1812. WILLIAMS v. BIRD. beth Grimes, by virtue of the Power, given to her by a Settlement, appointed George Sly and John Millard to be Trustees, in the Place of Two other Persons, and to act in the Trusts of the Settlement; that Millard, who was appointed Receiver, invested certain Sums of Money, being Part of the Petitioner Elizabeth Grimes's Share of the Rents and Profits of real Estates, in the Purchase of different Sums to the Amount, in the whole, of £438 ls: 8d. in the 3 per Cent. Bank Annuities, in the Names of Sly and Millard, upon the Trusts of the Settlement; and by the said Deed-Poll it was declared, that they should stand possessed of the said £438: 1s: 8d. and other Stock, and of the Interest and Dividends thereof, upon the said Trusts; which Funds remained standing in their Names accordingly. The Petition farther stated, that Sly became insolvent; and absconded in March 1803, and a Commission of Bankrupt issued against him; under which he had been declared bankrupt; that he never surrendered; but departed the Kingdom, and went beyond Seas; and had not hitherto returned; that, if now living, he is resident in some Foreign Country, and incapable of acting in the Trusts of the Settlement. The Petition then set forth, that Elizabeth Grimes had, by another Deed-Poll, in 1812, appointed Thomas Mitchell, a Trustee with John Millard in the Place of Sly; and, submitting, that by virtue of the Act 36 Geo. 3. c. 90 (a), Millard, as one of the present Trustees of the said Trust Funds, was alone competent under the Order of the Court to make a Transfer into the joint Names of himself and Mitchell, upon the Trusts of the Settlement, prayed an Order accordingly. (a) Shaw v. Wright, 3 Ves. 22; the Case which gave Occasion for this Act of Mr. Mr. Johnson, for the Petitioners, stated, that the Bank of England would not suffer the Transfer to be made without an Order; and suggested, whether an Inquiry was necessary. The MASTER of the ROLLS, upon the Affidavit of the Solicitor to the Commission, stating the Facts of the issuing of the Commission, that the Bankrupt did not surrender, and that the Deponent has been informed, and believes, that the said George Sly absconded from this Kingdom and went to America, or to some Parts beyond the Seas, and had never since returned, and is not likely ever to return to this Kingdom, made the Order. 1812. WILLIAMS 0. BIRD. THE ROYAL BANK OF SCOTLAND, THE HE Object of this Petition was to supersede a cate of the Bankrupts might be stayed. 1812, Nov. 11. 13. Upon Petition to stay a Bankrupt's Certifi cate Affidavits, Sir Arthur Piggott, and Mr. Cullen, in support of the filed after the Petition, applied for Leave to file an Affidavit. Sir Samuel Romilly, Mr. Hart, and Mr Montague, for the Assignees. The Lord CHANCELLOR. It is now clearly settled by Lord Rosslyn's General Order (a), that a Petition to stay a Certificate must be (1) 1 Rose's Bpt. Ca. p. 375. S. C. (a) 12th April, 1796. 2 Co. Ba. La. 299. Petition pre sented, ad mitted only in General Rule, that a Petition to stay a Bankrupt's Certifi cate failing is dismissed with Costs; unless Misconduct of the Bank rupt. B 3 supported 1812. بہت The ROYAL BANK of SCOTLAND, Ex parte. supported by Affidavits, filed at the Time of presenting it; which has been adhered to so tenaciously, that a Variation, I believe by an Order of mine (a), has gone to this Extent only; that, if Affidavits in Reply are necessary, they may be made Use of, notwithstanding that Order; and, giving Leave to file this Affidavit, I desire to be understood, that it is not my Opinion, that such Affidavit, if tendered, could be read. Such being the Rule, I have done this without Scruple; where a Petition has been presented to stay a Certificate, and, upon the Fact of a Debt, proposed to be proved, and the Bankrupt applied upon the Ground, that it would not turn the Certificate, I have directed the Secretary, or the Commissioners, to look into the Proofs with that View; and, if they certified accordingly, I have not delayed the Certificate. As to the Petition to supersede the Commission, I see no Difficulty in ordering that Petition to be immediately heard, without Prejudice to what may be urged, as to any Suit going on in the Court of Session in Scotland. Nov. 13. The Petition, having been withdrawn, a Question arose as to the Costs. Sir Samuel Romilly, Mr. Hart, and Mr. Montague, insisted, that it is almost of course, that a Petition to stay a Certificate shall, if dismissed, be dismissed with Costs; and, though this Petition had also another Object, it was a proper Case for Costs: a great Body, contending with Individuals; whose Certificate had been stayed; which (a) 16th Nov. 1805. 2 Co. Ba. La. 294. 11 Ves. 542. would would not have been permitted, if the Lord Chancellor had been aware, that this Debt would not turn the Certificate. Sir Arthur Piggott, and Mr. Cullen, denied, that it is almost of course to give the Costs; and contended, that this was not a Case, to be so marked: the Petitioners, Creditors to the Amount of £58,000, residing at a great Distance; and unacquainted with the Practice here; and the Certificate being stayed only a few Days. The Lord CHANCELLOR. The general Rule certainly is, that, where a Petition to stay a Certificate fails, the Petitioner pays the Costs; unless in the Transaction there is some Misconduct on the Part of the Bankrupt. Here you have not fixed any Misconduct upon the Bankrupts; and therefore the Costs, if demanded, must be paid; but merely by the Effect of the general Rule; not as setting any Mark upon the Conduct of the Petitioners. Bankrupts are frequently crushed by the Expence of supporting their Certificates; which has produced the Rule, that they shall have the Costs, if the Opposition to the Certificate does not succeed; unless in maintaining it there is some Species of Misconduct; which perhaps may not affect the Certificate; but still may form a Ground for refusing the Costs. 1812. The ROYAL BANK of SCOTLAND, Ex parte. The Petition was dismissed with Costs (a). (a) Ex parte Gardner, post, 45. B4 STAINES 1812, Nov. 11. 16. Under a Contract for the Assignment of a Term, whe ther from the original Lessee, or a mesne Assignee, the Pur chaser must covenant for Indemnity against Payment of Rent and Per formance of Covenants; though he cannot have a Covenant for the Title from the Assignor; as being an Executor; and also by express Stipulation. Costs do not follow the Event of the Suit; where a fair Question is raised. TH STAINES v. MORRIS (1). HE Bill, filed in this Cause, prayed the specific Performance of an Agreement, entered into by the Defendant, for the Purchase of Two Leasehold Dwelling Houses, Part of the Estate of the late Sir William Staines. A specific Performance was decreed at the Rolls; and, an Inquiry was directed, whether the Indenture of Assignment, tendered by the Defendant, to the Plaintiffs, on the 24th of December, 1807, for their Execution, was a proper Assignment. The Master's Report stated, that the Sale was by Auction, on the 10th of November, 1807, with public Notice, in the Presence of the Defendant, and a particular Notice previously to his Agent, that the Vendors, who were described in the Particular as Executors and Devisees in Trust, would not covenant for the Title; as Executors never did covenant farther, than that they had done nothing to encumber. By the Abstract of the Title it appeared, that the original Lease was made on the 13th of February, 1793, to George Clarke; who, by a Deed-Poll, dated the 26th of September, 1795, assigned the Premises to Sir William Staines, for the Remainder of the Term, subject to the future Rent and Covenants. That Assignment, which was executed by Clarke only, contained a Covenant on the Part of Sir William Staines, for himself, his Executors, Administrators and Assigns, to pay the Rent, and perform the Covenants, in the original Lease reserved and contained on the Tenant or Lessee's Part; and to indemnify Clarke, his Heirs, Executors, and Administrators, from the same; and under that Assignment the Testator took the Premises. (1) Wilkins v, Fry, 2 Rose's Bkpt. Cas. 371, and 1 Merivale, 244. The |