or any other person, I left Newmarket and proceeded to London, and from thence to Plymouth, from which place and port I sailed for the Cape of Good Hope on or about the 28th day of the same month. I had previously had disputes with my wife's father on pecuniary matters, but my reason for quitting England was the embarrassed state of my affairs. On leaving Newmarket I took with me various goods, consisting of cutlery, guns, bridles, and whips, for the sale of which I afterwards obtained, in different places at the Cape, 140l. On leaving Newmarket I also took with me, in money, about 100l." He also stated that he had brought back some curiosities from the Cape, and some of the bridles, and about 60%. in money, and that he had since sold some of the whips and curiosities for 15l., and that he had given up the remainder of the whips to the messenger, and 117. only in money to the official assignee.

Upon this statement being made the Commissioner made the following certificate: -"I have declined to take such surrender, inasmuch as the reason assigned by the bankrupt, on examination this day before me, for absenting himself from his place of business, and departing this realm, is inconsistent with his affidavit made in support of his petition to his Honour Vice Chancellor Knight Bruce, for leave to surrender." The Commissioner also ordered that the taxation of the costs should be suspended.

A petition was now presented by the assignees, stating all the above circumstances, and praying that the order of the 15th of November 1848 might be discharged; and that all the costs of that petition, and of the petition now presented, might be paid by the bankrupt.

Mr. Swanston and Mr. Sheffield, for the petition.

Mr. W. L. Thomas, for the bankrupt.First, the conduct of the bankrupt is not such as to deprive him of the costs. Secondly, had the question of conduct been raised on the bankrupt's petition, it ought not to have affected the question of costs, as it was for the advantage of the estate that the bankrupt should surrender. He is entitled to costs on that ground, without reference to the question of conduct. In none of the cases on the subject is there any mention of the conduct of the bankrupt.

The conduct of the bankrupt may, of course, be a proper subject of discussion when the time arrives for asking the Commissioner for his certificate. Until that time arrives it is premature to raise that question at all. Thirdly, the assignees having been present when the order was made, and allowed it to pass, cannot now dispute it.

Mr. Swanston, in reply, contended that he was entitled to the order which the assignees asked for, as the bankrupt had obtained his order on false representations.

[SIR J. L. KNIGHT BRUCE. This question may be properly raised when the bankrupt applies for his certificate. He may never deserve it; but that is not the question now before me.]

The assignees, when the bankrupt's petition was heard, did not know of his conduct, and had no means of knowing it.

[Sir J. L. KNIGHT BRUCE.-If the assignees had then asked me to have the bankrupt examined, I would have ordered it.]

The petition has been presented by the direction, at least with the approbation, of the Commissioner.

Sir J. L. KNIGHT BRUCE asked what evidence there was of the approbation of the Commissioner?

The solicitor for the petitioners was then examined as to this point; but his evidence came short of any express direction or approbation of the Commissioner.

SIR J.L. KNIGHT BRUCE.-I have not intimated, and do not intend to intimate any opinion as to the course which the Commissioner has taken, or as to any course he may hereafter take. I shall dismiss this petition. If I had been given to understand, by proper evidence, that the petition had been presented by the recommendation of the Commissioner, I would have ordered that the costs should be paid out of the estate: but, as no such evidence has been produced, I shall dismiss this petition with costs. I may add, however, that my decision is not to have the effect of preventing the Commissioner from giving the costs of this petition to the assignees out of the estate, if he shall so think fit. On this point I leave the Commissioner to exercise his own discretion.

Costs Petition for Liberty to prove against the Estate of Bankrupt Trustee.

A petition was presented by cestuis que trust for liberty to prove against the estate of a bankrupt defaulting trustee, whom they had put into prison for contempt, for not obeying an order for the payment of the money, made by the Court of Chancery in a suit instituted against him in respect of the breach of trust. The bankrupt appeared on the petition, and applied for his discharge from custody. The Court, under these circumstances, allowed the bankrupt 40s. for his costs of appearing on the petition.

The petitioners, Mr. and Mrs. Rylands, filed a bill against the bankrupt, Mr. Crowdson, who was a solicitor, in respect of certain trust funds for which he was answerable, and in which they were interested. Mr. Crowdson having, by his answer, admitted his liability, an order was made that he should, within a certain time, pay the amount admitted to be due from him into court. This order not having been complied with, Mr. Crowdson was taken under an attachment, and put into prison. A fiat afterwards issued against Mr. Crowdson on his own petition. A petition was presented in the bankruptcy by Mr. and Mrs. Rylands, for liberty to go in and prove for the amount for which Mr. Crowdson was liable, and for the appointment of new trustees. Mr. Crowdson was served with this petition. The petition came on to be heard; but stood over for the purpose of bringing before the Court new trustees of the funds, to be appointed at once, without a reference. At this hearing Mr. Crowdson did not appear. Notice was given to Mr. Crowdson of the day when the petition was to come on again. When this petition came on again to be heard, Mr. Crowdson appeared by counsel, and applied that he might be discharged from custody, on the ground that the debt due from him was about to be proved in the bankruptcy. This application was refused. An order was then made according to the prayer of the petition. In drawing up the order a question arose whether Mr. NEW SERIES, XVIII.-BANKR.

Crowdson was entitled to any costs in respect of the petition.

Mr. De Gex, for the petitioners.-The usual course of practice in such petitions as this is, that the bankrupt is served, but that he never appears, and the order is made on affidavit of service. By these means no costs are incurred with reference to the bankrupt. If the bankrupt has no objection to make to the petition, there is of course no use in his appearing on it; and if he appears without any reason, he ought not to be allowed costs. In this case, Mr. Crowdson was a solicitor, and must therefore have known, himself, the nature of the petition; and, in addition to this he did not appear when the petition first came on.

Mr. Bacon, for the bankrupt.-There is no such rule or practice as laid down on behalf of the petitioners. The prayer of the petition is for liberty to prove, and for the appointment of new trustees, and "such further or other order in the premises as the Court may please to make." The bankrupt has a right to appear at the hearing for the purpose of seeing that, under the general prayer of the petition, no order is made against him; and so appearing is entitled to costs. He cited Ex parte Whitley (1).

Annuity Inrolment - Annuity Act, 53 Geo. 3. c. 141.

In consideration of 500l. paid by A. to B, B. gave a bond to A. for 500l., conditioned to be void on payment of an annuity of 60l. to A. for his life; and B. also deposited with A. the title deeds of a real estate belonging to B, with a written memorandum. The bond was inrolled, but not the memorandum. B. became bankrupt. A petition by A. for a sale of the mortgaged property,

(1) 1 Deac. 478. C

and the application of the purchase-money to his claim, was dismissed, with costs.

By a bond dated the 11th of April 1835, in consideration of 500l. paid to John Swann by the petitioner Martha Miller, John Swann, Charles Henry Swann and William Swann, became bound to Martha Miller in the sum of 500l., conditioned to be void on punctual payment of an annuity of 60l. to Martha Miller, for her life.

On the same day, John Swann deposited the title deeds of a copyhold estate, belonging to him, with Martha Miller, with a written memorandum, by way of further security for the payment of the annuity.

A memorial of the bond was duly inrolled in Chancery, in pursuance of the 53 Geo. 3. c. 141. There was, however, no inrolment of the memorandum.

A fiat in bankruptcy issued against John Swann, Charles Henry Swann and William Swann, on the 21st of September 1848.

A petition was now presented by Martha Miller, praying that a value might be set on the annuity, and that the copyhold estate might be sold, and that the purchase-money might be applied towards payment of the sum at which the annuity should be valued, and that the petitioner might be at liberty to prove against the bankrupt's estate for the difference.

By the 17 Geo. 3. c. 26. s. 1. it is enacted, that a memorial of every deed, bond, instrument, or other assurance, whereby any annuity shall be granted, shall, within twenty days of the execution of such deed, bond, instrument, or other assurance, be inrolled in the High Court of Chancery, and that every such memorial shall contain, &c.; otherwise every such deed, bond, instrument, or other assurance shall be null and void to all intents and purposes.

By the 53 Geo. 3. c. 141. s. 2. it is enacted, that within thirty days after the execution of every deed, bond, instrument, or other assurance, whereby any annuity shall be granted, a memorial of the date of every such deed, bond, instrument, or other assurance, of the names of the parties, witnesses, annuitants, &c. shall be inrolled in Chancery, &c., otherwise every such deed, bond, instrument, or other assurance shall be null and void to all intents and purposes.

The 3 Geo. 4. c. 92. s. 2. states that doubts had arisen whether, under the 53 Geo. 3. c. 141. the omission to inrol a memorial of any one of the assurances for securing any annuity did not vitiate the whole transaction, notwithstanding the inrolment of a memorial of another deed, bond, instrument, or other assurance granting the same, and that it was expedient to remove such doubts; and enacts, "that every deed, bond, instrument, or other assurance granting any annuity, of which a memorial shall be inrolled pursuant to the said act, notwithstanding the omission to inrol any other deed, bond, instrument, or assurance for securing such annuity, shall be valid, notwithstanding a memorial of any other deed, bond, instrument or assurance for securing the same annuity shall not have been duly inrolled pursuant to the said act."

Mr. Webb, for the petition, contended that the transaction relating to the equitable mortgage was valid, and that it was not required by the Annuity Act that the memorandum should be inrolled. He cited Morris v. Jones (1).

-

Mr. Russell, for the assignees. — The transaction as to the equitable mortgage is absolutely void for want of the inrolment of the memorandum. It appears from the cases on the 17 Geo. 3. c. 26. s. 1. that every security relating to annuities granted, while that act was in force, ought to have been inrolled-Rosher v. Hurdis (2), Bac. Abr. tit. Annuity and Rentcharge,' Sandilands v. Marsh (3). The language of that section is not distinguishable from the language of the 2nd section of the 53 Geo. 3. c. 141. The decisions, therefore, under the former act apply ot this act. The petitioner's case is not aided by the 3 Geo. 4. c. 92.

SIR J. L. KNIGHT BRUCE said that he thought there was no substantial difference between the two acts. He would, however, give the petitioner the opportunity of trying the question again. The order would be, that the petition should be dismissed, with costs; but that the petitioner should be at liberty to enter a claim and file a bill.

(1) 2 B. & C. 232; s. c. 1 Law J. Rep. K.B. 243. (2) 5 Term Rep. 678. (3) 2 B. & Ald. 673.

Proof-Voluntary and Substituted Bond -Contemplated Bankruptcy.

A. gave a voluntary bond to B. in 1812 for 3,000l. and interest, with an agreement that, on regular payment of interest, the principal was not to be called in until five years after the death of A. B. bequeathed this bond to her three children, and died in 1840. In 1841 an arrangement was made between A, and the children, under which the old bond was cancelled, and a new bond was given to each of the children, for 1,000. and interest, with like agreement to that on the old bond as to the calling in of the principal. In 1847 A, who carried on business as a banker, was made a bankrupt. In 1841, when the bond was given, the debts of A. considerably exceeded his assets, and this state continued until the bankruptcy; but there was no suggestion of any fraud, mala fides, contrivance to defeat creditors, or of the contemplated bankruptcy of A. on the part either of the obligor or obligees :-Held, that, under these circumstances, the new bonds ought to be admitted to proof.

Ex parte Berry, 19 Ves. 218, observed

upon.

This petition stated the following case: Mr. Gundry, who died in 1793, by his will left his son, Samuel Gundry, the bankrupt, the bulk of a very considerable property, and made a very slender provision for his daughter Mrs. Hookins. This produced a good deal of ill feeling between them- Mrs. Hookins insisting that it had been the testator's intention to provide for her more amply, and that her brother, Mr. S. Gundry, was morally, if not legally, bound to carry out such intention. Mr. S. Gundry was at length prevailed upon to accede to Mrs. Hookins's request, and accordingly gave her a bond, dated the 15th of September 1812, for 6,000l., conditioned to be void on payment of 3,000l. on or before the 15th of March then ensuing. There was, however, an agreement indorsed on the bond to the effect that, if interest at 5. per cent. should be regularly paid, payment should not be demanded until five years after the death of Mr. S. Gundry.

Mrs. Hookins, by her will, bequeathed

this bond to her three children, John Hookins the petitioner, Philip Hookins, and Mrs. Atkins, and died in 1840. The interest on the bond had been regularly paid until her death.

After the death of Mrs. Hookins an arrangement was made between Mr. S. Gundry and the three children of Mrs. Hookins, under which the bond for the 3,000l. was given up, and, instead of it, Mr. S. Gundry gave to each of the three children a bond, dated the 21st of July, 1841, for 2,000l., conditioned to be void on the payment of 1,000l., at the end of five years after the death of Mr. S. Gundry, and the payment of interest at 5l. per cent. on 1,000l. in the mean time.

Mrs. Atkins's bond was paid off, and the petitioner, John Hookins, bought his brother's bond for 1,000l.

In November 1847, a fiat in bankruptcy issued against Mr. S. Gundry and his partner, Mr. W. E. Gundry, who had carried on business as bankers.

The petitioner, John Hookins, tendered a proof in respect of the two bonds before the Commissioner, which was rejected. The present petition now came on by way of appeal from the decision of the Commissioner.

In opposition to the petition, on the part of the assignees, affidavits were filed by the principal cashier in the bank and the official assignee. The case in opposition, stated in these affidavits, was as follows:-Mr. Joseph Gundry and Mr. S. Gundry carried on business as bankers at Bridport up to 1823, when the partnership terminated by the death of Mr. J. Gundry. In consequence of some differences which took place between Mr. S. Gundry and the executors of Mr. J. Gundry, the affairs of the bank were submitted to arbitration, and it appeared, by the award made thereunder, that the debts of the partnership, at the time of the death of Mr. J. Gundry, exceeded their assets by 36,0001. The bank was carried on by Mr. S. Gundry alone until 1825, when his son, Mr. W. E. Gundry, was taken into partnership. No capital was then brought in, and the debts at that time exceeded the assets by 40,000l. The bank was carried on by Messrs. S. & W. E. Gundry from 1825 until their bankruptcy. The substituted bonds were given in July

1841. It appeared from the books of the firm, that in the stock-taking from the 1st of January 1841 to December 1841, the debts of the bank exceeded their assets only to the extent of 1,7017. In fact, however, the deficiency was upwards of 25,000.-the appearance in favour of the bank having been effected by the insertion of debts, which had long been perfectly hopeless and irrecoverable, among the assets of the firm, and instances were given of debts from persons who had been bankrupts in 1824 and 1833 being treated as good debts. The separate estate of Mr. S. Gundry in 1840 was estimated to amount to about 20,000l., while his separate liabilities in that year exceeded 30,000l. This relation between the separate estate and the separate liabilities of Mr. S. Gundry continued to be nearly the same until the bankruptcy. The estate of the bankrupts was estimated to realize about 11s. in the pound. Mr. S. Gundry was clearly insolvent in 1841, when the bonds were given.

The affidavits against the petition were confined simply to the above statements, and there was no suggestion that Mr. S. Gundry, in 1841, knew minutely the state of his affairs, or had bankruptcy or insolvency in contemplation, or had any view or design to give a benefit to his relations to the disadvantage of his creditors. There was also no suggestion that the petitioner or Mr. P. Hookins, at the time the bonds were given, knew anything of the affairs of the bank.

Mr. Russell and Mr. E. W. Cox, for the petition. The bonds given to John and Philip Hookins in 1841, were not voluntary, as they were given in consideration of the bond of 1812 being cancelled. The substituted bonds being bonds given for consideration are good, unless the transaction is tainted with mala fides, or fraud, or is made out to be a contrivance against creditors-Ex parte Berry (1). There is no fraud or mala fides, or such contrivance even suggested here on the part of the petitioner or his brother Philip, or Mr. S. Gundry. The bonds therefore ought to be admitted to proof.

Mr. Swanston and Mr. Shapter, for the assignees. At the time the bonds were

(1) 19 Ves. 218.

given Mr. S. Gundry's separate estate and the banking firm were both insolvent. From the state in which the bank had been in for nearly twenty years before 1841, Mr. S. Gundry must have known what his circumstances were. At any rate he must be taken to have known them, and ignorance of them on the part of the bankrupt cannot be set up by the petitioner. The solvency of the obligor is an essential element in the validity of a bond given merely in substitution of a voluntary one.

SIR J. L. KNIGHT BRUCE.-There does not appear to have been any affidavit in the case of Ex parte Berry; I suppose therefore that it was argued upon the admission of facts. My impression of the case of Ex parte Berry is, that Lord Eldon did not act upon the mere evidence of insolvency, but inferred from it that the second security had been given, not only with a knowledge of the failing circumstances of the obligor, but with a view to bankruptcy, and for the purpose of assisting and improving the case of the obligor. This is my impression. So understanding the case of Ex parte Berry, I entirely agree with it. In the present case it is not suggested that the obligees had, at the date of the bonds, any knowledge of the insolvency of Samuel Gundry or of the Bridport bank, or that they had any fraudulent or unfair intention. This is, I believe, the state of the evidence as to them. As to the obligor it may be that he at least suspected bad circumstances, or would have done so if his attention had been directed to his affairs; but, on his part, I believe that neither his pecuniary circumstances nor the circumstances of his house entered into his mind in giving the bonds. I believe that, on his part, the transaction was not in the slightest degree connected with actual or apprehended insolvency, with apprehended or expected bankruptcy, or with any view or notion that would not equally have been in his mind if he had been one of the wealthiest men in England. I believe that the transaction was fair in every respect, and in no sense with the view or intention of bettering the case of either of the obligees, as against the general creditors of the obligor, the bankrupt. That being so, I think that the proof must be admitted. I would