it was my duty to undertake myself the office of assignee. I was most reluctant and unwilling to take it; but it appeared to me that there was no alternative, and that I must either take it or discontinue the proceedings under the fiat. Under these circumstances I voted in right of my debt, and as the attorney of the other creditor, with the full approbation of the Commissioners, for my appointment to that office, and I was accordingly appointed assignee under the fiat. I was extremely desirous to wind up the bankrupt's affairs with as little delay as possible.

,

If I had then

sold the moiety of the freehold and the other property, there would not, I believe, have been any surplus whatsoever applicable to the purposes of the fiat, or any fund out of which to pay the usual costs and charges of a solicitor. Having regard to the circumstances that no creditors had come forward to support me, in protecting the bankrupt's estate, and that any costs and charges which would be incurred by the appointment of some other person as solicitor to myself, as such assignee, would most probably have to be paid by myself out of my own pocket, I considered that it would be an injury to the estate to appoint another solicitor to act in the business thereof; and therefore I did not appoint any other person to act as such solicitor. I offered several times to other creditors to transfer to them the office of assignee, which however they refused to undertake." The affidavit then stated that the affairs of the bankrupt had been conducted by Mr. Moss, with greater advantage and economy than they could have been under any other management, and set out the details of such management at considerable length.

Mr. Swanston and Mr. Tripp, for the petition, contended that the bill of costs of Mr. Moss ought to be reviewed, as prayed for in the petition, on the principle that a trustee, who is a solicitor, managing the affairs of his trust, is not, in equity, allowed any costs in regard to such management, except the sums paid by him out of pocket.

Mr. Bacon and Mr. E. Webster, for Mr. Moss. The case before the Court is an exception to the rule laid down by the petitioner's counsel. That there

was no creditor who would interest himself in the matter except Mr. Moss; that the proceedings in the bankruptcy would have been abandoned but for him; that he was appointed assignee, not only with the approbation, but at the suggestion of the Commissioners; that such office under the circumstances could have been undertaken by him on the terms only of his managing the business as solicitor; that the affairs of the bankruptcy had been extricated by him from the very great complication in which they were involved; that the property which, but for him, would have been worth nothing, had produced, by his exertions, nearly enough to pay the creditors in full; that no question had ever been raised by any one from 1832 to 1848, as to the propriety of his conduct or his proceedings in the business; these form such a combination of circumstances as will render the rule laid down as to a trustee solicitor inapplicable to the present case. They cited Langstaffe v. Taylor (1), Waters v. Taylor (2), and Bainbrigge v. Blair (3),

in the last of which cases the Master of the Rolls had laid down, that the rule as to a trustee solicitor was not inflexible, and that, on a special case, compensation might be allowed to him under the authority of the Court.

SIR J. L. KNIGHT BRUCE.-The petitioner's merits in this case may be small, but they are not so small as to exclude from the consideration of the question of public policy the case of a sole assignee acting as solicitor to the fiat. I am of opinion that the accounts must be reviewed, so far as relates to the business done under the bankruptcy; in which the Commissioner is to have regard to the union of characters which I have mentioned. The Commissioner in such a case as this would probably allow the respondent to be examined on his own behalf. If there is any doubt about it I will direct it.

It was agreed between the parties that

(1) 14 Ves. 262.

(2) 2 Myl. & Cr. 526; s. c. 6 Law J. Rep. (N.S.) Chanc. 245.

(3) 8 Beav. 588; s. c. 14 Law J. Rep. (N.s.) Chanc. 405.

A. lent B. 750l., and B. and C. as his surety, by a bond, dated the 16th of June 1847, became bound to pay the premiums of a policy of assurance which had been deposited with A, and also to pay A. 750l., by three instalments, on the 16th of June in three successive years, with interest; and there was also a condition that if B. or C. should become bankrupt, they should, at the option of A, give additional security, or pay the principal and interest then due. B, and D. his partner, then, by a separate deed covenanted to indemnify C. in respect of the bond. On the 26th of October 1847 B. and D. became bankrupt. On the 17th of January 1848 C. paid the principal and interest, and tendered a proof against the bankrupts' estate :-Held, that the proof was not admissible.

E. S. Meyer requiring a sum of money, as his contribution to the capital of a partnership into which he was about to enter, applied to the Victoria Insurance Company for the loan of 750l.; which they agreed to make him, upon the conditions that he should insure his life in their office for 1,500l., deposit the policy with them by way of security for the advance, and enter into a bond with two sureties for the payment of the premiums to become due on the policy, and for the payment of the loan by instalments, with interest. F. Meyer and Trueman agreed to be sureties on this bond.

By articles of agreement, dated the 1st of May 1847, E. S. Meyer and T. G. Brownsmith agreed to carry on business together in partnership, under certain stipulations. By one of such stipulations, the sums to be contributed by the partners for the formation of the capital were ascertained. By the ninth of such stipulations, it was agreed that E. S. Meyer and Brownsmith should enter into a joint and several deed of covenant with Trueman and F. Meyer for the due payment of 750l., and interest at 51. per cent., together with the premiums that might become due on a life policy for 1,500l. about to be effected on the life of E. S. Meyer, for the payment of which sum and premiums Trueman and F. Meyer were about to render themselves liable as sureties for E. S. Meyer.

On the 12th of June 1847, E. S. Meyer effected an insurance on his life with the Victoria Insurance Company for 1,500l., and the policy was deposited with the com

pany.

By a bond, dated the 16th of June 1847, E. S. Meyer, F. Meyer, and Trueman became jointly and severally bound to certain trustees of the Victoria Insurance Company in the sum of 1,500l., conditioned to be void if E. S. Meyer, F. Meyer, and Trueman should pay the premiums on the policy, and the sum of 7501. by three instalments of 250l. on the 16th of June in three successive years, or on the death of E. S. Meyer, which should first happen, with interest payable half-yearly; and, in case the said E. S. Meyer, Trueman, and F. Meyer, or any or either of them, should become bankrupt or insolvent, then and in such case if E. S. Meyer, F. Meyer, and Trueman should either give, at their expense, such additional security for the principal and interest as should be approved of by the trustees, or, at the option of the trustees, pay forthwith upon demand the said principal sum and interest, or so much thereof as should then remain unpaid.

The 750l. was paid by the insurance company to F. Meyer and Trueman, with the consent of E. S. Meyer.

By an indenture, dated the 29th of June 1847, and made between E. S. Meyer and Brownsmith of the first part, Trueman of the second part, and F. Meyer of the third

part, but which was executed by E. S. Meyer and Brownsmith alone, after reciting the above matters, and that Trueman and F. Meyer severally executed the bond at the request and as sureties of E. S. Meyer, it is witnessed that E. S. Meyer and Brownsmith, as such co-partners as aforesaid, and so as to bind themselves jointly and their co-partnership estate, did, for themselves, their heirs, executors and administrators jointly, and each of them did thereby for himself, his heirs, executors and administrators severally, covenant and agree with Trueman and F. Meyer, and each of them, that they, the said E. S. Meyer and Brownsmith, their or one of their heirs, executors and administrators, would pay the premiums on the policy, and the sum of 750l. by the abovementioned instalments, and the interest; and that, in case of default by E. S. Meyer and Brownsmith in payment of the monies secured by the bond, they or one of them, their or one of their executors or administrators should pay and reimburse to Trueman and F. Meyer respectively all such sums of money, costs, charges, damages and expenses, as they respectively or their respective heirs, executors or administrators, should or might at any time or times thereafter pay, sustain or incur, by reason of nonpayment, by Brownsmith and E. S. Meyer, or one of them, of all and every or any the sum or sums of money secured or made payable by the bond, or by reason or in consequence of the non-payment or nonobservance of the acts, matters and things stipulated by, or contained in, the agreement or condition written under the bond or any of them; or by reason or in consequence of Trueman and F. Meyer having executed the bond.

The 750l. was paid by F. Meyer and Trueman to E. S. Meyer and Brownsmith. On the 26th of October 1847, a fiat in bankruptcy issued against E. S. Meyer and Brownsmith.

On the 17th of January 1848, F. Meyer paid the insurance office 7721. 1s. 9d., being the principal sum of 750l., and the arrears of interest, and on the same day tendered a proof against the joint estate of the bankrupts in respect of that sum. The question was brought before a Subdivision Court, consisting of three Commissioners, two of

whom were against the claim, and the other in favour of it, and the proof was rejected.

A petition, presented by F. Meyer by way of appeal from the decision of the Commissioners, now came on to be heard.

By the 6 Geo. 4. c. 16. s. 52, it is enacted, that any person who, at the issuing of the commission, shall be surety or liable for any debt of the bankrupt, if he shall have paid the debt, or any part thereof in discharge of the whole debt, (although he may have paid the same after the commission issued,) if the creditor shall have proved his debt under the commission, shall be entitled to stand in the place of such creditor as to the dividends, and all other rights under the said commission which such creditor possessed or would be entitled to in respect of such proof; or if the creditor shall not have proved under the commission, such surety or person liable shall be entitled to prove his demand in respect of such payment as a debt under the commission.

By the 56th section it is enacted, that if any bankrupt shall, before the issuing of the commission, have contracted any debt payable upon a contingency which shall not have happened before the issuing of such commission, the person with whom such debt has been contracted may, if he think fit, apply to the Commissioners to set a value upon such debt, and the Commissioners are required to ascertain the value thereof, and to admit such person to prove the amount so ascertained, and to receive dividends thereon; or, if such value shall not be so ascertained before the contingency shall have happened, then such person may, after such contingency shall have happened, prove in respect of such debt and receive a dividend with the other creditors.

Mr. Bacon and Mr. Tripp, for the petitioner, confined the claim to the principal sum of 7501.; and contended, that under the 52nd and 56th sections, or one of them, he was entitled to a proof. They cited Ex parte Myers in re Sudell (1), affirmed under the name of Ex parte Simpson in re Sudell (2), and Ex parte Brook in re Willis (3).

(1) 1 Mont. & B. 229; s. c. 2 Law J. Rep. (N.S.) Bankr. 41.

(2) 1 Mont. & Ayr. 541; s. c. 3 Law J. Rep. (N.S.) Bankr. 113.

(3) 17 Law J. Rep. (N.s.) Bankr. 8.

Mr. Russell and Mr. Aspland, for the assignees. A creditor is not entitled to prove against a bankrupt's estate in respect of a claim which cannot be reduced to a certain amount, or in respect of unliquidated damages-Ex parte Barker (4), Green v. Bicknell (5), and Thompson v. Thompson (6). The claim here is of a nature which cannot be reduced to certainty. The petitioner's case is not provided for by the 52nd section of the 6 Geo. 4. c. 16, as Mr. F. Meyer was not at the time of the bankruptcy a surety, or liable for the debt of the bankrupts, as the debt for which he was a surety was the debt of one of the bankrupts only, E. S. Meyer Clements v. Langley (7), and Wallis v. Swinburne (8). It is not a debt payable on a contingency within the meaning of the 56th sectionYallop v. Ebers (9), Atwood v. Partridge (10), Thompson v. Thompson, Abbott v. Hicks (11), Hinton v. Acraman (12). Ex parte Myers is no authority for the petition, as will appear by the observations on that case by Mr. Justice Erskine, in Abbott v. Hicks.

SIR J. L. KNIGHT BRUCE.-The application to prove here being confined to the 750%., it is very possible that, had I to consider this case with my own unassisted judgment, that is, independently of authority, I should hold that, according to the true construction of the act of parliament, under some or one of its sections, the proof ought to be admitted. I do not know, however, that I am positively certain of that, nor is it very material; such, however, is the inclination of my opinion. But a series of authorities of great weight appears to me to be substantially irreconcileable with such a deci

(4) 9 Ves. 110.

(5) 8 Ad. & E. 701; s. c. 7 Law J. Rep. (N.s.) Q.B. 271.

(6) 2 Bing. N.C. 168; s. c. 4 Law J. Rep. (N.s.) C.P. 311.

(7) 5 B. & Ad. 372; s. c. 2 Law J. Rep. (N.s.) K.B. 173.

(8) 1 Exch. Rep. 203; s. c. 17 Law J. Rep. (N.S.) Exch. 169.

(9) 1 B. & Ad. 698; s. c. 9 Law J. Rep. K.B. 105.

(10) 4 Bing. 209; s. c. 5 Law J. Rep. C.P. 154. (11) 5 Bing. N.C. 578; s. c. 8 Law J. Rep. (N.S.)

C.P. 314.

(12) 2 Com. B. Rep. 367; s. c. 15 Law J. Rep. (N.S.) C.P. 52.

Under an order made in this bankruptcy a mortgaged estate, belonging to the bankrupt, was put up for sale by auction on the 26th of April 1848, and was bought for the sum of 5001. by the mortgagee, who had obtained leave to bid.

This was a petition presented by Mr. Lee for a re-sale of the estate on an advance of 500l. on the purchase-money, and payment to the purchaser of his expenses. The petitioner stated in his affidavit that he had attended at the sale, with an intention of bidding for the estate, but that he had not then bid for it on account of the uncertainty of the amount and nature of the incumbrances on it, and from having been informed by the Commissioner that the biddings might be opened before October.

Mr. Wigram and Mr. Freeling, for the petitioner, offered to increase the advance from 500l. to 750l., so as to make the whole purchase-money 1,250.

Mr. Bacon and Mr. Piggott, for the mortgagee and purchaser. The practice

of opening biddings is very objectionable, and its existence has often been regretted. It is too well established in sales made under the direction of the Court of Chancery to be shaken there; but it has not yet been established in sales made under the direction of the Court in Bankruptcy, and it is very desirable that it should not be introduced there. They cited Ex parte Hutchinson (1), Ex parte Partington (2), In re Martin (3), and the observations of Sir Edward Sugden on those cases, 2 Sugd. Vend. and Pur. 931, 10th edit.

Whether

SIR J. L. KNIGHT BRUCE. the practice of the Court of Chancery on the subject of opening biddings has any bearing on the present case I do not say. It is not necessary for me to give any opinion upon it, and therefore I do not. I am satisfied, however, that neither the practice in Bankruptcy or the practice in the Court of Chancery in such cases has any such bearing on the question as to render it incumbent on me to refuse the application made upon this petition, which I think is supported, and sufficiently supported, by the particular circumstances of the case; and I direct a re-sale. The purchaser must have his costs, and, of course, all his expenses.

1849. Jan. 24.

} Ex parte PENNELL in re TURner.

Liberty to Surrender — Misrepresentations of the Bankrupt.

In January 1848 a fiat issued against A. In November A. presented a petition, stating that in September 1847 he had left England in consequence of family disagreements, and in the full belief that he had left enough to pay all his creditors in full, and that he had lately returned to this country, and praying for liberty to surrender. The assignees appeared on this petition, and, no objection having been made, it was ordered that the bankrupt should be at liberty to surrender, and that his costs should be paid out of his estate,

The bankrupt afterwards made a

(1) 2 Mont. & Ayr. 727.
(2) 1 Ball & B. 209.
(3) 2 Moll. 446.

statement to the Commissioner to the effect that he had left England from pecuniary embarrassments, taking away a good deal of his property with him. A petition by the assignees that the above-mentioned order should be discharged, was dismissed, with

costs.

On the 18th of January 1848, a fiat issued against Mr. Turner, the bankrupt, who was a saddler and harness-maker at Newmarket, and the usual advertisements were inserted, and Mr. Turner, not having surrendered, a proclamation of outlawry was, in March 1848, issued against him.

On the 2nd of November 1848, Turner presented a petition to the Court of Bankruptcy, supported by his own affidavit, stating that on the 29th of September 1847, in consequence of family disagreements, he left England for the Cape of Good Hope; that, at the time he left, he believed that there were ample funds to pay all his creditors 20s. in the pound; that he returned to England on the 9th of September 1848, and went immediately to Newmarket; and that he then learnt for the first time of the bankruptcy and the outlawry. The petition prayed that the outlawry and proceedings thereon might be reversed, and that he might be at liberty to surrender to the fiat, and that his costs of the petition might be paid out of the estate.

The petition was heard on the 15th of November 1848. The assignees then appeared, and, no opposition having beenoffered by them, an order was made, as a matter of course, that the Commissioner should be at liberty to appoint a sitting, and that at such sitting the bankrupt should be at liberty to surrender himself, and that the Commissioner should take the surrender of the bankrupt, and that the costs of the petition and the assignees should be paid out of the estate.

A sitting was appointed for the 8th of December 1848, at which the bankrupt appeared, and made a statement which was in part as follows:-"Finding I was embarrassed in my pecuniary circumstances, and that I had many bills then becoming due, and having received a threatening letter from Mr. Whitehouse, of Walsall, one of my principal creditors, on or about the 14th of December last, without notice to my wife or family,