Page images
PDF
EPUB

Act of Bankruptcy.

INDEX.

Advertisement.

747

cumstances was not an act of bank- debt, after the issuing of the impro-
ruptcy by T. J. as a procuring of perly issued fiat, would have consti-
his goods to be taken in execu- tuted an act of bankruptcy under 6
tion, Gore v. Lloyd, 12 M. & W. Geo. 4. c. 16. s. 8. Ex parte Mus-
463.

grove,

3 M, D. & D. 386.
3. In an action by the assignees 5. A bill of sale by a trader of all
of a bankrupt to recover property

his effects to a creditor as a security
of the bankrupt, a letter written by for

for an antecedent debt is an act of
him during his absence from home, bankruptcy, although it does not
stating that he was absent to avoid purport to convey all bis effects, and
two writs that were out against him, may have been executed in the hope
is admissible evidence for the plain- of obtaining further advances from
liffs of an act of bankruptcy, with- the creditor, and with the intention
out proof that there was in fact any of continuing to carry on trade, and
writ issued, or any pressure of credi- although advances may have been
tors.

subsequently made, and no posses-
In order to make the declaration sion taken under the bill of sale until
of a bankrupt admissible evidence of several weeks afterwards, during
an act of bankruptcy, it is not essen- which time the trader carried on
tial that the declaration and act business as before. Lindon v. Sharpe,
should be contemporaneous. Rouch 7 Scott, N. R. 730.
v. Great Western Railway Company,

(Notice of.)
1 Ad. & EI. N. S. 51.

See EXECUTION, 12-FRAUD, 2-No-
4. Where a trader had been sum-

TICE-Proof, 6-RELATION.
moned before a commissioner, under
5 & 6 Vict. c. 122, s. 11, and before

ACTIONS.
tbe proper time had elapsed to con- See AssiGNEES—Costs, 4.
stitute an act of bankruptcy within
the meaning of the 13th section, a

ADVERTISEMENT.
fiat was by mistake issued, wbich 1. A petition to the Court of Re-
was afterwards annulled : Held, that view is comprehended within the
the existence of this fiat was such words "other proceeding,"contained
an obstruction to the payment of in the 24th section of the 5 & 6 Vict.
the petitioning creditor's debt, that c. 122. Therefore, where a petition
if he sued out a new fiat founded on of the bankrupts to annul the fiat is
the omission to pay, &c., accord- not presented until after the expira-
ing to the terms of the 14th section tion of twenty-one days after the ad-
of the above act, the court would vertisement of the bankruptcy in the
annul such new fiat.

Gazette, the Court of Review bas
Quære, whether payment of the no authority to entertain it.

The commencement of the proceed- commenced within the time pre-
ing by petition, within the meaning scribed by the act: Held, also, that
of the above section, is the presen- such an action the bankrupt ought
tation of the petition, and not the to be confined to such objections to
mere preparation of it by the solici- the fiat as he would have been enti-
tor, or a notice by the bankrupt to tled to make under his petition, and
the commissioner disputing the va- that leave ought not to be given to
lidity of the fiat. Ex parte Tho- him to amend the petition by intro-
rold, 3 M, D. & D. 285; 1 Phill. ducing a statement which, with rea-
239.

sonable diligence, might have been
2. Where the bankrupt, on a peti- introduced into it originally. Ex
tion to annul, admits all the requi- parte Veysey, 3 M. D. & D. 420.
sites, he is not precluded by the 4. The twenty-fourth section of
twenty-fourth section of the 5 & 6 the Bankrupt Act, 5 & 6 Vict. c.
Vict. c. 122, from disputing the vali- 122, whereby the London Gazette,
dity of the fiat on other grounds, al- containing the advertisement of the
though twenty-one days have elapsed, adjudication of bankruptcy is made
after the advertisement of the bank- in certain cases conclusive evidence
ruptcy in the Gazette, before he pre- of the bankruptcy, does not apply
sented his petition. Er parte Phipps, to adjudications made before the 11th
3 M. D. & D. 488.

of November 1842, on which day
3. A petition to annul a joint fiat, the act came into operation. Ed-
presented by one of the bankrupts, wards v. Sherren, 11 M. & W. 595;
must be served upon the other, al- 1 Dowl. & L. 338.
though it only seeks to annul the fiat 5. An advertisement, notifying that
as regards the petitioner.

a meeting of the creditors of the
Where the objection arising from bankrupts would be held to assent to
the want of such service was taken or dissent from the assignee compro-
by the Court, and the petition was mising sundry suits pending in Chan-
re-answered, that it might be served cery, in which the assignee was plain-
upon the other bankrupt, but before tiff, and certain persons, to be named
it was so re-answered and served, at the meeting, were defendants, for
the time prescribed by the 5 & 6 the recovery of certain parts or
Vict. c. 122. s. 24, for taking pro- shares in certain copper mines, held,
ceedings to dispute the fiat had run insufficient, in not setting forth the
out: Held, that the Court had juris- names of the parties to the suits pro-
diction to entertain the petition, and posed to be compromised, there being
to direct the assignees to admit, in six different suits, to all or any
an action brought against them by which the advertisement might apply.
the bankrupt, that the action was Quære, whether the Court will set

aside a compromise agreed to at a 4. Where there are two petitions
meeting properly convened, on the in the same bankruptcy, an affidavit
ground merely of its being an im- intituled generally in the bankruptcy
prudent agreement, without fraud is regular ; but, if it do not point
being suggested.

with sufficient distinctness to the
Neither the bankrupts nor their petition, in the matter of which it is
representatives have a right to ap- proposed to read it, time will be given
pear on petitions relating to com- to file an affidavit in answer. Ех
promises of claims on behalf of the parte Musgrove, 3 M. D. & D. 386.
estate. Ex parte Magnus, 3 M, D. 5. Neither the Court of Review
& D. 693.

nor the Lord Chancellor has juris-

diction to allow a bankrupt's certifi-
AFFIDAVIT.

cate, unless the bankrupt himself
1. J. W., in support of a petition

makes an affidavit of conformity.
for a fiat, deposed that the alleged Ex parte Carruthers, 3 M. D. & D.
bankrupt was indebted to him, J. M. 269.
his copartner, (omitting the word

See also PetitioN-PETITIONING
"and") for goods sold and delivered

CREDITOR, 6.
by the deponent and his said copart-
ner: Held, that the omission rendered
the affidavit unavailable for the pur-

AGENT.
pose of striking a docket; and the 1. An agent has no right, without
officer having permitted the docket the authority of his principal, to
to be struck, subject to the question overdraw a banking account.

But
of the sufficiency of the above affi- if it appear that the agent has done
davit, and having afterwards permit- so with the knowledge of his princi-
ted a docket to be struck by another

struck by another pal, the jury will be warranted in
creditor: Held, that the latter credi- inferring from this, that the agent
tor was entitled to the fiat. Ex parte had, in fact, the requisite authority.
Hill, 3 M. D. & D. 51.

Pott v. Bevan, 1 Car. & K. 335.
2. The Court refused to order an 2. M. employed R. and Co.,
affidavit filed under 1 & 2 Vict. c. bankers in Edinburgh, to obtain for
110, to be taken off the file, on the him payment of a bill drawn on a
ground that no fiat could issue upon person resident at Calcutta ; R. and
it. Ex parte Cheese, 3 M. D. & D. Co, accepted the employment, and
79.

wrote promising to credit him with
3. An affidavit in support of the the money when received. R. and
petition must not be sworn before Co. transmitted the bill in the usual
the petition is presented.

course of business to C. and Co. of
Dickson, 3 M. D. & D. 686.

London, and by them it was for

In re

warded to India, where it was duly
paid. R. and Co. wrote to M. an-
nouncing the fact of its payment, but
never actually credited him in their
books with the amount. The house
in India failed.

Held, that R. and Co. were the
agents of M. to obtain payment of
the bill; that payment having been
actually made they became ipso
facto liable to him for the amount
received ; and that he could not be
called on to suffer any loss occa-
sioned by the conduct of their sub-
agents, as between whom and him-
self no privity existed.

Where the judgment of the Court
below is reversed in the House of
Lords and the house pronounces the
judgment which ought to bave been
pronounced in the Court below, the
effect of such judgment is to give to
the appellant the costs of the suit
in the Court below, which he would
have had there, had the proper judg-
ment been pronounced in the first
instance in that Court,

The house never gives costs
against a party coming to sustain a
decree in his favour. Mackersey v.
Ramsays, 9 Cl. & Fin. 818.

And see PARTNER, 2.

AMENDMENT OF DECLA-

RATION.
See Court of Review.

business a year before the issuing of
the fiat, he having carried on business
since elsewhere, held insufficient,
and the fiat annulled. To annul a
fiat for insufficient description, it is
not necessary that the existence of
actual fraud or mischief should be
shown. Ex parte Lewis, 3 M. D. &
D. 93.

2. Order made for superseding a
commission, and annulling a subse-
quent fiat, under the composition
contract clauses, sections 133 and
134 of the 6 Geo. 4, c. 16. Ex parte
Clarke, 3 M, D. & D. 595.

3. A docket was struck on the
22nd September, upon which a fiat
was issued on the 25th September,
but was not opened until the 11th
October. In the meantime, between
the 22nd and 29th September, the
bankrupt received several debts due
to him, and on the latter day filed
his petition under the Insolvent Act,
5 & 6 Vict. c. 116, and obtained an
interim order of protection, on the
allegation that his debts did not
amount to 300l. On a petition by
the bankrupt to annul the fiat, on the
ground of the delay in opening it,
and also for the purpose of giving
effect to the proceeding in insolvency,
the Court declined to do either under
the provisions of the 5 & 6 Vict. c.
122. s. 4, or the general provisions
of the 5 & 6 Vict. c. 116.
Whipple, 3 M. D. & D. 449.

4. A petitioner seeking to annul
the fiat for legal invalidity not patent
upon the proceedings, must apply

Ex parte

ANNULLING FIAT.
1. Description of the bankrupt, as
late of a place at which he carried on

Annulling Fiat.

INDEX.

Appropriation.

751

before the certificate is allowed, or it imperative upon the Court to annul
soon afterwards, or must account the new fiat sued out without such
satisfactorily for his delay. Ex leave. Ex parte Thomas, 3 M. D. &
parte Gregory, 3 M. D. & D. 572.

D. 307.
5. A writ of fi. fa. having been 8. Debts had been proved, and
lodged with the sheriff after a debtor real or leasehold property had been
bad been declared bankrupt and as- sold under a fiat, issued in June
signees appointed, the sheriff re- 1842, but the bankrupt had not ob-
turned “ nulla bona." Before the tained his certificate : Held, that a
return was made, the Court of Re- | petition of a creditor, who had no
view had ordered that the fiat be lien and had not proved, presented
annulled, if the Lord Chancellor in June 1844, to annul the fiat, for
should think fit; and after the re- legal invalidity, the delay not being
turn, the Lord Chancellor made an accounted for, came too late. Er
order accordingly: Held, that the parte Marwell, 3 M. D. & D. 708.
return was not false, since the annul- 9. Quære, whether a person who
ling of the fiat had not a retrospective has sued out a fiat, which is annulled
effect; and that even if it bad, the for want of the legal requisites, may
sheriff being a public officer, and strike a fresh docket without the
having, made the only return which leave of the Court. Ex parte Mus-
he could at the time have made, grove, 3 M, D. & D. 386.
ought to be protected. Smallcombe 10. Quære, whether the Court can
v. Olivier, 2 Dowl. & L. 217.

give validity to a fiat by annulling it
6. The fiat issued on February 23. as to one of the bankrupts, against
Adjudication took place on the 27th, whom it cannot be supported for
but was afterwards annulled. Fur- want of the legal requisites. Ex
ther evidence in support of the bank- parte Veysey, 3 M. D. & D. 420.
ruptcy was adduced before the com- See ADVERTISEMENT, 3—Costs, 3, 10
missioner, who declined adjudicating - COURT OF Review - FRAUD-
de novo upon the evidence. At the PETITIONING CREDITOR.
end of fourteen days from the issuing
of the fiat, the bankrupt presented a

APPEAL.
petition to annul the fiat. Held, that

See Special Case, 2.
the fiat ought to be annulled. Ex
parte Nicholson, 3 M. D. & D. 295.
7. The rule that after a fiat has

APPROPRIATION.
been annulled, the same petitioning B. S. & Co., of Calcutta, having
creditor cannot sue out a new fiat consigned certain gooods to G. B. in
against the same trader without the England, on which they had a lien
leave of the Court, does not render for the price, write him word that

« PreviousContinue »