order from having their petition dis- | Ex parte Stone, re Whitehead, 2 Mont.
missed with costs. Ex parte Ben- & A. 503.
ham, re Bramwell, 1 Dea. 26.
(Of Petitioning Creditor.)
The solicitor to the petitioning
creditor may petition that the assig-
nees may pay him, the solicitor, the
amount of the petitioning creditor's
costs up to the choice of assignees,
without the petitioning creditor being
a party to the petition. Ex parte
(Bankrupt's Liability to.)
Where a bankrupt, on a petition
to annul a fiat, pressed for further
inquiry as to the validity of the pe-
titioning creditor's debt, against the
opinion of the Court, and the matter
was accordingly referred to the De-
puty Registrar, who reported the | Benson, re Tay, 2 Mont. & A. 582.
debt was a good one; the Court
ordered the bankrupt to pay the
costs of the inquiry, there being no
estate in the hands of the assignee.
Ex parte Neirincks, re Neirincks, 1
(Costs of the Day.)
One of several respondents, not
having been served with the petition,
the Court ordered it to be re-an-
swered, on payment of the costs of
the day. Ex parte Potter, re Potter,
(Of Impertinent Affidavits.)
Anciently, where affidavits were
prolix or impertinent, it was thought
too late to complain after they had
been used; but now the Court will
apply itself to set right the extra
costs occasioned by the prolixity or
impertinence, at any time. Ex parte
Townsend, re Finch, 3 Molloy (Irish),
74.
(Of abandoned Notice of Motion.)
On an abandoned notice of motion,
the application for costs, on affidavit
of having been served with the no-
tice, may be made on a future day.
(Indemnity against.)
Where an assignee had sold by
public auction the outstanding debts
due to the bankrupt's estate, he was
held to be entitled to an indemnity
against costs of suits to be instituted
by the purchaser in his name, for
the recovery of the debts. Ex parte
Little, 3 Molloy (Irish), 67.
A solicitor cannot take a deposit
of title deeds, as a security for future
bills of costs. Ex parte Laing, re
Dudderidge, 2 Mont. & A. 381.
Where the bankrupt applies for
an issue before his final examination,
it is the practice of the Court to
grant it, upon his finding security
for costs. But he may bring an ac-
tion without finding such security.
In re Dowling, 2 Molloy (Irish), 443.
(Of Re-hearing.)
See RE-HEARING.
(Of Re-sale)
See SALE.
(Taxation of.)
See TAXATION.
And see PETITIONING CREDITor.
The bankrupt entered into a deed
of composition with his creditors, by
which they released him from his
debts-Held, that a promissory note
subsequently given to a creditor was
nudum pactum, and consequently a
bad petitioning creditor's debt. Ex
parte Hall, re Hall, 1 Dea. 171.
An assignee anticipating that the
bankrupt's estate would pay 20s. in
the pound, is induced to make up that
sum to a creditor, who has already re-
ceived a dividend of 14s. in the pound.
The assignee becomes bankrupt, the
creditor is chosen an assignee in his
room, and the estate does not pay
more than the dividend already de- |
clared. -Held, that the party was
liable to refund the surplus above
14s. in the pound, on the petition of
a creditor who had proved under the
commission; and he was ordered to
pay the amount into Court. Ex parte
Grimwood, re Harvey, 1 Dea. 394.
A recognizance to the crown, en-
tered into by a bankrupt and his
sureties, on his being appointed
guardian and receiver to the estate
of an infant, will not entitle the bank-
rupt's sureties, who had been obliged
to make good monies due from him
to the infant's estate, to be preferred
to the creditors under the commis-
sion; as it is not a debt really due to
the crown, but a mere form to se-
cure a debt due to the subject. In
re Dutton, 2 Molloy (Irish), 442.
DEMURRER.
See SUIT IN EQUITY.
And see EQUITABLE MORTGAGE—
LIEN.
Palmer & Co., having borrowed a
large sum of the Bank of Bengal,depo-
sited the East India Company's paper
with the bank to a great amount as a
collateral security, accompanied with
an agreement in writing, authorizing
the bank, in default of re-payment of
the loan by a given day, "to sell the
Company's paper for the reimburse-
ment of the bank, rendering to
Palmer & Co. any surplus." Before
default was made in the re-payment
of the loan, Palmer & Co. were de-
clared insolvents, under the Indian
Insolvent Act, (9 Geo. 4. c. 73.) by
the 36th section of which it was de-
clared, that when there had been
mutual credit given by the insolvents
and any other person, one debt or
demand might be set off against the
other, and that all such debts as
might be proved under a commission
of bankruptcy in England, might be
proved in the same manner under
the Indian Insolvent Act. At the
time of the adjudication of the in-
solvency, the bank were also holders
of two promissory notes of Palmer
& Co., which they had discounted
for them before the transaction of
the loan, and the agreement as to the
deposit of the Company's paper.
The time for re-payment of the loan
having expired, the bank sold the
Company's paper; the proceeds of
which, after satisfying the principal
and interest due on the loan, pro-
duced a considerable surplus. In an
action by the assignees of Palmer &
Co. against the bank, to recover the
amount of this surplus,-Held, that
the bank could not set off the amount
of the promissory notes; and that the
case did not come within the clause
of mutual credit in the Bankrupt
Act. Young v. Bank of Bengal, 1
Dea. 622.
&c., accruing to S. Clark v. Gilbert,
2 Bing. N. C. 343; S. C. 2 Scott,
520.
The depositary of a lease for se-
curing a debt is liable to the rent and
covenants, although he has not taken
possession of the premises. Flight
v. Bentley, 7 Sim. 149.
And see EXAMINATIONS EVIDENCE.
The depositions taken before the
Commissioners are, under the 6 Geo.
4. c. 16. s. 92., evidence of the pe-
titioning creditor's debt, the trading,
and the act of bankruptcy, in an ac-
tion of trover brought by the assig-
nees, although the declaration states
a conversion in the time of the as-
signees only; provided the cause of
action be one, for which the bank-
rupt himself might have sued. Kit-
S. C. 4 Nev. & M. 710.
For ascertaining whether or not
the cause of action is within the se-
cond section of the statute, the crite-
rion is, whether the bankruptcy be
only a formal step in the evidence,
or whether it be so essentially a part
of the ground of action, that, without
proof of it, there would be no right
of action in any party,-as in the
The defendant held a certain lease
in his hands belonging to S., on
which he had a lien for 300l., as S.'s
attorney. A commission of bank-
rupt was issued against S. in Decem-chen v. Paver, 3 Adol. & E. 232;
ber 1829, the defendant acting as
attorney under the commission; and
in 1831, after notice of a petition to
supersede it, he joined with the as-
signees under the commission in a
sale of the lease, and out of the pro-
ceeds was paid the 3001. due to him
from S. The commission having
been superseded in 1832 for want of
a sufficient petitioning creditor's debt,
and a fiat in bankruptcy having sub-case of an action by the assignees
sequently issued,-Held, that the de- for a fraudulent preference, — in
fendant was liable to refund the 300l., which last case the defendant ought
in an action for money had and re- not to be concluded by the evidence
ceived to the use of the assignees taken by the Commissioners. And
under the second commission, and the question, whether the depositions
also money received in 1831 for rent are admissible or not, is to be de-
cided by the judge, upon the opening | dividends among the bankrupt's cre-
of the evidence at the trial. Kitchen ditors; but no final order had been
v. Paver, 3 Adol. & E. 232; S. C. 4 made for their distribution :-Held,
Nev. & M. 710.
that the Court had no power, after
the passing of the 5 & 6 Will. 4. c.
29., to make such final order. Re
Pocklington, 1 Dea. 335.
On a petition to reverse the adju-
dication and annul the fiat, the depo-
sitions are not evidence against the
bankrupt, unless notice of the intent
to use them is given, and copies
allowed. Ex parte Goodwin, 2 Mont.
& A. 532.
Semble, that on a petition to annul,
the depositions on the proceedings
cannot be read in evidence, although
notice to read them has been given,
unless copies were also tendered. |
Ex parte Thurkill, re Durrant, 2
Mont. & A. 672.
DISCHARGE FROM ARREST.
And see BANKRUPT.-CERTIFICATE.
A bankrupt is entitled to be dis-
charged out of custody in an action,
although he obtained his certificate
after the action was brought, and al-
though the fiat issued long before
the action was commenced, and not-
withstanding he had pleaded without
setting up his bankruptcy, and had
given a cognovit, conditioned for pay-
ment at a later period than judgment
would have been obtained in the re-
gular course. Osborne v. Williamson,
1 Mees. & W. 550.
And see UNCLAIMED DIVIDENds.
Before the passing of the 5 & 6
Will. 4. c. 29. s. 5., a preliminary
order had been obtained under the 6
Geo. 4. c. 16. s. 110., with a view to
the distribution of certain unclaimed
Where a bill of exchange exhi-
bited by a creditor at the time of his
proof is lost before a dividend is de-
clared, the Commissioner should, on
application of the creditor, give spe-
cial directions to the official assignee
to pay the dividend, without requir-
ing the production of the bill.
Ex
parte Wallis, re Hambly, 1 Dea. 496.
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 Dea. 587.
If a creditor holding a security for
his debt cannot produce it on apply-
ing to receive a dividend, the Com-
missioner shall adjudge whether the
creditor is or is not able to produce
it; and if he shall be of opinion that
the security cannot for a sufficient
cause be produced, the creditor must
give a sufficient indemnity to the
official assignee, to be approved by a
Commissioner; upon which the offi-
cial assignee may then pay the divi-
dend to the creditor. Lord Cotten-
ham's General Order, 14th May
1836, App. 692.
When a check has been signed by
the accountant in bankruptcy for the
payment of a dividend to a deceased
creditor of a bankrupt, the indorse-
ment of the check by the executor
or administrator of the creditor will
be sufficient. Lord Cottenham's Ge-
neral Order, 1st July 1836, App. 693.
When the amount of a dividend is
set apart and invested under 1 & 2
Will. 4. c. 56. s. 31., until the deci-
sion of the Court of Review as to a
disputed debt, and the proof is sub-
sequently allowed, the creditor is not
entitled to interest. Ex parte Lewis,
2 Mont. & A. 670.
Although a docket is struck im-
properly for a London fiat, a party
applying for a country fiat is not en
titled to an ex parte injunction to
stay the issuing of the London fiat.
Re Ings, 2 Mont. & A. 671.
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 20007. The wife sur-
vived the bankrupt, but did not,
within two months after his decease,
release her dower, although she was
always willing to do so.-Held, that
the bond was not proveable, either
under the first or the last part of
the 56th section of the Bankrupt
|