parties, by the use of their names individually, to
bind the firm; and also to make the like inquiry
as to the same parties being acceptors of such
bills. And if the assignees under the joint fiat
should waive such inquiries, or if the Commis-
sioners should find in the affirmative, then it was
ordered, that the petitioner might elect; and if
he should elect to prove against the joint estate,
that his proof against that estate should be re-
stored to the proceedings; and that his proof
against the separate estate of Bayley should be
expunged, the petitioner refunding the dividend
he had received thereon; that the petition, as
against the assignees under the separate fiat,
should be dismissed; that the petitioner should
pay to the assignees under the separate fiat the
costs of the petition, including the costs of re-
funding and dividing the dividend received by
the petitioner; and that the costs of the assignees
under the joint fiat should be paid out of the
joint estate.

1839.

Ex parte

LAW.

Ex parte WILSON.-In the matter of MALTBY.

Westminster, Jan. 29, 1839.

THIS was the petition of an equitable mortgagee, for On a petition of

The

an equitable mortgagee for

if

the usual order, and for leave to bid at the sale.
only peculiarity in the prayer of the petition was, that
the mortgagee should become the purchaser of the pro-

perty, he might be excused from paying any deposit on
the amount of the purchase-money, as the amount of the
money due on the mortgage, according to his statement,
exceeded the value of the estate.

leave to bid.
not excuse him
from paying the
deposit money,

the Court will

if he should

become the

purchaser.

1839.

Ex parte WILSON.

Westminster,

Jan. 29, 1839.

Mr. Ellison appeared in support of the petition.

The COURT, after consulting Mr. Barber, the Registrar, said, that it had not been the practice of the Court to grant such an Order, and that they were unwilling to make a precedent.

Ex parte COPLESTONE.-In the matter of SNELL.

After the proof THIS was the petition of a creditor, for an order on

of a debt, but

before the declaration of a dividend, the creditor received a large portion

of the debt from

a surety: Held,

the assignees to pay him the amount of a dividend on a proof for 5201.

Mr. Teed opposed the petition, on the ground that the that this did not creditor had already received from a surety a portion of

prevent the cre

ditor from receiving dividends on the whole amount of his proof.

the debt, amounting to 300l., and that the creditor was

therefore only entitled to receive dividends on the remainder of the debt. By the statute, the surety has a right to stand in the place of the creditor, whether he pays part, or the whole of the debt (a); and therefore, if the petitioner is to be permitted to receive dividends on the whole amount of the debt, the bankrupt's estate will in that case have to pay a dividend twice over on the 3001.

Sir JOHN CROSS.-The proof in this case having been made before the payment of the 3007. by the surety, it does not appear to me, that the creditor surrendered his right to receive dividends on the whole amount of his proof, because he received a portion of his debt from the surety.

(a) By the 6 Geo. 4. c. 16. s. 52., the surety has only a right to stand in the place of his creditor, if he pays the whole amount of the debt, "or any part thereof in discharge of the whole debt."

༣

1839.

Ex parte

Sir GEORGE ROSE.-It seems to me very reasonable, that the creditor should receive dividends upon the whole amount of his proof, provided he does not altogether COPLESTONE. receive more than 20s. in the pound. The surety has no locus standi under the act of parliament, either on legal or equitable grounds; for there is here no evidence of any payment of the entirety of the debt, or of any partial payment in discharge of the entirety.

ORDERED as prayed, but without costs.

Ex parte HARVEY.-In the matter of EMERY and others.

THIS was the petition of an equitable mortgagee, for the usual order. It appeared, that there was an agree ment in writing, accompanying the deposit of the deeds, which was dated the 15th November 1836; and there was afterwards a legal mortgage executed by the bankrupt to the petitioner, in pursuance of this agreement; but this was after the petitioner had notice of an act of bankruptcy. It was alleged also, in answer to the petition, that there was an act of bankruptcy committed in August 1836; but there was no evidence, that the petitioner had notice of this act of bankruptcy. The fiat issued on the 21st February 1837.

Mr. Swanston, and Mr. Anderdon, appeared in sup- gagee.

port of the petition.

Mr. Armstrong, contrà, contended that the legal mortgage merged the previous equitable mortgage.

1839.

Ex parte HARVEY.

Sir JOHN CROSS.-As there was here a period of two calendar months between the contract of the 15th November and the issuing of the fiat, and there is no evidence that the petitioner had any notice of the act of bankruptcy until after the 15th November, there is nothing to affect the validity of the equitable mortgage. The legal mortgage had not the effect of merging the equitable mortgage; for the legal mortgage, being executed after the petitioner had notice of the act of bankruptcy, was void; or at any rate, the respondents now come here to avoid it.

Sir GEORGE ROSE.-The legal mortgage had only the effect of suspending the equitable mortgage; and, being now rendered unavailable by the previous notice of the act of bankruptcy, the rights of the petitioner under the equitable mortgage are revived.

ORDER made as prayed.

GENERAL ORDER.

ON the 9th June 1837, the Lord Chancellor gave the following general direction to the Secretary of Bankrupts:

All Fiats to be directed to the Court of Bankruptcy, or to the List in the country nearest to the place of residence of the Bankrupt, unless a Special Order be obtained, on affidavit, directing the Fiat to go to any other List."

Ex parte JOHN SKERRETTE STUBBS, on behalf of the
Northern and Central Bank.-In the matter of
GEORGE HALL.

1839.

Lincoln's Inn

Hall, December 14, 1838. Westminster,

and Lincoln's Inn Hall, April 10, 1839. Cor. Lord Chancellor.

THIS was a petition to the Lord Chancellor, praying January 12, that he would discharge his own order for annulling the fiat in the above bankruptcy, and that a writ of procedendo might issue, directing the Commissioners to proceed in the execution of the fiat, notwithstanding an Order (a) of the Court of Review made in this matter, the petition of the abovenamed bankrupt, on the 26th November last. The present petition was preferred to

on

After a petition for annulling

the fiat has been

heard and disposed of by the Court of Re

view, the Lord

Chancellor can

his appellate. only interfere in

the Lord Chancellor under the following circumstances. On the 14th December last a motion was made to his and not in his

Lordship, by Mr. Swanston, on behalf of the present

peti

petitioner, that his Lordship would direct, that the
tioner might prosecute his appeal from the Order of the

(a) See Ex parte Hall, ante, p. 405.

original, juris

diction in bank

ruptcy; and an

appeal to remove

the order on

such a petition must be brought before him by way of special

case, unless he shall otherwise direct; which direction will only be given under very special circumstances.

No appeal lies to the Lord Chancellor against the settlement of a special case by a judge of the Court of Review, for refusing to introduce into the case a statement of certain facts, which the appellant contended ought to be inserted in it; the 1 & 2 W. 4. c. 56. s. 3. 17. confining the right of appeal to matters of law or equity, or the refusal or admission of evidence, only; and the 3d section declaring that the determination of the judge in the settlement of the case shall be final and conclusive.

Lord Brougham's observations in Ex parte Keys, 1 Mont. & A. 242, 3 Deac. & C. 275, as to the Lord Chancellor's jurisdiction in all matters relating to the fiat being wholly untouched by the provisions of the 1 & 2 Will. 4. c. 56., corrected.