have then been paid to the creditor or creditors or other person or persons entitled thereto, and also the full amount of such undivided surplus as aforesaid; and if any assignee shall make default in such payment, it shall be lawful for the Lord Chancellor or the said Court of Review, on petition or otherwise, to order that such sum or sums be forthwith paid into the Bank of England in manner aforesaid, together with such further sum, to be charged on such assignee or assignees, or other party or parties personally, as to the said Lord Chancellor or to the said court may seem fit, not exceeding at and after the rate of £20 per centum per annum, on the sum or sums withheld, to be computed from the filing of such certificate up to the time of payment of such sum or sums; and also to make such further order as to costs as the justice of the case shall seem to require; provided always, that no such certificate as aforesaid of any unclaimed dividend or dividends shall be filed until the expiration of one year after the declaration and order for payment of such dividend or dividends.

And by sect. 8, the said Accountant-General in Chancery, or the said accountant in bankruptcy, as the case may be, shall, on the application of any assignee or assignees, give to him or them a certificate or certificates, stating the amount of any sum or sums of money which he or they may be desirous of paying into the Bank of England under the provisions aforesaid; and on the production of such last-mentioned certificate or certificates, the Governor and Company of the Bank of England shall receive the sum or sums therein mentioned, and give a receipt or receipts for the same, and shall forthwith carry the same to the credit of the said Accountant-General or the accountant in bankruptcy, as the case may be, to the said account intitled "The Unclaimed Dividend Account:" and every such certificate and receipt shall be given without fee or reward.

The court therefore has no longer any jurisdiction to distribute unclaimed dividends; or to order any payment to the assignees out of unclaimed dividends or out of the interest thereon (x); but this clause (5 & 6 Will. 4, c. 29, s. 6) gives the court power to order the payment of dividends to any creditor who may come in and claim (y). When the order for the distribution of unclaimed dividends, under the 6 Geo. 4, c. 16, s. 110, was obtained before the statute 5 & 6 Will. 4, c. 29, was passed, the passing of that statute did not prevent the commissioner from proceeding to the distribution under the order (z).

The official and sole assignee can file a bill against the personal representatives of a deceased assignee for an account of unclaimed dividends, and the non-claiming creditors need not be parties to the suit (a). Where an assignee died, having unclaimed dividends in his hands, the court, upon the petition of his executor, ordered

(x) Ex p. Gregg, 3 Dea. 308; 3 Mon. & A. 622.

(y) In re Pocklington, 1 Dea. 335; 2 Mon. & A. 729: Ex p. Bremidge, 2 Mon. & A. 732: Ex p. Bell, 1 Dea. 594;

2 Mon. & A. 733.

(2) Ex p. Curtis, 1 Dea. 583; 2 Mon. & A. 732.

(a) Green v. Weston, 3 Mon. & A. 414; 3 My. & C. 385.

the fund into court, but refused to release the executor until new assignees were appointed (b). It seems that the Statute of Limitations will be a bar to a claim for dividends, if the assignees set it up as a defence (c).

SECTION 15.

Costs.

What, and by whom payable.] By stat. 6 Geo. 4, c. 16, s. 14, the petitioning creditor or creditors shall, at his or their own costs, sue forth and prosecute the commission until the choice of assignees, and the commissioners shall, at the meeting for such choice, ascertain such costs, and by writing under their hands direct the assignees (who are hereby thereto required) to reimburse such petitioning creditor or creditors such costs out of the first money that shall be got in under the commission; and all bills of fees or disbursements of any solicitor or attorney employed under any commission, for business done after the choice of assignees shall be settled by the commissioners, except that so much of such bills as contain any charge respecting any action at law or suit in equity, shall be settled by the proper officer of the court in which such business shall have been transacted, and the same, so settled, shall be paid by the assignees to such solicitor or attorney: Provided that any creditor (d), who shall have proved to the amount of twenty pounds or upwards, if he be dissatisfied with such settlement by the commissioners, may have any such costs and bills settled by a Master in Chancery, who shall receive for such settlement, and the certificate thereof, twenty shillings and no more. By 1 & 2 Will. 4, c. 56, s. 45, there shall be paid to the Lord Chancellor's secretary of bankrupts upon the granting of every fiat, in lieu of a commission of bankrupt, by virtue of this Act, the sum of £10; and by s. 46, there shall be paid to the said Accountant-General, to be paid by him to the like account, (see sect. 45), by the official assignee of each bankrupt's estate to be administered in the said Court of Bankruptcy, out of the first monies that shall come into his hands, and immediately after the choice of assignees by the commissioners, the sum of twenty pounds. And by s. 55, for the purpose of raising a fund to meet the compensations hereinbefore directed to be made to the said patentees and commissioners of bankrupt, there shall be paid by the official assignee of each bankrupt's estate to be administered in the said Court of Bankruptcy, immediately after the choice of the assignees by the creditors, or so soon afterwards as a sufficient sum shall come into his hands for the purpose, over and beyond the sum hereinbefore directed to be

(b) Ex p. Raikes, 3 Dea. 494; Mon. & C. 96.

(c) Ex p. Clarkson, 3 Mon. & A. 154. (d) See Ex p. Walker, 1 Glyn & J.95.

paid by such official assignee, the sum of ten pounds, into the Bank of England, to the credit of the said Accountant-General, to be carried to a separate account, to be intitled "The Secretary of Bankrupts' Compensation Account;" and in like manner there shall be paid to the said Accountant-General, to be placed by him to the like account, by such official assignee, for every sitting of the said Court of Bankruptcy, or of any division, judge, or commissioner thereof, other than the sitting at which any person may be adjudged a bankrupt, or any sitting for the choice of assignees, or any sitting for receiving proofs of debt prior to such choice, or any sitting at which any bankrupt shall pass his or her last examination, or any sitting at which any dividend shall be declared, or any sitting at which the bankrupt's certificate shall be signed by the commissioners, the sum of one pound, and for every such sitting at which a dividend shall be declared a sum of money or fee according to the amount at such sitting ordered to be divided, such fee being regulated by the following scale; videlicet, for all sums not exceeding ten thousand pounds ten shillings in every one hundred pounds, and for any excess above ten thousand pounds two shillings and sixpence in the one hundred pounds; such several payments to be made within one week after such sittings respectively shall be held; and all monies to be paid into the said last-mentioned account shall be subject to such general orders touching the payment in, investment, accounting for, and payment out of such monies for the purposes herein before provided, as the Lord Chancellor shall from time to time think fit to prescribe; and when and as such last-mentioned compensations shall from time to time cease to be payable, it shall be lawful for the said Lord Chancellor, as he may see fit, to direct that lesser sums shall be paid by the said official assignees at the several times and for the purposes last aforesaid. Upon the loss by the petitioning creditor of his evidence to support the fiat, the Court of Review will not, on a petition by another person for another fiat, order him to be exempt from paying the £10 and £20 under 1 & 2 Will. 4, c. 56, s. 45, 46 (e).

The costs to be paid by the petitioning creditor consist of the bill of the solicitor who sued out the fiat, and the bill of the messenger for the business done, up to the choice of assignees. (For items of this bill, see ii. p. 165, post). He is also entitled to be allowed, out of the bankrupt's estate, costs incurred by him in successfully resisting a petition to supersede the fiat (ƒ), or a sum paid to a creditor to render him a competent witness to support the fiat (g). Upon the hearing of a petition for substituting a petitioning creditor's debt, the court declared the rule to be, that, if a commission fail through a mistake of law or of fact, by the petitioning creditor, the costs will be paid out of the estate; but if it fail in consequence of the misconduct or fraud of the petitioning creditor, he will have to pay the costs occasioned by such fraud,

(e) Er p. Osborne, 4 Dea. & C. 398; 2 Mon. & A. 140.

(f) Ex p. Bottomley, 5 Mad. 91.
(g) Ex p. Forth, 2 Mon. & A. 381.

and of the consequent application to the court (h). But the party who employs the solicitor to sue out the fiat, though he is not the petitioning creditor, is liable to the solicitor for the costs up to the choice of the assignees, where no effects are realised under the fiat (i).

The solicitor is not liable to the messenger for his bill unless in cases of fraud; but where the commission was issued at the instance of the solicitor, and the petitioning creditor was merely the instrument of the solicitor's fraud, and was insolvent, the court ordered the solicitor to pay the messenger's bill to the choice of assignees (k).

The costs to be paid by the assignees consist of the bills of the solicitor and messenger for business done subsequently to the choice of the assignees, and costs of all actions and suits in equity by or against the assignees, and all collateral proceedings arising from the bankruptcy. (For the items of such bills, see ii. p. 164, post). And for these costs the assignees are liable, although the commission be superseded, and whether they have assets or not (1); and they may afterwards reimburse themselves out of any assets they may get in: but it has been recently held, that the solicitor cannot, in bankruptcy, compel the assignee to pay his bill if there are no assets, though he is entitled to an inquiry as to whether there are assets (m). And where the assignees acted under the commission, and disposed of part of the estate, and commenced an action, in which they failed to establish a sufficient trading, whereby the commission became invalid, the assignees, and not the petitioning creditor, were held liable for the costs incurred in their attempt to support the commission (n). Even after final dividend the assignees have been holden liable for the amount of the messenger's bill; for they should have reserved sufficient to satisfy that demand before they distributed all the funds (6). But the assignees are not liable to the messenger for his fees before the choice of assignees (p). If a suit in equity be commenced or carried on, by the directions of the assignee, but without the consent of the creditors previously obtained at a meeting called for the purpose, according to the directions of the statute, (see post, sect. 18), the assignees will be liable for the costs, and they cannot charge them to the estate (q). An agreement of the assignees to pay interest on the amount of the solicitor's bill of costs will not bind the estate, even though it is sanctioned by a resolution at a general meeting of the creditors (r).

By the 1 & 2 Will. 4, c. 56, s. 47, in all cases of commissions of bankrupt, which by virtue of the provisions herein contained

(h) Er p. Cousins, 2 Glyn & J. 271. (i) Pocock v. Russell, 4 Car. & P. 14; 1 Mood. & M. 357.

(k) Er p. Burwood, 2 Glyn & J. 70. (Er p. Hartop, 9 Ves. 109; 12 Ves. 349: and see Er p. Vaughan, 14 Ves. 513: Er p. Coates, 3 Dea. & C. 626; 1 Mon. & A. 328.

(m) Ex p. Adams, 2 Mon. & A. 706:

and see Anon., Buck, 475.

(n) Er p. Paul, Mon. & M'A. 185. (o) Er p. Hartop, 1 Rose, 449. (p) Burwood v. Felton, 3 B. & C. 43. (q) Ex p. Whitchurch, 1 Atk. 210; Jones v. Yates, 3 Y. & J. 373.

(r) Er p, Philipps, 1 Dea. 368; 2 Mon. & A. 526.

shall be removed into the said Court of Bankruptcy, and under which the choice of assignees shall have taken place prior to the commencement of this Act, there shall be paid by the assignees of every such bankrupt's estate, in lieu of all other sums directed to be paid under and by virtue of this Act, the sum of three pounds on every sitting under such bankruptcy which shall be held under the said court, or by any division judge or commissioner thereof, such sum to be paid to the said Accountant-General, and to be carried to the said account, intitled The Secretary of Bankrupts' Account:" Provided always, that no fee whatever shall be paid on any meeting for the purpose of auditing the assignees' accounts, unless there shall appear to the commissioners to be sufficient assets of the bankrupt's estate for the payment thereof. Where a country fiat is superseded because the commissioners decline to act, and a new fiat issues to a London commissioner, this is not a renewed fiat under this section, so as to be exempt from payment of the usual fees on a town fiat (s).

For costs on petition, see sect. 17, post.

Taxation of them.] By 6 Geo. 4, c. 16, s. 14, the petitioning creditor's costs, namely, the solicitor's and messenger's bills, up to the choice of assignees, are "ascertained" or taxed by the commissioners at the meeting for the choice of assignees; and the commissioners shall direct the assignees to pay them; and the clause then provides, that "all bills of fees and disbursements of any solicitor or attorney employed under any commission, shall be settled by the commissioner;" and if any creditor of £20 shall be dissatisfied with such "settlement," he may have the bills re-taxed. It seems, therefore, that this proviso is confined to costs incurred after the choice of assignees (t); but the court, under the general jurisdiction will, on petition, refer the solicitor's or messenger's bill, up to the choice of assignees, to one of the registrars to be re-taxed (u); but as these constitute in fact but one bill, the messenger should not be brought before the court on an application to tax (v). It was formerly held, that the application to the court being in the way of appeal, errors must be pointed out specifically (x), or it must appear that the solicitor had refused to give a copy of his bill (y), or that the commissioners had excluded the assignees or their solicitor from being present at the examination (2), to induce the court to order such a revision; but the practice is now altered, and the creditor may petition to have a bill up to the choice of assignees taxed, without stating the objectionable items in his petition (a). But if the application is not under the statute, but the general jurisdiction of the court, objectionable items must still be stated (b); and an

(s) In the matter of Wellman, 4 Dea. & C. 810; 2 Mon. & A. 292.

(t) Er p. Moore, 1 Dea. 578; 3 Mon. & A. 699.

(u) Er p. Key, Mon. 133; Er p. Neale, Buck, 111: Ex p. Emery, Buck, 422: Er p. Earl of Uxbridge, 1 Ves. 425: Ex p. Pring, 3 Dea. 322; 3 Mon. & A.

607.

(v) Er p. Pring, supra.

(x) Ex p. Brereton, 4 Mad. 479.
(y) Er p. Sutton, 4 Mad. 395.
(2) Ex p. Palmyr, 2 Glyn & J. 34.
(a) Ex p. Key, Mon. 133.

(b) Er p. Moore, 1 Dea. 578; 3 Mon. & A. 699.