ascertain what balances have been from time to time in the hands of such assignees respectively, and shall inquire for what reason any sum appearing to be in the hands of such assignees ought to be retained, and thereupon shall declare a dividend on the remaining sum, specifying in their order the sum so allowed to be retained, and the grounds on which they may conceive it proper that it should be retained. s. 12. Remedy against vidend to be by P. 647. l. 36.—By the 49 Geo. 3. c. 121. s. 12. E. & I. no action shall be brought by any creditor who hath proved or shall prove any debt under any commission of assignee for d bankrupt, against the assignees, for the amount of any petition. dividend declared by the commissioners; but in all cases in which the assignees shall refuse or omit to pay any dividend, it shall be lawful for the creditor entitled to the same, to petition the lord chancellor for payment thereof; and it shall be lawful for the lord chancellor, on hearing such petition, not only to order the payment of such dividend, but also, where justice shall require it, to order payment of interest for the time that such dividend shall have been withheld, and of the costs of such application. P. 648. l. 25.-The 49 Geo. 3. c. 121. s. 3. E. & I. recites the 5 Geo. 2. c. 30. s. 32. Eng. and enacts, that if the major part of the creditors of any bankrupt shall not, before they shall proceed to the choice of assignees, direct in what manner, how, and with whom, and where, the monies arising from the bankrupt's estate shall be paid in and remain, in pursuance of the power given by the said recited act, the commissioners shall, after they have proceeded to the choice of assignees, and at the same meeting, direct in what manner, how, and with whom, and where the monies arising out of the bankrupt's estate shall be paid in and remain, until the same shall be divided amongst the creditors as by said recited act is directed; to which direction the assignees shall conform as often as £100. shall be received from such bankrupt's estate, and shall be indemnified for what they shall do in pursuance of such direction: Provided that it shall not be lawful for the commissioners to direct such monies If s. 3. creditors do not direct how the bankrup's fund shall be di posed of, the commissioners may. Proviso. rections to be charged £20. per cent. on money retained. s. 6. monies to be paid into the hands of said commissioners, or any of them, or of the solicitor to the commissioners, or into any banking house or other house of trade or business in which the commissioners, or any of them, or the solicitor of the commission, are or is interested or cons. 4. cerned as a partner or otherwise. And by s. 4. in all cases in which any assignee of any bankrupt's estate, Assignees disobeying such di- shall wilfully retain in his hands, or otherwise employ for his own benefit, any sum of money part of the estate of such bankrupt, contrary to the aforesaid direction of the 5 Geo. 2. c. 30. Eng. or of the said direction in this act, he shall be charged in his accounts with the estate of such bankrupt, with such sum as shall be equal to the amount of interest computed at the rate of £20. per cent per annum on all such sums so retained or employed by him, for the time during which he shall have so retained, &c. the same; and the commissioners shall charge such assignee accordingly. And this act provides (s. 6.) that in case any commission of bankrupt shall issue against If assignees become bankrupts any person who is or shall be an assignee of the estate having £100. and effects of any bankrupt, and who shall, at the time inte wilfully re- of such commission against him, be indebted to the estificate shall not tate of the bankrupt of whose estate, &c. he was asdischarge their future effects signee, to the amount of £100. in respect of money come to his hands as such assignee, and wilfully retained or employed by him for his own benefit, the certificate of conformity which may be obtained by such assignee so becoming bankrupt, shall only have the effect of freeing the person of such bankrupt from arrest and imprisonment, but the future estate and effects of every such person shall remain liable for so much of his debt to the estate of the bankrupt of whose estate, &c. he was an assignee, as shall not be paid by dividends under said commission, together with lawful interest for the whole debt, in like manner as if he had not obtained his certificate; the tools of trade, necessary houshold goods, and furniture, and necessary wearing apparel of such bankrupt, and his wife and children, only excepted. By s. 7. it shall be lawful for the commissioners, upon the application of the assignees, or of any 5 or more credi of bankrupts es tained, their cer s. 7. tors tors who have proved their debts under the commission, Commissioners on notice given to the assignees of such intended appli- may invest bankrupt's money in cation, as often as it shall appear to the commissioners exchequer Lills. expedient that the money paid in to any person as aforesaid for the purpose of being divided amongst the creditors, or any money retained to answer any claim which may have been duly entered upon the proceedings under said bankruptcy, or any dividends ordered to be retained by the assignees, should be laid out at interest, to order that the whole or any part of such money shall be invested in the purchase of exchequer bills for the benefit of such creditors and claimants, and to direct where and with whom such exchequer bills shall be kept for safe custody, and to cause the exchequer bills to be sold when it shall appear to them necessary, and to direct the proceeds thereof to be again laid out in the purchase of exchequer bills, or to be applied for the benefit of the creditors and claimants, according to their several interests, as to said commissioners shall seem meet, subject nevertheless to the control of the lord chancellor. s. 10. signees. P. 653. l. 29.-The 49 Geo. 3. c. 121. E. & I. provides (s. 10.) that in any action brought or to be brought by or against any assignee of any bankrupt, the com- Evidence of petitioning credimission of bankrupt, and the proceedings of the tors debt, tradcommissioners under the same, shall be evidence to be ing, and bunkruptcy, in actions received of the petitioning creditor's debt, and of the by or against as trading and bankruptcy of such bankrupt, unless the party in such action shall, if defendant, at or before the time of his pleading to such action, and, if plaintiff, before issue joined in such action, give notice in writing to such assignee, that he intends to dispute such matters, or any of them; and where such notice shall have been given, if such assignee shall at the trial prove the matter so disputed, or the other party admit the same, the judge shall, if he see fit, grant a certificate that such proof and admission was made upon such trial, and such assignee shall be entitled to the costs (to be taxed by the proper officer) occasioned by such notice; and such costs shall, in case the assignee obtain a verdict, be added to his costs, and if the other party obtain a verdict shall be set off or deducted from the costs which such other s. 11. Similar provision as to suits in equity. other party would otherwise be entitled to receive from such assignée. And by s. 11. in all suits in equity by or against any assignee of any bankrupt, the commission of bankrupt, and the proceedings of the commissioners under the same, shall be evidence to be received of the petitioning creditor's debt, and of the trading and bankruptcy of such bankrupt, as against all the other parties in such suit, unless such parties, some or one of them, shall, within 10 days after rejoinder in the cause, give notice in writing to the assignee, that they or he intend to dispute the said trading, petitioning creditor's debt, or act of bankruptcy, or some or one of such matters; and where such notice shall have been given, if the assignee shall prove the matter so disputed to the satisfaction of the court, the costs occasioned by such notice, (to be taxed by the proper officer,) shall, if the court shall see fit, be paid by the party giving such notice to the assignee; and the service of such notice may be proved by affidavit upon the hearing of the cause.* VOLUME II. 3 Edw.1. c 16. F. & 1. Distress not to be driven out of the fee. 49 Geo.3. c.28. E. P. 3. l. 11.—THE 3 Edw. 1. c. 16. E. & I. not only confirms the 52 Hen. 3. c. 4. by providing that none shall cause any distress to be driven out of the county, upon pain of making a grievous fine; but also that none shall distrain out of their fee upon the like pain, and to be grievously punished if the trespass requires it. P. 18. l. 29.-The 49 Geo. 3. c. 28. E. recites the 2 Geo. 2. c. 23. s. 26. Eng. and enacts, that the clerks lerk of the co- of the coroner and attorney of the king's bench, who have roner and attor bench, admissi ney of the king's been regularly admitted, or who may be regularly adble as attornies. mitted as such clerks, may be approved, sworn, and admitted to practise, and may practise as attornies in said By s. 15. this act is declared not to extend to Scotland. court, court, or in any other court of record in said recited act mentioned, in the name, and with the consent of some sworn attorney of such court, (such consent to be in writing, and signed by such attorney as aforesaid,) in like manner as the attornies of such court, or the attornies or clerks of the offices of the king's remembrancer, treasurer's remembrancer, pipe or office of pleas in the exchéquer at Westininster, are by said act empowered to do. Ir. P. 33. l. 22.-By the 38 Geo. 3. c. 39. Ir. no proctor 38 Geo.3.c.39, of the court of prerogative, court of admiralty, court of ノ delegates, or of any ecclesiastical court, shall commence Proctors' costs to be furnished beor maintain any action or suit for the recovery of any fore actions. fees, charges, or disbursements, which shall be due to him in any proceedings in any of said courts, until the expiration of a month after such proctor shall have delivered to the party to be charged therewith, or left for him at his dwelling-house, or last place of abode, a bill of such fees, &c. written in a common legible hand, and in the English tongue, except law terms, or names of such proceedings as are usually expressed in other languages, and in words at length, (except times and sums,) which bill shall be subscribed with the proper hand of such proctor; and upon application of the party chargeable by such bill, or of any other person authorized, unto the judge or judges of the court in which the business contained in such bill, or the greatest part thereof in amount or value, shall have been transacted, for the taxation of such bill, and upon submission of the party, or other person authorized as aforesaid, to pay the whole sum that upon the taxation of such bill shall appear to be due, or upon application of the proctor, after the delivery of such bill as aforesaid, to such judge, &c. for the taxation of such bill, such judge, &c. shall refer said bill, and the said proctor's demands thereon, (although no suit shall be then depending touching the same,) to be taxed by the register of said court, or his deputy, without any money being brought into court for the purpose; and such judge, &c. shall review and alter, as he shall think fit, the taxation of the said register, or of his deputy, H How taxed. |