in assumpsit by the original plaintiff, the defendant pleaded the plaintiff's bankruptcy, and that the causes of action in the original suit accrued before the plaintiff became bankrupt. On special demurrer, for that the plea did not show, whether the judg- ment was recovered before or after the bankruptcy:-Held, that the plea was bad, inasmuch as it did not ap- pear but that the bankruptcy might have been pleaded in bar of the ori- ginal action. Baylis v. Hayward, 4 A. & E. 256; S.C. 5 Nev. & M. 613.
(When a competent Witness.) See WITNESS.
(Effect of, during Action pending.) C. brought an action against F. in the Lord Mayor's Court for the reco- very of a debt, and issued an attach- ment against B., who had in his hands funds belonging to F. W. filed a bill against C., B., and F., claiming a lien on the funds, and obtained an injunction ex parte to restrain pro- ceedings in the action. Whilst the injunction was in force, F. became bankrupt: Held, that though C. might, but for the injunction, have sued out execution long before F. became bankrupt, yet he was not entitled to be paid otherwise than rateably with the other creditors. Ullock v. Barber, 6 Sim. 300.
Biddings were ordered to be open- ed, on a sale of mortgaged premises, on an advance of 1901, on 310l. Ex parte Hutchinson, re Hunt, 2 Mont. & A. 727.
BILLS AND NOTES. (Where Consideration illegal.) Assumpsit by the drawer against the acceptor of a bill of exchange. Plea, that the defendant, being a trader, was indebted to the plaintiff in 100l. and upwards, and also to divers other persons in large sums of money; that he became a bankrupt, and a fiat upon the petition of the plaintiff was awarded against him; that before he was adjudged a bank- rupt, or had obtained any certificate of conformity to the fiat, it was wrongfully, and against the form of the bankrupt laws, agreed between the plaintiff and defendant, without the concurrence of the other credit- ors, that the plaintiff should abandon the fiat and all proceedings there- under; and that in consideration thereof the defendant should accept the said bill of exchange, and deliver the same to the plaintiff. The plea then averred the acceptance and de- livery of the bill accordingly, and that the consideration in the plea mentioned was the consideration for the acceptance thereof.-Held, on demurrer to the plea, that the agree- ment therein set forth, on the part of the plaintiff, to abandon the fiat, was illegal, on the ground of its being an abuse of a process which a creditor
has a right to sue out, not for his own benefit only, but for the benefit of the other creditors also. Davis v. Holding, 1 Tyrwh. & Gr. 371; S. C. 1 Mees. & W. 159.
(Proof of Consideration.) A creditor of a bankrupt, who has absconded with his books of account, and had never surrendered to the fiat, applied to prove on two bills, one for 2001. and the other for 1231., the consideration for which the cre- ditor alleged to be goods sold by him to the bankrupt; but no entry appeared in the creditor's books of the sale of those goods, nor did he adduce any evidence of the fact be- yond his own statement:-Semble, that the Commissioner was, under the circumstances, justified in reject- ing the proof. Ex parte Knight, re Lewis, 1 Deac. 408.
(When affected by Usury.) A creditor advanced money to the bankrupt by discounting bills, paya- ble within three months from the date, and on the security of the de- posit of goods, and took more than 51. per cent. for the discount:-Held, that this was within the provisions of the 3 & 4 Will. 4. c. 98. s. 7., and that the contract was not usurious. Ex parte Knight, re Pownall, 1 Deac. 459.
Where a bill of exchange, exhibited by a creditor at the time of his proof, is lost before a dividend is declared,
| the Commissioner should, on the ap- plication of the creditor, give special directions to the official assignee to pay the dividend, without requiring the production of the bill. Ex parte Wallis, re Hambly, 1 Deac. 496.
(Presentment-Notice of Dishonour.) An offer of composition made by the acceptor of several bills to the holder, in the presence of the drawer, accompanied by a declaration that the acceptor could not, and would not, provide for them when due, does not dispense with the necessity of presenting them when due, and giving notice of their dishonour to the drawer, although the drawer urges the holder to agree to the com- position. Ex parte Bignold, re Brere- ton, 1 Dea. 712; S. C. 2 Mont. & A. 633.
A person ostensibly carrying on the profession of a proctor, is made a bankrupt as a bill-broker, and the evidence to prove the trading is, generally, " that he procured bills to be discounted, that he carried on the business of a bill-broker, and that on one occasion he was employed to get a bill for 487. discounted:"- Held, that this was insufficient evidence of the trading; as the affidavits did not specify the name of any party, to whom the bankrupt applied to dis- count any bills, or with whose money the same were cashed, nor even state the whole of the particulars of any
one of such bills. Ex parte Harvey, | sions of the Stamp Act, 55 Geo. 3. c.
BILL IN EQUITY. See SUIT IN EQUITY.
The bankrupt, previous to his marriage, entered into a bond that in case his wife should survive him, and should within two months after his death, at the costs and charges of his heirs or devisees, release her dower, his heirs or executors should within three months after his death pay to her 20001. The wife survived the bankrupt, but did not, within two months after his death, release her dower, although she was always ready and willing to do so. - Held, that the bond was not proveable, either under the first or last part of the 56th section of the Bankrupt Act, inasmuch as the contingency had not happened, and no value could be set upon it. Ex parte Davies, re Harvey,
Where a creditor, who had proved a bond debt, had subsequently lost the bond, the Court made an order that he might receive the dividends on his debt, without producing the bond, upon affidavit of the facts, and indemnifying the assignees. Ex parte Robins, re Phillips, 1 Deac. 587.
A bond to secure all monies, which a party may draw out from, or owe to, a bank, does not cover sums paid by the bank on such unstamped drafts as are declared illegal by the provi-
184. s. 13. Swan v. Bank of Scotland, 1 Dea. 746; S.C. 2 Mont. & A. 656. A bond executed by the defendant on the 1st March 1832, as surety for J., was conditioned for payment of 51. interest on a principal sum of 2007. on the 1st March 1833, 5l. on the 1st March 1834, and 205l. on the 1st March 1835. The first year's interest was not paid till March 30th 1833, and in June 1833 the defendant became bank- rupt.-Held, that the bond had become forfeited before the bank- ruptcy, and was therefore proveable under the defendant's commission. Skinner's Company v. Jones, 3 Bing. N. C. 481.
A creditor of a bankrupt, who has absconded with his books of account, and has never surrendered to the fiat, applies to prove on two bills, one for 2001., and the other for 1231, the consideration for which the creditor alleges to be goods sold by him to the bankrupt; but no entry appears in the creditor's books for the sale of those goods, nor does he adduce any evidence of the fact, beyond his own statement: --Semble, that the Com- missioner was, under the circum- stances, justified in rejecting the proof. Ex parte Knight, re Lewis,1 Deac. 408.
Quære, whether the Commissioner is justified in rejecting a proof, merely on the ground of non-compliance of
the creditor with a general rule, which the Commissioner has adopted for his own practice, namely, not to permit the proof of a debt, unless the books of the party applying to prove contain satisfactory evidence of the debt. Ex parte Knight, re Lewis, 1 Deac. 408.
(Signature of by the Commissioners.) Where one Commissioner of the Court of Bankruptcy had attended to the proceedings under a fiat, and had taken the bankrupt's last exa- mination, and the bankrupt obtained the signature of another Commis- sioner to his certificate,-the Court referred the certificate back to the first Commissioner, in order to exa- mine the bankrupt, and decide whe- ther he would sign his certificate. Ex parte Burn, re Isaacs, 1 Deac.
Where one of the Commissioners refused to sign the bankrupt's certi- ficate, because the assignees had as- signed all the bankrupt's estate to the bankrupt's son, upon the latter securing 10s. in the pound to all the creditors, and the Commissioner thought that for this cause the com- mission should be superseded; the certificate was sent back to the Com- missioners for their re-consideration; Lord Manners saying, that the Com- missioners are only to look that the bankrupt gives a full account of his effects; the disposal of them belongs to the assignees. In re Baily, 2 Molloy (Irish), 444.
A trustee, who was directed to convert the whole of the testatrix's
property into money, and place the same out at interest upon mortgage, for the benefit of the cestui que trusts, employs the money in his business, paying interest to the parties entitled to it, and afterwards becomes bank- rupt and obtains his certificate, with- out any proof having been made under his commission for the amount of the trust money, either by himself, or the cestui que trusts, who were entirely ignorant of his misapplica- tion of the trust money; and he con- tinues to pay the interest to them after his bankruptcy, the same as before ;- he becomes bankrupt a second time, when the cestui que trusts discover that he had not invested the money pursuant to the trusts of the will. -Held, that his certificate under the first commission was a bar to any proof for the amount under the sub- sequent fiat. Ex parte Holt, re Makin, 1 Deac. 248.
The 127th section of the 6 Geo. 4. c. 16,-which declares that where the
estate of a bankrupt, who shall have been previously discharged by a cer- tificate under a commission of bank- ruptcy, or have compounded with his creditors, or have been discharged by an Insolvent Act, shall not pay 15s. in the pound, his certificate shall only protect his person from impri- sonment, and that his future estate shall vest in his assignees,-is re- trospective, and applies to discharges by bankruptcy or insolvency before the passing of the act, as well as to discharges obtained subsequently. Elston v. Braddick, 2 Cromp. & M.
A., in the year 1815, was dis- charged under an Insolvent Act, and in 1830 obtained his certificate under a commission of bankrupt issued in 1829, under which commission his estate produced less than sufficient to pay his creditors 15s. in the pound. In the year 1832 he opened an ac- count with the Bank of England, and deposited with the bank a sum of
2941. 15s.- Held, that an action for money had and received to recover this sum was maintainable by his as- signees against the bank. Ibid.
A previous composition, in order to defeat a certificate, must be with all the creditors. Where the bank- rupt, therefore, had only compounded with his principal creditors, and had paid the smaller ones in full:-Held, that such a composition did not deprive him of the benefit of his cer- tificate under a subsequent fiat. Ro- berts v. Harris, 2 Cromp. M. & R. 292; S. C. 5 Tyr. 1102.
A bankrupt is entitled to be dis- charged out of custody in an action, notwithstanding he did not obtain his certificate until after the action was brought. Osborne v. Williamson, 1
Money was invested in stock, pur- suant to a will, for the benefit of a legatee. An attorney obtained the legatee's authority, and a power from her trustee to sell out the stock, re- presenting that it might be better in- vested in a mortgage, and that he would find a proper security. The money was sold out, and the pro- ceeds received and held by the at- torney, he paying interest on the amount to the legatee, who did not know that the money had not been re-invested. Inquiries being after- wards made, the attorney admitted, after some evasion, that he had not re-invested the sum; but, upon being further urged, promised that he would do so, and at length proposed a mortgage (which was thought insuffi cient) on property of his own. No further satisfaction being offered, the legatee moved the Court of King's Bench against him, and a rule was made, by consent, (the attorney having filed no affidavit,) ordering that he should re-invest the money in stock, on or before the 24th June then next, and pay costs; and on default, that an attachment should issue against him. The money was not re-invested, nor costs paid; and on June 25th a fiat in bankruptcy issued against him, under which he in October following obtained his
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