or order the payment of the bill, on the ground that there was no item of the bill within six years from the demand for payment, and that the debt had been, therefore, barred by the Statute of Limitations.

The petitioner now presented his petition to the Court of Review, praying that the official assignee might, out of the money in his hands, pay the sum of 887., being this bill of costs.

The conduct of the petitioner was free from all imputation, as appears from the judgment.

By the 6 Geo. 4. c. 16. s. 14. it is enacted, "That all bills of fees or disbursements of any solicitor or attorney, employed under any commission, for business done after the choice of assignees, shall be settled by the commissioners, and the same, so settled, shall be paid by the assignees to such solicitor or attorney."

Mr. Swanston and Mr. Bacon, for the petitioner.-Admitting that the personal demand of the petitioner against the assignee who employed him is barred by the statute, if he chooses to avail himself of the statute, that is not the present case; for it is not the assignee who creates the difficulty, but the commissioner. Even when the remedy against the assignee personally is gone, the lien on the estate remains; for it is the remedy, and not the right, which the statute bars-Ex parte Bryant (1), Higgins v. Scott (2). The 14th section of the Bankrupt Act, 6 Geo. 4. c. 16. expressly gives the solicitor a lien on the estates.

Mr. Russell and Mr. Shapter, for the respondents. Where an executor does not set up the Statute of Limitations as a defence to a demand against the testator's estate, a residuary legatee may-Shewen v. Vanderhorst (3). The non-interference of the assignee does not prevent the commissioner from insisting on the statute. The solicitor has no lien on the estate where he is not

instrumental in recovering it-Hodgens v. Kelly (4), and Irving v. Viana (5). The 14th section of the Bankrupt Act gives the commissioner the sole power to settle the solicitor's bill of costs, and this Court cannot interfere. That section does not create any trust or lien in favour of the solicitor; it only gives the commissioner the power to settle the solicitor's bills, when, according to the general principles of law and equity, he ought to be paid them.

SIR J. L. KNIGHT BRUCE (after reading the 14th section of 6 Geo. 4. c. 16).—This is a direction by an act of parliament as to the duty of the assignees, and if this duty is not performed, the solicitor has a right to come here and enforce the performance of it. Supposing that I am at liberty to act on my own opinion, what are the merits of this case? It is impossible that I can infer that a single shilling has been lost to this estate. The assignee, Taylor, has paid that which the commissioner has charged. What would have been the case if this state of things had not existed, it is not necessary for me to say. The only sufferer by the delay in payment has been the solicitor, who, to use a colloquial expression, has been kept out of his money for so many years. A case may exist of such delay, that the Court might refuse to assist the solicitor. The delay, however, in this case, has been explained to my satisfaction, and I do not think there is any imputation upon the solicitor. If anything, it is, under the particular circumstances of the case, rather creditable to his views and feelings than otherwise. I consider that the Statute of Limitations does not apply to a case of this description, whatever might have been the case if an action had been brought against the assignee. Unless, therefore, it is desired that this bill should be further taxed, I shall order payment of it.

Declare that the estate is liable to pay the amount of the bill; order payment thereof, without prejudice to any question of further taxation, out of the estate; costs of the petitioner and respondents to be paid out of the estate.

(4) 1 Hog. 588. (5) 2 You. & Jer. 70.

1845.

Jan. 22.

Ex

parte ROWE in re ROWE.

Assignees, Choice of 61st Section of Bankrupt Act, 6 Geo. 4. c. 16.

A, B, C, D, and E. were trustees of a fund, of which E. received and appropriated the income. E. was afterwards found a bankrupt. Under an order of the Court, A, B, and C. proved a debt against the estate of E. in respect of the sum so appropriated by him. At a meeting of creditors at which A, B, C, and D. alone were present, A, B, and C. elected D. to be the creditors' assignee. On a petition of the bankrupt,-Held, that A, B, and C. were not creditors entitled to vote for assignees, and that their choice must be set aside.

The bankrupt and four other persons named Partridge, Ball, Watkins, and Wood were trustees of a fund standing in their names, and Rowe received and appropriated some of the income arising from this fund.

On the 11th of October 1844 a fiat issued against Rowe, and he was declared a bankrupt.

Soon after the bankruptcy Partridge, Ball, Watkins, and Wood tendered a proof against the estate of the bankrupt, Rowe, in respect of the sums so appropriated; but the commissioner declined to receive it without an order of the court of review, authorizing them to make such proof.

An application was accordingly made to the Court by petition, and the common order obtained on the 22nd of November 1844. The order, as drawn up in the office, was in the following terms:-"It is ordered that the petitioners, Partridge, Ball, Watkins and Wood, or any three of them, shall be at liberty to go in under the fiat, and tender and make such amount of proof or proofs as they can establish against the estate of the bankrupt, in respect of the said sums, and that they shall be paid rateably with the other creditors of the bankrupt.'

Partridge, Ball, and Watkins then tendered a proof, which was admitted by the commissioner.

At a meeting at which Partridge, Ball, Watkins, and Wood, alone were present, Partridge, Ball, and Wood elected Watkins to be the creditors' assignee.

The bankrupt now presented a petition,
NEW SERIES, XIV.-BANKR.

praying that Watkins might be removed from being an assignee, and that a new choice of assignees might be made, on the ground that Partridge, Ball, and Wood were not entitled to vote for assignees.

The respondents, in their affidavit, stated that at the time of the election there was only one other creditor who had proved a debt against the bankrupt's estate, and also stated several circumstances from which they inferred that the object of the bankrupt, by his petition, was to procure some person in his interest, and over whom he would have influence, to be elected assignee in the place of Watkins, who would properly administer the business of the bankruptcy.

By the 6 Geo. 4. c. 16. s. 46. it is enacted, "That at the meetings appointed for proof of debts, every creditor of the bankrupt may prove his debt by his own oath."

By the 61st section it is enacted, "That at the second meeting, assignees of the bankrupt's estate and effects shall be chosen, and all creditors who have proved debts under the commission to the amount of 10l. and upwards, shall be entitled to vote in such choice, and the choice shall be made by the major part in value of the creditors so entitled to vote." To this section there is this proviso:- "Provided that the commissioners shall have power to reject any person so chosen, who shall appear to them unfit to be such assignee as aforesaid, and, upon such rejection, a new choice of another assignee or assignees shall be made.”

Mr. Anderdon, for the petitioner.-Partridge, Ball, Wood, and Watkins are not creditors of the bankrupt, within the meaning of the 61st section, and therefore not entitled to vote-Ex parte Shaw (1), and the observations of Lord Eldon, pp. 159, 163.

Lord Eldon expressed his opinion, that a bankrupt executor could not prove against his own estate, without an order of the Court, and that the order was not declaratory of his right, but created and originated his title, and that he could not vote for assignees. The form of the order authorizing the respondents, or any three of them, to prove, is irregular.

Mr. Rolt, for the respondents.-These creditors are within the meaning of the

(1) 1 Glyn & Jam. 127.

Ꭰ

section. The debt is an equitable debt, and, in a suit instituted by the four against Rowe, they might have recovered it from him. They are not constituted creditors by the order. They were creditors of the bankrupt before the date of the order, and are so independently of the order. The commissioner might, according to law, at once have received proof of their debt, and it was only to relieve his scruples and remove all question that the order was applied for. A creditor of the bankrupt possessed of a security given by a bankrupt before the bankruptcy, must apply to the Court before he can prove; but it has never been suggested that he is not entitled to vote for assignees. For a bankrupt to apply to set aside the choice of assignees is a very unusual proceeding, and the circumstances mentioned in the respondents' affidavit shew, that the respondents intended nothing but what was fair and reasonable, and that the same thing cannot be said of the motives of the bankrupt.

SIR J. L. KNIght Bruce.-My opinion is, that this choice cannot stand; and I fear that the petitioner is entitled to call upon the Court for another choice. On the question, whether the order of the 22nd of November 1844, as drawn up in the office, is formally or informally expressed, I give no opinion. I am silent on that point.

I understand the law relating to the appointment of creditors' assignees still rests on the 61st section of 6 Geo. 4. c. 16, which describes the persons entitled to elect the assignees as "creditors who shall have proved debts under the commission to the amount of 10%. and upwards," and says, “that the choice shall be made by the major part in value of the creditors so entitled to vote." There is no other provision in any more recent act. This state of things might have led to this difficulty before the appointment of official assignees-there might have been no creditor who could prove, but by an order mentioned by Lord Eldon in Ex parte Shaw; no person entitled to participate in the management of the estate, or have his name in the proceedings. The appointment of official assignees gives some help. There is also this provision at the end of the section.-[His Honour read the proviso as to the power of the commissioners to reject the

choice.]-This may be of some aid to the respondents. The persons entitled to vote must be creditors of the bankrupt. The case of a mortgagee or a person having a lien does not apply; they are still creditors of the bankrupt. Now, a person merely by becoming a bankrupt does not cease to be a trustee; it is and may be a ground for discharging him, but, until his discharge, such a debt as the present is due to him and his co-trustees; and I am unable to say here that the respondents are creditors of the bankrupt; and as no other creditor has voted for the appointment of assignees but these three, for I proceed upon that also,— I must set aside the choice.

The following order was made:-Declare, that it appearing that these three persons only voted, and it appearing that they had no right to vote, the choice cannot stand. Refer it to the commissioner to appoint new assignees. Let the respondents be at liberty to attend and lay before the commissioner on the occasion of that choice the affidavit made on this occasion. Petition to stand over until further order. Liberty to apply.

Ex parte TEAGUE in re

BERENGER.

1845. Feb. 12, 19. Solicitor's Bill-Payment of Fees under 1 & 2 Will. 4. c. 56.

A. was made a bankrupt, and an official assignee appointed. There were three meetings advertised for creditors to come in and prove their debts, but no creditors appeared, and the bankrupt passed his last examination. The official assignee had in his hands 331., and no more; and the fees required to be paid by him under 1 & 2 Will. 4. c. 56. were not paid. An application by the solicitor to the fiat for payment of his bill out of that sum, supported by an affidavit that no creditors' assignee had been appointed, and that there was no probability that any such would be appointed, was granted.

The right of the public treasury to these fees does not accrue until the appointment of a creditors' assignee.

A fiat issued against the bankrupt, Berenger, on October the 10th, 1844, and

on the 11th an official assignee was appointed. The 26th of October was the first day appointed for a meeting of creditors of the bankrupt before the commissioner to prove their debts; but no creditor then appeared. There was the same result on the 27th of November and the 24th of December, which days had been also appointed by the commissioner for the same purpose. On the 24th of December the bankrupt passed his last examination.

Mr. Teague, the petitioner, was the solicitor to the fiat, and his bill up to the 27th of November had been paid, but a further bill of 117. had become due to him in respect of business done after the 27th of November. Mr. Teague applied to the commissioner to direct the official assignee to pay the bill so due to him. It appearing, however, that the assignee had the sum of 331. only in his hands, and the commissioner considering that the fees directed to be paid under ss. 46. and 55. of 1 & 2 Will. 4. c. 56. had priority over the solicitor's bill, Mr. Teague was unable to obtain any direction för payment.

Mr. Teague now presented a petition to the Court praying that the official assignee might be directed to pay the bill out of the money in his hands.

By 1 & 2 Will. 4. c. 56. s. 46. it is enacted, "That there shall be paid to the accountant general, by the official assignee of each bankrupt's estate to be administered in the said Court of Bankruptcy, out of the first monies that shall come into his hands, and immediately after the choice of assignees by the commissioners, the sum of 201."

By section 55. it is enacted, "That to raise a compensation fund there shall be paid by the official assignee of each bankrupt's estate to be administered in the said Court of Bankruptcy, immediately after the choice of assignees by the creditors, or so soon afterwards as a sufficient sum shall come into his hands, the sum of 10%. into the Bank of England to the credit of the accountant general."

Mr. Glasse, for the petition.

Mr. Anderdon, for the respondents.

SIR J. L. KNIGHT BRUCE said, on the evidence as it then stood he was not satisfied that no creditors' assignee had been appointed, or that there was no probability that

While

A. commenced a suit against his wife in the Ecclesiastical Court, for the purpose of obtaining a divorce on the ground of adultery. The wife retained a proctor, to whom a large sum became due in respect of costs. the suit was in progress A. became bankrupt. A's proctor, after the bankruptcy, by A's authority, declined to proceed with the suit. The wife's proctor, after the bankruptcy, having procured a taxation of his costs up to the bankruptcy, and tendered a proof in respect thereof against A's estate :-Held, that he was entitled to make such proof.

A commission to examine witnesses was opened a day or two before the bankruptcy, but was not returned until a day or two after: -Held, that the whole of the costs of the commission were, for the purpose of the proof, "costs incurred before the bankruptcy."

In December 1843, the bankrupt, Mr. Cocksedge, commenced a suit in the Consistory Court of London, against his wife, for the purpose of obtaining a divorce, on the ground of adultery. Mrs. Cocksedeg employed the petitioner, Mr. Moore, to be her proctor, to conduct her defence in this

suit. The suit proceeded, and a large sum became due to the petitioner, Mr. Moore, in respect of the costs of the suit.

On the 21st of October 1844, a fiat issued against Mr. Cocksedge.

After the fiat, Mr. Moore, having made out his bill of costs, and had it taxed, tendered a proof in respect thereof against the estate of Mr. Cock sedge. The commissioner having rejected this proof, the petitioner, Mr. Moore, presented a petition, stating the above circumstances, and praying for liberty to prove.

The following statements, setting forth the petitioner's case fully, are taken from the petition :-"That in pursuance of the usual practice, your petitioner made out his bill of costs for the proceedings so taken by your petitioner on behalf of the said Ann Cocksedge, in the said cause, down to the end of the month of October 1844, and procured the same to be taxed, and the same was duly taxed by the Right Hon. Stephen Lushington, the Judge of the said court, at the sum of 3481. 9s. 5d., and your petitioner also obtained an order for a monition to issue for the payment thereof, in the event of the said T. M. Cocksedge failing to pay the said costs. That a monition had some time previously issued for the payment to the said Ann Cocksedge, of certain alimony which had been decreed to her in the said suit, and that the said T. M. Cocksedge had failed to pay such alimony, pursuant to the tenour of the said monition; and thereupon your petitioner, as the proctor of the said Ann Cocksedge, prayed the said Court to pronounce the said T. M. Cocksedge in contempt for non-payment of such alimony, and to issue the usual significavit, for the purpose of enabling a writ de contumace capiendo to be taken out thereon. That thereupon the proctor for the said T. M. Cocksedge alleged that the said T. M. Cocksedge had been gazetted as a bankrupt, and that assignees of his estate had been appointed under his bankruptcy; and, the said bankruptcy not being disputed, the said Court refused to pronounce the said T. M. Cocksedge in contempt, or to make any order for the issuing a writ of significavit. That the said T. M. Cocksedge has been in fact duly found and declared a bankrupt under a fiat in bankruptcy, which was awarded and issued against him

jointly with Walter Westrupp, on the 21st day of October 1844, and A. Robinson, H. Larchin, and H. Price, have been duly chosen and appointed creditors' assignees, and W. Bell has been duly appointed official assignee of the joint and separate estates of the said bankrupt, under the said fiat. That the reason assigned by the said Consistory Court for refusing to pronounce the said T. M. Cocksedge in contempt and to grant the said writ of significavit was, that as the law had, by vesting all the said T. M. Cocksedge's property in other parties, taken away his means of paying the amount of such alimony, it would not be right to make an order which might have the effect of imprisoning him for the non-payment of such alimony. That as the reason so assigned by the said Court would apply equally to an application for pronouncing the said T. M. Cocksedge in contempt, and for the issuing of a significavit for non-payment of the costs due to your petitioner as aforesaid, your petitioner has not applied to the said Court for that purpose. That the said T. M. Cocksedge has since the bankruptcy duly authorized his proctor by proxy under his hand and seal to declare, and his said proctor has accordingly declared, that he, the said T. M. Cocksedge, would not proceed further with the said suit, and a minute of such declaration has been duly recorded in the acts or proceedings of the said court; but, the said Ann Cocksedge being entitled, according to the practice of the said court, to have the said cause continued, with a view to the vindication of her own conduct, has refused to allow the same to be abandoned, and she altogether denies the charge made against her by her said husband. That under the circumstances aforesaid, your petitioner, on the 11th day of April 1845, tendered his proof under the said fiat, against the separate estate of the said T. M. Cocksedge, for the before-mentioned sum of 3481. 9s. 5d., the amount of his said taxed costs incurred previously to the bankruptcy of the said T. M. Cocksedge, and the consideration of such proof was adjourned till the next meeting under the said bankruptcy, and that at such next meeting, which was held on the 30th day of May 1845, the commissioner, before whom the fiat is in prosecution, refused to admit the said proof, and stated, as his reason for