of any affidavits filed by him in the
second petition after such proposal
has been made. Ex parte Scott, re
Jones, 3 Dea. 75.
After a petition is ordered to be
dismissed with costs, because the pe-
titioner declines to open it, the Court
will not, on a subsequent day, enter-
tain an application from him to ex-
clude from the allowance of costs
certain affidavits of the respondent,
on the ground, that they were filed
too late to be read. If the affidavits
are not filed in time, the petitioner
should open his petition, in order to
take the objection as to their disal-
lowance. Ex parte Sidebotham, re
Clarke, 3 Dea. 221.
(Of Equitable Mortgagee.)
Where the leases of several houses
were deposited, accompanied with a
written memorandum, to secure a
debt; and the creditor, eight months
afterwards, at the bankrupt's request,
returned him four of the leases, and
took the deeds of other leasehold
property as a substituted security,
but without any fresh memorandum
in writing-Held, nevertheless, that
the creditor was entitled to his costs.
Ex parte Cobham, re Halls, 3 Dea. 609.
Assignees may apply for security
for costs of an inquiry, when the pe-
titioner is insolvent. Ex parte Moli-
neux, re Bright, 3 Mont. & A. 705;
S. C. 1 Dea. 603.
plaintiff in an action to give security
for costs, where he had become bank-
rupt after joinder in demurrer, and
had obtained his certificate; the as-
signee declining to continue the ac-
tions. Beckham v. Knight, 5 Scott,
336.
The fund in Court being decreed
to the assignees of a party, who in
the course of the cause had become
bankrupt, the solicitors employed by
him during part of the proceedings
have a lien for their costs. Pounset
v. Humphreys, 1 Coop. 142.
Where costs are ordered to be paid
to the client, solicitors need not wait
the result of process to compel the
payment of such costs, but may insist
upon the immediate benefit of their
lien. Ibid.
(In Actions by Assignees.)
In trover by the assignee of a
bankrupt, defendant, having succeed-
ed on an issue, that plaintiff was not
possessed of the goods as of his pro-
perty as assignee; and it appearing
that the plaintiff, as assignee under a
second commission, had allowed the
bankrupt to have the goods in his
order and disposition:-Held, that
defendant was entitled, also, to the
costs of evidence adduced to prove a
third commission, but not to the ex-
pense of proving that the bankrupt's
estate had, after certificate, produced
15s. in the pound under the second
The Court refused to order the commission, upon which point an
To assumpsit by assignees of J.,
a bankrupt, for the non-acceptance
of shares in a railway company, which
the bankrupt, before his bankruptcy,
had contracted to sell to the defend-
ant, and to convey to him on a day
subsequent to the bankruptcy,-the
declaration averring that the plaintiffs
were the proprietors of the shares,
and that they tendered certificates of
them to the defendant,-the defendant
pleaded, 1st, that J. committed no
act of bankruptcy; 2dly, that the act
of bankruptcy, on which he was de-
clared a bankrupt, was unlawfully
concerted between J. and the plain-
tiffs, and that he committed no other
act of bankruptcy. Semble, that this
was not a case, in which the depo-
sitions were conclusive evidence of
the matters contained in them, under
the 6 Geo. 4. c. 16. s. 92.; inasmuch
as the bankrupt could not have ful-
filled his contract on the day speci-
fied; and therefore this was not a debt
or demand, for which he could have
sustained an action. But even if the
case were within that section, semble,
that evidence might be given to show
that the act of bankruptcy was con-
certed. Hare v. Waring, 3 Mees. &
W. 362.
Any new depositions taken before
the Commissioners, upon a reference
back to them to review the adjudica-
tion, will be admissible in evidence to
support the fiat. Ex parte Welden, re
Welden, 3 Dea. 240.
DISMISSAL.
And see PETITION.
An order of dismissal cannot be
drawn up, if the petition has not been
filed in the office. Ex parte Carnes,
re Griffiths, 3 Dea. 124.
The proper course is, in such case,
to move to discharge the fiat at the
foot of the petition, with costs. Ibid.
DISTRIBUTION OF ASSETS.
The Court of Review has no juris-
diction to order a fund in Court to be
distributed amongst the creditors of
a testator, to whose estate the fund
belonged; the proper proceeding be-
ing by bill in equity for the distribu-
tion of assets; but the Court made a
special order for the transfer of the
fund to the Accountant-General of the
Court of Chancery, as soon as a bill
should be filed by the creditors. Ex
parte Williams, re Knight, 3 Dea. 378.
And see UNCLAIMED DIVIDEnds.
(Must not be delayed.)
If the solicitor to one of the par-
ties to a petition, whose costs are or-
dered to be paid out of the estate,
does not take in his bill in a reason-
able time, the funds, regardless of the
bill, must be divided amongst the
creditors. Ex parte Monk, re Bur-
ford, 3 Mont. & A. 626.
(Petition for Payment of.)
On a petition for payment of a di-
vidend, the order is of course, unless
a cross petition is presented within at
reasonable time. Ex parte Lees, re
Oulton, 3 Dea. 287.
After the proof of a debt, but be-
fore the declaration of a dividend, the
creditor received a large portion of
the debt from a surety :-Held, that
this did not prevent the creditor from
receiving dividends on the whole
amount of his proof. Ex parte Co-
plestone, re Snell, 3 Dea. 546.
A bankrupt agreed to pay his cre-
ditors in full, and gave bills for the
amount, and the creditors executed a
power of attorney to one A. B. to re-
ceive their dividends for the bank-
rupt's use; the bills not being paid,
Held, that the creditors, and not
A. B, were entitled to the dividends;
and that the dividends, on the issuing
of a second commission, were not in
the reputed ownership of the bank-
rupt. Ex parte Smither, re Govett,
3 Mont. & A. 693; S. C. 1 Dea. 413.
Where there are competing dock-
ets, the Court will not interfere, un-
less the officer refuses to issue a fiat,
or refers the parties to the Court.
Ex parte Thorp, re Lees, 3 Mont, &
A. 395.
Docket papers, describing the
bankrupt as of the place where he ac-
tually traded at the time of striking
it, are to be preferred. Re Allday, 3
Mont. & A. 485.
EAST INDIA COMPANY.
See PENSION.
EQUITABLE MORTGAGE
An equitable mortgagee is entitled
to the rents only from the order of
sale, notwithstanding he has previ-
ously given notice to the tenants not
to pay them to the bankrupt. Ex
parte Burrell, re Norman, 3 Dea. 76.
Although an order for the sale of
an equitable mortgage is accompanied
by an order of reference to the Com-
missioners, to ascertain the time of
the deposit of the deeds, yet if the
certificate of the Commissioners agrees
with the statement of the equitable
mortgagee, he is entitled to the rents
accruing from the date of the order.
Ex parte Thorpe, re Teasdale, 3 Dea.
85.
Where some deposits of deeds are
made with written memoranda, and
others without, the costs will be ap-
portioned, and only those allowed
which relate to the deposits accom-
panied with memoranda. Ibid.
Where there is no memorandum,
the deposit of the deeds twelve years
ago, and the bankrupt dead, the
Court will not interfere to make the
common equitable mortgage order.
Ex parte Jones, re Oliver, 3 Mont. &
A. 328.
Although an equitable mortgagee
gives notice to the tenant to pay him
the rent, he does not thereby entitle
himself to the rent accruing before
the order for sale. Ex parte Scott,
Ex parte Scott,
re Pearson, 3 Dea. 304.
One of two partners deposits the
deeds of his own estate, by way of
equitable mortgage, to secure a part-
nership debt, and afterwards becomes
bankrupt, the other partner being
solvent:--Held, that an order may
be made for the sale of the equitable
mortgage, but no proof allowed
against the bankrupt partner for the
purpose of receiving dividends. Er
parte Loyd, re Ireland and Harrison,
3 Dea. 305.
There is no necessity for an order
of the Court to sell an equitable
mortgage, if all parties agree to the
sale, without an order. Ex parte
Whitbread, re Lupton, 3 Dea. 311.
On a petition of an equitable mort-
gagee for leave to bid, the Court will
not excuse him from paying the de-
posit money, if he should become the
purchaser. Ex parte Wilson, re
Maltby, 3 Dea. 505.
Where a legal mortgage was exe-
cuted by the bankrupt, in pursuance
of a previous equitable mortgage,
but not till after the mortgagee had
notice of the act of bankruptcy, and
it was consequently an unavailable
security; it was held, that it did not
operate as a merger of the equitable
mortgage; and that the party was
entitled to the usual order, as equi-
table mortgagee. Ex parte Harvey,
re Emery, 3 Dea. 547.
Where the leases of several houses
were deposited, accompanied with a
written memorandum, to secure a
debt; and the creditor, eight months
afterwards, at the bankrupt's request,
returned him four of the leases, and
took the deeds of other leasehold
property, as a substituted security,
but without any fresh memorandum
in writing:-Held, nevertheless, that
the creditor was entitled to his costs.
Ex parte Cobham, re Halls, 3 Dea.
EVIDENCE.
And see WITNESS.
(Depositions, &c.)
In assumpsit by assignees of a
bankrupt, J., for the non-acceptance
of shares in the Great Western Rail-
way, which J., before his bankruptcy,
had contracted to sell to the defend-
ant, and to convey to him on a
day subsequent to the bankruptcy,-
the declaration averring that the
plaintiff's were the proprietors of the
shares, and that they tendered cer-
tificates of them to the defendant--
Semble, that this was not a case where
the depositions were conclusive evi-
dence of the matters contained in
them, under the 6 Geo. 4. c. 16. s.
92; inasmuch as the bankrupt could
not have fulfilled his contract on the
day specified, and therefore this was
not a debt or demand, for which he
could have sustained an action. But
even if the case were within that sec-
tion, semble, that evidence might be
given to show that the act of bank-
ruptcy was concerted. Hare v. War-
ing, 3 Mees. & W. 362.
In order to prove their proprie-
torship of the shares, the plaintiffs
put in the transfer books kept by
the Great Western Railway Com-
pany, under the Railway Act, 6 &
7 Will. 4. c. 107. s. 158., in which
the plaintiffs were entered as trans-
ferees. Held, that this was not
sufficient evidence of their title.
Ibid.
The certificates tendered by the
plaintiffs to the defendant did not
contain the names of the plaintiffs,
as original proprietors, nor had they
any indorsement of transfer to them.
Held, that such certificates were in-
sufficient, inasmuch as they did not
show a title in the plaintiffs to con-
vey the shares under the act; (sec-
tions 147, 158). Ibid.
Any new depositions taken before
the Commissioners, upon a reference
back to them to review the adjudica-
tion, will be admissible in evidence to
support the fiat. Ex parte Welden, re
Welden, 3 Dea. 240.
(Declarations of an Insolvent.)
Declarations of a person in insol-
vent circumstances, to show that he
knew of his insolvency, are admis-
sible in evidence, to prove such
knowledge; provided the fact of his
insolvency be proved aliunde. Thomas
v. Connell, 4 Mees. & W. 267.
Semble, that the fact of insolvency
should be proved, before the decla-
rations are offered in evidence. Ibid.
(Proceedings in another Suit.)
A., B., and C., partners in trade,
together with D., as their surety,
enter into a joint and several bond
to
to E. D. dies, leaving A. his per-
sonal representative, and a joint fiat
issues against A., B., and C. E. in-
stitutes a creditor's suit in the Court
of Chancery against A., and the as-
signees under the fiat, as the personal
representatives of D.; and afterwards.
petitions the Court of Review to
prove the balance due on the bond
against the separate estate of A.,
which application is resisted by the
assignees. Semble, that the proceed-
ings in the Chancery suit were admis-
sible in evidence, on the hearing of
this petition, the assignees being
parties to both proceedings, and the
subject-matter being the same; al-
though the question in the suit was
the liability of the surety, and the
question on the petition the liability
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