86

without being pleaded. Stafford v. Clark, 1 C. & P. 403. [Best]

A having accepted bills for the accommodation of B, the latter discounts them with his bankers; they become bankrupts before the bills are due, being indebted to B in a cash balance exceeding the amount of the bills: upon the joint petition of A and B, held, that the assignees were not entitled to sue A upon these bills; and that the bills ought to be delivered to B, in part discharge of the balance due to him. Ex parte Hippins, 4 Law J. Chanc. 195, s. c. 2 G. & J. 93.

The assignees of a bankrupt mortgagor cannot maintain assumpsit against the brokers to a mortgagee of a ship, who has taken possession, and received the freight, if a sum equal in amount has been applied by the mortgagee to the payment of the seamen's wages. Dean v. M'Ghie, 2 C. & P. 387.

[Best]

A new assignee of a bankrupt, who has been chosen after an assignment to former assignees has been vacated by the Lord Chancellor, may sue as such for goods sold by the preceding and displaced assignee. Altridge v. Kittridge, 2 Law J. C.P. 15, s. c. 1 Bing. 355, s. c. 8 B. Mo. 372.

Assignees under a joint commission against two partners, may recover separate debts due to each, as well as joint debts due to both. Graham v. Mulcaster, 5 Law J. C.P. 118, s. c. 4 Bing. 115.

The assignees of a bankrupt, though neither of them be the petitioning creditor, cannot avail themselves of an act of bankruptcy from which the petitioning creditor would be estopped from availing himself. Tope v. Hockin, 5 Law J. K.B. 342, s. c. 7 B. & C. 101.

The assignees of a bankrupt, having once affirmed the acts of a person who wrongfully sold the property of the bankrupts, cannot afterwards treat him as wrong-doer, and maintain trover.

The accepting of a balance produced by a sale of goods wrongfully converted, or the accepting of other goods purchased with money the produce of the bankrupt's goods wrongfully converted, may be considered as evidence of affirmance by the assignees of the act which was originally tortious. Brewer v. Apurrow, 6 Law J. K.B. 1, s. c. 7 B. & C. 310, s. c. 1 M. & I, 2.

(c) Liabilities.

The fourth section of the 49 Geo. 3, c. 121. apglam oruly to a solvent, and not to a bankrupt assig

An sasignes who receives money belonging 14 the bankrupt's estate, in order to remit it, and grudi, shalend of remitting it, pays it into a bank in wy kom van gartner, to the credit of the assignees, bawah1.8 49 Geo, 3, e. 121. Ex parte Goldamil, 21, # 1, Chane, 150, s. c. 1 G. & J. 405.

In suudag to charge the assignee of a bankrupt, MAYOR V Geo, 3, 6, 121, s. 4, with interest at 1 pay bant, for wilfully retaining a balance, Bug valve a special count framed upon the act, Bitba lukt, with is not recoverable under the money

Magh it seems, a different rule would haya grand if the commissioners had settled an want, wh4 charged the defendant with such inBayrak Berkaford . Birch, 1 C, & P. 373. [Abbott]

The wom.quem under a commission of bankrupt, **AVA both for the amount of the bill of the messen

ger, for the business done before he was chosen, although he has continued to employ him.

If the assignee promise to pay that amount when he has sufficient funds, he cannot be made liable by proof of his having a sum not equal to that amount in his hands. Burwood v. Felton, 2 Law J. K.B. 204, s. c. 3 B. & C. 43, s. c. 4 D. & R. 621.

After an order of dividend, the assignee retains in his hands the sums which ought to have been paid to several creditors; his assets cannot, after his death, be charged with interest at the rate of 20 per cent. on the sums so misapplied by him. Wackerbarth v. Powell, 5 Law J. Chanc. 9, s. c. 2 G. & J. 151.

If one assignee hands money over to his co-assignee, whose solvency is unimpeachable at the time of the delivery, for the purpose of having it distributed among the creditors, the former is not liable for any fraudulent misapplication. Ex parte Griffin, 2 G. & J. 114.

Where the assignees of a bankrupt employed a broker to sell tobacco, and the broker received the money and failed, without having paid it over: Held, that the assignees were not liable to the creditors for the proceeds received by the broker. Belchier v. Parsons, 1 Ken. 38, s. c. Amb. 218.

A bankrupt's reversionary interest being offered for sale by public auction, and a party having bid £950, it was bought in at £1000 upon a reserved bidding, and upon a subsequent sale only fetched £510: Held, that it was not such a case as to render the assignees liable for the difference. Ex parte Buxton, 1 G. & J. 355.

The assignee of a bankrupt is not guilty of a breach of trust in neglecting to pay the costs of the solicitor under the commission. In re Sheppard, 1 Cress.

109.

(d) Removal of.

Prior to the execution of an assignment, the Court has jurisdiction to remove persons nominated by the creditors as assignees. Ex parte Shaw, 1 G. & J. 127.

(L) OF THE ASSIGNMENT.

(a) Of the conveyance.

A bankrupt who is disputing the commission at law cannot, although nonsuited, be compelled to convey. Ex parte Thomas, 2 G. & J. 278.

(b) Of the bankrupt's property, real and personal.

Where A, by deed, conveyed certain premises to B, on condition of his paying certain sums by way of rent for four years, by half-yearly payments, the whole of which would amount to the value of the premises, and the deed contained a clause of security by A, in case the rent should be in arrear, or nonperformance of the covenants contained therein by B; in which cases he might take possession of the premises and sell the same, and pay the overplus, if any, to B: Held, that this deed was usurious: and B, having been let into the premises under it, and continued in possession four mouths when he became bankrupt: Held, that the property passed to bis assignees under the statute 21 Jac. 1, c. 19, s. 11. Sinclair v. Stevenson, 3 Law J. C.P. 60, s. c.

2 Bing. 514, s. c. 1 C. & P. 542.

A testator gives an annuity to A B for life, and

Where a bankrupt is a legatee, but owes a larger

sum to the testator's estate than the amount of the legacy given to him, his assignee is not entitled to take any part of the legacy. Richards v. Richards, 9 Price, 219.

Where a company had power given them to retain the salaries and dividends due to certain directors, but had not exercised that authority previous to one of them becoming bankrupt: It was holden, that his salary and dividends passed to his assignees, but did not divest the company of their right to set off such sums against the principal debt. Nelson v, London Assurance Company, 2 S. & S. 292.

A vendee of bankrupt's mortgaged estate, which had been sold before the commissioners under the general order, was, upon petition in bankruptcy, ordered to complete his purchase. Ex purte Gould, 1 G. & J. 231.

Where the mortgagor was in possession as tenant at will, by express contract to the mortgagee: Held that the crops upon the mortgaged premises did not belong to the mortgagee at the bankruptcy of the mortgagor, or at the time of the order for sale by the commissioners. Ex parte Temple, 1 G. & J. 216.

Quare-Where a mortgagee has parted with the possession of his title deeds without fraud or gross neglect, and they are deposited with another person equally innocent, whether the court will take the possession from him? Ex parte Cawthorne,

1 G. & J. 240.

The circumstance of a mortgagee not having tendered any proof until the third meeting, will not prevent him from presenting a petition. Ex parte Whitchurch, 2 J. & W. 548.

Where a bankrupt was permitted for several months to continue in possession, and trade for the benefit of the estate, the assignees supplying him with funds: It was holden, that the assignees could not afterwards reject the lease, even though they had given a notice of their intention to do so, within a month after the bankruptcy, because they had accepted the lease by using the premises for the benefit Clark v. Hume, 1 R. & M. 207. [Abbott]. See 6 Geo. 4. c. 16.

of the estate.

A landlord sent a man to distrain for rent, who entered the premises after sunset, on the 23d December, and possession was kept until an officer entered, on the 26th December, with a warrant, and gave notice of the distress. The tenant having become a bankrupt, his assignee brought an action of trover, to recover the goods :-The Court held, that the first taking was unlawful, and that the second distress was not a distinct distress, independent of the first, and consequently, that the assignee might recover the goods. Brice v. Hare, 2 Law J. K.B. 194.

On an application by a vendor, who had not conveyed, for a sale of the premises, in discharge of his lien, for the unpaid purchase-money, and to prove for any deficiency, the Court held it regular, and granted it. Ex parte Gyde, 1 G. & J. 323.

A deposit of deeds, under a verbal agreement, is extendable by a subsequent parol agreement. Ex

87

parte Lloyd, 2 Law J. Chane. 162, s. c. 1 G. & J. 389.

An agreement, by way of deposit of title deeds, with a firm of five, one of whom was a nominal partner only, reduced by subsequent agreement to the actual partnership of four. Ex parte Alexander, 2 Law J. Chanc. 159, s. c. 1 G. & J. 409.

The defendant having agreed with a person, who afterwards became bankrupt, that if he would furnish JS with timber to complete the carpenter's work of the defendant's house, he would pay the bankrupt £50 when the work was completed: Held, in an action by the assignee, that he was entitled to recover, although the timber was furnished by the bankrupt before the contract was entered into between him and the defendant; and although the work was not entirely completed by J S, as, if the terms of the contract had been substantially complied with, it was sufficient to entitle the plaintiff to recover for goods sold and delivered. Dixon v. Hatfield, 3 Law J. C.P. 59, s. c. 2 Bing. 439, s. c. 10

B. Mo. 32.

A bargain, between the bankrupt and a third person, that the former shall obtain property from his assignees, for the latter, at a certain sum, in consideration of another sum being paid to the bankrupt, is void in law, though the assignees consent, it being a fraud on the creditors. M'Shane v. Gill, 1 C. & P. 149. [Abbott]

(c) Property of the bankrupt's wife.

A married woman having a vested reversionary interest in a legacy, who, after the bankruptcy of the husband, institutes proceedings against him in the Ecclesiastical Court for adultery and ill usage prior to the bankruptcy, and there obtains a sentence of divorce, cannot, when the legacy comes into possession, claim to have the whole of it paid to her, as against the assignees of the husband's estate. Green v. Otte, 1 Law J. Chanc. 87, s. c. 1 S. & S. 250.

Where an estate was conveyed to husband and wife, and their heirs, as joint tenants, "in consideration of 2001. now in hand, duly paid by husband and wife," it was holden, on the bankruptcy of the husband, that exclusive evidence might be given, shewing that the money belonged to the wife, thereby defeating the claims of the creditors, under the 21 Jac. 1. Doe d. Bainbridge v. Statham, 7 D. & R. 141.

(d) Trust Property.

Where a trustee becomes bankrupt, it will be referred to the Master to approve of a new one, and the assignees will be directed to transfer the property to such substituted trustee. Ex parte Saunders, 2 G. & J. 132.

But a new trustee may be appointed, under 6 Geo. 4, c. 16, s. 79, without a reference to the Master. Ex parte Inkersole, 2 G. & J. 230. (e) Reputed ownership.

[6 Geo. 4, c. 16, s. 72.]

A warrant of attorney was given by a person who was becoming insolvent, to the defendants, who entered up judgment, and took out execution, under which the sheriff seized his goods, and sold them by a bill of sale to the defendant, who let them

and disposition" of the bankrupt, according to 21 Jac. 1. c. 19. s. 11, incorporated in 6 Geo. 4. c. 16. s. 72. Foster v. Frampton, 5 Law J. K.B. 71, s. c. 6 B. & C. 107, s. c. 9 D. & R. 108.

When the sale of property by a bankrupt is complete, though it remains in his occupation, it will not pass under the commission, if it can be ascertained clearly to be the property of the vendee. Er parte Marrable, 1 G. & J. 402.

A carriage finished and paid for before the bankruptcy of the maker, but suffered to remain on his premises at the request of the owner, on account of his being abroad, cann ot betaken by the assignees as in the order or disposition of the bankrupt, although such bankrupt put it in his front shop, and actually sell it to another. In such case, an actual delivery of the carriage at the house of the person for whom it was made, is not necessary to constitute him the owner. Bartram v. Payne, 3 C. & P. 175. [Gaselee]

Property at a wharf is transferred by lodging the delivery-order with the wharfinger, though it be not re-weighed nor re-housed: therefore, if the party giving the order afterwards become bankrupt, his assignees cannot maintain trover. Tucker v. Ruston, 2 C. & P. 86. [Best]

Trover for warrants, or orders for delivery of lacdye. P sold to the plaintiff some lae-dye, lying in the East India Company's warehouses, and having retained the delivery warrants, pledged them to the defendant for 5001., and became bankrupt without redeeming them: The property in the warrants did not vest in his assignees, under 21 Jac. 1. c. 19. 8.11. Greening v. Clark, 3 Law J. K.B. 229, s. c. 4 B. & C. 316, 8. c. 6 D. & R. 375.

Timber sent by B, under the care of his servant, to be disposed of at A's wharf, does not pass under a commission of bankruptcy against A. Boddy v. Esdaile, 1 C. & P. 62. [Burrough]

Where the owner of furniture lent it to the plaintiff, under the terms of a written agreement, and he placed it in a house occupied by the wife of J S, who had previously become a bankrupt, and his assignees having ordered the furniture to be seized by the messenger, under the commission: Held, that the plaintiff might recover in trover, without producing the agreement made between him and the owner, on the ground that a simple bailee has a sufficient interest to maintain such action. Burton v. Hughes, 3 Law J. C.P. 241, s. c. 2 Bing. 173, s. c. 9 B. Mo. 334.

If an innkeeper borrow a chaise from a coachmaker while he has a new chaise making, and use it in the course of his trade, but has not his name painted upon it, under the statute 4 Geo. 4. c. 62. s. 11, this is not such a reputed ownership of the borrowed chaise, as will entitle the assignees of the innkeeper to detain it from the coach-maker. Newport v. Hollings, 3 C. & P. 223. [Vaughan]

If A let a house to B, with a covenant that the lease shall determine on B's committing any act of bankruptey, on which a commission of bankrupt should issue; and by another deed of the same date, A grants the use of the furniture to B in like manner, and with a similar covenant, to allow A to resume the possession of the furniture on the commission of an act of bankruptcy: if B become bankrupt, and the jury find that B was the reputed owner of the furniture, it will pass to the assignees notwithDIGEST, 1822-1828.

standing these covenants; and if it be proved, on the one side, that several of the servants of B, and many of his customers knew that the goods belonged to A; and on the other side, several of B's creditors prove that they considered the goods to belong to B, and gave him credit upon the faith of them; and that he acted as master of the house, &c. ; it will be for the jury to say, whether B was held out to the world as the owner of the goods, and obtained credit by the possession of them. Hickenbotham v. Groves, 2 C. & P. 492. [Abbott]

If a father appoints his son his servant, for the purpose of selling goods for his benefit only, the goods, on the son becoming a bankrupt, do not pass under the statute 21 Jac. 1. c. 19. Stafford v. Clark, 1 C. & P. 24. [Burrough]

Upon a bill by assignees to set aside a settlement, made by a trader in favour of his children, on the ground that he was insolvent at the time of the execution of the settlement, the Court considered that the insolvency mentioned in the late bankrupt act, 6 Geo. 4. c. 16. s. 73, must mean a total insolvency, such as a general inability to pay debts in the ordinary course of trade, or the entering into a composition with creditors; and that notice of inability to meet a particular demand was not notice of insolvency; and in the present case held, that evidence that the bankrupt had accepted two bills prior to the date of the settlement, and which were from time to time renewed, and ultimately not paid, was not alone sufficient evidence of insolvency, within the meaning of the act. Cutten v. Sanger, 2 Y. & J. 459.

(M) OF RELATION.

(a) Payments made by, to, and on account of
the bankrupt.

A person is insolvent within the meaning of the bankrupt laws, when he is not able to make his payments, in the usual course of trade, even if he have sufficient property ultimately to pay all his debts in full.

Payments made by a person, after he has become embarrassed, and given a warrant of attorney to another to secure a debt, are not made in the course of trade; and, having occurred after an act of bankruptcy, the assignees can maintain an action to recover the amount of them. Shone v. Lucas, 1 Law J. K.B. 226, s. c. 3 D. & R. 218.

A payment to a bankrupt subsequent to the issuing of a commission, although made without actual knowledge of the commission, was held not to be protected under the 1 Jac. 1. c. 15. s. 14, the issuing of the commission being considered of itself notice to all the world of a prior act of bankruptcy. Brooks v. Sowerby, 8 Taunt. 783, s. c. 3 B. Mo. 157. But judgment reversed, in error, Sowerby v. Brooks, 4 B. & A. 523.

In the bankrupt laws it is a general rule, that if a person pay a sum of money, knowing that he must become bankrupt, unless under the influence of a threat, it is a voluntary payment, although the

M

payee receive it in the ordinary course of business, without any knowledge that he is being preferred to the other creditors. Therefore, where a person being deeply indebted, paid his bankers, who had merely written to him for a small sum of money, it was held, that such a demand was not a threat; and that, inasmuch as it could, from the circumstances, be predicated that a bankruptcy would follow, the assignees had a right to the money back again. Poland v. Glyn, 1 Law J. K.B. 72, s. c. 2 D. & R. 310.

Where the bankrupt, during the period he was lying in prison (which constituted the act of bank. ruptcy), paid the balance of disbursements on a vessel, and received back the papers, on which the creditor had a lien for the balance: Held, that the assignees having been thereby enabled to obtain possession and dispose of the ship, could not divest the defendants of the money which they might have secured by retaining possession of the ship. Thompson v. Beatson, 1 Law J. C.P. 22, s. c. 1 Bing. 145, s. c. 7 B. Mo. 548.

Where, on the day after a trader had stopped payment generally, he sent 100l. to a particular creditor, to assist him in paying a large accommodation bill, which he had accepted for the trader, and soon afterwards became bankrupt,-it was holden, that the assignees were entitled to such 100l.; and as the creditor's name was attached to the bill, he could not be deemed the agent of the bankrupt, because he was paying the money in his own discharge. Guthrie v. Crossley, 2 C. & P. 301. [Abbott]

Some merchants, in London, sent an order for goods, to the manufacturer, in the country, with whom they had been accustomed to deal, and whose bills of exchange they had been accustomed to accept before the goods were received. The manufacturer committed an act of bankruptcy, and afterwards sent the goods. The merchants accepted a bill of exchange, of a much greater amount than the value of the goods, without knowing of the act of bankruptcy The Court held, that the assignees could recover back the goods, as the payment was not protected by 1 Jac. 1. c. 15. Bishop v. Crawshay, 3 Law J. K.B. 65, s. c. S B. & C. 415, s. c. 5 D. & R. 279.

Where a trader, having no knowledge that his debtor had committed an act of bankruptcy, supplied him with goods to be paid for weekly: It was holden, that such payments were not protected by the 19 Geo. 2. Bolton v. Jager, 1 R. & M. 265. [Abbott]

If a bankrupt's goods be delivered to a purchaser on the day on which the bankrupt went to prison, and paid for the next day, the payment will be defeated by the relation of the act of bankruptcy, by lying in prison for two months to the day of the arrest. Sanderson v. Gregg, 3 Stark. 72. [Abbott]

If A deliver a bill of exchange to a person, not knowing that he is a bankrupt, who returns it again to A, his assignees cannot recover the amount of it as money paid by the bankrupt, after he became a bankrupt. Moore v. Barthrop, 1 Law J. K.B. 4, s. c. 1 B. & C. 5, s. c. 2 D. & R. 25.

A payment made by a person on the verge of bankruptcy to another having claims on him, but who is aware of his insolvency, is valid as a bond fide transaction within the statute 6 Geo. 4. c. 16. s. 81, if

no commission issue till more than two months after the payment. Tucker v. Barrow, 1 M. & M. 137. [Tenterden]

On a commission issuing on May the 14th, a dealing on March the 14th is valid, as “more than two calendar months" before the issuing of the commission. Cowie v. Harris, 1 M. & M. 141. [Tenterden]

A bill of exchange, given to a trader before an act of bankruptcy, is good payment, although the bill does not become payable till after the bank. ruptcy; if the creditor did not know that the bankrupt was insolvent at the time. Bennet v. Spackman, 1 C. & P. 274. [Best]

In the absence of any evidence of fraud, the delivering to a party a bill dishonoured by him, for goods subsequently purchased under an agreement for ready money, may be equivalent to payment, and on the bankruptcy of the vendor, cannot be impeached by his assignee. Mayer v. Nias, 1 Law J. C.P. 113, s. c. 1 Bing. 311, s. c. 8 B. Mo. 275.

L was possessed of the lease of a public-house, which was deposited with the defendants as security for 12751. due to them from L. T, having a sum of 6501. in the hands of the defendants, agreed with L to purchase his lease for 16901., but, he not having sufficient to complete the purchase, the defendants consented to advance the sum required, retaining the lease as security. L, T, and one D, a clerk of the defendants, met to effect the transfer, when T drew a draft on the defendants in favour of L for 1690., which was handed over to D, who, on L's executing the transfer to T, gave him a draft on the defendants for 414., the difference between the amount of their debt, and that of the purchasemoney. L had committed an act of bankruptcy, and the defendants received notice from a creditor not to pay the draft, as a docket would be struck against him. The defendants refused to pay the draft when presented, but they afterwards paid it under an indemnity: Held, that the assignees of L might recover the amount against the defendants in an action for money had and received; and that the defendants had sufficient notice of L's bankruptcy. Spratt v. Hobhouse, 5 Law J. C.P. 147, s. c. 4 Bing.

173.

A, being a trader, before any act of bankruptcy, directed his broker, who had authority to distrain for rents due to him, to pay a certain sum to B in satisfaction of a debt, and the broker, bona fide, agreed with B to pay him as soon as he received the rents, and after this A became bankrupt: Held, that the assignees of A could not recover this sum from the broker, though he did not in fact pay it over to B, till after the commission issued. Bedford v. Perkins, 3 C. & P. 90. [Tenterden]

When a bankrupt has given a voluntary preference to a creditor for a bona fide debt; whether the act is fraudulent or not, (according to the 6 Geo. 4. c. 16. s. 82,) is properly presented to the jury by the question, whether the debtor had bankruptcy in contemplation at the time. Gibbins v. Phillips, 6 Law J. K.B. 98, s. c. 7 B. & C. 529, s. c. 1 M. & -R. 238.

September 24, 1824, D, the obligor, who, on 14th of August preceding, had quitted premises he held of the obligee, paid the obligee the balance on a bond due October 19th following; the fixtures left