1834. Ex parte In the matter of MACKENZIE had contracted some debts. On the 25th of June 1811 the partnership was formed on the express stipulations, 1st, that Mackenzie was not to apply any of the joint funds to his own private use, and, 2d, that each partner was to receive 700l. per annum. In December 1812 and another. the property in question was fraudulently taken by Mackenzie, and applied by him to his own private use, and no entry thereof was made in the books. On discovering the fraud, Turner remonstrated with Mackenzie on the impropriety of his conduct, and Mackenzie promised to pay the money, and the transaction was then entered in the books. March 24. Is this mere subsequent knowledge? Is it not more? Is it not knowledge and dissent? Doing, at the same time, all that could be done to secure payment. The advances to the wife, and the advances for the partnership purposes, cannot be construed into evidence of previous assent or subsequent waiver. The Court of Review decided, that the proof which the commissioner had admitted must be expunged; that there was no evidence that the original taking was fraudulent, and if it had, yet the subsequent conduct of the partner was a waiver of the fraud. It is submitted such decision was erroneous. Mr. Rolfe: It appears that the respondents intend to rest their defence on the statement of the special case, "that after the bills had been so withdrawn by Mackenzie as aforesaid, and before the bankruptcy, the appropriation of the proceeds thereof to Mr. Mackenzie's private use was acquiesced in and approved of by Mr. Abbott," and mean to contend, that as the judgment of the Court of Review turned on that circumstance, which was a question of fact, no appeal lies, which can only be on a matter of law or equity, and not on a matter Mr. Rolfe:-But the appellants contend that it is not a matter of fact, but a question in which the fact and law are inseparably involved together. On a question, Who is the heir? the fact and the law are completely blended; the same occurs when a question arises as to the validity of a foreign marriage. By this mode of proceeding the right of appeal becomes almost a dead letter. LORD CHANCELLOR : No doubt questions of law and fact are often so wrapped up together as to render it nearly impracticable to separate them; as, whether a man be or be not the agent of another; whether a deed have been executed by an attorney, &c. In this case care should have been taken that the law and fact were winnowed clear of each other when the special case was drawn; or, if that were not possible, then a petition, and not a special case, should have been had recourse to, as was done in ex parte Keys. (b) I will take this opportunity of stating, that the act (c) (a) Subject to an appeal to the Lord Chancellor, on matters of law and equity, or on the refusal or admission of evidence only. 1 & 2 W. 4, c. 56, s. 3. (b) Ante, page 226. (c) "In cases of appeal to the Lord Chancellor by virtue of this 1834. Ex purte TURNER. In the matter of MACKENZIE and another. 1834. Ex parte In the matter of MACKENZIE and another. It is imperative on the Judges of the Court of Review to sign a special case. Quare. Can the is imperative on the Judges of the Court of Review to sign a special case, otherwise they might exclude the appellate jurisdiction. The Judge who signs or certifies a special case, does not thereby render himself responsible for the accuracy of the statements therein contained, nor for the propriety of the appeal; he merely signs the case, and discharges a judicial duty imposed by act of parliament. Mr. Rolfe: The respondents contend, that the question turns on matter of fact only; if so, the Court of Review had no appeal from the jurisdiction to entertain the case; this is clear from the view entertain a petition of rejection by the commissioner of a proof of debt words of the 1 & 2 W. 4. c. 56. ss. 30 and 31. Section 30 enacts, "That any one of the said six on a question of commissioners, if he think fit, may adjourn the exami fact? nation of any bankrupt or other person to be taken either before a Subdivision Court or the Court of Review, and may likewise adjourn the examination of a proof of debt to be heard before a Subdivision Court, which said Court shall proceed with such last-mentioned examination, and finally and without any appeal, except upon matter of law or equity, or of the refusal or of the admission of evidence, shall determine upon such proof of debts provided always, that in case, before the said commissioner or subdivision court, both parties, the assignees or the major part of them and the creditor, consent to have the validity of any debt in dispute tried by a jury, an issue shall be prepared under the direction of the said commissioner or subdivision court, and sent for tified by one of the judges of the ters arising out of the trial of issues; and the determination of such judge on the settlement of of such case shall be final and conclusive." 1&2 W. 4, c. 56, s.3. 1834. Ex parte trial before the chief judge or one or more of the other judges; and if one party only applies for such issue, the said commissioner or subdivision court shall decide whether or not such trial be had, subject to an appeal as to In the matter such decision to the Court of Review." TURNER. of MACKENZIE And section 31 enacts, "That if such commissioner and another. or subdivision court shall determine any point of law or matter of equity, or decide on the refusal or admission of evidence in the case of any disputed debt, such matter may be brought under review of the Court of Review by the party who thinks himself aggrieved, and the proof of the debt shall be suspended until such appeal shall be disposed of; and a sum, not exceeding any expected dividend or dividends on the debt in dispute in such proof, may be set apart in the hands of the accountant general, until such decision be made; and in like manner there may be an appeal on the like matter of law and equity from the Court of Review to the Lord Chancellor." Consequently it is not open for the other side to contend, that this a matter of fact, as, if so, the Court of Review would not have had jurisdiction to entertain the petition. LORD CHANCELLOR:-The objection of want of jurisdiction is preliminary. Was it taken in the Court of Review? Mr. Rolfe: The appellants did not take the objection, conceiving this to be a matter of law. The respondents now, for the first time, object it is a question of fact; to which we answer, if so, the Court of Review could not have entertained the question at all, and their decision must be on that ground reversed. 1834. Ex parte In the matter of and another. LORD CHANCELLOR:-The objection of want of jurisdiction, not having been taken below, cannot now be urged. This appeal must be dismissed, with costs. I had taken down the learned and able argument of MACKENZIE Mr. Montagu on the point of law, but I find this case another illustration of the common law maxim, that an ounce of fact is worth a pound of law. Appeal dismissed. Assignees' costs out of estate. L. C. March 25 & 27, 1834. Upon a new choice of as signees there is no necessity to vacate the assignment under a commission issued prior to 1 & 2 W. 4. c. 56. A SMITH v. DE TASTET. BILL was filed by Smith, as assignee of Eliseé, to set aside an assignment of a legacy given to the bankrupt, which assignment had been made to the defendant after he had notice of an act of bankruptcy. The bill stated that a commission issued against Eliseé (previous to the establishment of the court of bankruptcy), under which Le Taverner, since deceased, and Rubichon, who then resided in Italy, were chosen assignees, to whom the usual assignment of the personal estate of the bankrupt was made by the commissioners; that by an order of the Court of Review, Rubichon, the surviving assignee, had been discharged, and the plaintiff had been duly chosen and appointed in his stead, and was the sole assignee. To this bill the defendant demurred, on the ground that, as no assignment had been made by Rubichon to the new assignee, nor the original assignment vacated under the provisions of the statute (a), the estate was still (a) 6 G. 4, c. 16, s. 66. |