Where Commissioners issued a warrant to apprehend a bankrupt, and directed it "to J. A. and W. S., our messengers, and their assistants :” An insolvent person, being in prison, endeavoured to make terms with his creditors, they proposing that he should execute a composi--Held, that the warrant did not justion deed for their benefit, which he tify the apprehension of the bankat first refused. Subsequently a rupt by any one who was not in the letter was written by an agent of the presence, actual or constructive, of creditors, stating that they would not J. A. or W. S. And therefore B., consent to his discharge, and that he who was the assistant of W. S., was must either execute an assignment, not justified in apprehending the or be made a bankrupt. The insol- bankrupt, in the absence both of vent, after taking three days to de- | J. A. and W. S., although B. had the liberate upon it, with great reluc- warrant in his possession. And tance executed the assignment.-- where, under these circumstances, Held, that this was not a voluntary B. was struck down by the bankrupt conveyance, and therefore not void with a stone, in endeavouring to apwithin the 32nd section of the Insol- prehend him, and in a struggle which vent Debtors' Act, 7 Geo. 4. c. 57. ensued had a part of his nose bitten Ibid.. off by the bankrupt, this, if death had ensued, would have been only a case of manslaughter. Rex v. Whalley, 7 Car. & P. 245. The first warrant of the Commissioners, to seize the bankrupt's pro It is not necessary, in order to support a conveyance or transfer made by an insolvent trader to a creditor, to show that it was made in consequence of pressure on the part of the creditor; in order to in-perty, is not spent by the seizure of validate it, it must appear to have originated in the voluntary act of the trader, and not in a bond fide application by the creditor. Doe dem. Boydell v. Gillett, 2 Cromp. M. & R. 579; S. C. 1 Tyrw. & G. 114. the effects which the bankrupt was in possession of at the time of granting the warrant. The same warrant is sufficient to seize any property which the bankrupt may become possessed of, until he gets his cer Warrant of Attorney. INDEX. Warrant of Attorney. 859 Re Moorehead, 2 Molloy | sa. at the suit of the plaintiff, a fiat tificate. (Proof of.) In trover against the sheriff, the officer who seized the goods, being called to prove the warrant, stated that he entered on a certain day, under a warrant in the usual form, but that he had lost the warrant.Held sufficient to let in parol evidence of the contents of the warrant. Moon v. Raphael, 2 Scott, 489. (Of Commitment.) See COMMITMENT. WARRANT OF ATTORNEY. 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 subsequent day the insolvent petitioned to be discharged under the Insolvent Debtors' Act, 7 Geo. 4. c. 57.; and his effects were on the 16th November duly assigned under the provisions of that act.-Held, that the assignee might recover the proceeds of the sale from the judgment creditor, as money had and received to the use of the assignee after the subscribing of the petition, under the 34th section of that act. Gye v. Hitchcock,4 Adol. & E. 84. in bankruptcy issued against him, and he afterwards procured his discharge, by giving a warrant of attorney with two sureties for the amount of the judgment. At the time of the execution of the warrant of attorney, one of the sureties requested the plaintiff to prove for the amount under the fiat, which was accordingly done. Judgment having been entered up on the warrant of attorney,-the Court refused, upon a summary application, to exonerate the sureties. Duncan v. Sutton, 5 Moore & Sc. 338. Trover lies at the suit of the assignee of an insolvent debtor, by virtue of the 7 Geo. 4. c. 57. s. 34., against any execution creditor under a fi. fa. issued upon a warrant of attorney, for a sale of the goods after the commencement of the insolvent's imprisonment, although the seizure was made before. Kelcey v. Minter, 1 Scott, 616. 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 acceptance for a part, and pay the rest by instalments, according to his abi J. S. being in custody under a ca. lity, so as to discharge all before April 1, 1836, and that the plaintiff | tains, gave his son a verbal order to should not enter up judgment, unless land the goods at a wharf where he the defendant should dispose of his had been in the habit of landing goods business, or become bankrupt or in- under written orders, at the same solvent. The defendant paid the time declaring that he would not take acceptance when due. Afterwards, the goods in question. 4. had no preand before April 1, 1836, the de- mises of his own on the river, but fendant asked the plaintiff to make had a warehouse in the city. The him a bankrupt, in order to relieve goods were landed on the wharf and him from his difficulties, and said that piled away, and while in the hands he could not pay 20s. in the pound, of the wharfingers were stopped in and that his assets were only 2001., transitu, shortly after which 4. beand his debts 3001.-Held, that the came bankrupt.-Held, in trover by plaintiff might enter up judgment and the assignees of A. against the wharftake out execution, as the defendant ingers, that the proper question to appeared to be insolvent in the sense be left to the jury was, whether the contemplated by the agreement; and wharfingers took possession of the that the facts above stated did not goods for A. as owner, or for the show that the plaintiff, at the time of benefit of the vendor.-Held ́also, the agreement, knew the defendant that the declaration made by A., that to be insolvent in that sense. Biddle- he would not accept the goods at the combe v. Bond, 4 Adol. & E. 332; time he gave his son orders to land S. C. 5 Nev. & M. 621. them, was admissible in evidence, although it was not communicated either to the wharfingers or the vendor. Ex parte James, re Griffin, 1 Tyrw. & G. 449; S. C. 1 Mees. & W. 20. WASTE. On the petition of a purchaser, an injunction was granted to stop waste by the bankrupt on the purchased premises. Re M'Donald, 2 Molloy (Irish), 450. WHARFINGER. WIFE. The wife of a bankrupt has a right to a reasonable provision out of the Goods were consigned to A. in property, which she brought her husLondon. On the arrival of the ves- band on her marriage; and the Court sels in the river, the captains being of Review has jurisdiction, on petiurgent that the goods should be tion in bankruptcy, to order the astaken out, applied to A., who was signees to make such provision for then insolvent, and who at first re-her, whether the property consists of fused to give any directions, but ul- real or personal estate. An allowtimately, to accommodate the cap-ance of 2001. a-year out of a net in 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 2000l. 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, 1 Deac. 115. A bankrupt, whose wife previous to her marriage was entitled to some shares in a gas company, which were still standing in her name, deposited the certificates with a banking company, for the security of advances; but no notice was given to the gas company, until after the act of bankruptcy.-Held, that the banking company were not entitled to those shares, as against the creditors of the bankrupt. The bankrupt's wife, it was also held, ought to have been served with the petition. Ex parte Spencer, re Mitchell, 1 Deac. 468. competent to be a petitioning creditor, although her husband had gone to America, and she had traded as a separate trader, and was treated as such by the bankrupt, and her husband's brother was willing to join in the bond to the Great Seal. Re Atkinson, 2 Molloy (Irish), 451. WITNESS. And see EVIDence. (Competency of.) In an action by assignees, in which the bankruptcy is in dispute, a son of the bankrupt, who was held out as a partner with him, but who was in fact not so, is not a competent witness for the assignees. Holland v. Reeves, 7 Car. & P. 36. A party made a composition with his principal creditors, paying the smaller ones in full, but did not call all his creditors together; he afterwards became bankrupt, and did not pay 15s. in the pound.-Held, that (having obtained his certificate, and released his surplus) he was a competent witness to support an action by his assignees. Roberts v. Harris, 2 Cromp. M. & R. 292; S. C. 5 Tyrw. 1103. Where the order of the Lord Chancellor, for the trial of an issue at law, directs all witnesses to be examined, but the plaintiff declines to call some, conceiving his case made out, it seems that the judge will himself call the others. Groom v. Chambers, 2 Mont. A married woman was held not & A. 742. |