coming to this Court, and getting his order, and is then entitled to the accruing rents after that day. Besides, it is not inconsistent with general principles, that a party asking extraordinary relief, should be put under the terms of taking no rents till the date of the order. If notice were to have the effect of an order, a party might lie by as long as he pleased. Therefore, I think, the established rule reasonable.

SIR G. ROSE.-If an equitable mortgagee giving notice were so entitled to the rents, it would make his a preferable title to that of a legal mortgagee. In a bill filed in Chancery, the Court will not give you a receiver till the answer admits the equitable title; and the Court follows the same practice here, if the Court gives you a receiver, when the assignees put in their answer. It is the right and the regular practice.

The common order: all costs out of proceeds of the sale.

Equitable Mortgage-Costs.

Where there is an equitable mortgage, with a memorandum as to part of the property, and none as to the other, the costs will be apportioned.

Order made for sale of the mortgaged premises, but declaration that petitioner was equitable mortgagee, postponed until the commissioner had certified the date of the deposit: -Held, that the petitioner was entitled, notwithstanding, to the rents, from the order of sale. After that order, the assignees are in the nature of a receiver.

held otherwise in Ex parte Robinson (1), which was a case similar to the present. There, the equitable mortgagee had to pay all costs.

Per Curiam.-The fair way in these cases is to apportion the costs.

As to the rents accrued since the date of the order for sale, there being some doubt as to the date of the deposit, the Court refused to declare the petitioner equitable mortgagee, till the commissioner had certified the date. The certificate of the commissioner was in favour of the petitioner, who now claimed to be entitled to the rents from the date of the former order for sale.

Mr. Swanston, for the petitioner.

Mr. Walker, for the assignees.-The Court departed from its usual course, because the petitioner had not established his title. The usual practice is, to declare the petitioner equitable mortgagee, and then order a sale. So, in the Court of Chancery, the decree for a sale is not made till the mortgagee has established his title. The petitioner, here, is not entitled to the rents till he has made out his title.

The CHIEF JUDGE.-There was a suspicion that the deeds were not deposited at the time alleged, and an absolute declaration was refused; but it was referred to the commissioner to certify the time. That certificate is in favour of the petitioner. I think, then, he ought to stand in the same situation as if we had given full credit to his statement. The order of sale was tantamount to the appointment of a receiver.

SIR J. CROSS concurred.

SIR G. ROSE.-The Court, in making the order of sale, interposed as a trustee for those persons who should be found entitled to it. Take the principle of a receiver, and the analogy will give the rents to the petitioner. The assignees are in the nature of a receiver.

1837. Nov. 11. S

Ex parte FIELD re FIELD.

Reversal of Adjudication-Time granted to supply Defect of Evidence.

On an affidavit that the respondents are unable to procure an affidavit from a material witness, the Court will give time to subpœna such witness for vivâ voce examination.

A petition to reverse, presented after the two months have expired, if it go to the whole merits, will be entertained under the general jurisdiction.

This was a petition for the reversal of the adjudication, on the ground that there was not a good petitioning creditor's debt. The petitioning creditor had signed a deed, by which the bankrupt assigned over all his goods for the benefit of his creditors.

Mr. Swanston, for the petitioner, stated, that the petitioner did not know what was the act of bankruptcy relied upon.

Mr. Anderdon, in opposition.-The petitioning creditor signed the deed upon condition only that the assignees of Forester, a creditor of the bankrupt, should sign, which they did not; so that the debt is a good petitioning creditor's debt. If the execution of this deed by the bankrupt was no act of bankruptcy, other acts of bankruptcy could be proved; but it is alleged, that a necessary and material witness is kept out of the way, and an affidavit from him cannot be procured.

[SIR G. ROSE.-That is not in evidence here.]

[The CHIEF JUDGE.-The bankrupt must then have a supersedeas, unless you ask for time, as in Ex parte Bypond (1); see also Ex parte Bilbiald v. Bilbiald (2).]

[SIR G. ROSE.-The Court will look at the proceedings, and if it finds no act of bankruptcy upon them, then the bankrupt is entitled to a supersedeas; but you may then apply for time to have an issue, if you have any person who makes an affidavit that a witness keeps out of the way.]

There is also another objection. This is a petition to reverse the adjudication, and should be brought within the two months, under the 1 & 2 Will. 4. c. 56..

(1) 1 Mad. 624. (2) Buck. 220.

NEW SERIES, VII.-BANKR.

Security for Costs-Practice.

Where a petitioner states himself to be out of the jurisdiction, the practice is to stay the proceedings till security is given for costs; and this order will be made upon an ex parte application.

This was a petition of Scott, who described himself in the petition as of Greenock, and it prayed that he might be declared to have an equitable lien upon a certain policy of insurance.

Mr. Swanston, for the petition.

Mr. J. Russell for the assignees.-The petitioner is out of the jurisdiction, and has already refused to enter an appearance in an action brought by the assignees. Before the Court entertains the petition he must give security for costs.

Mr. Swanston objected that the petitioner had had no notice of this application.

Mr. J. Russell.-There is no one upon whom to serve a notice. In the Court of Chancery, these ex parte applications are always granted as a matter of course.

[SIR G. ROSE.-Your application should be, that the petitioner bring the policy into court.]

Mr. O. Anderdon-amicus Curiæ.-The usual order made in the Court of Chancery is to stay the petition till security is given.

Per Curiam.-Take an order for staying proceedings till security is given for costs,

not operate as a protection between the time of appointing the meeting, and the day appointed to take such examination.

Case of a petition dismissed with costs, against an uncertificated bankrupt.

This was the petition of William Bailey the elder, a bankrupt, praying an order that the plaintiff in an action, who had arrested him, might order his discharge from arrest, and the consequent proceedings, or consent to an exoneretur being entered on the bail-piece. The petition stated, that the petitioner and William Bailey, jun. were found bankrupt the 22nd of October 1836; that the commissioner had appointed the 7th of November and the 6th of December for taking the last examination of the bankrupts; that on the 23rd of December the commissioner adjourned the last examination sine die, and refused to sign their protection; that on the 9th of June 1837, the younger Bailey applied to the commissioner to appoint a day for passing their last examination, which he named for the 23rd of June; that on the 19th of June the petitioner was arrested on the writ; that he applied to Gurney, B. at chambers, for his discharge from the arrest, but he refused to interfere, because the petitioner could not shew the commissioners' protection. The affidavit in opposition stated, that the last examination was adjourned sine die, on account of the dissatisfaction of the commissioner, and that the writ was issued on the 30th of May, and the petitioner was aware of it before he made the application for a meeting.

Mr. Swanston, with whom was Mr. Teed, for the petitioner. It would appear, from the 117th section, that it is not the summons that protects the bankrupt, but the appointment by the commissioner, which protects him, for the act says, "If such bankrupt shall be arrested for debt, or on any escape warrant, in coming to surrender, or shall, after his surrender, be so arrested, within the time aforesaid, he shall, on producing the summons under the hands of the commissioners to the officer who shall arrest him, and giving such officer a copy thereof, be immediately discharged;" then follows the penalty for detaining the bankrupt, shewing that the summons acts as mere evidence or a record of a fact, and not as if the pro

tection itself was dependent on it, and no one would contend that the mere circumstance of the bankrupt having walked out without taking his summons with him, would authorize an officer, who knew he had been summoned, to arrest him.

[The CHIEF JUDGE.-The protection under the 117th section is quite independent of the indorsement; the protection under the 118th section depends upon the commissioners' indorsement: but the question here is, whether, after an adjournment sine die, the bankrupt is protected between the day he gets the appointment and the day for taking his examination.]

The time between the 9th of May and the 23rd of May must be regarded in the light of further time for taking his examination, otherwise how could he take the necessary steps by investigating his books and accounts of his assignees? If he is not protected, the extension of time is useless; he is allowed access to his books by the act of the legislature; how then can it be supposed he is not to be protected in the exercise of such right? If it were not so, the mere circumstance of an adjournment sine die, would amount to perpetual imprisonment; for how could he ever give a satisfactory account?

Mr. Anderdon, for the respondent, was not called on by the Court.

The CHIEF JUDGE.-We are of opinion that this application cannot be granted. The 117th section gives the bankrupt freedom "from arrest or imprisonment by any creditor in coming to surrender, and after such surrender, during the said forty-two days, and such further time as shall be allowed him for finishing his examination, provided he was not in custody at the time of such surrender; and if such bankrupt shall be arrested for debt, or on any escape warrant, in coming to surrender, or shall, after his surrender, be so arrested within the time aforesaid, he shall, on producing the summons under the hands of the commissioners to the officer who shall arrest him, and giving such officer a copy thereof, be immediately discharged." It is quite clear the legislature was contemplating the protection for the forty-two days, and such further time as the commissioners thought requisite; and the former acts carried it no

further; and the 118th section contemplates an enlargement of time or an adjournment of the examination sine die, when the commissioners may, by indorsement, give a protection, which the legislature has expressly limited to three months. But then it was contended, that inasmuch as a commissioner could by the 117th section grant "such further time," that the appointment of a meeting, although after an adjournment sine die, and the expiration of the forty-two days, was a granting of such further time; it appears to me, that the language of the 117th section will not bear such a construction. It is admitted, however, that he was not protected between the adjournment sine die, and the day on which the commissioner made the appointment: then, how can it be contended that it falls within the provision which allows the commissioner to grant further time expressly from the forty-second day? We therefore consider he was not protected, except in going to and coming from the place of examination; and this application cannot be entertained.

SIR J. CROSS.-I was at one time inclined to think, there was an apparent reason for our attending to this application, although not supported by the practice in former times, or any subsequent enactments; but I look also at the circumstances of this case as well as the law, and they appear very like a mere contrivance to avoid an arrest; for it does not appear that any attempt had been made to pass the examination, until the petitioner had been informed that a writ had been sued out against him.

SIR G. ROSE. It has been argued, that unless we hold that the bankrupt was protected, we must declare, that he had no right to examine his books or accounts; but that does not follow; for the right to inspect his accounts, and the right to be protected from arrest, are two distinct rights given him by statute. Let us look at the practice, both before and after the 6 Geo. 4. c. 16; is it not the general practice, that further time means further time necessary for passing his last examination, after the 42nd day? The 118th section was passed to prevent a generally received opinion, that if a commissioner adjourned the

Quorum Commissioner's Fee-Practice.

It is the duty of the solicitor to the fiat to summon the quorum commissioners, and tender them the legal fees; and it will be no answer to a petition by a quorum commissioner, that the solicitor had known him on a former occasion to demand more than the legal fees.

Semble-when two meetings take place on the same day, although under different fiats, the quorum commissioner is only entitled to one fee for travelling expenses-per The Chief Judge and Sir G. Rose.

at

This was the petition of a Mr. Scott, of Stourbridge, in the county of Worcester, a barrister, and one of the quorum commissioners for that district. It stated, that on the 14th of September last, a fiat had been issued against a trader named Jones, and directed to the petitioner, Abraham Turner, esq., and others; and that George Price Hill and Henry Maddocks Daniel, were the solicitors to the fiat; but that, notwithstanding the petitioner was Stourbridge, and willing to have attended, the solicitors had neglected to summon him to the several meetings which had been held; and it prayed, that the proceedings which had been held under the fiat might be declared void, and the petitioner duly summoned in future; or that the solicitors might be ordered to refund to the petitioner such fees as he would have been entitled to, had he been regularly summoned; and in either case to pay the costs of the petition.

This was met by the respondents, one of whom in his affidavit stated, that they had not summoned "the said Robert Scott, because the said Robert Scott, in the judgment of this deponent, and the said G. Price Hill, this deponent's co-partner, charges, demands, and receives improper and illegal fees, for attending and acting as a commissioner under fiats in bankruptcy.

And this deponent saith, that he and his co-partner, about the 7th of July last, sued out a fiat against James Hill, of Stourport, in the county of Worcester, tailor, directed to Robert Scott and the other commissioners, and on the 20th of July, another fiat against John Griffiths, in the county of Worcester, hallier; that the said Robert Scott demanded and received 31. from the deponent for attending the meeting, which deponent believes to be illegal and improper, as the said Robert Scott does not reside seven miles from the town of Kidderminster; that on the 10th of August last, a meeting was held under the fiat against James Knight, and on the same day, shortly after, another was held under the fiat against John Griffiths, when Mr. Scott attended and acted as a commissioner, and received 31. for each of the meetings; and also that on the same day another meeting was held under a fiat against Henry Widnell, of Kidderminster, at which Mr. Scott attended, and received illegal and improper fees for travelling expenses; that the commissioners had taxed off from the bill of deponent the sum of 1., being the charge for travelling expenses paid to Mr. Scott; that the distance from Mr. Scott's house to the town of Kidderminster was not more than six miles six furlongs and three yards."

Mr. Bethell, for the petitioner.-This petition is attempted to be met by the respondents alleging, that Mr. Scott was in the habit of charging illegal fees; the respondents erecting themselves into a tribunal to judge of their illegality, and to punish the offence.

[Per Curiam.-Do they say they ever tendered the proper fees to Mr. Scott?]

There is no such allegation, and the excuse set up is an aggravation of the offence.

Mr. Swanston and Mr. J. Russell, for the respondents.-The question is, whether the commissioner is entitled to a penal order against the solicitors to the fiat, before the choice of assignees, or whether the reason stated in the affidavit, that Mr. Scott was not summoned, because he had received illegal fees on former commissions, and refused to attend without such fees, is sufficient? Now, by section 22 of 6 Geo. 4. c. 16, a commissioner who takes

improper fees is for ever disqualified ; and, therefore, where the fact of his having taken such fees has come to the solicitor's knowledge, he is bound not to summon such commissioner; for all the acts he might perform would be null and void.

[The CHIEF JUDGE.-The 6 Geo. 4. c. 16. s. 22, if it stood alone, would not be sufficient to vest such a discretionary power in the solicitor to a fiat; but the clause in 1 & 2 Will. 4. c. 56. s. 58. says, if they shall receive anything "other than is allowed by this act, or any other such act as aforesaid, such person, when duly convicted thereof," &c.]

It would appear, that the 58th section of 1 & 2 Will. 4. c. 56. refers to the penalty of 500l., but that the incapacity of the commissioner, which arises under the 6 Geo. 4. c. 16. s. 22, commences from the time he takes the improper fees. But, secondly, with respect to the travelling expenses, as Kidderminster was less than seven miles from the commissioner's residence, he was not entitled to any travelling fee at all, much less to a double fee; and in Ex parte Harbin (1), Lord Eldon said, that a barrister who would not attend without an additional expense, beyond the 17. allowed by 5 Geo. 2. s. 42, should be considered as a barrister who could not attend; and, therefore, as not within Lord Rosslyn's order, requiring the insertion of the names of two barristers in a country commission. On this ground also, the solicitor was justified in not summoning the commissioner. The King v. the Justices of Warwick (2), where the Court of King's Bench decided, that a coroner who had taken three inquisitions in one day, was entitled only to the travelling fee of 9d. a mile, also establishes, that the commissioner has no right to the second travelling fee. They also referred to the case of The Brighton Commissioners (3).

The CHIEF JUDGE.-I suppose that the declaration of the Court, that the commissioner ought to have been summoned, and the costs of the petition, will satisfy the petitioner.-[Mr. Bethell assented.]—The (1) 1 Rose, 58.

(2) 5 B. & C. 430; s. c. 8 D. & R. 147. (S) Not reported.