« PreviousContinue »
Bench, and the judgment affirmed there : the de- debt was contracted. Bamfield 5. Anderson, 5 B. fendant subsequently appealed to the House of Lords, Mo. 331. and, pending the appeal, surrendered in discharge The bankrupt obtaining his certificate after the of his bail in the Court of King's Bench ; after such bail are fixed, will not exonerate them. Woolley v. surrender, application was made to the Court of Cobbe, 1 Ken. 504, s. c. 1 Burr. 244. Common Pleas for permission to enter an esoneretur Where a defendant put in bail and pleaded in on the bail-piece : Held, that the application was abatement, but afterwards, exception having been properly made to the Court of Common Pleas; and taken to the bail, gave notice of adding and justifythat, as the principal was in the custody of the mar- ing fresh bail, and subsequently rendered in due sbal, a performance of the terms of the recogni- time : Held, that the render was equivalent to a zance was impossible. Sherratt v. Floyer, 2 Law J. justification of the bail, and that the plea was well C.P. 106, s. c. 2 Bing. 18, s. c. 9 B. Mo. 65. pleaded. Cassen v. Bond, 2 Y. & J. 531.
A defendant was rendered in time, but no notice of it was given to the plaintiff's attorney, who proceeded against the bail, and executed an execution
5. BAIL BY HABEAS CORPUS. on the goods of one of them : the Court set aside The writ and return to a habeas corpus must be the execution, and ordered an exoneretur to be en. annexed to the bail-piece, before the bail can justify. tered on the bail-piece, on payment of costs. Thorne Young's bail, 1 Law J. K.B. 13. v. Hutchinson, 2 Law J. K.B. 211, s. c. 3 B. & C. The general rule is not to allow time for justifica112, 8. c. 4 D. & R. 712.
tion of bail upon habeas corpus; and this rule will The Court directed an eroneretur to be entered on not be relaxed in any case except that of the sudden the bail-piece, although the defendant bad become illness of the bail. Archer's bail, 5 Law J. K.B. 63. a bankrupt, and bad not taken advantage of his cer- Time allowed to add and justify bail by habeas tificate, to plead it puis darrein continuance, but had corpus, where one of the bail of whom potice had allowed a judgment to pass against him. Told v. been given was taken suddenly ill. Gilbank's bail, Masfield, 2 Law J. K.B. 222, s. c. 3 B. & C. 222, 9 D. & R.6. 8. c. 5 D. & R. 2.58.
But although one of the bail by habeas corpus The Court of Common Pleas bave no jurisdiction was prevented by illness from attending to justify, to remove a party in criminal custody, for the pur. time to add and justify another was refused. Small's pose of charging bim in execution, and then to com- bail, 1 Law J. K.B. 148. mit him again for the criminal matter : hence, not If there is any mistake in the notice of justicharging the defendant in criminal custody, in exe- fying bail by hubeas corpus, the Court will not grant cation, within two terms, is not laches to entitle bim any time. Thomason's bail, 1 Law J. K.B. 148. to be discharged. Freemun v. Weston, 1 Law J. Where it appeared that the absence of the bail C.P. 79, s. c. 1 Bing. 221, s. c. 8 B. Mo. 81. had arisen from mistake, and that a very important
If an action be brought in the Court of Exchequer question was to be tried in a cause, the Court grantagainst bail upon their recognizance of bail entered ed time to justify bail by habeus corpus. Harborow's into in the Court of King's Bench, they must render bail, 1 Law J. K.B. 148. their principal as if the recognizance bad been taken In the Palace Court, one of the King's yeomen in the former court. The bail bave only four days of the guard had been arrested, and by habeas corpus to render their principal by the practice of that cum causá be removed the cause into the Court of court, after the return of the writ, although there King's Bench, and put in and perfected bail upon be not so many days remaining in the term. Dib- the habeas: Held, that, even supposing the defen. bins v. Taylor, 1 Y. & J. 15.
dant was privileged from arrest, the bail could not Where a bankrupt was about to be taken in exe- be exonerated. Sard v. Forest, 1 Law J. K.B. 31, cution, the Court would not, upon an affidavit which 8. c. 1 B. & C. 139, s. c. 2 D. & R. 250. omitted to state where the commission was sued out, Where it appeared that the affidavit of justifica. or where the commissioners resided, enlarge till a tion was not in court, but that it was in London, the month after his final examination, the time for the Judge gave leave to produce it at chambers, although bail's surrendering him. Shuw v. Cash, 4 Bing. 80. the bail justified under a habeas corpus. Poole's buil,
2 Law J. K.B. 75. (N) DISCHARGE OF, BY OTHER MEANS THAN
6. ON AN ATTACHMENT. on the day that his certificate was allowed, his bail The Court admitted a party to bail, in custody Frere fixed, but before the rising of the Court, an ex- upon an attachment, although the notice of bail was oneretur was entered on the bail-piece, on payment defective in form. Anon, 4 D. & R. 393. of costs. Lindsey's bail, 1 Law J. K.B. 8+.
The Court will order an eroneretur to be entered on the bail-piece, where a bankrupt has obtained his
7. BAIL IN NE EXEAT REGNO. Certificate before the rising of the Court, on the day A court of equity, with regard to bail on writs of when the second sci. fa. against the bail was return- ne ereat vegno, proceed by analogy to the proceedings able . Johnson v. Lindsay, 1 B. & C. 247, s. c. 2
Taylor, 1 Turner, 103.
8. IN THE ADMIRALTY COURT. obtained his certificate in Ireland, but will direct an Bail must be given in the case of a real bona fide issue, to try under what circumstances tbe original appeal. Woodbridge, 1 Hag. 77.
D. & R. 385.
BAILMENT. A person let a room in his house at two shillings a week, for the purpose of goods being deposited in it. The room was broken open, and the goods stolen by some one belonging to the family. The Court held, that he was not a bailee of the goods, and, consequently, not answerable for the loss. Peers v. Sampson, 2 Law J. K.B. 212, s. c. 4 D. & R. 636.
A Greenland trader ran down a Leith smack, and sunk her. The owners of the trader, being very desirous that their ship should proceed with the least possible delay on her fishing voyage, proffered bail to meet an action entered against them by the owners of the smack.
In the undertaking to lead the bail, the engagement was thus expressed—"To meet an action, &c. against the ship (Dundee), tackle, apparel, furniture, and appurtenances.”
When the action was tried, the owners of the Dundee contended, that the fishing stores on board her, at the time of the accident, ought not to be made liable; and that the introduction of the word “appurtenances,"
,” into the undertaking, was purely accidental.
But the Court held, that the stores were liable under the term “appurtenances," and that its introduction into the undertaking was not casual, for that it was a strict and legal term, and had been recited in the act of 53 Geo. 3, which diminisbed the responsibility of owners of ships that occasion da. mages to other vessels. Dundee, 1 Hag. 109.
A bail-bond given to the amount of the share of a part-owner of a ship, for the safe return thereof, contemplates only the safe return of the ship, or the payment of the stipulated sum ; and the Court will look only to that object, and will not move beyond those limits. Apollo, 1 Hag. 312.
Possession of a ship decreed upon bail, in a dispuie between the original owner and the purchaser upon a sale by the master abroad. Partridge, 1 Hag. 81.
[See ACCOUNT, APPROPRIATION, DEBTOR AND CRE
DITOR, and BANKRUPT ; and 7 Geo. 4. c. 46.]
A banker is bound to know the bandwriting of those who draw on him, as far as regards paying bills so drawn, but not when discounting a bill therefore, where a banker discounted a bill forged on a party who banked with him, the Court held, that he might maintain an action for money paid against the indorser. Fuller v. Smith, 1 C. & P. 117, s. C. 1 R. & M. 49. [Abbott]
The risk of forgery, as to cheques upon bankers, must be borne by them; and a banker cannot charge his customer with the amount of a cheque which has been properly drawn and signed by the customer for one particular sum, and which, in its passage, bas been feloniously altered to a larger, and, on that larger sum, paid by the banker. Hall v. Fuller, 4 Law J. K.B. 297, s. c. 5 B. & C. 750, s. c. 8 D. & R. 464.
The plaintiff gave to his wife certain cheques, signed by bim in blank, to be filled up by her as occasion required. One of these cheques she caused to be filled up by her husband's clerk for 501. 2s. 3d.; but the clerk' so placed the words and figures in the cheque, that, when it was delivered to him again by the plaintiff's wife for the purpose of receiving the amount, he interposed “three hundred," and received from the bankers 3501. 2s. 3d.: Held, that the plaintiff was guilty of negligence, and that, consequently, the bankers, who could bave no means of detecting the fraud, were not liable to repay to the plaintiff the sum so fraudulently obtained. Young v. Grote, 5 Law J. C.P. 165, s. c. 4 Bing. 253.
Where a banker has advanced money to the testator, by discounting his note for 10001., renewable at the end of three months, and debiting the testator with the discount, he cannot, in an action brought by the executors, set off such note before it is due, upon allowing a rebate of interest ; but he may write off a bill, accepted by testator, payable at his banking-house, and discounted by him, although the testator died before the bill became due, the banker not having received intelligence of the testator's death until the day the bill became due, and after he had so written it off. Rogerson v. Ladbroke, 1 Law J. C.P. 6, s. c. 1 Bing. 93, s. c. 7 B. Mo. 412.
A creditor of one partner in a bank cannot draw on the firm for a debt due to him, without making himself liable to the firm for money advanced to him. Stoveld v. Upperlon, 1 Law J. K.B. 6.
An account was kept at the Lancaster Bank. The bankers (now bankrupts) had entered certain bills of exchange received from the plaintiffs as bills,
9. IN CRIMINAL PROCEEDINGS. [See 7 Geo. 4. c. 6444 Law J. Stat. 92.] The Court will not listen to a motion for admitting a person to find bail on a charge of felony, if the affidavits bave been sworn before a magistrate instead of a commissioner of the Court of King's Bench. Rea v. Sweets, 2 Law J. K.B. 77.
A prisoner, on the charge of rape, was admitted to bail, where affidavits were procured that the prosecutrix was a girl of bad character, and the prosecution only commenced to extort money. Booth, 2 Ken. 174.
The Court will not require a defendant indicted for a misdemeanour, to pay the costs of giving several notices of bail, before they allow the bail to justify. Rer v. Edward Clifford, 2 Law J. K.B. 210.
A defendant removed an indictment from the quarter sessions, and gave bail pursuant to 5 & 6 W. & M. c. 11; he was found guilty, but died before the day in banc. The Court beld, that the bail were liable for the costs. Ker v. Turner, 2 Law J. K.B. 222, s. c. 3 B. & C. 160, s. c. 4 D. & R. 816, S. c. 1 R. & M. 49.
In cases of felony, there must be four bail, unless all the parties are before the Court, so that they can judge as to the respectability of two.
Rer v. Shaw, 6 D. & R. 154.
A prisoner, committed for manslaughter, was allowed to put in bail before a country justice, by reason of his poverty, wbich rendered bim unable to appear with bail in court. Rex v. Massey, 6 M. & S. 108.
and had not paid them away. The account of the a larger sum; and these subsequent dealings wer plaintiffs was not overdrawn.
continued in the same account with the preceding It was the custom of the bankers in Lancaster to dealings : Held, that the balance due from S at A's reqnire an indorsement, or an equivalent for it, to death, was to be considered as discharged by the all bills of exchange received by them, and they payments subsequently made by S to the bank. were accustomed to pay out those bills again, whe- Pemberton v. Oakes, 6 Law J. Chånc. 35. ther that particular customer's account was over- A country banker, who receives the notes of drawn or not: The Court beld, that such a custom another bank to obtain payment for them in the was most unreasonable, and that bankers had not ordinary course, is not justified in parting with the any right to pay away bills of exchange indorsed possession of them without actual payment, even and left with them, unless the account of that customer though he shew it to be the practice to do so, by was overdrawn; and, consequently, that the plain- one banker sending the notes of another to himself tiffs could recover these bills from the assignees of in a parcel, and waiting the return of the post for the bankrupts. Thompson v. Giles, 2 Law J. K.B. the amount in cash, or in account between the two. 48, s. c. 2 B. & C. 424, s. c. 3 D. & R.733. Gillard v. Wyse, 4 Law J. K.B. 88, s. c. 5 B. &
The firm of a country bank gave a bond to their C. 134, s. c. 7 D. & R. 523. corresponding London bankers, conditioned for the In 1823, T C drew upon the defendant two bills Tepayment of all sums of money, &c. which the of exchange, which he afterwards indorsed and latter persons might advance to them, or any of paid in generally to his account with the plaintiffs, them, associated or not with other persons.
bis bankers, who credited him for their amount. On the death of one of the country bankers, there The bills being dishonoured, the plaintiffs debited was a large balance due to the London ones. In them in the account of TC; and ihe latter subsethe following month large sums were remitted to quently paid in (generally on account) various the London bankers, who continued to pay them away, sums, more than sufficient to balance all items in and they were respectively placed to the old account; the account to the time of the return of the bills. but no monthly statement was sent into the country. The defendant paid the amount of the bills to TC, At the end of the second month, two accounts were but did not require them to be given up to him. sent from London : the old one, up to the death of In 1826, T C became bankrupt, at which time a the partner, and a new one, which included all the
large sum was due from him to the plaintiffs, for remittances since bis death, taken from the old which they proved, but took no notice, or made no
exhibit, of the defendant's acceptances; neither did If the remittances bad remained in the old account, they make any demand on the defendant in respect then nothing was due on it; but if the London ban- of them, until twelve months after the date of T C's kers could alter their books, then the defendants commission, when they sued him for their amount: were liable for the balance in the old account : The Held, that they were not entitled to recover, having Court held, that inasmuch as no communication treated the bills as paid. Field v. Carr, 6 Law J. had taken place, the first entries made by the Lou- C.P. 203, s. C. 5 Bing. 13, 8. c. 2 M. & P. 46. don bankers were not an appropriation of the money, Where bankers employed to receive dividends in and that they were entitled to put it to the new ac- the funds, had in their own books credited their count. Simson v. Ingham, 1 Law J. K.B. 234, s. C. employers with the dividends as received, and had 2 B. & C. 65, s. c. 3 D. & R. 249.
allowed them to draw without having any other The testimony of a banker's clerk, as to an alter- funds in their bands : Held, that the bankers were ation made in a customer's pass-book, is evidence bound by theentries so acted on, though not com. against the banker. Price v. Marsh, 1 C. & P. 60. municated, and that they could not set up as a de
fence, that the entries had been fraudulently made A person having lost his pocket-book, containing by one of the partners, the money never having a bill of exchange for 3001., inserted an advertise been received by the house. Hume v. Bolland, 1 ment in the newspapers, stating that his pocket-book R. & M. 371. [Best] bad been stolen, containing papers of no use to any The term “acceptance” in a banker's deposit noto person but the owner, and offering a trifling reward does not render it necessary for the holder to leave for its recovery. The bill was, six days afterwards, such note with the banker for acceptance. Sutton presented at a country bank, by a person who said v. Toomer, 6 Law J. K.B. 49, s. c. 1 M. & R. 125. that he was the son of one of the indorsers, and it The bolder of banker's notes is bound to present was accordingly cashed: Held, that it was properly them for payment, and give notice in the ordinary left to the jury to say-1st, whether the plaintiff course, though the banker has stopped payment, 'had done all he ought with respect to giving notice and is notoriously insolvent. as to the loss of the bill; and, 2dly, whether the And it is no excuse for the want of presentment defendant had used due caution in receiving it; and notice, that the banker had stopped payment at and the jury having found that the plaintiff bad not the time wben the bolder received the notes; the giren due notice, and returned a verdict for the de- payer and receiver of the notes being then ignorant fendant, the Court refused to disturb it. Beckwith of that fact. 1. Corrall, 4 Law J. C.P. 139, s. C. 3 Bing. 444, But it may be otherwise, if a person fraudulently 1. c. 9 C. & P. 261.
pay such notes, with the knowledge, at the time, A and two other persons carried on business as that the banker has stopped payment. Camidge v, bankers ; at the time of A's death the balance due Allenby, 5 Law J. K. B. 95, s. c. 6 B. & C. 373. from S to the bank was upwards of 14,0001., more than which sum he paid in within a few months afterwards, but drew out, during the same period, DIGEST, 1829--1828.
whether they had used due diligence in advertising the lost notes, and giving intelligence of the robbery; and whether the clerk of the country bankers had exercised due caution in changing a note of such value for a stranger, without first making some inquiry into the manner in which he became possessed' of it;--and the jury having found a ver. dict for the plaintiffs, on the ground that there had been a want of due caution on the part of the defendants, the Court refused to disturb it. Show v. Peacock, 4 Law J.C.P. 120, 8. c. 3 Bing. 406, s.c. 2 C. & P. 215.
Where, on Friday at 1 o'clock, a servant took country bank notes in payment for goods, and did not give them to his master until 3 o'clock on Saturday, and the bank stopped payment at 4 o'clock,
- it was holden, that the master had not been guilty of laches, in not presenting the notes before the bank stopped. James v. Holditch, 8 D. & R. 40.
A person receiving a stolen bank note, without a knowledge of the larceny, is entitled to maintain trover against a cashier of the bank, who refuses to pay it, and retains the note at the request of the party robbed. Miller v. Ruce, 2 Ken. 189, s. c. 1 Burr. 452.
BANK OF ENGLAND. It is the duty of the Governor and Company of the Bank of Englaud to prevent the entry of a transfer of stock standing in their books, until they are satisfied that the person claiming to make such transfer is duly authorized to do so ; and, therefore, where, under a forged power of attorney, stock is illegally transferred, such stock in law continues the property of the stock bolder whose stock is so ille. gally transferred, and it is the bank, and not such stock holder or the new proprietor of such stock, who is to suffer by spich transfer; the original stockholder being entitled, at the expense of the bank, to a replacement of his stock and the dividends thereon. Misprision of felony being a misdemeanor, and punishable not by any forfeiture, but by fine and imprisonment; the mere concealment of the existence of such forgery by the stockholder, in the absence of proof of assent to, or adoption of, such forgery on his part, will not operate to divest the right of action of such stockholder, which vested immediately on such illegal transfer being permitted. Davis v. the Bank of England, 3 Law J. C.P. 4, 8. c. 2 Bing. 393.
In an action on the case, charging a breach of duty, every fact which contributes towards shewing the duty must be expressly stated; and the omis. sion of any one fact in the statement cannot be aided by verdici.
Accordingly, in an action against the Bank of England, for not paying dividends on stock, it is necessary to state, among other facts, that they actually received the amount of the dividends from government; and a count omitting to state that fact was held to be defective, even after verdict. Bank of England v. Davis, 4 Law J. K.B. 145, s. C. 5 B. & C. 185, s. c. 7 D. & R. 828.
Where bank stock was specifically bequeathed, it was holden, that in the absence of the legatee's dissent, the bank were bound to transfer it to the executor ; because, until the executor consents, the legatee is not entitled to the legacy. The bank having refused to make such transfer, a decree was made with costs against them. Franklin v. Bank of England, 4 Law J.Chanc. 214, s.c. 1 Russ. 575.
An action lies against the Bank of England for unreasonable delay in the passing of a power of at. torney to transfer stock. Sutton V. the Bank of England, 1 C. & P. 194, s. c. 1 R. & M. 52.
BANK STOCK. The dividends of the moiety of a residuary fund, invested in bank apnuities in the name of executors, being given to A, during bis life, he assigns bis right uud title to them to B, opon certain trusts, of which the first is to secure an appuity granted by bim to B ; but no notice of this charge is given to the executors; A subsequently, for valuable consideration, assigns the dividends to C, who has no knowledge of the former assignment, and before he concludes bis agreement, or pays bis money, inquires of the executors as to the state of the fund, and is informed by them, that they will pay bim the dividends : Held, that C's priority of notice will prevail over B’s priority of assignment, and that C is entitled to the dividends in preference to B. Dearle v. Hall, 2 Law J. Chanc. 62.
A tenant for life of the “interest, dividends, profits and proceeds" of bank stock, was bolden not entitled to the principal, but only dividends of a bonus declared on such stock, under a resolution of the general court, and 56 Geo. 3. C. 96, although residuary legatee of the testator's estate ; and his executors charged with costs of a suit for transfer. ring such bonus to the reversioners, but allowed the expenses of taking out administration de bonis non to the original testator. Hooper v. Rossiter, M'Clel. 527.
BANK NOTES. Whether a lost Bank of England note bas been transferred fairly and bona fide, in the ordinary course of business, is a question for the jury. Egan v. Threlfall, 5 D. & R. 326.
Where a Bank of England note for £500 was lost in London, among others, in September 1824, by a servant of bankers there, and they immediately advertised its loss, and in April following, the note was presented for change by a stranger, at a country bank' in Lincolnshire, and the clerk changed it for smaller notes of such bank, without asking any questions of the holder, as to how he became possessed of it: Held, in an action of trover by the London bankers, that it was properly left to the jury to say,
(A) PERSONS LIABLE TO BECOME BANKRUPT. (B) Acts oF BANKRUPTCY.
(a) Departing the reulm. b) Departure from dwelling-house, and
otherwise absenting himself. (c) Beginning to keep house. (d) Fraudulent conveyance or transfer. (e) Lying in prison. (f) Compounding with petitioning creditor.
(e) of the surplus.
(a) Form. (b) Signature. (c) Staying (d) Recalling, (e) Where void. (f) Effect of (g) Bankrupt's liability on a new promise. (R) OF A SUPERSEDEAS.
(a) Causes for.
(c) Effect of
(a) In general. () Notice to dispute. (c) Oj' the debt, trading, and act of bank
ruptcy. (d) Admissibility of depositions and proceed
ings under the commission. (e) Competency of Witnesses. (W) PRACTICE OF THE COURT ON PETITION
IN BANKRUPTCY. (X) Of Costs. (Y) OF THE SOLICITOR. (2) OF THE JURISDICTION OF THE GREAT
(C) OF THE PETITIONING Creditor.
(a) Who may be.
(a) Striking the docket.
D) Proceedings on habeas corpus. (H) PROOF OF DEBTS.
(a) In general.
(p) Effect of proving.
(u) Choice of
(d) Removal of.
(a) of the conveyance.
(1) Voluntary settlement. (M) OF RELATION. (a) Payments made by, to, and on account
of, the bankrupt. (6) Other dispositions of the bankrupt's pro
perty. (c) Judgments and erecutions.
(d) Notice of the act of bunkruptcy.
(A) PERSONS LIABLE TO BECOME BANKRUPT. [See Stat. 6 Geo. 4. c. 16. s. 2,—3 Law J. Stat. 15.]
On the question being raised, whether a clergyman could be a bankrupt, this Court directed an issue at law. Gawthorne v. Meymott, 2 Ken. 20, Chanc.
Whether a person engaged in the Greenland whale fishery, who has made three purchases of oil, at distant periods, and sold one, is a trader within the meaning of 1 Jac. 1. c. 15. s. 2, is a question for the jury.
Semble--that, under these circumstances, he is not a trader. Gale v. Half knight, 3 Stark. 56. (Abbott]
It is a question for the jury to decide, whether a man who buys merchandize, and represents himself as a dealer, and offers goods in exchange, but who does not buy to sell again, is subject to the bankrupt laws.
But, if it appears that he has bought goods, &c. in connexion with others, to carry on a system of fraud; it is not a trading within the meaning of the bankrupt laws. Millekin v. Brandon, 1 C. & P. 380. [Abbott]
A person who purchases dead horses, expressly for the sustenance of his own dogs, but sells their skins and bones, is not a trader within the bankrupt
Summersett v. Jarvis, 6 B. Mo. 56, s. c. 3 B. & B. 2.
An innkeeper, as such, was not a trader, under the bankrupt laws, previous to 6 Geo. 4; neither was an innkeeper, selling wine and brandy, and other liquors, by the dozen, to customers out of bis inn, necessarily a trader. Willett v. Thomas, 2 Chit.651.
A person having no stock in trade, who buys