BANKRUPTCY.

[Containing Cases in 3 Deacon, Part 2, omitting Cases noticed in former Digests.]

AFFIDAVIT. See PRACTICE, 1, 6, 8.

ANNUITY.

(Retainer of part of purchase money.) Where the bankrupt, having received 4001., being the whole consideration for the grant by him of an annuity, half an hour afterwards, and at a different place, paid 100l., part of such sum, to an attorney, whom he had employed in the transaction, and to whom it was not denied that he was indebted to that amount, and who was not shown to have been employed in the business as the agent of the grantee: Held, that this was not a retainer or return of part of the purchase money within the provisions of the Annuity Act, 53 Geo. 3, c. 141, s. 6.—Exp. Bogue, re Basun, 314.

ANNULLING.

1. (Equitable grounds.) During the pendency of a suit instituted in equity by a creditor against a debtor, for the purpose of realising certain securities, and for an account of what was due, in which suit the liability to pay the greater part of the sum claimed was disputed by the debtor; the creditor proceeded to take out a fiat upon an affidavit of debt, charging the whole amount claimed, without allowing any thing for the securities, and procured himself to be elected provisional assignee, and a meeting was held for the choice of assignees, but no creditors appeared on petition of the bankrupt, supported by affidavit that he was solvent, and had no other creditor, the Court, in the exercise of its equitable jurisdiction, annulled the fiat. Diss. Erskine, C. J.-Exp. and re Hall, 405.

2. (Evidence-Onus probandi.) Where there appears sufficient on the face of the proceedings to support the fiat, and the bankrupt has been furnished with copies of the depositions, semble, that on a petition by bankrupt to annul, some evidence in disproof of the depositions must be adduced on his behalf, before he can call upon the other party to support the fiat.-Exp. and re Ford, 494.

3. (Infancy.) Semble, that where one of several bankrupts under a joint fiat is an infant, the fiat may be annulled as to him, and yet stand good as to the other.— Ezp. and re Watson, 277.

APPEAL.

(Refusal of special case.) Where, after one of the judges of the Court of Review had refused to certify for a special case, on the ground that the question was one of fact, a petition of appeal was presented to the Lord Chancellor; the latter, after conferring with the judge of the Court of Review, dismissed the petition with costs, but with liberty to apply to the Court below for a rehearing.—Exp. Woodward, re Turner, 293.

ASSIGNEE. See COSTS.

BANKRUPT.

(Destitution—Indulgence.) A bankrupt, who had been committed by the commissioners for not answering to their satisfaction, and who had been lying twelve months in gaol, was, in consideration of his long imprisonment and his destitute condition, ordered, upon his own petition, to be re-examined at the costs of the estate.-Exp. and re Crossley, 492.

And see EXPUNGING PROOF; JURISDICTION.

BENEFIT SOCIETY.

(Bankrupt treasurer.) Where the bankrupt, on her appointment as treasurer of a benefit society, had agreed to pay interest on 120l., part of the funds delivered over to her as treasurer: Held, that such sum was not converted into a debt, but remained in her hands as trust money.-Exp. Ray, re Woodliffe, 537. CERTIFICATE.

(Petition to stay.) A petition to stay the certificate was presented by a partner of the bankrupt, stating that a large amount would be found due to him on account, and alleging, as objections to the certificate, that it had been signed by certain creditors whose debts ought to have been expunged, and that a certain other debt due to the petitioner had been improperly expunged; but not stating the whole probable amount that would be due to the petitioner, nor alleging that if these errors were corrected, there would not be sufficient in numbers and value of the creditors to support the certificate: Held, by reason of these omissions, and also because the assignees were not made parties, and because it was not alleged that the bankrupt was a party to the improper proceedings, with which the assignees were charged, and because another person, who was a co-partner with the bankrupt and the petitioner, was not made a party, and because it was not stated that all the partnership debts were satisfied; that the petitioner had not stated a case for staying the certificate. Diss. Sir J. Cross.-Exp. May, re Malachy, 382. CLERK.

(Six months' wages.) A clerk who voluntarily leaves his master because he finds him becoming insolvent twelve months before the bankruptcy, is not entitled to six months' salary under 6 Geo. 4, c. 16, s. 49.—Exp. Gee, re Sawer, 341. COSTS.

1. (New choice of assignee.) Where an assignee, who had been chosen without his authority, declined to act, the costs of the new choice of assignees were ordered to be paid out of the estate.-Exp. Pearson, re Stephenson, 324.

2. (Notice of prior fiat.) A party who, as it was shown on the petition, had no. tice that a country fiat had been actually opened, though such fact was not known at the Bankrupt Office, two days after the time had elapsed for opening such fiat, struck a docket in London, upon which he afterwards applied for a fiat, which was refused at the office, when the opening of the country fiat was then known; he then presented a petition for a fiat, but it was dismissed with costs. -Re Wood, 514.

And see BANKRUPT.

CO-TRUSTEES.

(Whether to be viewed as partners.) Held, that the rules preventing proof by joint

creditor against the separate estate of one partner while there is another partner solvent, applied to the case of co-trustees.-Erp. Bauerman, re Lomax, 476.

EQUITABLE MORTGAGEE.

1. (Leave to bid.) An equitable mortgagee, on asking leave to bid, will not be excused from paying the deposit money if he should become the purchaser.Exp. Wilson re Maltby, 545.

2. (Merger.) Where an equitable mortgagee, after notice of an act of bankruptcy, took a conveyance of the legal estate: Held, that his equitable mortgage was not thereby merged, but remained good, notwithstanding the invalidity of such conveyance. Exp. Harvey, re Emery, 547.

ESTOPPEL.

(Admission of payment.) Where the bankrupt, by deed granting an annuity to the petitioners, acknowleged a certain sum to have been received by him as the consideration for the annuity; and in a subsequent memorandum of an account between him and the petitioner had admitted the same sum to be due, and had continued for ten years to pay the annuity without objection, an affidavit tendered by him in opposition to proof by the petitioner, stating that a considerable portion of the consideration-money had not been paid him, was considered no ground for rejecting the proof, though the examination of the petitioner himself was in some respects unsatisfactory.-Erp. Fairman, re Lloyd, 467.

And see PROOF, 1.

EVIDENCE.

(Previous contradictory deposition.) A previous deposition by a witness, at variance with his present affidavit, is a ground only for a vivá voce examination of such witness upon the points upon which he has contradicted himself, and can be received in evidence only for that purpose, and as affecting his general credit. Quare, whether secondary evidence (by affidavit of by-stander) of such previous deposition is admissible. Exp. Chambers, 1 Dea. 197; Exp. and re Newall, 333

And see PRACTICE, 10.

EXPUNGING PROOF.

1. (Petition by bankrupt.) In a petition by bankrupt to expunge à proof, it should be alleged that there is a probability either of a surplus or of his being entitled to an allowance.-Exp. and re Pitchforth, 487.

2. (Time of objection.) It is no sufficient reason for expunging a proof that there was a valid objection to it at the time such proof was made, as, for instance, that there was a solvent partner; if previous to the application to expunge the ob jection has ceased to exist, as by such partner becoming insolvent.-Exp.¡Bauerman, re Lomax, 476.

JOINT STOCK BANK.

(Liability to bankrupt laws.) A shareholder in a Joint Stock Banking Company, established under 7 Geo. 4, c. 46, as amended by 1 & 2 Vict. c. 96, is a trader within the bankrupt laws (unless where he has purchased shares for the purpose of bringing himself within their operation), and by the special provision of those statutes a fiat may be sued out against him for a debt due to the concern, upon an affidavit of the secretary or public officer of the company, though according to the general law of partnership one partner cannot be made a bankrupt by another for a debt due to the firm.-Exp. and re Hall, 405.

JURISDICTION.

1. (Concurrent proceedings.) The pendency of a petition before the Lord Chancellor to annul a fiat, did not prevent the Court of Review from making an order establishing that fiat as against another, subject to the decision of the Lord Chancellor on the petition before him.-Exp. Higgs, re Evans, 474.

2. (Discharge of bankrupt from custody.) Quære, whether the Court of Review has jurisdiction on petition to discharge from custody a bankrupt who has been committed by a Commissioner for not giving a satisfactory answer, or whether the proper mode of redress for the bankrupt is not by writ of "habeas corpus.” Such an order was, however, made upon petition. (Dubitante, Sir G. Rose,) -Exp. and re James, 515 (and see cases in note).

3. (Fund in Court.) Where, under a former order, money had been paid into Court to the credit of the estate of a creditor deceased: Held, that the Court had no jurisdiction to divide such fund among his creditors; but an order was made for transfer of the fund to the Accountant General of the Court of Chancery, as soon as the proper bill shall have been filed in that Court for administering the estate.-Exp. Williams, re Knight, 378.

NOTICE.

(Striking docket.) The striking a docket is not conclusive evidence against the party doing it, that he had knowledge of an act of bankruptcy; but in the case of any claim made by him which would be defeated by such knowledge, it throws upon him the onus of proving that he had not such knowledge.—Exp. Swinburne, re Field, 396.

And see ORDER AND DISPOSITION; TRUST DEED.

ORDER AND DISPOSITION.

(Sealed packet — Reputed ownership.) The bankrupt handed over to his sister, the petitioner, as a security for money advanced, the certificates of certain shares in a mining company, together with an agreement binding him to complete the transfer when required. The petitioner inclosed them in a packet, which she sealed up and delivered to the bankrupt, in whose house she resided, to be kept in his iron safe: Held, that as the bankrupt could not have got at the shares without breaking the seal, which would, it seems, have been a felony (see 2 Dea. Crim. Dig. 752), they were not in his order or disposition.

It was held also, in the same case, it being proved that the bankrupt, long before his bankruptcy, had given notice to one of the directors of the deposit, and that this director had, on the morning of the day on which the act of bankruptcy was committed, communicated the fact to the board, that the shares (which were in a foreign mining company, see Exp. Pollard, 2 Dea. 496) were not in the reputed ownership.-Exp. Richardson, re Richardson, 496.

PARTNERS.

1. (Debt, joint or separate.) A. being indebted to C. on three bills of exchange, B. guarantees the payment of them, one of them being then due, which in consideration of such guarantee is renewed, and afterwards A. and B. enter into partnership; when the renewed bill falls due, A. and B. remit to C. a portion of the amount and solicit his indulgence for the remainder; and on a subsequent occasion A. and B. wrote again to C. for indulgence, saying that they were taking means to satisfy all liabilities, and C. among others. To these letters C. returned no answer, but forbore in each case to take hostile proceedings: Held, on the subsequent bankruptcy of A. and B., that there was not such an adoption

by C. of the firm for his creditors, as to entitle him to prove against the joint estate. Exp. Hitchcock, re Worth, 507.

2. (Deceased solvent partner.) The rule which prevents a joint creditor proving against the separate estate of one partner, while there is another solvent partner, does not apply to the case where a partner has died leaving an estate solvent.Exp. Baurman, re Lomax, 476.

And see Co-TRUSTEES; JOINT STOCK BANK; PROOF, 2.

PETITIONING CREDITOR.

(Solicitor.) A solicitor may take out a fiat as petitioning creditor for his bill of costs before it is taxed; but if upon taxation it is reduced below 1001., the fiat will be annulled.-Exp. and re Ford, 494.

And see TRUST DEED.

PLEADING. See CERTIFICATE; EXPUNGING PROOF, 1.

PRACTICE.

1. (Affidavit--Filing and title.) An affidavit in proof of an act of bankruptcy, which was sworn at Manchester before a Master Extraordinary in Chancery, and which was not entitled in any Court, held to be sufficient; and held also that the same was properly filed in the Registrar's Office of the Court of Bankruptcy-Exp. and re Hall, 405.

2. (Certificate.) The certificate of the commissioners under the composition contract clause need not state that no creditor to the amount of 501. resided out of England. Exp. and re Butterworth, 395.

3. (Competing commissions.) Where of the five commissioners to whom a renewed commission had been directed in 1816, two were since dead, and two were removed to a considerable distance, and a new fiat had been issued; the Court thought that the renewed commission of 1816 ought to be superseded; but as a petition to supersede the new fiat was pending before the Chancellor, the order of supersedeas was made conditional upon the Chancellor rejecting such petition. The Court observed that there was a difference between superseding an original and a renewed commission.-Exp. Higgs, re Evans, 474.

4. (Direction of fiat.) The Court refused to alter the direction of the fiat from country to London, merely because a majority of the creditors resided in London. (See Exp. Gregg, 3 Dea. 381.)- Exp. Rawlinson, re Jones, 535.

5. (Incorporation of fiats.) For the greater advantage of the estates, the Court ordered two prior separate, fiats, under which assignees had been chosen and a dividend declared, to be incorporaied with a subsequent joint fiat.-Exp. Lister, re Haddon, 516.

6. (Irregular notice, 1 & 2 Vict. c. 110, s.. 8.) Where an affidavit, under the above act, had been filed against the trader, but the notice which ought to have been given after, had been given before the filing of such affidavit, and the creditor, upon discovering such irregularity, had withdrawn the notice; the Court refused, on petition of the trader, to take such notice off the file, as the creditor was entitled, if he chose, to give a fresh notice.-Exp. Gibson, 531.

7. (Power of attorney.) One power of attorney from several creditors held to be sufficient authority to the attorney to sign a consent for all to annul the fiat.Anon. 377.

8. (Revival of order.) A petition to revive a former order will be granted as of course, unless some hardship arises from the revival.- Exp. Evans, re Ellis, 381.