Page images
PDF
EPUB

A single Commissioner of a Dis. of the parties aggrieved, and may by
trict Court of Bankruptcy bas power

such order direct the person com-
to issue such warrant.

mitted to pay all petitioner's costs,
A bankrupt having been committed charges, and expenses.
for not satisfactorily answering ques- The publication of the observations
tions was again brought up, when the respecting the petitioners in such a
Commissioner refused to make any case was held to be, of itself, a con-
order, but afterwards issued a war- tempt of Court, and the Court re-
rant for his detention, on the ground fused to discharge the person com-
that his answers on the last examina- mitted, until he apologized, as well
tion were not unsatisfactory, the with regard to the petitioners as with
Court refused to grant a writ of regard to the Court itself.
habeas corpus, the warrant showing Held also, that an offer to prove
sufficient ground for his detention. the truth of the observations, if the
Er parte Dauncy, 1 Dowl. & L. 608. petitioners would proceed upon them
See WARRANT.

as a libel, was an aggravation of the

contempt.
COMPOSITION DEED.

A petition on which judgment has
See FRAUDULENT PREFERENCE, 4. been finally pronounced, but on which

the Order has not been drawn up,
COMPROMISE.

held a pending proceeding, for the
Sce AssiGNEES, 13-ADVERTISE- purpose of rendering the publication
MENT, 5.

a contempt of Court, even if the

actual pendency of a proceeding is
CONFORMITY.

requisite to give the Court jurisdic-
See AFFIDAVIT, 5.

tion to commit; but semble that such

pendency is not requisite.
CONTEMPT.

A compromise of a contest for the
A petition for the committal of a choice of assignees, by which the
person for publishing insulting ob- business of the bankruptcy was divided
servations on the Court of Review, between two distinct firms of solici
and on parties engaged in litigation tors, who were to be jointly appointed
before it, with reference to proceed- solicitors to the fiat, strongly disap-
ings on a particular bankruptcy, is proved of by the Court. Er parle
properly intituled in the matter of Turner, 3 M. D. & D. 523.
such bankruptcy.

Ihe Court of Review has jurisdic- CONTINGENT DEBT.
tion to commit for such a publication, 1. Upon a loan of 28,2001., Cuba
as a contempt, and may make the bonds by a customer to his bankers,
order for committal upon the petition the latter engaged to replace them

Contingent Debt. INDEX.

Contingent Debt. 763
" at or within the expiration of three chase money, B. undertaking to pay
months, if he should require them to to A. any deficiency within one calen-
do so,” and to deposit other securities dar month after such sale; and in
for the performance of this engage- case the vessel should be lost the
ment. After the expiration of the agreement was to be void. On the
three months without any requisition 27th March the ship arrived, before
on the part of the customer, the cus- which time B. became bankrupt. On
tomer consents to an exchange of the 31st March A. gave notice of her
other securities for those deposited arrival to the assignees, who declined
by the bankers, without any new to complete the contract, and A. sold
stipulation as to the period of re- the ship for 28331. Held, that the
demption, and the bankers after-

agreement amounted to a contract on
wards become bankrupt: Held, under the part of B. to pay a certain sum
these circumstances, that the time for on a contingency, liable to be reduced
replacing the Cuba bonds became in- on another contingency, and that A.
definite, and that the bankers were could prove for the balance of the
not bound to replace them until re- 40001. after deducting the amount of
quested so to do; and that no such the proceeds of the sale of the ship.
request having been made by the Ex parte Harrison, 3 M. D. & D.
customer before their bankruptcy, 350.
the customer had no right to prove 3. Covenant. The declaration
for the amount of the bonds under stated that the defendant effected a
the fiat; and that the 6 Geo. 4. c. 16. policy of insurance on his life, and
s. 56, as to the proof of contingent assigned it to plaintiff to secure a
debts did not apply. Ex parte Eyre, sum of money lent by plaintiff to
S M. D. & D. 12; 1 Phill, 227. defendant, and that defendant had

2. A. agreed to sell to B. for covenanted to pay the premiums on
40001. a ship employed on a distant the policy: breach, that he had not
voyage

when she should arrive at her so paid the premiums.
port of discharge in the united king- Plea, the defendant's bankruptcy
dom, and B. agreed, within one month after commission of the breaches.
after her arrival, or within such further Held, that the plea was no answer,
time as should be necessary for effect- as the defendant's liability to pay the
ing the repairs and discharging the premiums to the insurance office con-
cargo, on the execution of a bill of stituted no debt, either contingent or
sale of the vessel, to deliver to A. otherwise, between plaintiff and de-
two promissory notes for the amount fendant, and was collateral to the
of the purchase money; in default of debt, and not proveable under de-
which A. meant to sell the ship and fendant's commission. Toppin v. Field,
keep the proceeds in part of the pur-

3 Gale & Dav. 340,

COSTS.

manded the restoration of his books:
1. A petitioner obtaining an Order but this being refused, on the 4th of
of the Court for any purpose, which January, 1842, he commenced an
directs him to pay the costs of another action of trover against G. for their
party appearing on the petition, is recovery. On the 25th of January
bound, on the requisition of such a second fiat was issued against the
party, to produce the Order to the plaintiff, and on the 12th of May the
Registrar, pursuant to the General plaintiff was duly adjudged a bank-
Order of the 29th April 1844, for rupt. On the 25th of May, G., the
the purpose of his marking on it the defendant in the suit, was again ap-
date when it passed, preparatory to pointed official assignee. On the
the issuing of a writ of fieri facias for 23rd of February the action was
the amount of the costs. Er parte tried, and the plaintiff obtained a
Grimstead, 3 M. D. & D, 683. verdict. Held, that the defendant

2. Where bills of costs of the was entitled to stay the proceedings
solicitor to the fiat had been taxed in the action, upon payment of costs
and paid before 1835, and the assig- down to the date of the second fiat
nees' accounts containing these pay- in bankruptcy. Ouchterlony v. Gibson,
ments had been audited and passed 3 Dowl. N. S. 1; 1 Dowl. & L. I.
by the Commissioners, and one of 4. An executris brought an action
the solicitors to the fiat and two of the of assumpsit for 41. 1s. 1d., in respect
assignees had since died: Held, that of a debt found by the testator's
a petition for retaxation, presented in books to be due from the defendant.
1844, came too late, whether the case Before action the defendant alleged
came within the act 6 & 7 Vict. c. 73, that he had a set-off, but he pleaded
or not; as to which, quære.

as to 21. 158. his bankruptcy; and as
As to other bills delivered in and to the residue, non assumpsit; the
before 1834, and paid without being plaintiff entered a nolle prosequi as
taxed by the assignees, by payments to 21. 15s., but recovered a verdict
on account, ending in 1834, held, that for 11. 6s. ld. the residue. Held,
the statute did not prevent taxation, that the cause of action having arisen
and that the petition was not too late. in the county of Middlesex, and the
Ex parte Woolston, 3 M. D. & D. 702. debt being reduced below 40s., the

3. Under a fiat in bankruptcy, defendant was entitled to enter a
issued in the year 1840, G. was ap- suggestion upon the roll to entitle
pointed official assignee, and received him to double costs of suit; and that
possession of the bankrupt's books, his right to do so was not affected
&c. On the 10th of December, 1841, by the position of the plaintiff as
the fiat was annulled by consent of executrix, nor by her ignorance of
the creditors, and the bankrupt de- the bankruptcy of the defendant, nor
by the circumstance of the bank- out of the proceeds of the sale,
ruptcy not having been put in issue. although those proceeds may fall
Stilwell v. Bracher, 3 Dowl. N. S. 251. short of the sums due to the vendor.

5. The plaintiffs recovered a ver- Ex parte Lewis, 3 M. D. & D. 173.
dict in an action of assumpsit on two 8. The provisions of the 3 & 4
bills of exchange for 681. 6s. for Will. 4. c. 47. s. 8, enabling the
damages and costs. After a fiat in Court of Review to refer bills of
bankruptcy had issued against the costs to be taxed by the Registrar, is
defendant, they signed judgment. confined to such bills as are directed
Afterwards they proved under the to be taxed by the 1 & 2 Will. 4.
commission for the amount of the c. 56. s. 5, and the directions of the
bills of exchange, the Commissioners last mentioned act apply only to
refusing to allow them to prove for

“ costs of suit between party and
the costs. The bankrupt never ob- party in the Court of Review." Other
tained his certificate, nor was any bills of costs, therefore, must still be
dividend paid under the commission. referred for taxation to a Master in
The plaintiffs subsequently sued out Chancery. Ex parte Glaister, 3 M.
a writ of sci. fa. to revive the judg- D. & D. 253.
ment, solely with the view of re- 9. Quære, whether 5 & 6 Vict.
covering the costs. The Court c. 122. s. 19, (which gives the de-
granted a rule to stay proceedings fendant costs in case the plaintiff
on the sci. fa. Woodward v. Meredith, should not recover the amount for
2 Dowl. & L. 135.

which he filed an affidavit of debt,)
6. On taxation of costs, a charge applies to a case referred for arbitra-
for consulting counsel previously to tion. Higginson v. Broadhurst, i
presenting the petition, and a fee to Dowl. & L. 490.
a second counsel on the hearing, if 10. A trader, against whom a fiat
the petition is one of a special nature, has improperly issued, is requested by
ought to be allowed. Ex parte Ellis, the petitioning creditor to consent to
3 M. D. & D. 600.

an order to annul, on payment of the
7. An application to review the costs, &c. of the application; the
taxation of an officer of the Court proposed Order not providing for
may be made by way of motion. the costs of annulling the fiat and

Assignees having the conduct of a incidental thereto. The trader does
sale under the usual Order, made on not object on the ground of this
the petition of a vendor, having a omission, but requires other and un-
lien for unpaid purchase money, are usual words to be added to the pro-
justified in taking the opinion of posed order, which the petitioning
counsel on the conditions of sale, and creditor declines inserting. Held, that
will be allowed the costs of so doing, this negociation did not deprive the

trader of his costs, on his afterwards, Review, in the above count, might
presenting a petition of his own to be rejected; and that the residue of
annul. Er parte Musgrore, 3 M. D. the count was sufficient, after verdict.
& D. 386.

Semble, that, if the objection on the

face of the count would have been
See AGENT, 2-CONTEMPT-INSPEC- good on motion in arrest of judgment,

TOR-ASSIGNEES, 6, 11--MORT- the judge at nisi prius ought not to
GAGE, 13, 14, 15, 16, 17-Official have permitted an amendment under
ASSIGNEE-VOLUNTARY DEED. stat. 3 & 4 Will. 4. c. 42. s. 23. Atkin.

son v. Raleigh, 3 Ad. & Ell. N. S. 79.
COURT OF REVIEW.

See COMMISSIONERS—CONTEMPT.
Declaration in case for maliciously
suing out a fiat in bankruptcy against

DEBT, FUTURE.
plaintiff. The count averred that the

See FUTURE DEBT.
fiat was untenable, &c., and that such
proceedings were thereupon had, that

DECLARATION.
on, &c., it was duly ordered, to wit, See Court of Review.
by the Court of Review, that the fiat
should be, and that the same then

DELAY.
was, rescinded and annulled, and the See ANNULLING, 2, 4, 8.
proceedings on the said fiat were
thereupon then wholly ended and

DEMAND
determined. Plea, Not guilty.

See PARTNER, 3.
On motion after verdict for plain-
tiff to enter a nonsuit on the ground

DEPOSIT.
that the order annulling the fiat was Sce Bill of ExcHANGE, 3-MORI-
proved at the trial to have been the

GAGE,
Lord Chancellor's, and not that of
the Court of Review: Held, that the

DISCHARGE.
plea of Not guilty, under the New See PROTECTION FROM ARREST.
Rules, did not put in issuse the an-
nulling of the fiat, and therefore that

DISCLAIMER.
the variance, if any, was no ground

See OfficiAL ASSIGNEE.
of nonsuit.
On motion to arrest judgment on

DIVIDEND.
the ground that the Court of Review 1. After a dividend has been de-
had no authority, under 1 & 2 Will. 4. clared, a party, entitled in respect of
c. 50, to annul a fiat: Held (as- a proof, request the assignees, by
suming this to be so), that the state- letter, to send him the amount of his
ment of an order by the Court of dividend in a post office order, pro-

« PreviousContinue »