A single Commissioner of a Dis- | trict Court of Bankruptcy has power to issue such warrant.
A bankrupt having been committed for not satisfactorily answering ques- tions was again brought up, when the Commissioner refused to make any order, but afterwards issued a war- rant for his detention, on the ground that his answers on the last examina- tion were not unsatisfactory, the Court refused to grant a writ of habeas corpus, the warrant showing sufficient ground for his detention. Ex parte Dauncy, 1 Dowl. & L. 608. See WARRANT.
COMPOSITION DEED. See FRAUDULENT PREFERENCE, 4.
COMPROMISE.
See ASSIGNEES, 13-ADVERTISE- MENT, 5.
CONFORMITY. See AFFIDAVIT, 5.
A petition for the committal of a person for publishing insulting ob- servations on the Court of Review, and on parties engaged in litigation before it, with reference to proceed- ings on a particular bankruptcy, is properly intituled in the matter of such bankruptcy.
The Court of Review has jurisdic- tion to commit for such a publication, as a contempt, and may make the order for committal upon the petition
of the parties aggrieved, and may by such order direct the person com- mitted to pay all petitioner's costs, charges, and expenses.
The publication of the observations respecting the petitioners in such a case was held to be, of itself, a con- tempt of Court, and the Court re- fused to discharge the person com- mitted, until he apologized, as well with regard to the petitioners as with regard to the Court itself.
Held also, that an offer to prove the truth of the observations, if the petitioners would proceed upon them as a libel, was an aggravation of the contempt.
A petition on which judgment has been finally pronounced, but on which the Order has not been drawn up, held a pending proceeding, for the purpose of rendering the publication a contempt of Court, even if the actual pendency of a proceeding is requisite to give the Court jurisdic- tion to commit; but semble that such pendency is not requisite.
A compromise of a contest for the choice of assignees, by which the business of the bankruptcy was divided between two distinct firms of solici- tors, who were to be jointly appointed solicitors to the fiat, strongly disap- proved of by the Court. Ex parte Turner, 3 M. D. & D. 523.
CONTINGENT debt. 1. Upon a loan of 28,2001., Cuba bonds by a customer to his bankers, the latter engaged to replace them
"at or within the expiration of three months, if he should require them to do so," and to deposit other securities for the performance of this engage- ment. After the expiration of the three months without any requisition on the part of the customer, the cus- tomer consents to an exchange of other securities for those deposited by the bankers, without any new stipulation as to the period of re- demption, and the bankers after- wards become bankrupt: Held, under these circumstances, that the time for replacing the Cuba bonds became in- definite, and that the bankers were not bound to replace them until re- quested so to do; and that no such request having been made by the customer before their bankruptcy, the customer had no right to prove for the amount of the bonds under the fiat; and that the 6 Geo. 4. c. 16. s. 56, as to the proof of contingent debts did not apply. Ex parte Eyre, 3 M. D. & D. 12; 1 Phill. 227.
2. A. agreed to sell to B. for 4000l. a ship employed on a distant voyage when she should arrive at her port of discharge in the united king- dom, and B. agreed, within one month after her arrival, or within such further time as should be necessary for effect- ing the repairs and discharging the cargo, on the execution of a bill of sale of the vessel, to deliver to A. two promissory notes for the amount of the purchase money; in default of which A. meant to sell the ship and keep the proceeds in part of the pur-
chase money, B. undertaking to pay to A. any deficiency within one calen- dar month after such sale; and in case the vessel should be lost the agreement was to be void. On the 27th March the ship arrived, before which time B. became bankrupt. On the 31st March A. gave notice of her arrival to the assignees, who declined to complete the contract, and A. sold the ship for 28331. Held, that the agreement amounted to a contract on the part of B. to pay a certain sum on a contingency, liable to be reduced on another contingency, and that A. could prove for the balance of the 4000l. after deducting the amount of the proceeds of the sale of the ship. Ex parte Harrison, 3 M. D. & D.
3. Covenant. The declaration stated that the defendant effected a policy of insurance on his life, and assigned it to plaintiff to secure a sum of money lent by plaintiff to defendant, and that defendant had covenanted to pay the premiums on the policy: breach, that he had not so paid the premiums.
Plea, the defendant's bankruptcy after commission of the breaches.
Held, that the plea was no answer, as the defendant's liability to pay the premiums to the insurance office con- stituted no debt, either contingent or otherwise, between plaintiff and de- fendant, and was collateral to the debt, and not proveable under de- fendant's commission. Toppin v. Field, 3 Gale & Dav. 340.
1. A petitioner obtaining an Order of the Court for any purpose, which directs him to pay the costs of another party appearing on the petition, is bound, on the requisition of such party, to produce the Order to the Registrar, pursuant to the General Order of the 29th April 1844, for the purpose of his marking on it the date when it passed, preparatory to the issuing of a writ of fieri facias for the amount of the costs. Ex parte Grimstead, 3 M. D. & D. 683.
2. Where bills of costs of the solicitor to the fiat had been taxed and paid before 1835, and the assig- nees' accounts containing these pay- ments had been audited and passed by the Commissioners, and one of the solicitors to the fiat and two of the assignees had since died: Held, that a petition for retaxation, presented in 1844, came too late, whether the case came within the act 6 & 7 Vict. c. 73, or not; as to which, quære.
As to other bills delivered in and before 1834, and paid without being taxed by the assignees, by payments on account, ending in 1834, held, that the statute did not prevent taxation, and that the petition was not too late. Ex parte Woolston, 3 M. D. & D. 702.
3. Under a fiat in bankruptcy, issued in the year 1840, G. was ap- pointed official assignee, and received possession of the bankrupt's books, &c. On the 10th of December, 1841, the fiat was annulled by consent of the creditors, and the bankrupt de-
manded the restoration of his books: but this being refused, on the 4th of January, 1842, he commenced an action of trover against G. for their recovery. On the 25th of January a second fiat was issued against the plaintiff, and on the 12th of May the plaintiff was duly adjudged a bank- rupt. On the 25th of May, G., the defendant in the suit, was again ap- pointed official assignee. On the 23rd of February the action was tried, and the plaintiff obtained a verdict. Held, that the defendant was entitled to stay the proceedings in the action, upon payment of costs down to the date of the second fiat in bankruptcy. Ouchterlony v. Gibson, 3 Dowl. N. S. 1; 1 Dowl. & L. 1.
4. An executrix brought an action of assumpsit for 47. 1s. 1d., in respect of a debt found by the testator's books to be due from the defendant. Before action the defendant alleged that he had a set-off, but he pleaded as to 21. 15s. his bankruptcy; and as to the residue, non assumpsit; the plaintiff entered a nolle prosequi as to 21. 15s., but recovered a verdict for 11. 68. 1d. the residue. Held, that the cause of action having arisen in the county of Middlesex, and the debt being reduced below 40s., the defendant was entitled to enter a suggestion upon the roll to entitle him to double costs of suit; and that his right to do so was not affected by the position of the plaintiff as executrix, nor by her ignorance of the bankruptcy of the defendant, nor
by the circumstance of the bank- ruptcy not having been put in issue. Stilwell v. Bracher, 3 Dowl. N. S. 251.
5. The plaintiffs recovered a ver- dict in an action of assumpsit on two bills of exchange for 681. 6s. for damages and costs. After a fiat in bankruptcy had issued against the defendant, they signed judgment. Afterwards they proved under the commission for the amount of the bills of exchange, the Commissioners refusing to allow them to prove for the costs. The bankrupt never ob- tained his certificate, nor was any dividend paid under the commission. The plaintiffs subsequently sued out a writ of sci. fa. to revive the judg- ment, solely with the view of re- covering the costs. The Court granted a rule to stay proceedings on the sci. fa. Woodward v. Meredith, 2 Dowl. & L. 135.
6. On taxation of costs, a charge for consulting counsel previously to presenting the petition, and a fee to a second counsel on the hearing, if the petition is one of a special nature, ought to be allowed. Ex parte Ellis, 3 M. D. & D. 600.
7. An application to review the taxation of an officer of the Court may be made by way of motion.
Assignees having the conduct of a sale under the usual Order, made on the petition of a vendor, having a lien for unpaid purchase money, are justified in taking the opinion of counsel on the conditions of sale, and will be allowed the costs of so doing,
out of the proceeds of the sale, although those proceeds may fall short of the sums due to the vendor. Ex parte Lewis, 3 M. D. & D. 173.
8. The provisions of the 3 & 4 Will. 4. c. 47. s. 8, enabling the Court of Review to refer bills of costs to be taxed by the Registrar, is confined to such bills as are directed to be taxed by the 1 & 2 Will. 4. c. 56. s. 5, and the directions of the last mentioned act apply only to
costs of suit between party and party in the Court of Review." Other bills of costs, therefore, must still be referred for taxation to a Master in Chancery. Ex parte Glaister, 3 M. D. & D. 253.
9. Quære, whether 5 & 6 Vict. c. 122. s. 19, (which gives the de- fendant costs in case the plaintiff should not recover the amount for which he filed an affidavit of debt,) applies to a case referred for arbitra- tion. Higginson v. Broadhurst, 1 Dowl. & L. 490.
10. A trader, against whom a fiat has improperly issued, is requested by the petitioning creditor to consent to an order to annul, on payment of the costs, &c. of the application; the proposed Order not providing for the costs of annulling the fiat and incidental thereto. The trader does not object on the ground of this omission, but requires other and un- usual words to be added to the pro- posed order, which the petitioning creditor declines inserting. Held, that this negociation did not deprive the
trader of his costs, on his afterwards presenting a petition of his own to annul. Ex parte Musgrove, 3 M. D. & D. 386.
See AGENT, 2-CONTEMPT-INSPEC- TOR-ASSIGNEES, 6, 11--MORT- GAGE, 13, 14, 15, 16, 17-OFFICIAL ASSIGNEE-VOLUNTARY DEED.
COURT OF REVIEW. Declaration in case for maliciously suing out a fiat in bankruptcy against plaintiff. The count averred that the fiat was untenable, &c., and that such proceedings were thereupon had, that on, &c., it was duly ordered, to wit, by the Court of Review, that the fiat should be, and that the same then was, rescinded and annulled, and the proceedings on the said fiat were thereupon then wholly ended and determined. Plea, Not guilty.
On motion after verdict for plain- tiff to enter a nonsuit on the ground that the order annulling the fiat was proved at the trial to have been the Lord Chancellor's, and not that of the Court of Review: Held, that the plea of Not guilty, under the New Rules, did not put in issuse the an- nulling of the fiat, and therefore that the variance, if any, was no ground of nonsuit.
On motion to arrest judgment on the ground that the Court of Review had no authority, under 1 & 2 Will. 4. c. 50, to annul a fiat: Held (as- suming this to be so), that the state- ment of an order by the Court of
Review, in the above count, might be rejected; and that the residue of the count was sufficient, after verdict.
Semble, that, if the objection on the face of the count would have been good on motion in arrest of judgment, the judge at nisi prius ought not to have permitted an amendment under stat. 3 & 4 Will. 4. c. 42. s. 23. Atkin- son v. Raleigh, 3 Ad. & Ell. N. S. 79. See COMMISSIONERS-CONTEMPT.
DEBT, FUTURE. See FUTURE Debt.
DECLARATION. See COURT OF REVIEW.
See BILL OF EXCHANGE, 3-MORT-
DISCHARGE.
See PROTECTION FROM ARREST.
DISCLAIMER.
See OFFICIAL ASSIGNEE.
1. After a dividend has been de- clared, a party, entitled in respect of a proof, request the assignees, by letter, to send him the amount of his dividend in a post office order, pro-
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