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under such circumstances as would part satisfaction of his debt. Held,
have been a ground for the inter- that the creditor did not thereby
ference of a court of equity to re- incur a forfeiture of his debt, under
strain execution, those circumstances the 6 Geo. 4. c. 16. s. 8, and that
are a sufficient objection to the proof, the words of that section, “ whereby
although the debtor may have onnitted such person may receive more in the
to make a legal defence which he pound than the other creditors," mean
had to the action, and although (un- the creditors entitled to receive divi-
der such circumstances as those of dends under the particular bank-
the present case) nearly twenty years ruptcy; and that the property, to the
have elapsed since the judgment was payment, gift, or delivery of which
obtained. Ibid.

the section is meant to relate, is pro-
See Act of BANKRUPTCY-Notice. perty which forms a subject of dis-

tribution under the particular fiat.

Ex parte Smith, 3 M, D. & D. 144.
See Costs, 5.

2. Where one of two partners, who

was anxious to dissolve the partner-
EXECUTOR DE SON TORT. ship, procured a creditor to issue a
See REPUTED OWNERSHIP, joint fiat against the firm, and it ap-

peared that the main object of the
EXPUNGING PROOF. fiat was to dissolve the partnership,
See STAMP, 1, S.

and that the division of the effects

among the creditors, if an object at

all, was so merely in a slight and in-
See Lien, 2-INTERPLEADER. ferior degree, and was a purpose only

subsidiary to the other; the fiat was

held to be issued under a false colour
See HUSBAND AND WIFE. for a concealed object, and was or-

dered to be annulled at the costs of

the petitioning creditor and the part-
See ANNULLING — FRAUD - Peti- ner who induced him to issue it. Er
TIONING CREDITOR, 6-VENUE. parte Phipps re Coulson, 3 M, D. &

D. 505.

3. A., a trader in embarrassed cir-
1. A joint creditor of A. and B. cumstances, offered his creditors a
strikes a docket for a separate fiat composition of 78. 6d. in the pound,
against A., and after the docket is which was refused by the majority,
struck, A. delivers to him certain including B. B. filed an affidavit in
bills of exchange, forming a portion the Court of Bankruptcy, and on the
of the joint estate of A. and B., in 13th of March served on A. a copy,

and a demand of payment, and he 5. One Martin being in embar-
also served a notice on the auctioneer rassed circumstances, executed a
not to proceed with the sale. The deed of composition to secure to his
goods were sold, and out of the pro- creditors the payment of 7s. in the
ceeds a payment was made on the pound upon the amount of their re-
5th of April to C. of the amount of spective debts. The defendants, who
the composition upon a debt due were creditors, refused to sign the
from A. to C. Held, a fraudulent deed until they had obtained from
preference. Gibson v. Muskett, 4 M. Martin a promise to give them secu-
& G. 160.

rity for the difference between the
Quære, whether, under the 1 & 2 composition and the full amount of
Vict. c. 110. s. 8, the twenty days

their demand ; and afterwards, in
after service of the notice are to be pursuance of that agreement, Martin
reckoned inclusively of the day of gave them his promissory notes pay-
service. Ibid.

able to themselves or order. The
The question whether a fraudulent defendants indorsed the notes, and
preference was given appears to be paid them into their bankers at Leeds,
one of law rather than of fact. Ibid. to whom they were in the habit of

A payment really and bond fide indorsing all bills and notes received
made is a payment made without the by them, and drawing generally on
intention of its being reclaimed. Ibid. account. The notes were presented

4. In an action by assignees of a at maturity by the London corre-
bankrupt to recover back money spondents of the Leeds bankers, and
alleged to have been paid by the paid by Martin, who continued his
bankrupt to the defendant by way dealings with the defendants down to
of fraudulent preference, in contem- the bankruptcy, (which took place
plation of bankruptcy, the judge, about three years afterwards,) with-
assuming that there had been such a out ever complaining of the transac-
degree of importunity on the part of tion, or attempting to set off the pay-
the creditor as would under ordinary ments made in respect of the notes
circumstances repel the presumption against the subsequent demands of
of the payment being voluntary, left the defendants upon him. There
it to the jury to say whether it was was no evidence to show the state of
made in consequence of that impor- the account between the defendants
tunity, or with a view to a fraudulent and the Leeds bankers at the time of
preference of the defendant. Held,

the payments, nor any evidence that
that this was
a proper direction.

Martin knew in what character the
Cook v. Pritchard, 6 Scott, N. R. 34; bankers who presented the notes held
5 Man. & Gr. 329; and see Pritchard them. In an action for money had
v. Hitchcock, 6 Scott, N. R. 851. and received, brought by the assig-

nees of Martin to recover back the

amount of these notes, it was left to

See Ship.
the jury to say whether or not the
payment was voluntary; and they

were told, that if the payment was Plaintiffs, having taken B. in exe-
made to the bankers as agents only, cution for a debt, discharged him
it must be considered as voluntary, upon the following undertaking of
and that if they found the payment defendant: “ In consideration of your
to be voluntary, and to have been discharging B. out of custody, I un-
made with a full knowledge of the dertake that he shall pay the debt

defendants, otherwise for the plain- stalments,” &c. Held, that the plain-
tiffs. The Court directed a new tiff might have proved the unpaid
trial, in order that the attention of instalments under a fiat in bank-
the jury might be more precisely ruptcy against defendant, and that
directed to the question, whether defendant's certificate was therefore
Martin knew the character in which a bar to an action upon the contract
the bankers presented the notes, as for instalments becoming due since
agents or as holders for value. Gib-

his bankruptcy. Lane v. Burghart, I
son v. Bruce, 6 Scott, N. R. 309; 5 Ad. & Ell, N. S. 933.
M. & G. 199.
See Bill of ExcHANGE, 3-LIMITA-




A. guarantees to a banking com-

pany “ all current obligations in their
FRIENDLY SOCIETY. hands to which B. may be a party,
Country bankers, appointed by a and also all his future obligations
friendly society to receive monies, and engagements that may come into
and to transmit them to their Lon- | their hands." Held, that the latter
don agents for the purpose of invest- part of the guarantee as to the future
ment in the Bank of England to the obligations implied of itself a con-
account of the commissioners of the sideration, and did not require the
national debt, are not to be consi- specific statement of one in the body
dered as appointed to an office in of the guarantee, according to the
the society, within the meaning of requisition of the Statute of Frauds,
the Friendly Society Act, 4 & 5 Wall. and that the banking company might
4. c. 40, s. 12 ; Ex parte II hipham, 3 therefore, on the bankruptcy of A.,
M, D. & D. 564.

prore for the amount of their ad-

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Husband and Wife.


Interpleader. 775
vances to B. subsequent to the date of cause coming on for hearing for fur-
the guarantee.

Ex parte Littlejohn, ther directions, the Court declined
3 M. D. & D. 182.

to proceed in the absence of the hus-
And see Certificate, 3.


A trust for the wife's own use and

benefit is not a trust for her separate
1. The assignees of a bankrupt

Beales v. Spencer, 2 Y. & C.
cannot maintain an action in their

C. C. 651.

own names only for a chose in action
belonging to the wife of the bankrupt

before marriage, as a promissory note
given to her dum sola. Sherrington

See Evidence, 1.
v. Yates, 1 Dowl. & L. 1032, re-

versing Yates v. Sherrington, 11 M.
& W. 42.

See LIEN, 6.
2. A testator devised and be-

queathed two freehold houses to his
daughter, her heirs and assigns, with

See ExecutOR, 8-AssigneES, 7, 8-
all the furniture in one of the houses,

“ for her own sole use and benefit."

Held, that these words applied to the
furniture as well as the house, and

In an order appointing an inspec-
that the daughter having, after the

tor, liberty was given to him to apply
testator's death, intermarried with

to the Court, or to the Commissioner.
K., who afterwards became a bank-

Costs of appointing an inspector do
rupt, was entitled, as against the

not, as of course, come out of the
assignees, to the whole of the furni- estate, on behalf of which he is

ture for her separate use.

pointed. Ex parte Sanderson, 3 M.
Killick, 3 M.D. & D. 480.

D. & D. 300.
3. In a suit filed by the assignees

of a bankrupt against the trustees of
the bankrupt's marriage settlement

and the wife of the bankrupt, for the
purpose of recovering the fund, sub-

ject to the wife's equity, a decree 1. A. consigned goods to B. as
was made at the hearing of the cause, factor, who sold them to C.: B.
the husband being absent from the having become bankrupt, his as-
record, by which it was referred to signees sued C. for the price of the
the Master to approve of a proper goods, which were also claimed by
settlement for the wife. On the A. : Held, that C. was entitled to


Ex parte

3 G

the benefit of the Interpleader Act.
Johnson v. Shaw, 4 M. & G. 916.

2. The goods of one H. were
seized under several writs of execu-
tion; H. having subsequently be-
come bankrupt, his assignees claim-
ing the goods, an issue was directed
under the Interpleader Act; the
goods being sold and the proceeds
paid into Court to abide the event;
in the result four of the executions
were set aside : Held, that the right
of the assignees to the proceeds paid
into Court was subservient to that of
the other execution creditors whose
judgments were impeached. Gold-
schmidt v. Hamlet, 6 Scott, N. R.
962; 1 Dowl. & L. 801.


But if the judgment were obtained
under such circumstances as would
have been a ground for the interfe-
rence of a Court of Equity to re-
strain execution, those circumstances
are a sufficient objection to the proof,
although the debtor may have omitted
to make a legal defence which he had
to the action, and although (under
such circumstances as those of the
present case) nearly twenty years
have elapsed since the judgment was
obtained. Ibid.






See ANNULLING, 2, 4, 8.


See AssIGNEES, 11, 12.



A judgment creditor, who, having
taken the body of a bankrupt in exe-
cution before the bankruptcy, keeps
him in prison till he is discharged by
his certificate, cannot prove under
the bankruptcy. Ex parte Mudie, 3
M. D. & D. 66.

Quære, Whether a final judgment
by default, not obtained by collusion
but adversely, which could not have
been disputed, if the debtor remained
solvent, may be impeached under his
bankruptcy, on a proof being ten-
dered upon it. Ibid.

1. The bankrupts employed the
petitioners as their brokers for the
sale of East India produce, and the
brokers accepted bills to a large
amount in favour of the bankrupts,
on the credit of goods deposited
with them for sale, and of bills of
lading for goods shipped and con-
signed from India to the bankrupts.

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