1884.

IN RE RODWAY, EX PARTE PHILLIPS.

accounts without proof of such taxation having been made. The
taxing master shall satisfy himself, before passing such bills and
charges, that the employment of such solicitors and other persons,
in respect of the particular matters out of which such charges
arise, has been duly sanctioned." In that section it is provided
that such costs shall be taxed by the "prescribed officer," and by
section 168—the interpretation clause of the Act-" prescribed" is
defined to mean "prescribed by general rules within the meaning
of this Act," while further, by Rule 102, it is expressly provided
that "In a County Court costs shall be taxed by the registrar in
person." The Act distinctly says the prescribed officer, and
Rule 102 is to the effect that that officer is the registrar. The
framers of Rule 104 had no power to grant or allow an appeal
otherwise than as directed by the Act. They could not make the
London taxing master the appellant officer for the County
Court. There is no right for the Board of Trade to interfere;
but even if the Board of Trade or the official receiver could
interfere to ask a review before some person, the Act says the
prescribed officer, and that is the registrar of the Court, and I
submit that the rule in question is ultra vires. But in the second
place, even assuming the rule is not ultra vires, if the Board of
Trade interfere they must interfere in a special way. The Board
can only proceed to review the taxation on obtaining an order
from the Court for that purpose. The wording of Rule 104 is
"The Board of Trade may require," and further, "where any
such review is directed." There is the power of requiring, but the
Board must do something to show they have a right to review the
taxation. The Board of Trade are not a judicial body, and some
order of the Court must be obtained. The Board must show some
case on which the application should be granted, and it ought not
to be left to its own will and pleasure. Rule 19 says, "Every
application to the Court
shall be made by motion." A
motion ought to be made by the Board of Trade, and some primâ
facie grounds shown before a review is allowed. Further, I
contend, in the third place, that under no circumstances could the
Board of Trade make an application such as this except for the
benefit of the estate. Therefore, where there is no estate, and no
trustee to receive any money if the bill is taxed down, the rule:

cannot apply. The idea of the whole thing is that the estate is vested in the official receiver or the trustee. Where the receiving order is rescinded, and where there is no official receiver or trustee, the Board has no power to make the application. Rule 104 (2) provides that the costs of the person whose bill is reviewed may be allowed him "out of the estate." How can they be got where there is no estate? The right to make the application is gone. This is the first case that has been brought forward on this point. I wish to say that my client is in no way acting in a hostile spirit, but it is felt that some mistake has arisen, and it is advisable that the law upon the point should be laid down.

M. D. Chalmers for the Board of Trade :

Several points have been raised in this case, some of which were not indicated by the affidavits. I confess at once on one point I feel I am in great difficulty. In this case the receiving order has been rescinded, and rescinded for the purpose of confirming a composition or scheme. Under the composition or scheme there is no trustee. It raises an important question as to the status of a debtor whose property is revested in him.

[At the suggestion of the learned judge it was arranged that the case should stand adjourned by consent for six days in order that time might be given to the Board of Trade for further consideration of the matter.]

July 31st.

M. D. Chalmers: Your Lordship will remember that this case was adjourned for consideration. Three points were raised by Mr. Willis, and as to the first two I am perfectly prepared to argue them, but I must say at once that with regard to the third objection, that when there is no trustee Rule 104 does not apply, after due consideration I have come to the conclusion that it is so.

WILLS, J.:

1884.

IN RE RODWAY, EX PARTE PHILLIPS.

In that case, then, without offering any opinion as to the value Judgment. of the first two points, I may say that I will allow the application

to stay the proceedings in relation to the proposed review of taxation, with costs.

1884.

IN RE RODWAY, EX PARTE PHILLIPS.

M. D. Chalmers: I would ask your Lordship not to give costs. The Board of Trade were acting in a public capacity.

E. Cooper Willis, Q.C.: I submit (1) that as a rule costs follow the event; (2) this rule is only broken through when the person appealing has misled the other side. Here the Board of Trade had all the papers, and they could exercise their own discretion. The Board knew perfectly well the bankruptcy did not exist, and they carried on the matter with their eyes open.

WILLS, J.:

I think this is a case in which costs should be allowed. I am quite desirous of upholding the legitimate influence of the Board of Trade, but I cannot see any reason here why they should be considered differently from an ordinary litigant.

Application allowed with costs.

Solicitors: Purkis & Co. for S. H. Phillips.

The Solicitor to the Board of Trade for the Board of
Trade.

IN RE J. A. MAY, EX PARTE E. MAY.

Bankruptcy Act, 1883, Section 125, Sub-sections (1), (2), (3), (4) and (5). Administration in Bankruptcy of Insolvent Estate-Transfer of Administration

Proceedings from the High Court to a County Court.

Held: (1) That where an order has been made under sub-section (4) of section 125 of the Bankruptcy Act, 1883, transferring proceedings for the administration of a deceased debtor's estate from the Chancery Division of the High Court to the Court exercising jurisdiction in bankruptcy, the latter Court may make an administration order on an ex parte application by a creditor.

(2) But such order cannot be made until the expiration of two months from the date of the grant of probate or of letters of administration, unless either the legal personal representative of the deceased debtor consents thereto, or unless such debtor has committed an act of bankruptcy within three months prior to his decease.

THIS

HIS was an appeal from an order of the County Court at Macclesfield directing "that the estate of the said John Aubyn May,

deceased, shall be administered according to the law of bankruptcy, pursuant to section 125 of the Act"-which provides for the administration in bankruptcy of the estate of a person dying insolvent"and that Arthur Crabtree Procter, the official receiver of the Court, be the trustee of the property of the said John Aubyn May.”

On March 24th, 1884, the above-mentioned John Aubyn May died intestate at Congleton, within the bankruptcy district of the Macclesfield County Court; and on June 12th letters of administration to his estate were granted to his widow, Elizabeth May, the appellant in the present case.

On the same day, proceedings for the administration of the estate were commenced in the Chancery Division of the High Court of Justice, but on July 4th, on the application of the Manchester and Liverpool District Banking Company, these proceedings were transferred, by order of Mr. Justice KAY, to the Macclesfield County Court.

In this Court, on July 18th, upon an ex parte application by the banking company, an order directing administration in bankruptcy under section 125 was made by the registrar, against which Elizabeth May, the administratrix, now appealed.

E. Cooper Willis, Q. C. (A. D. Tyssen with him): The order for administration is bad, and that for two reasons-(1) It was made within two months from the date of the grant of letters of administration. (2) It was made ex parte. Sub-section (3) of section 125 provides that "An order of administration under this section shall not be made until the expiration of two months from the date of the grant of probate or letters of administration, unless with the concurrence of the legal personal representative of the deceased debtor, or unless the petitioner proves to the satisfaction of the Court that the debtor committed an act of bankruptcy within three months prior to his decease." In the present case the two months mentioned in this sub-section had not expired; no consent was obtained from the administratrix, and no suggestion has been made that the debtor committed an act of bankruptcy. This two months, which are set as a limit, are to be considered when an administration order is made after a transfer of proceedings under

1884.

IN RE

J. A. MAY,

EX PARTE

E. MAY.

1884.

IN RE

EX PARTE

Ε. ΜΑΥ.

sub-section (4) of section 125 equally as when an order is made on the petition of a creditor under sub-section (2) of the same section. J. A. MAY, The words of sub-section (3) are particularly "under this section.” Then as to the order being made ex parte. Rule 201 provides that the petition of a creditor under section 125 shall be served on the personal representative. There is, it is true, no special provision as to the service of an application for an administration order after a transfer of proceedings under sub-section (4), but such being the case, Rules 19 and 20, which require notice of motion to be given to all persons interested, would apply generally. It was clearly intended that the personal representative should be heard before an order of this kind is made.

Winslow, Q. C. (R. V. Williams with him): There are two methods of procedure given by section 125. (1) By sub-sections (1) and (2) on the petition of a creditor. (2) Under sub-section (4) where a transfer of proceedings is ordered, and in that case a petition is not presented. It may happen that during the two months after probate or letters of administration have been granted, proceedings for the administration of the deceased debtor's estate may have been commenced in another Court, and then such Court, on the application of any creditor, and on proof that the estate is insufficient to pay its debts, may transfer the proceedings to the Court exercising jurisdiction in bankruptcy, which may then make an order for administration in the prescribed manner. But it is to be noticed that the Court, before directing such transfer, must have proof that the estate is insufficient to pay its debts, just as a Court of Bankruptcy must be so satisfied before it will make an administration order on petition under sub-section (2). When a transfer is ordered it is not necessary that the question of the insolvency of the estate should be tried a second time. In such a case the order of the County Court is purely ministerial. Then as to the question of the two months' time mentioned in sub-section (3). In that sub-section the word "petitioner" is expressly used, and the sub-section only refers to proceedings by petition. Under sub-section (4) the proceedings are not by petition, and the provisions of sub-section (3) do not apply.