all that there should be an adjournment. The registrar, therefore, was right on both points.

RIGBY, L.J.: In this case an important question is raised by the appellant as to the construction of section 20. If that section stood alone I should have some difficulty in arriving at the conclusion which I do, but I have to look also at section 105, subsection 2, and reading the two together I cannot doubt that the application for adjudication under section 20 can be adjourned under section 105. Section 20 gives a rule which ought generally to be followed; primâ facie, that is, it ought to be followed, but if good cause for an adjournment is made out the registrar has power to adjourn. He did not here in terms adjourn the application: as a matter of form perhaps it would have been better for him to have done so; but when we look at the substance of the thing he did in fact adjourn, and the question before us is whether such an adjournment was within his powers. I am of opinion that it was.

With regard to the facts we are in some difficulty. The object of this application was to obtain a construction of the section, and we have not been supplied with any information which would entitle us to say that the discretion of the registrar was wrongly exercised. He had the facts before him, and he was of opinion that an adjournment would be for the benefit of all, and we have no sufficient ground for disputing the exercise of his discretion.

Solicitors: Kime & Hammond, for the Debtor.

Appeal dismissed.

Solicitor to the Board of Trade, for the Official

Receiver.

T. H. W.

IN RE A BANKRUPTCY NOTICE, EX PARTE THE OFFICIAL RECEIVER.

1895, February 22. LORD ESHER, M.R., AND LOPES AND
RIGBY, L.JJ.

Bankruptcy Bankruptcy Notice-Nature of Debt-“ Final judgment” — Order in Bankruptcy setting aside Deed as against Trustee-Costs of Motion-Bankruptcy Act, 1883 (46 & 47 Vict. c. 52), s. 4, subs. 1 (g).

An order in bankruptcy, on a motion by the trustee, setting aside a deed of assignment by the bankrupt on the ground that it was void as against the trustee, and ordering the assignee under the deed to pay the costs of the motion, is not a final judgment within section 4, subsection 1 (g) of the Bankruptcy Act, 1883, and therefore a bankruptcy notice cannot be issued in respect of such costs.

EX PARTE appeal from refusal to issue a bankruptcy notice.

Upon a motion by the official receiver, as trustee in the bankruptcy of G. D. Bowie, an order was made by VAUGHAN WILLIAMS, J., setting aside a deed of assignment of letters patent by Bowie to C. Bassett as being void as against the trustee, and directing that an account should be taken of moneys received by Bassett under the deed, and that such moneys and the costs of the motion should be paid by Bassett to the trustee.

The costs of the motion were taxed at 30l. 13s., and the official receiver sought to issue a bankruptcy notice against Bassett in respect of this sum; but the registrar refused to allow the notice to issue on the ground that an order upon a motion in bankruptcy was not a final judgment.

M. Muir Mackenzie, for the official receiver.

[LOPES, L.J., referred to Ex parte Dale, In re Binstead (1).]

Lord ESHER, M.R.: All the authorities show clearly that an

(1) 4 R. 146; [1893] 1 Q. B. 199; 62 L. J. Q. B. 207; 68 L. T. 31; 41 W. R. 452.

order such as this is not a final judgment within the Bankruptcy Act, 1883, s. 4, subs. 1 (g).

LOPES, L.J.: It is clear that this is an order and not a judgment, and that it was not made in any action. We should be reversing several previous decisions of this Court if we allowed this appeal.

RIGBY, L.J.: This may be a final order, but it is not a judgment; and it is certainly not a judgment in an action, which has been decided to be the meaning of a "final judgment " in this subsection.

Solicitor: S. R. Pollard.

Appeal dismissed.

A. H. B.

IN RE BOYD, EX PARTE MCDERMOTT.

1895, February 22. LORD ESHER, M.R., AND LOPES AND RIGBY, L.JJ.

Bankruptcy Bankruptcy Notice-Non-compliance with─Nature of Debt—“ Final judgment"—Order to pay Costs-Judgment in Action to enforce Order— Bankruptcy Act, 1883 (46 & 47 Vict. c. 52), 8. 4, subs. 1 (g).

Judgment in an action to enforce an order to pay costs is a final judgment upon which a bankruptcy notice can issue under section 4, subsection 1(g) of the Bankruptcy Act, 1883, although the order to pay costs is not itself a final judgment within the subsection.

APPEAL from an order of Mr. Registrar Giffard, setting aside a bankruptcy notice.

In July, 1894, an order was made and was affirmed by the Court of Appeal, dismissing with costs an action brought by Boyd against McDermott, on the ground that it was frivolous and vexatious. The costs were taxed at 62l. 16s. 4d.

In November, 1894, McDermott brought an action against Boyd for the amount of the costs, and recovered judgment in default of appearance for 62l. 16s. 4d. and 4l. 14s. costs. Upon this judgment, McDermott issued a bankruptcy notice, requiring payment of 677. 10s. 4d.; but, upon Boyd's application, the registrar set the notice aside.

McDermott appealed.

Herbert Reed, Q.C., and Pollard, for the appellant:

Costs payable under the order of a Court can be recovered by action: Philpott v. Lehain (1). Even if it were not so, the Court cannot, upon an application to set aside a bankruptcy notice, go behind the judgment and inquire into its validity: In re Easton, Ex parte Dixon (2), In re Russell (3). There is in this case a final judgment within section 4, subsection 1 (g) of the Bankruptcy Act, 1883 (4); and the bankruptcy notice is, therefore, regular.

(1) 35 L. T. 855.

(2) 10 Morr. 111.

(3) 5 Morr. 258; 37 W. R. 21. (4) A debtor commits an act of bankruptcy in each of the following

cases:

"(g) If a creditor has obtained a

Turrell, for the debtor :

This case is covered by the dictum of Mr. Justice CAVE in the case of In re Shirley, Ex parte Mackay (5): "Under the Bankruptcy Acts, a notice can be served only in respect of a final judgment, and if you can sue on a balance order you can get round the provisions of section 4. Take this case: A suitor gets an interlocutory order for costs, on which he issues a writ, and gets judgment under Order XIV., and then issues a bankruptcy notice, though he could not do so on the interlocutory judgment. How very mischievous this would be. I entertain very grave doubts, and I think for this and other reasons the Court is justified in dismissing the petition, surrounded as it is with so many irregularities and founded on a judgment of so doubtful a character." It was upon the authority of that expression of opinion that the registrar set aside this notice.

Lord ESHER, M.R.: An order was made by the Court of Appeal against Boyd for the payment of costs. Boyd was bound to obey that order; but, as it was not a final judgment (6), the appellant, who is the person who was entitled to receive the costs under the order, could not issue a bankruptcy notice against Boyd in respect of it. He therefore issued a writ for the amount; and it cannot be denied that he had a legal right to do so. Boyd did not appear, and judgment was given against him. His non-appearance does not make the judgment ineffective. There was no ground for setting it aside or questioning it in any way; and it was, therefore, a

final judgment against him for any amount, and execution thereon not having been stayed, has served on him in England, or, by leave of the Court, elsewhere, a bankruptcy notice under this Act, requiring him to pay the judgment debt, in accordance with the terms of the judgment, or to secure or compound for it to the satisfaction of the creditor or the Court, and he does not within seven days after service (5) 58 L. T. 237.

of the notice in case the service is effected in England. . . . either comply with the requirements of the notice, or satisfy the Court that he has a counter-claim, set-off, or cross demand which equals or exceeds the amount of the judgment debt, and which he could not set up in the action in which the judgment was obtained."

(6) See Ex parte Strathmore, In re Riddell, 20 Q. B. D. 312; 37 L. J. Q. B. 259; 58 L. T. 8:8; 36 W. R. 532.

M.-VOL. II.