1792. SAMMES v. RICKMAN. when an order is made by consent for a sum of money to be paid into Court, no man can dispense with it. The person, upon whom it is made, ought either to obey or vary it; for it is an intolerable circumstance after that to keep in his pocket a sum, which if paid in, would have been laid out. Therefore I incline to make him pay the balance with a computation of interest for the 2007. from the date of the order; that no man shall presume, after an order has been made, to take upon himself to dispense with it upon the tacit acquiescence of the other side, or an idea of his own. This being misconduct in a single article, of small value, and the Court having fixed a mark of sufficient reprobation upon that single article, I think, it is not a case to deprive the Defendant of his costs: but that as there is no distinct point of abuse of trust, he is within the common case of a trustee, who is entitled to his costs, to be retained out of the money in their hands (27). Lords Commissioners Ashhurst and Wilson were of the same opinion. (27) Beames on Costs, 146. Ashburnham v. Thompson, post, Vol. XIII, 402. 1 Madd. 308. For the cases of interest on account of a breach of trust, see the references, ante, Vol. I, 99, 294. 1792. Dec. 15th. BINFORD v. BAWDEN (28). Money devis- UNDER a commission, which issued in this cause (29) to ed to be laid examine a féme covert touching her inclination as to the out in land for disposition of a sum of 14007. devised to be laid out in lands feme covert in for her in tail with reversion to her in fee, the certificate was, tail with reversion to her that she chose to have it not laid out in land, but paid to her in fee; she chose to have it paid to her husband. The Court required an affidavit by the husband and wife, husband: not that there was no settlement; the Solicitor General and the paid without Register saying, it had been of late the practice to require affidavit by the husband and wife that there is no settle ment. (28) Lord Commissioner Eyre absent. it it (30). The Register mentioned a case, in which Mr. and Mrs. Morris being present in Court were asked, whether there was a settlement? both answered, that there was not: but upon its being inquired into by the Counsel it was found, that the money was actually settled. (30) Minet v. Hyde, 2 Bro. C. C. 663. GENERAL ORDER. December 15th, 1792. General Order that the Master shall annually, at the second seal THE Lords Commissioners for the Custody of the Great Seal of Great Britain, and the Right Honorable the Master of the Rolls, having taken into their consideration the necessity of enforcing the Order of this Court, that the receivers of the rents and profits of estates under the care of after Trinity this Court do duly and annually pass their accounts, and pay Term, certify what they receive according to the terms of the orders, to the Court under which they are appointed, to prevent such accounts the state of the from running in arrear, do think fit, and do hereby order, several receivthat the Masters of this Court do, upon the second seal after ers accounts Trinity Term in every year, certify to the Lord Chancellor, Lord Keeper, or Lords Commissioners for the Custody of the Great Seal for the time being, the state of the several receivers accounts in their respective offices; and do farther direct, that this Order be forthwith entered with the Register, and copies set up in all Offices belonging to the Court of Chancery. in their respective offices. 1792. Dec. 21st. Bankruptcy superseded; all the creditors being paid, and consenting, except two, who could not be found: but their securities were delivered up with receipts upon them, and their signa tures proved. KING, Ex parte. A BANKRUPT petitioned to have his commission superseded, all the debts being satisfied (31). The petition was consented to by the assignee and all the creditors except two; who were creditors by notes, which were delivered up with receipts upon them: as to them it was sworn, that the Deponent went to their respective places of abode, but could not find them; and was informed and believes, that they are gone into foreign parts, but could not tell where. Mr. Mitford, for the petition, admitted, that he could not find any case, in which the actual consent of the creditors was dispensed with. The Solicitor General, being asked by the Court, thought there could be no objection. Lord Commissioner EYRE. If the debts are fully paid, I incline to do it; as I do not see any possible interest, a creditor can have to oppose it. Perhaps an assignee, or those, who took possession under the commission, might; because as soon as the bankruptcy is superseded an action might be brought against them for taking his goods. I think this may be done. The other Lords Commissioners concurring, the commission was ordered to be superseded; the Counsel undertaking to procure an affidavit verifying the signatures to the receipts upon the notes; which had been omitted in the affidavits made. (31) By a General Order of second meeting; the practice is Lord Eldon, this petition can- to adjourn the choice of asnot be presented until after the signces. : SHAW, Ex parte. 1792. Dec. 21st. A bankrupt, like a pauper, con duct: THIS was the petition of a bankrupt, whose conduct appeared to be vexatious; as two former petitions, presented by him for the same purpose, had been dismissed. loses his privilege by misWhen it came on upon a former day, no Counsel appeared for the petition. *On inquiry directed by the Court, whether the [ *41 ] solicitors concerned in this petition were acquainted with the therefore, circumstances, it turned out that they were lately employed, where after and no blame was to be imputed to them. On this day two petitions Mr. Stanley, for the petitioner, gave up the petition; saying, dismissed, he it was against his advice; and that he thought, the best presents a thing, he could do for his client, would be not to appear. third for the same purpose, it will be dis Solicitor General, against the petition, desired an order to missed with restrain the bankrupt from presenting any more petitions for costs; and, if the same purpose. Such an order, he said, had been made in not able to pay more than one instance, particularly by Lord Thurlow in the them, he must case of Slade, a bankrupt; and that in the case of Thompson Lord Thurlow directed a bill to be filed to put an end to vexatious proceedings. Lord Commissioner EYRE. but the Court will not make be committed: an order to restrain him from present I should have no objection to make an order upon the peti- ing any more. tioner to pay costs, though in the case of a bankrupt (32); which if he should not be able to pay, he must suffer in his person, and be committed. It is like the case of a pauper; who is dispaupered by misconduct (33): so, if a bankrupt behaves ill, he ought to lose his privilege. But I do not approve of enjoining him, as desired; and should have been of a different opinion upon those cases. I suppose, if the petition is dismissed, we shall hear no more of it. The other Lords Commissioners concurring, the petition was dismissed. (32) Post, Lock v. Bromley, Vol. III, 40. Beames on Costs, 329, 30. Ante, Ex p. Thorp, I, 394. (33) Post, Vol. IV, 630. 1792. Dec. 21st. Petition to prove a debt WRIGHT, Ex parte. A CREDITOR of a bankrupt petitioned, that he might be at liberty to prove his debt, and that the certificate might in bankruptcy be stayed. At the time of presenting his petition he had never irregular, bebeen before the Commissioners: but before the hearing he went before them; and they rejected his debt upon the merits. go before the The petition came on to be heard, as it was originally presented. cause the cre ditor did not *Solicitor General against the Petition. The rule is, that a creditor ought not to petition, till he has been before the Commissioners, unless he states what the Court will consider à sufficient reason for not going before them. This creditor ought also to state what has passed before the Commissioners, since he presented his petition. As to staying his certificate, even admitting his debt, there will not be a majority in number and value against the certificate. Lord Commissioner EYRE. Upon both points the petitioner is irregular; first, in presenting his petition without going before the Commissioners; secondly, in coming upon that petition without stating what had passed before the Commissioners. He ought to have presented a special petition. 1793. The other Lords Commissioners concurred. 24th. 4 Bro.C.C.165. ATTORNEY GENERAL v. THE GOVERNORS OF The general THE Governors of the Foundling Hospital, which charity controlling subsisted under Letters Patent, confirmed by Act of Parpower of the liament, in 1792 entered into contracts for letting upon building Court over charities does not extend to a charity regulated by governors under a charter; unless they have also the management of the revenues, and abuse their trust; which will not be presumed; but must be apparent, or made out by evidence. leases, |