cumstances was not an act of bank- ruptcy by T. J. as a procuring of his goods to be taken in execu- tion. Gore v. Lloyd, 12 M. & W. 463.
3. In an action by the assignees of a bankrupt to recover property of the bankrupt, a letter written by him during his absence from home, stating that he was absent to avoid two writs that were out against him, is admissible evidence for the plain- tiffs of an act of bankruptcy, with- out proof that there was in fact any writ issued, or any pressure of credi-
In order to make the declaration of a bankrupt admissible evidence of an act of bankruptcy, it is not essen- tial that the declaration and act should be contemporaneous. Rouch v. Great Western Railway Company, 1 Ad. & El. N. S. 51.
4. Where a trader had been sum- moned before a commissioner, under 5 & 6 Vict. c. 122. s. 11, and before the proper time had elapsed to con- stitute an act of bankruptcy within the meaning of the 13th section, a fiat was by mistake issued, which was afterwards annulled: Held, that the existence of this fiat was such an obstruction to the payment of the petitioning creditor's debt, that if he sued out a new fiat founded on the omission to pay, &c., accord- ing to the terms of the 14th section of the above act, the court would annul such new fiat.
Quare, whether payment of the
debt, after the issuing of the impro- perly issued fiat, would have consti- tuted an act of bankruptcy under 6 Geo. 4. c. 16. s. 8. Ex parte Mus- grove, 3 M. D. & D. 386.
5. A bill of sale by a trader of all his effects to a creditor as a security for an antecedent debt is an act of bankruptcy, although it does not purport to convey all his effects, and may have been executed in the hope of obtaining further advances from the creditor, and with the intention of continuing to carry on trade, and although advances may have been subsequently made, and no posses- sion taken under the bill of sale until several weeks afterwards, during which time the trader carried on business as before. Lindon v. Sharpe, 7 Scott, N. R. 730.
See EXECUTION, 12-FRAUD, 2-No- TICE-PROOF, 6-RELATION.
ADVERTISEMENT.
1. A petition to the Court of Re- view is comprehended within the words "other proceeding," contained in the 24th section of the 5 & 6 Vict. c. 122. Therefore, where a petition of the bankrupts to annul the fiat is not presented until after the expira- tion of twenty-one days after the ad- vertisement of the bankruptcy in the Gazette, the Court of Review has no authority to entertain it.
The commencement of the proceed- | commenced within the time pre-
ing by petition, within the meaning of the above section, is the presen- tation of the petition, and not the mere preparation of it by the solici- tor, or a notice by the bankrupt to the commissioner disputing the va- lidity of the fiat. Ex parte Tho- rold, 3 M. D. & D. 285; 1 Phill. 239.
2. Where the bankrupt, on a peti- tion to annul, admits all the requi- sites, he is not precluded by the twenty-fourth section of the 5 & 6 Vict. c. 122, from disputing the vali- dity of the fiat on other grounds, al- though twenty-one days have elapsed, after the advertisement of the bank- ruptcy in the Gazette, before he pre- sented his petition. Ex parte Phipps, 3 M. D. & D. 488.
3. A petition to annul a joint fiat, presented by one of the bankrupts, must be served upon the other, al- though it only seeks to annul the fiat as regards the petitioner.
Where the objection arising from the want of such service was taken by the Court, and the petition was re-answered, that it might be served upon the other bankrupt, but before it was so re-answered and served, the time prescribed by the 5 & 6 Vict. c. 122. s. 24, for taking pro- ceedings to dispute the fiat had run out: Held, that the Court had juris- diction to entertain the petition, and to direct the assignees to admit, in an action brought against them by the bankrupt, that the action was
scribed by the act: Held, also, that in such an action the bankrupt ought to be confined to such objections to the fiat as he would have been enti- tled to make under his petition, and that leave ought not to be given to him to amend the petition by intro- ducing a statement which, with rea- sonable diligence, might have been introduced into it originally. Ex parte Veysey, 3 M. D. & D. 420.
4. The twenty-fourth section of the Bankrupt Act, 5 & 6 Vict. c. 122, whereby the London Gazette, containing the advertisement of the adjudication of bankruptcy is made in certain cases conclusive evidence of the bankruptcy, does not apply to adjudications made before the 11th of November 1842, on which day the act came into operation. Ed- wards v. Sherren, 11 M. & W. 595; 1 Dowl. & L. 338.
5. An advertisement, notifying that a meeting of the creditors of the bankrupts would be held to assent to or dissent from the assignee compro- mising sundry suits pending in Chan- cery, in which the assignee was plain- tiff, and certain persons, to be named at the meeting, were defendants, for the recovery of certain parts or shares in certain copper mines, held, insufficient, in not setting forth the names of the parties to the suits pro- posed to be compromised, there being six different suits, to all or any of which the advertisement might apply. Quære, whether the Court will set
aside a compromise agreed to at a meeting properly convened, on the ground merely of its being an im- prudent agreement, without fraud being suggested.
Neither the bankrupts nor their representatives have a right to ap- pear on petitions relating to com- promises of claims on behalf of the estate. Ex parte Magnus, 3 M. D. & D. 693.
1. J. W., in support of a petition for a fiat, deposed that the alleged bankrupt was indebted to him, J. M. his copartner, (omitting the word "and") for goods sold and delivered by the deponent and his said copart- ner: Held, that the omission rendered the affidavit unavailable for the pur- pose of striking a docket; and the officer having permitted the docket to be struck, subject to the question of the sufficiency of the above affi- davit, and having afterwards permit- ted a docket to be struck by another creditor: Held, that the latter credi- tor was entitled to the fiat. Ex parte Hill, 3 M. D. & D. 51.
2. The Court refused to order an affidavit filed under 1 & 2 Vict. c. 110, to be taken off the file, on the ground that no fiat could issue upon it. Ex parte Cheese, 3 M. D. & D.
4. Where there are two petitions in the same bankruptcy, an affidavit intituled generally in the bankruptcy is regular; but, if it do not point. with sufficient distinctness to the petition, in the matter of which it is proposed to read it, time will be given to file an affidavit in answer. Ex parte Musgrove, 3 M. D. & D. 386.
5. Neither the Court of Review nor the Lord Chancellor has juris- diction to allow a bankrupt's certifi- cate, unless the bankrupt himself makes an affidavit of conformity. Ex parte Carruthers, 3 M. D. & D. 269.
See also PETITION-PETITIONING CREDITOR, 6.
1. An agent has no right, without the authority of his principal, to overdraw a banking account. But if it appear that the agent has done so with the knowledge of his princi- pal, the jury will be warranted in inferring from this, that the agent had, in fact, the requisite authority. Pott v. Bevan, 1 Car. & K. 335.
2. M. employed R. and Co., bankers in Edinburgh, to obtain for him payment of a bill drawn on a person resident at Calcutta; R. and Co. accepted the employment, and wrote promising to credit him with the money when received. R. and Co. transmitted the bill in the usual course of business to C. and Co. of London, and by them it was for-
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 have 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.
ANNULLING FIAT.
1. Description of the bankrupt, as late of a place at which he carried on
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. &
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. Ex parte Whipple, 3 M. D. & D. 449.
4. A petitioner seeking to annul the fiat for legal invalidity not patent upon the proceedings, must apply
before the certificate is allowed, or soon afterwards, or must account satisfactorily for his delay. Ex parte Gregory, 3 M. D. & D. 572.
5. A writ of fi. fa. having been lodged with the sheriff after a debtor had been declared bankrupt and as- signees appointed, the sheriff re- turned "nulla bona." Before the return was made, the Court of Re- view had ordered that the fiat be annulled, if the Lord Chancellor should think fit; and after the re- turn, the Lord Chancellor made an order accordingly: Held, that the return was not false, since the annul- ling of the fiat had not a retrospective effect; and that even if it had, the sheriff being a public officer, and having. made the only return which he could at the time have made, ought to be protected. Smallcombe
v. Olivier, 2 Dowl. & L. 217.
6. The fiat issued on February 23. Adjudication took place on the 27th, but was afterwards annulled. Fur- ther evidence in support of the bank- ruptcy was adduced before the com- missioner, who declined adjudicating de novo upon the evidence. At the end of fourteen days from the issuing of the fiat, the bankrupt presented a petition to annul the fiat. Held, that the fiat ought to be annulled. Ex parte Nicholson, 3 M. D. & D. 295.
7. The rule that after a fiat has been annulled, the same petitioning creditor cannot sue out a new fiat against the same trader without the leave of the Court, does not render
it imperative upon the Court to annul the new fiat sued out without such leave. Ex parte Thomas, 3 M. D. & D. 307.
8. Debts had been proved, and real or leasehold property had been sold under a fiat, issued in June 1842, but the bankrupt had not ob- tained his certificate: Held, that a petition of a creditor, who had no lien and had not proved, presented in June 1844, to annul the fiat, for legal invalidity, the delay not being accounted for, came too late. Ex parte Maxwell, 3 M. D. & D. 708.
9. Quære, whether a person who has sued out a fiat, which is annulled for want of the legal requisites, may strike a fresh docket without the leave of the Court. Ex parte Mus- grove, 3 M. D. & D. 386.
10. Quære, whether the Court can give validity to a fiat by annulling it as to one of the bankrupts, against whom it cannot be supported for want of the legal requisites. Ex parte Veysey, 3 M. D. & D. 420. See ADVERTISEMENT, 3-COSTS, 3, 10 -COURT OF REVIEW-FRAUD- PETITIONING Creditor.
APPEAL.
See SPECIAL CASE, 2.
APPROPRIATION.
B. S. & Co., of Calcutta, having consigned certain gooods to G. B. in England, on which they had a lien for the price, write him word that
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