1835. A Commis sioner finds assignees re tained in his hands a sum of money for a Ex parte JOHN LEE BENHAM and others.-In the matter of CHARLES BRAMWELL. THIS was the petition of the major part in number and that one of two value of the creditors who had proved under the commission, and the official assignee; praying that the creditors' assignee, and the solicitor to the commission, might be directed to pay certain sums of money to the official assignee, pursuant to an order of Mr. Commissioner Fane, which was made under the following cir certain period, without paying it into the hands of the bankers chosen by the creditors, and then charges both assignees with interest thereon at 201. per cent. per annum, under cumstances. The commission issued on the 15th April 1826; under which John Wheeler and Henry Butler were chosen assignees, who appointed Messrs. Mayhew and Johnston c. 16. s. 104. solicitors to the commission. In July 1830 J. Wheeler, the 6 G. 4. Held, that the Commissioner had no right to charge both assignees for the retainer of one, unless he found that the other assignee "know the retainer; one of the assignees, became bankrupt, and subsequently left England, and continued to reside abroad. On the 23d September 1831, the other assignee, II. Butler, attended a meeting of the Commissioners for the pur ingly permitted" pose of auditing the assignees' accounts; when the same were duly audited by the Commissioners, who found that there was then a balance of 625l. 16s. in the hands nor was the Commissioner justified in charging even the one who retained the money, unless he found that it of the assignees. The account rendered by Butler at this audit meeting contained an item of 271. 1s. for was culpably retained by him. Where the accounts of the assignees have been audited by the Commissioner, in which certain items have been allowed, the accounts cannot be re-opened for the purpose of disallowing those items, without an Order of the Court. Where the solicitors to the commission received from the assignees the amount of their bill of costs, which had been bona fide incurred, for defending a suit in Chancery brought against the assignees; and the major part of the creditors and the official assignee applied for an order on the solicitors to refund the amount, on the ground that the Commissioner had certified that the suit was improvidently defended, and that he had disallowed the amount of the costs in the assignees' accounts; the petition was dismissed with costs, except as against the official assignee. Where petitioners come voluntarily before the Court, to enforce an illegal order made by a Commissioner, they will not be protected by such order from having their petition dismissed with costs. taxed Chancery costs to December 1828, and another item of 50l. 9s. 6d. for other taxed Chancery costs. On the 11th February 1833 the petitioner, Whitmore, was appointed official assignee; when Mr. Commissioner Fane, to whom the commission had been transferred under the provisions of the Bankruptcy Court Act, ordered the existing assignees to pay and deliver over all monies, books, papers, and effects in their possession to the official assignee; in consequence of which order a sum of 1681.9s. 11d. was, on the 22d July 1833, paid by Messrs. Mayhew and Johnston, the solicitors, to the official assignee. On the 8th March 1834 another audit meeting was held, by adjournment after two previous meetings, before Mr. Commissioner Fane; when an account was exhibited by Butler, containing, among other items, a sum of 681. 7s. 8d. for the amount of the costs of a Chancery suit by the London Dock Company against the assignees, which account was allowed by the Commissioner. On the 8th January 1835 a third audit meeting was held before Mr. Commissioner Fane, who upon that occasion signed the following memorandum, which he ordered to be entered on the proceedings: "In the Court of Bankruptcy &c., 8th January 1835. "Memorandum, that I the undersigned Commissioner of the Court of Bankruptcy did sit at the time and place above-mentioned, for the purpose of further considering the account of Henry Butler and John Wheeler, assignees of the estate and effects of the abovenamed Charles Bramwell, when the said Henry Butler appeared before me, and insisted that he and his co 1835. Ex parte BENHAM and others. 1835. Ex parte BENHAM and others. assignee had fully accounted for the said estate. But it appearing to me, that the said Henry Butler retained in his hands the sum of 2461. 18s. 1d. (being the remainder of the sum of 625l. 15s. 1d., admitted by him to be in his hands on the 23d September 1831, after deducting the sums of 657. and 3137. 17s., claimed to be due to the solicitors for their bills) from the 23d September 1831, up to the 23d July 1833, without paying the same into the hands of the bankers chosen by the creditors, I have charged them with the sum of 901. 10s. 7d., being interest at the rate of 201. per cent. per annum upon the said sum of 2461. 18s. 1d. for the period aforesaid. And it appearing to me, that the expenses of a certain interpleading suit in Chancery, to which the said assignees were made defendants, in consequence of a claim made by them to certain wines in the custody of the London Dock Company, were occasioned by the conduct of the said assignees, in refusing to abandon, and yet taking no step to enforce such claim from the year 1826 down to the present time; and it appearing to me, that such expenses ought not, under the circumstances aforesaid, to be allowed as against the estate, I have re-charged the said assignees with the sums of 271. 1s. and 50l. 9s. 6d., for which they have taken credit in an account rendered to the Commissioners on the 23d day of September 1831, as payments Imade to the solicitors for their bills of costs in such suit; and I have also re-charged them with the sum of 681. 7s. 8d., for which credit is taken in the account (marked B., filed with these proceedings) of the 6th day of March 1834, as a payment made to the solicitors, for their further charges in the same suit. And it appearing to me, that there is an overcharge in the sum of 657. charged to the said account (marked B.) of 6l. 13s. 6d., and an In pursuance of this Order, the official assignee applied to Mr. Butler for the payment of the sum of 2591. 2s. 9d., and to Messrs. Mayhew and Johnston for the payment of 1681. 12s. 2d.; who disputed their liability to pay either of these sums. No dividend had ever been made under the commission; and the only money applicable to a dividend was the sum of 1681. 9s. 11d. paid into the hands of the official assignee, under the Order of the Commissioner; the remainder of the bankrupt's estate, which was considerable, having been consumed in law expenses. The petition prayed, that Butler, and Mayhew and Johnston, might be directed to pay to the official assignee the sum of 1687. 12s. 2d., and that Butler might be also directed to pay the sum of 907. 10s. 7d., making together the sum of 2591. 2s. 9d., so found by the Commissioner to be due to the bankrupt's estate; and that the costs of the application might be directed to be paid by the assignee, and the solicitors, personally. The respondents admitted their liability to repay the 1835. Ex parte BENHAM and others. 1835. Ex parte BENHAM and others. sums of 61. 13s. 6d., 12l. 8s. 10d., and 37. 11s. 8d., as these sums had been overcharged by mistake, but they contended they were not liable to refund the other sums specified in the Commissioner's Order. Mr. J. Russell, and Mr. Bacon, in support of the petition. As the respondents have not excepted to, or appealed from, the Order of the Commissioner, it seems to be a matter of course that this Court should grant its own Order, for the purpose of having that Order carried into effect. The respondents all agree, that the balance specified in the Commissioner's certificate remains in the hands of Mayhew and Johnston. With regard to the bills already taxed, it is admitted that the Court will not review the taxation, or go into the question of quantum, but merely deal with such objections as are founded upon principle. The respondents, it is presumed, will contend that the Commissioner had no jurisdiction to re-charge the assignees with the sums specified in his Order, because the former Commissioner had allowed these sums on a previous audit. unless the Court determine that one audit is conclusive, and can never be re-opened, the Court will correct any error in that audit, which may be injurious to the bankrupt's creditors. The present Commissioner is not bound by the mere signatures of the former Commissioners to the memorandum of what was then due to the solicitors. In Ex parte Applegarth (a) it was decided, that although an audit meeting has closed, and the accounts of the assignees are then settled, yet the Commissioner, at any future meeting, has power to examine the assignees as to monies received before, and not (a) 2 Deac. & Chit. 101. But, |