A petition to stay a certificate, al-
leging that the petitioner was in-
formed that the bankrupt had lost
201. and upwards by gaming in one
day, is defective; the petitioner must
positively allege the fact, notwith-
standing it is positively sworn to by
a witness in support of the petition.
Sir J. Cross, dissent. Ex parte Per-
ring, re Campbell, 1 Deac. 266.
him to assign over to them the freight | the creditors of C. had an interest,
and earnings of the ship N~, on her so as to entitle the assignees to sue
then present intended voyage, from as trustees. Leslie v. Guthrie, 1 Scott,
London to the East Indies and back, 683.
as collateral security for the due pay-
ment of the 1600l., and of such fur-
ther sums as might be due or owing
from him to J. & Co. for costs of in-
surance, and upon the balance of all
accounts between them, not exceed-
ing in the whole 3000l., C., by in-
denture, assigned to J. & Co. all and
every the sum and sums of money
that was or were due, or which should
or might, at any time or times there-
after, arise and become due to him
by any person or persons " for or on
account of the freight, earnings, and
profits of the ship N—, under or by
virtue of any then existing or future
charter-party or charter-parties, or
other contract or contracts, for or in
respect of her said then intended voy-
age to India and back to England," in
trust for J. & Co. to reimburse them-
selves the 1600l. and interest, toge-
ther with such further sums as might
be due to them upon the balance of
accounts between them and C., not ex-
ceeding in the whole 3000l., rendering | Ex parte King, re Watkins, 2 Mont.
the surplus to C., of which assignment & A. 676.
the defendant had notice; and that
C. was indebted to J. & Co. in the
sum of 23841. 4s. 11d., which sum ex-
ceeded the amount due for freight as in
the declaration mentioned.-Held, that
the plea was a good answer to the
action, the assignment being of the
freight of a single intended voyage
then in course of being performed,
and there being no surplus, in which
On a petition to stay the bank-
rupt's certificate, for having lost 201.
at play, where the affidavits are con-
tradictory as to the fact, the Court
will direct an issue. Ex parte Fife,
re Phibbs, 1 Deac. 418.
A person collected subscriptions
from the members of a club, of which
he was the secretary, to run grey-
hounds, and became bankrupt:-Held,
that the debt did not arise through
gaming, and that the treasurer of the
club might prove for the amount.
HABEAS CORPUS.
And see COMMITMENT.
A bankrupt, being in the custody
of the Marshal of the Marshalsea in
execution for debt, was brought up
before the Subdivision Court of the
Commissioners of Bankrupt for exa-
mination, and was by that Court or-
dered to be committed to Newgate,
for not answering satisfactorily;
whereupon the keeper of Newgate
delivered him to the messenger, who
delivered him back to the Marshal
of the Marshalsea. On an applica-
tion by the bankrupt for a habeas
corpus, under these circumstances,
the writ was refused, both because
the bankrupt's answers were held to
be unsatisfactory, and because it did
not appear that the bankrupt was
actually detained in custody on the
warrant of the Commissioners. Ex
parte Knight, 2 Mees. & W. 106.
A bankrupt, being detained as a
prisoner in the Fleet on several ac-
tions, was committed by the Com-
missioners, by a warrant addressed
to the keeper of Newgate, authoriz-
ing the keeper to detain him till he
made answer to the satisfaction of
the Commissioners; and the warrant
was delivered to the Warden of the
Fleet. On being brought up to be dis-
charged by habeas corpus:-Held, that
the bankrupt was not in the custody
of the Warden under this warrant;
and that the Court therefore could
not inquire into its validity. Ex parte
Garcie, 3 Bing. N. C. 299.
And see RE-HEARING.
Where there is a petition and cross-
petition, the former cannot be heard,
unless an order is obtained for the
hearing of the latter, upon which the
opposite case can alone appear. Re
Pim, 2 Molloy (Irish), 452.
ILLEGAL DEBTS.
See PROOF-GAMING.
IMPERTINENCE.
The hearing of a petition referred
for scandal will be stayed; aliter, of
a petition merely referred for imper-
tinence. But if certain affidavits
only are referred for scandal, and the
party can proceed without them, the
hearing may then proceed. Ex parte
Gomm, re Gomm, 1 Deac. 366.
When affidavits, not read on the
hearing, are alleged to be impertinent,
the Court will direct the officer, on
taxation of costs, to disallow the costs
of them, if he shall consider them to
be impertinent. Ex parte Harvey, re
Box, 1 Deac. 571.
Anciently, where affidavits were
prolix or impertinent, it was thought
to be too late to complain, after the
party had used the affidavits; but
now the Court will apply itself to set
right the extra costs caused by the
prolixity or impertinence, at any
time. Ex parte Townsend, re French,
3 Molloy (Irish), 74.
IMPOUNDING COMMISSION.
A commission issued against the
bankrupt in 1823, under which a cre-
ditor omitted to prove his debt, be-
ing informed there were no assets.
A subsequent fiat was issued against
the bankrupt in 1834, who had not
then obtained his certificate under
the former commission, when the
Court ordered the commission to be
impounded. A petition by the cre-, Ex parte Lees, and Ex parte Heatherly,
ditor, praying that the commission
might be delivered out of the office,
to enable him to go in under it, and
prove his debt, was dismissed with
costs. Ex parte Martin, re Kenton,
1 Deac. 44.
IMPOUNDING FIAT.
A separate fiat was impounded, to
give effect to a subsequent joint fiat,
with a special order as to the transfer
of proofs, and the continuance of the
assignees under the separate fiat. Ex
parte Digby, Ex parte Buckton, re
Blenkin, 1 Deac. 341; S. C. 2 Mont.
& A. 735.
If a party proves a debt on a bill,
and proceeds at law for the same
debt, the Court will issue an injunc-
tion to restrain the action. Ex parte
Diack, 2 Mont. & A. 675.
INROLMENT.
See CERTIFICATE.
The defendant gave a warrant of
attorney to the plaintiff, to secure the
payment of a debt by instalments.
Shortly before the first instalment
was due, the defendant told the
plaintiff that he feared he could not
meet it, and that unless time was
given him, he would make over his
effects for the benefit of his creditors.
An agreement was then entered into
between the plaintiff and defendant,
that defendant should give his ac-
ceptance for a part, and pay the rest
by instalments, according to his abi-
lity, so as to discharge all before
April 1, 1836, and that the plaintiff
should not enter up judgment, unless
the defendant should dispose of his
business, or become bankrupt or in-
solvent. The defendant paid the
acceptance when due. Afterwards,
and before April 1, 1836, the de-
fendant asked the plaintiff to make
him a bankrupt, in order to relieve
him from his difficulties, and said
B., a minor, living with A., his
father, takes an active part in his
father's business, who puts his son's
name over the door in conjunction
with his own. The father, without
any authority from his son, enters
into an agreement with C. to become
a partner with him in a separate
trade, and signs this agreement in
his son's name, as well as that of him-
self. After B. becomes of age, a
joint fiat is issued against A., B., &
C., upon a debt contracted with that
firm before B. attained his majority;
and the only evidence, to prove that
B. was a partner with C., is the agree-
ment signed by the father, and the
fact of B.'s name appearing over his
father's door, but not over the door
of C.-Held, that B. was not pre-
cluded, under these circumstances, that he could not pay 20s. in the
from petitioning to annul the fiat. | pound, and that his assets were 2001.,
and his debts 300l.-Held, that the
plaintiff might enter up judgment and
take out execution, as the defendant
appeared to be insolvent in the sense
contemplated by the agreement; and
that the facts above stated did not
show that the plaintiff, at the time of
the agreement, knew the defendant
to be insolvent in that sense. Biddle-
combe v. Bond, 4 Adol. & E. 332;
S. C. 5 Nev. & M. 621.
The expression" becoming insol-
vent" means a general inability to
pay debts, and does not signify
merely taking the benefit of the In-
solvent Debtors' Act, unless the con-
text so restrains it. Ibid. And see
Shears v. Rogers, 3 B. & Adol. 362.
A. and B. agreed for the sale by
B. to A. of all the salt that should
be manufactured at certain salt-works
of B.; all payments to be made
quarterly, by acceptance at three
months; the agreement to continue
binding for 14 years, but bankruptcy
or insolvency on the part of A. was to
terminate the contract.-Held, that
the term Insolvency meant an inability
in A. to pay his just debts, and did
not import that he should have
been discharged under the Insolvent
Debtors' Act. Parker v. Gossage, 2
Cromp. M. & R. 617; S. C. 1 Tyr.
& Gr. 105.
And see SOLICITOR.
Notwithstanding a trader takes the
benefit of the Insolvent Act, and the
debt of a creditor be duly inserted in
the schedule, the debt is still a good
petitioning creditor's debt to support
a subsequent fiat. Ex parte Bar-
rington, re Barrington, 1 Deac. 3.
A party, on taking the benefit of
the Insolvent Act, swore that certain
goods, described in her schedule,
belonged to the creditors of her de-
ceased husband; but afterwards
brought an action to recover them,
claiming them as her own.-Held,
that the fact of her so swearing, and
afterwards setting up a right to the
goods in herself, was an inconsistency,
for the consideration of the jury; but
that such oath did not estop her from
asserting her claim. Thornes v. White,
1 Tyr. & G. 110.
In order to support a security,
made by an insolvent to a creditor
within three months before he is
committed to prison, it is not neces-
sary for the latter to prove pressure
by him of the insolvent. It is for
the assignees of the insolvent, who
seek to avoid the security under the
provisions of the 7 Geo. 4. c. 57. s.
32., to make out that it was the
voluntary act of the insolvent. Doe
d. Lamb v. Gillett, 1 Tyr. & G. 114;
S. C. 2 Cromp. M. & R. 579.
The words "to the satisfaction of
such Court," in the 48 Geo. 3. c. 123.
s. 1., mean, that the Court is to be
satisfied that the prisoner has lain in
prison for twelve months for a debt
not exceeding 201.; and matter not
relating to those facts cannot be urged
against the application for his dis-
charge. Baxter v. Clarke, 1 Tyr. &
G. 133.
An action by an attorney for his
charges, incurred in selling or mort-
gaging the property of a party con-
fined in prison for debt, after such
party has petitioned the Insolvent
Court for his discharge, cannot be
resisted on the ground that such sale
or mortgage was fraudulent, as
against the creditors of the insolvent.
The only ground, it would seem, on
which such an action can be defended,
is, that the insolvent could derive no
benefit from the plaintiff's skill.
Tabram v. Warren, 1 Tyr. & G. 153.
If assignees of a bankrupt or in-
solvent declare in debt, so as to
make it sufficiently appear that they
are assignees, it is not requisite to
allege that they sue "as assignees."
as assignees."
Ferguson v. Mitchell, 1 Tyr. & G.
179; S. C. 2 Cromp. M. & R. 687.
The assignees of an insolvent de-
clared in debt, that the defendant was
indebted to the insolvent before he
subscribed his petition, or executed
the assignment of his estate, under
the Insolvent Act, 7 Geo. 4. c. 57.,
for goods sold and delivered by him
"before he became insolvent :"-
Held, that the time when the debt
accrued was sufficiently pleaded.
Ibid.
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A debtor, who has been in execu-
tion for a year for less than 201.,
cannot be discharged from foreign
custody, under 48 Geo. 3. c. 123.,
without annexing to his affidavit a
copy of the causes in which he is in
custody, verified by the proper offi-
cer. Short v. Williams, 1 Tyr. & G.
231.
Semble, that the discharge of an
insolvent, under 7 Geo. 4. c. 57., ap-
plies only to the debts specified in
the schedule, and not to all the debts
due to the creditors named in the
schedule. Bishop v. Polhill, 1 Mood.
& R. 363.
Where to a bill filed by the assig-
nee of an insolvent debtor, the de-
fendant pleaded that the consent of
the creditors, and of the Insolvent
Debtors' Court, had not been ob-
tained; the plea was overruled.
Casborne v. Barsham, 6 Simons, 317.
In a foreclosure suit against an
insolvent mortgagor, and the provi-
sional assignee of the Insolvent Court,
who claims no interest, the plaintiff
must pay the costs of the assignee,
and add them to his debt. Weaving
v. Count, 6 Sim. 439.
A bill by an insolvent, to set aside
an assignment by his assignee of his
interest under his father's will, stating
a special case of collusion between
the assignee and the executors, is not
demurrable. Barton v. Jayne, 7 Sim.
24.
An insolvent debtor, on the 12th
September 1834, executed a warrant
of attorney, on which judgment was
signed, and he afterwards went to
prison. Subsequently his goods were
seized and sold under a fi. fa. on the
judgment, and the proceeds were paid
to the judgment creditor. On a sub-
sequent day the insolvent petitioned
to be discharged under the Insolvent
Debtors' Act, 7 Geo. 4. c. 57.; and
his effects were on the 16th Novem-
ber duly assigned under the provisions
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