1884. Divisional Court consisting of Justices CAVE and A. L. SMITH, IN RE WALKER by whom leave to appeal was given. & SON, EX PARTE NICKOLL & KNIGHT, Judgment. Cohen, Q.C. (English Harrison with him) for the appellants. Winslow, Q.C. (Yate Lee with him) for the respondent. Winslow, Q.C.: I have a preliminary objection. (1) The application for leave to appeal ought not to have been made ex parte. (2) The necessary leave to appeal ought to have been obtained from a Court composed of the same judges as those who decided the case. BAGGALLAY, L. J. : If it is necessary we could now give leave to appeal. At the same time we are of opinion that application for leave to appeal ought to be made to the Divisional Court as soon as its decision is given. There appears, indeed, to be nothing to prevent such application being made later, but it is manifestly the convenient course that the application should be made at the time, for then all the facts are clearly in the mind of the judges. BOWEN, L. J., and FRY, L. J., concurred. The case, after being opened at some length, was subsequently ordered to stand over as part heard until November 21st for the production of further evidence, on which day a compromise was arrived at with the sanction of the Court. Solicitors: Mercer & Mercer for the appellants. Waterhouse, Winterbotham & Harrison for the respondent. PRACTICE, IN RE DAY, EX PARTE THE TRUSTEE. Application for costs of shorthand writer's notes. THIS was an application on behalf of the trustee in the bank ruptcy of J. W. Day for an order that the costs of certain shorthand writer's notes should be allowed to such trustee. The trustee in question was the successful respondent in a case, In re Day, Ex parte Banner & Co., brought up on appeal to Mr. Justice CAVE in March last from an order of the registrar of the Leicester County Court, which appeal was dismissed "with all costs." The question now was whether two sums of 87. 2s. 4d. and 57. 16s. 8d. paid by the respondent trustee for shorthand writer's fees for taking notes of the evidence on the examination of certain witnesses before the registrar should be allowed in his costs under the above-mentioned order of Mr. Justice CAVE dismissing the appeal. The taxing master had refused to allow these charges, on the ground that they were not expressly provided for by the order. The application was now made that the appellants who had not been a party to the obtaining of the shorthand writer's notes might be ordered to pay for the same. Sills for the trustee : It was to the advantage of all persons that these notes should be taken. I ask that, if necessary, the order should be amended so as to include the costs of them. The case of In re Albezette, Ex parte Smith (L. R., 8 Ch. Div. 599; 48 L. J., B. 13; 38 L. T. 395), shows that the cost of shorthand writer's notes are, like other costs, in the discretion of the Court. If they had been spécially mentioned at the time your Lordships would have specifically allowed them. Now it may be said it is too late, and the case of De la Warr v. Miles (L. R., 19 Ch. Div. 80) will probable be relied upon. BEFORE MR. JUSTICE CAVE. IN CHAMBERS. 1884. November 8. 1884. IN RE DAY, THE TRUSTEE. Judgment. Sidney Woolf contra: Doubtless your Lordship might have ordered these costs, but the case of De la Warr v. Miles is now conclusive. That case provides that "the rule is now well settled that the costs of shorthand writers' notes of evidence will not be allowed on taxation unless a direction to that effect has been inserted in the order; for which special application must be made at the hearing. And such a direction will only be inserted in exceptional cases, the judges notes, supplemented by those of counsel, being in general a sufficient record of the evidence." [CAVE, J.: It is a matter of convenience that the application should be made at the time, the facts are then fresh in the recollection of the Court. The rule is a good general rule, no doubt, but it is not a hard and fast one. If so it comes to this, that if a man makes a slip in not asking for the costs of the notes, he is to be fined for his mistake.] The rule has always been followed in the Bankruptcy Court. The application is that the appellants should pay the costs, not that they should be paid out of the estate. In this case the appointment of the shorthand writer to take the notes was made on the application of the trustee alone. Sills in reply: The notes were necessary. [CAVE, J.: You must satisfy me that the appellants were a party to the asking for the notes. If both the parties are agreed to the appointment of a shorthand writer then I agree that the losing party should pay the costs. If not, then I think that the party at whose instance the notes are taken should pay for them.] CAVE, J.: I am of opinion that this motion must be refused. In this case the application for a shorthand writer was made by the solicitor for the trustee, and there is no evidence whatever that it was concurred in by the appellants. Then the time when the costs of the notes might properly have been applied for was allowed to go by. 1884. IN RE DAY, EX PARTE Now I do not say that in every case this delay would be fatal; I do not say that in every case I should necessarily refuse the costs because they were not asked for at the proper time. If all things THE TRUSTEE. are equal I do not think a mere slip of this kind should mulet the party who makes the mistake in costs. In the ordinary way where both parties agree to have a shorthand writer the loser must pay the costs. But here the appellants never consented at all. The application is, that the costs should be paid not out of the estate, but that the appellants should be compelled to pay for notes which they did not ask for, and which, primarily speaking, it is the duty of the Court to take for itself. I am of opinion that the motion must be refused. Motion refused with costs. Solicitors: Jackson & Smart for the trustee. Cases relied upon or referred to: In re Albezette, Ex parte Smith, L. R., 8 Ch. Div. 599; 48 PRACTICE. IN RE BRIGHTMORE, EX PARTE MAY. Bankruptcy Act, 1883, Section 95 and Section 97-Bankruptcy Petition presented in the wrong Court. Held: That where a bankruptcy petition is presented in the wrong Court by inadvertence, such Court has jurisdiction to hear the petition and to make a receiving order. THIS was an appeal from an order of the deputy registrar of the Greenwich County Court, dismissing a petition presented by one DIVISIONAL BEFORE November 12. '1884. IN RE BRIGHTMORE, EX PARTE MAY. The facts were as follows: In July last May recovered judgment against Brightmore in an action in the High Court of Justice, and on this a bankruptcy notice was issued against the debtor from the Greenwich County Court, upon which a bankruptcy petition was presented in the same Court on August 6th. The hearing of the petition was fixed for August 19th, and a short time previous to this date Brightmore called on his creditor, and stated that if a few days were given to him he expected to be able to raise the money. For the convenience of the debtor the hearing of the petition was thereupon adjourned until September 2nd; but on August 29th a notice was received from him of his intention to dispute the petition, on the ground that he did not "reside or carry on business within the jurisdiction of the Greenwich Court," and on this ground the petition was subsequently dismissed by the deputy registrar. From this decision the petitioning creditor now appealed. F. C. Willis for the petitioning creditor : The address given in the heading of the various letters received from the debtor Brightmore states his place of business to be The Albert Works, North Woolwich. The bills given by him, which were dishonoured, and on which the action was brought, are made payable at his Albert Works, North Woolwich. It is admitted that North Woolwich is within the jurisdiction of the Greenwich County Court. But on examination of the ordnance map it appears that the Albert Works are about 100 yards out of the North Woolwich district, and are in reality in East Ham. Now, I submit, that when a bonâ fide mistake of this kind occurs there is a great difference under the present Bankruptcy Act of 1883, and the old Act of 1869. The intention of the legislature by the new Act was to cure those technicalities which tended to prevent the estate of a debtor being administered. The effect of section 8 of the Bankruptcy Act, 1869, and of Rule 26 of the Bankruptcy Rules, 1870, was that if the debtor did not reside or carry on business within the jurisdiction the petition was dismissed. But by section 95, sub-section (3), of the new Act of 1883, it is especially provided that nothing in this section "shall invalidate |