1813. Ex parte BRYANT, The Lord CHANCELLOR. I do not very correctly recollect on what Points this Petition was formerly argued, but if they resolved themselves into Objections to the Trading, the Act of Bankruptcy, and the Petitioning Creditor's Debt, one only of two Courses was open to me; either to decide it on the Affidavits myself, or to send it to another Jurisdiction, where it could be disposed of more satisfactorily by oral Examination. The latter Course was adopted; Bryant was permitted to bring an Action. In that, and upon an Application to the Court of Common Pleas for a new Trial, he was equally unsuccessful, and his Petition was dismissed. It has been observed upon, as something extraordinary, that the Order dismissing the Petition directed the Costs to be paid to the Assignee, as between Attorney and Client: I apprehend, however, that to be quite regular. As a Bankrupt, whenever he thinks fit, can bring an Action against his Assignee, what Person would accept the Office, if he were not to be completely indemnified? An Assignee is placed in a Situation of great Peril; to sustain the Interest of all the Creditors as well as his own; answerable for every Shilling of the Property administered under the Bankruptcy, in the Event of the Commission being defeated. In this Case, where my own Opinion is so strongly coincident in the Result of the Proceedings at Law, I do not know any Method of submitting these Questions to further Investigation. The Legislature has said my Decision shall be conclusive; at the same Time, I do not feel inclined to restrain the Bankrupt from the further Experiment of another Action at Law, if he is advised to have Recourse to it. This Court will undoubtedly injoin a Bankrupt from vexatiously and repeatedly bringing Actious against his Assignees; but I do not believe that it it has ever considered his Failure in the first Action, as a Reason for interposing against a second. 1813. Ex parte The Proposal to apply the Proceeds of the Walwing- BRYANT. ham Estate in Satisfaction of the Creditors deserves great Attention. If the Court saw clearly that it was sufficiently and immediately applicable to their Payment, it would not permit a Commission to go on merely for the Purpose of having a Debt satisfied at a greater Delay and Expense. The Practice (a) of superseding a Commis sion upon Payment of the Creditors who have proved under it, is conducive to an analogous Interference upon a Proposal of this Nature. I do not, however, recollect an Instance in which the Court would so interfere, unless perfectly satisfied that that Proposal could be fully and speedily effectuated. As to staying the Proceedings, it is unnecessary to cite Precedents that where the Validity of the Commission is disputed, the Court has and will exercise that Jurisdiction (b). When the Court itself directs an Action to try the Validity of a Commission, the Court will, consistently with that Direction, stay the Proceedings in the mean Time; but I believe there is no Instance, unless under extremely special Circumstances, differing much from those upon which the Petitioner relies, in which the (a) Ex parte Duckworth, alleged to be sufficient for the 16 Ves. 416. Payment of the Creditors. The Lord Chancellor refused to stay the Progress of a Commission, upon an Offer to pay into the Name of the Accountant-General a Fund Ex parte Kemp, Lincoln's Inn Hall, Sittings after Trinity Term, 1814. (b) Ex parte Williams, MS. SP. Court 1813. BRYANT. Court has stayed the Proceedings after the Commission has been established at Law. That the Bankrupt has Ex parte brought a second Action is not in itself a Ground for such Suspension. I will not dispose of the other Ground, viz. the Proposal to pay the Creditor with the Proceeds of the Walwingham Estate, until the Amount of the Debts and the Value of the Estate have been ascertained. The Lord Chancellor subsequently ordered an Inquiry into the Validity of Bryant's Title to the Walwingham Estate, and the Value of it; and if not satisfactory and sufficient for the Payment of the Creditors, the Proceedings and Examinations under the Commission to go on in the ordinary Course. Vide Bryant v. Withers, p. 8. post. March 18, Ex parte STEWART.—In the Matter of BRYANT. 1813. The Peti tioning Cre ditor direct ed to have THI HIS was an Application in the same Bankruptcy, that either the Assignee might be dismissed, or that Stewart, the Petitioning Creditor, might be admitted in his Place to manage the Defence to the Action that Bryant the Manage had brought in the King's Bench: it was alleged that the Assignee was not a Creditor, and was so much identified in Interest with the Bankrupt, that the Action would not be properly tried if he defended it. ment of the Defence to an Action brought by the Bank rupt, to try Stewart offered to indemnify the Assignee; and one the Validity of the Questions much agitated was, whether the Indemof his Com- nity should include Expenses incurred antecedent to the mission; but Petitioning Creditor's taking that Defence upon himself, the Assignee or merely from that Time. to be fully indemnified. The The Lord CHANCELLOR. 1813. Ex parte STEWART. -In the BRYANT. I think the Petitioning Creditor must be bound in Respect of that antecedent Expense, unless there be something in the Conduct of the Assignee, that he should not. Where the Question is, whether an Assignee who has no Interest, as a Creditor in the Estate, and a Peti- Matter of tioning Creditor, upon whom ultimately a great Deal of Expense must fall, shall have the Superintendence of an Action of this Nature, the latter must be preferred: there is nothing, however, to vary the ordinary Terms upon which he must have it, unless there has been Misconduct on the Part of the Assignee. Let Mr. Stewart have the Conduct of defending the Action, fully indemnifying the Assignees. BRYANT In the KING'S BENCH, IL 2 in 1123. Michaelmas Term, Fri day, Nov. 12, 1813. A Commis sion of Bank- rupt the three 1st. That the Petition TH BRYANT v. WITHERS. HIS was an Action of Trespass, for taking and carrying away certain Indentures of Lease, and other Deeds mentioned in the Declaration. The Defendant pleaded, first, the General Issue; secondly, that the alleged Trespasses were done by Virtue of the Act of Parliament, made in the thirteenth Year of the Reign of Queen Elizabeth, intituled "An Act touching Orders ing Creditor had, upon striking the Docket, made an Affidavit of his Debt as for Goods sold and delivered, although he had at the Time obtained Judgment in an Action brought to recover the Amount of the Goods. 2d. That prior to the Act of Bankruptcy upon which the Commission issued there was another Act of Bankruptcy, with a Debt sufficient to sustain a Commission, and of that the Petitioning Creditor had Notice. 3d. That prior to presenting the Petition for a Commission, the Petitioning Creditor had not relinquished his Judgment. The Court being of Opinion, as to the first Objection, that all the Statute, 5 Geo. II. c. 30, s. 23, required, was in Truth and Reality a Debt of sufficient Amount; as to the second, that it was not competent to the Bankrupt to defeat a Commission against him by alleging the Criminality of another Act of Bankruptcy; as to the third, that the Statute, 49 Geo. III. c. 121, s. 14, only applied to Creditors who came in to prove their Debts:-Plea, justifying a Trespass under a Statute passed in the second Year of James I. held to be bad; for although the Parliament in which the Act passed was continued to the second Year of that Reign, yet the Reference to the first Day of the Sitting not being expressly excluded, determines the Date of the Act. " for |