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TRADING.

A party who bought six carcases of houses, for the purpose of finishing them, and selling them again when he had made them habitable, and who ordered materials for this purpose, representing himself to be a builder, may be made a bankrupt, as a builder, within the 6 Geo. 4. c. 16. s. 2. Ex parte Neirincks, 1 Dea. 78. A person ostensibly carrying on the business 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 481. 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 discount 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, re Box, 1 Deac. 571.

One single instance of trading is insufficient to support a fiat, when the intent to trade generally is not proved. Ex parte Wilkes, re Tarrant, 2 Mont. & A. 667.

TRUST.

On the 3d January the petitioner pays a sum of money to the bankrupt's agent at Edinburgh, for the purpose of being remitted to London to retire a bill; on the 4th January the agent receives notice that his principal had stopped payment on the 2d January; and he does not, therefore, remit the money to London. On the 6th January the petitioner requires the agent to return the money, which he declines. On the 26th January, a fiat is issued against the principal; and the assignees, in stating an account with the agent, allow 2000l. to remain in his hands on account of a counter claim he had against the bankrupt, and received a balance from the agent.Held, (Erskine, C. J. dissent.) that under these circumstances the presumption was, that the assignees had received the money so paid to the bankrupt's agent; which having been paid on a trust, and for a particular purpose which had failed, the assignees were bound to restore to the petitioner, unless they could prove that the money never actually came to their hands. Ex parte Simpson, re Maberly, 1 Dea. 47.

By the rules of an Insurance Com

A lodging-house keeper, not prov-pany, no person, except a Director, ed to have sold provisions, is not a trader.

Ibid.

TROVER.

See ACTIONS.-LIEN. SHERIFF.INSOLVENT.-STOPPAGE IN TRANSITU.

was permitted to hold more than two shares in his own name; but no rule prevented a person from being beneficially entitled to two shares, by holding them in the name of another party. A proprietor, who was al

ready the holder of two shares, hav-| became a partner in the house of

trade, the testator's whole capital should continue therein, A. B. and the other partners giving to his executors their joint bond for the amount. A. B. becomes a partner, the bond is given, and the firm become bankrupt; and the trustees proved the amount due against the joint estate. Held, that the divi

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ing purchased two others, caused them to be entered in the name of the bankrupt in the Company's books, with the knowledge of one of the Directors and the Actuary. The bankrupt signed a declaration of trust, that he held the shares as trustee for the proprietor; but no notice of the trust was taken in the books of the Company, and the bank-dends on the proof should be invested rupt held the certificates of the in stock, and that the interest should shares, and continued to receive the accumulate, until the loss occasioned dividends thereon, accounting for by the bankruptcy was made good, them, from time to time, to the pro- and the whole of the principal sum prietor, up to the period of his bank- then due was realized. Ex parte ruptcy, when the shares were still King, re Severn, 1 Deac. 143. standing in his name; during all which time he was treated as the owner of them by the Company, had notice of meetings served upon him, attended meetings of the shareholders, and voted as a shareholder.Held, on appeal, that this was such a secret trust, as was not within the 79th section of the Bankrupt Act; and that the shares were in the order and disposition of the bankrupt, as reputed owner. Ex parte Bur-terwards gives each of the cestui que bridge, re Kidder, 1 Deac. 131.

A testator devises freehold property to trustees, of whom the bankrupt is one, upon trust to sell and divide the proceeds among his brothers and sisters, including the bankrupt and his co-trustee. The cestui que trusts, in consideration of a specific sum stated in the deed to be paid to each of them, but which in fact was not paid, convey the estate to the bankrupt, who a few days af

trusts two promissory notes for the payment of the money by instalments, but the notes are never paid.

A testator, who was possessed of a large capital in a house of trade in which he was a partner, bequeathed-Held, that the cestui que trusts had a the residue of his estate to trustees, of whom A. B. was one, upon trust to permit A. B. to receive the annual produce for his life, and after his death to transfer the principal to his children; directing, that if A. B.

lien on the estate in the hands of the bankrupt's assignees, for the money still remaining unpaid. Ex parte Latey, re Davis, 1 Deac. 557.

A. assigned 800l. to trustees, in trust, during the life of B., or such

part thereof as they should think, proper, or at such times and in such portions as they should judge expedient, to pay the interest to him,-or, if they should think fit, to lay it out in procuring for him diet and other necessaries, but so that he should not have any right to the interest, other than the trustees in their uncontrolled discretion should think proper, and so as no creditor of his should have any claim thereon, nor should the same be subject to his debts, dispositions, or engagements; and it was declared, that after his death the 8007., and all savings and accumulations of interest, if any, should be in trust for his children, and if he should have no child, then in trust for C. B. became bankrupt, the trustees having previously paid him the interest down to his bankruptcy.-Held, that his life interest in the 8007. passed to his assignees. Snowdon v. Dales, 6 Sim. 524.

TRUSTEE.

A trustee, who was directed to convert the whole of a 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 bankrupt and obtains his certificate, without any proof having been made under his commission for the trust money, either by himself, or the cestui que trusts, who were en

VOL. I.

tirely ignorant of his misapplication of the trust money; and he continued 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 subsequent fiat. Ex parte Holt, re Makin, 1 Deac. 248.

The Court has no power to order a trustee, who refuses to submit to the jurisdiction, to convey an estate to the assignees, which was devised to the trustee for the absolute use of the bankrupt's wife. Ex parte Abbot, re Sykes, 1 Deac. 338.

M. and A. being in partnership, A. marries M.'s daughter, upon which occasion M. gives to four trustees a bond for the payment of 5000l. at the expiration of a twelvemonth after his decease, and A. also agrees to pay to the trustees 50001. by instalments, subject to the trusts of the settlement, namely, to invest the money in the funds, and pay the interest of one moiety to A., and the other moiety to his wife for her sole use, with remainders over to the children, &c. M. and A. become bankrupt, only one instalment of 1000l. having been paid by A., and two of the four trustees are resident abroad.-Held, that the two other trustees might, without the concurrence of those abroad, prove against

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the separate estate of M. the 5000l. on his bond, and the balance of 4000l. against the separate estate of A., and receive the dividends, subject to further order. Ex parte Smith, re Manning, 1 Deac. 385.

One of several trustees cannot prove, without an order of the Court; aliter, one of several executors. Ib.

Where a cestui que trust applies for the removal of a bankrupt trustee, and serves the bankrupt with the petition, the bankrupt is entitled to the costs of his appearance. Ex parte Whitley, re Whitley, 1 Deac.

478.

On a petition by an assignee to set aside a claim made by trustees under a bankrupt's marriage settlement, Lord Manners said, that if it was fraudulent, a bill must be filed, but that he could not set it aside upon petition. Ex parte Bacon, 2 Molloy (Irish), 441.

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 dividends among the bankrupt's creditors; but no final order had been made for their distribution.-Held, 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; S. P. parte Bell, re Ewer, Ibid. 591; Ex parte Bremridge, re Cooke, 2 Mont. & A. 732.

Ex

Vendor and Purchaser.

But, where the final order for the distribution of unclaimed dividends was obtained before the passing of the 5 & 6 Will. 4. c. 29. s. 5 :—Held, that the provisions of that act did not prevent the order from being carried into effect. Ex parte Curtis, re Nantes, 1 Dea. 583; S. C. 2 Mont. & A. 732.

USE AND OCCUPATION. See LANDLORD AND TENANT.

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 deposit 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.

VENDOR AND PURCHASER.

And see PURCHASER.

The bankrupt contracted to purchase a factory, with a steam engine and other fixtures, for 36001.; and upon payment of 1000l. the vendor delivered him possession. The bankrupt did not work the factory, or occupy it himself, but retained the same man to take charge of it, who had been employed for that purpose by the vendor. The remainder of the purchase-money not being paid, the bankrupt, on the day before he committed an act of bankruptcy, re

INDEX.

Voluntary Conveyance.

857

sold at a profit. Ex parte Anderdon, re Manning, 1 Deac. 585.

The unpaid vendor of goods, re

Vendor and Purchaser. quested the vendor to re-sell the property, and pay himself what was due to him; and the vendor immediately took possession and gave no-maining in his own warehouse rent tice to the man in charge of the property, that he was thenceforth to take charge of it for the vendor, which he agreed to do.-Held, that the steam-engine and fixtures were not in the order and disposition of the bankrupt at the time of his bankruptcy. Ex parte Watkins, re Reinagle, 1 Deac. 296.

The bankrupt had bought some freehold property by auction, and had paid a deposit of 201. per cent. on the amount of the purchasemoney; but there being some dispute about the title, the purchase was not completed before the bankruptcy. Upon a petition by the vendor, that the assignee might be ordered to deliver up the agreement, and that the vendor might retain the deposit-money, a special order was made, giving the assignee a fortnight to elect whether he would fulfil or abandon the agreement; without prejudice to his right to a return of the deposit-money. Ex parte Bridger, re Glover, 1 Deac. 581.

Where a purchaser of the bankrupt's estate resells it, before the conveyance is executed to him by the assignees, the Court will, at his instance, order the assignees to convey the estate direct to the second purchaser, if no imputation is thrown on the fairness of the first sale; notwithstanding the estate has been re

free, may stop in transitu, although he has given the vendee a delivery order, under which part of the goods have been removed. Townley v. Crump, 5 Nev. & M. 606.

But such unpaid vendor is not the true owner of the goods, within the 72d section of the Bankrupt Act, so as to give an indefeasible property to the assignees of the vendee, as goods in his possession, order, and disposition, with the consent of the true owner. Ibid.

In 1828 A., a trader, conveyed his estates and certain monies due to him, which were, substantially, the whole of his property, to trustees, in trust to sell, &c. and pay his creditors. In 1830 the trustees sold part of the estates to B.; and A. joined with the trustees in the conveyance to B. In 1833 B. sold the purchased premises to D., who objected to the title, on the ground that the conveyance of 1828 was an act of bankruptcy. No commission, however, had issued against A.-Held, that the conveyance to B. was protected by the 86th section of the Bankrupt Act. Earl Granville v. Danvers, 7 Sim. 121.

VOLUNTARY CONVEYANCE.
And see FRAUDULENT DEED.
An assignment by a debtor,-who

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