharged by the Insolvent Debtors' Court upon several occasions. Property was realized under one of the schedules. Held, that the assets were to be applied in discharge of the claims of all the creditors in all the schedules.

THIS

JAMES JOHNS.

HIS was an application under the 89th section of the 1 & 2 Re CHARLES Vict. c. 110, which enacts, "That in case any person or persons, body politic or corporate, shall, after any such insolvent shall have become entitled to the benefit of this Act by any such adjudication as aforesaid, become or be possessed of, or have under his or their power or control, any stock in the public funds of this country, or any legacy, money due or growing due, bills of exchange, promissory notes, bank notes, securities for money, goods and chattels, or any other property whatsoever belonging to such insolvent, or held in trust for him, or for his use and benefit, &c., it shall be lawful for the said Court, upon the application of any assignee or creditor of such insolvent, to cause notice to be given to such person or persons, body politic or corporate, directing them to hold and retain the said property in his or their possession till the said Court shall make further order concerning the same. The insolvent had taken the benefit of the Act upon two previous occasions. He had won from Lord W*** at play a sum of 1,2007. after which he set off to Brussels. His lordship deposited the money with an agent in London for transmission to the insolvent. A creditor in the schedule of the insolvent, filed by him when he first took the benefit of the Act, heard of the fact, and applied to the Court for, and obtained, the usual order, calling upon Mr. Norcutt, by whom the money was to be transmitted to

JAMES JOHNS.

Re CHARLES the insolvent, to hold and retain the same until the further order of the Court. A rule was obtained at the same time calling upon Mr. Norcutt and the insolvent "to show cause why the sum of money in the hands of Mr. Norcutt, or such other sum as the Court shall think fit," should not be paid over to the assignee of the estate and effects of the insolvent. To this rule the insolvent showed cause, and the Commissioner (Pollock) decided that a sum of 4177. should be paid into Court to the account of both the estates of the insolvent. To this order an objection was raised in the provisional assignee's office that the order emanated upon a motion made by a creditor under the first estate, and could not be complied with, inasmuch as the creditors under the second estate had not moved in the matter, neither did it appear that they had notice of the proceedings. Another question was also raised as to the division of the money. The creditors under the first estate claimed a priority of payment. Notice was ordered to be given to the creditors in the second schedule, and the question raised for argument.

January 20, 1844.

THE case of Barton v. Tattersall, 1 Russell & Mylne, p. 237, and 2 Russell & Mylne, p. 541, had been referred to on a previous day, and

Woodroffe, on behalf of the creditors under the second insolvency, contended, that the doctrine laid down by Sir John Leach in that case was confirmed afterwards by the Master of the Rolls (Lord Langdale) in the case of Ward v. Painter, 2 Beavan, 85, and afterwards by the Lord Chancellor upon appeal (4 Jurist, 1,005); that it was consequently the law at that day applicable to this case, and must therefore govern it. If so, then, as in the case of Barton v. Tattersall, so in this also, the last set of creditors ought to be paid first. He also contended that if the Court ordered the creditors in the first schedule to be paid first, the creditors under the second schedule should endeavour to obtain their rights by filing a bill in Equity, and the money already paid into Court would be frittered away in costs, to the detriment of all parties to both estates; and he finally contended that this Court had no power to over-rule the decision of a superior Court.

Cooke (contra), said that of course every person would be disposed to treat the decision of a competent tribunal with proper respect. It was not his intention to impugn the doctrine laid down in Barton v. Tattersall, or the authority of that case; on the contrary, he had no doubt that that case was rightly decided; but it must be remembered, that it was a decision with reference to a particular Act of Parliament, the 53 Geo. 3, c. 102, s. 14, which enacts that after a reasonable allowance for the maintenance of such debtor and his family, and after payment of his or her debts contracted subsequently to such discharge, or to which such discharge did not extend, application might be made to the Court against such

JAMES JOHNS,

debtor who was of ability to pay his debts. Therefore there was Re CHARLES no ground for the decision in that case; for the Act itself directed that all debts contracted by the insolvent after his discharge should be paid before the scheduled creditors. Stat. 1 Geo. 4, c. 119, s. 25, enacted that where any order for the discharge of any prisoner shall be made, the Court may also order that a judgment shall be entered up against such prisoner in some one of the superior Courts at Westminster, &c., that in all the cases the general principle prevailed that debts afterwards contracted should be paid before the scheduled creditors. In all the cases where a Court of Equity had been applied to, the party was deceased, and they were marshalling the assets. If an insolvent was living, a Court of Equity would not interfere, but the application must be to this Court. But this Court, it was contended, could not divide the funds between the creditors under two schedules, it must be governed by the particular statute under which the insolvent petitioned. Money obtained by the exertion of a particular creditor under one schedule could not be divided with creditors under another schedule. The assignees of No. 1 could not be the assignees of No. 2; but every assignee was the assignee of the insolvent, under the schedule to which he was appointed. The 89th section of 1 & 2 Vict. c. 110, directed the manner of proceeding, where, after the discharge of a prisoner, any person should be possessed of stock in the public funds, &c. belonging to him. It was by that section enacted, that in case any person or persons, body politic or corporate, shall, after any such insolvent shall have become entitled, &c. by such adjudication as aforesaid, become possessed, &c., it shall be lawful for the said Court, upon the application of any assignee or creditor of such insolvent, to cause notice, &c. to hold and retain until further order, &c. The words such insolvent and such assignee or creditors referred to the particular schedule under which the insolvent was discharged, or the party became a creditor.

The CHIEF COMMISSIONER.-Under any one of six insolvencies, do you mean to say that if a fortunate creditor discovered property it must be paid to the co-creditors of such fortunate creditor, and not to any of the other five?

Cooke.-Yes; that is what I contend.

MR. COMMISSIONER POLLOCK.-Suppose three judgments, and all entered up, would not the Court, under the 89th section, be justified in dividing the funds under three schedules?

Cooke.-No; the whole spirit of the Act, I contend, is isolation; the Act has only reference to one case. The A. B. of 1841, and the A. B. of 1842, are distinct persons. The after-acquired property of an insolvent, under No. 1, cannot be divided under schedule No. 2. When the Act uses the words "such insolvent," it means under a particular schedule, for it says "any creditor of such insolvent in such schedule" and "such judgment," and it means under such schedule. He then referred to the 62nd section as showing how the dividend is to be made amongst the creditors of such prisoner whose debts are admitted in the schedule.