under such circumstances as would
have been a ground for the inter-
ference of a court of equity to re-
strain execution, those circumstances
are a sufficient objection to the proof,
although the debtor may have omnitted
to make a legal defence which he
had to the action, and although (un-
der such circumstances as those of
the present case) nearly twenty years
have elapsed since the judgment was
obtained. Ibid.

See ACT OF BANKRUPTCY-NOTICE.

EXECUTOR.
See COSTS, 5.

EXECUTOR DE SON TORT.
See REPUTED Ownership.

EXPUNGING PROOF.
See STAMP, 1, 3.

FACTOR.

See LIEN, 2-INTERPLEADER.

FEME COVERTE.
See HUSBAND And Wife.

FIAT.

See ANNULLING FRAUD - PETI-
TIONING CREDITOr, 6—Venue.

FRAUD.

1. A joint creditor of A. and B.
strikes a docket for a separate fiat
against A., and after the docket is
struck, A. delivers to him certain
bills of exchange, forming a portion
of the joint estate of A. and B., in

part satisfaction of his debt. Held,
that the creditor did not thereby
incur a forfeiture of his debt, under
the 6 Geo. 4. c. 16. s. 8, and that
the words of that section, "whereby
such person may receive more in the
pound than the other creditors," mean
the creditors entitled to receive divi-
dends under the particular bank-
ruptcy; and that the property, to the
payment, gift, or delivery of which
the section is meant to relate, is pro-
perty which forms a subject of dis-
tribution under the particular fiat.
Ex parte Smith, 3 M. D. & D. 144.

2. Where one of two partners, who
was anxious to dissolve the partner-
ship, procured a creditor to issue a
joint fiat against the firm, and it ap-
peared that the main object of the
fiat was to dissolve the partnership,
and that the division of the effects
among the creditors, if an object at
all, was so merely in a slight and in-
ferior degree, and was a purpose only
subsidiary to the other; the fiat was
held to be issued under a false colour
for a concealed object, and was or-
dered to be annulled at the costs of
the petitioning creditor and the part-
ner who induced him to issue it. Er
parte Phipps re Coulson, 3 M. D. &
D. 505.

3. A., a trader in embarrassed cir-
cumstances, offered his creditors a
composition of 78. 6d. in the pound,
which was refused by the majority,
including B. B. filed an affidavit in
the Court of Bankruptcy, and on the
13th of March served on A. a copy,

and a demand of payment, and he
also served a notice on the auctioneer
not to proceed with the sale. The
goods were sold, and out of the
pro-
ceeds a payment was made on the
5th of April to C. of the amount of
the composition upon a debt due
from A. to C. Held, a fraudulent
preference. Gibson v. Muskett, 4 M.
& G. 160.

Quare, whether, under the 1 & 2
Vict. c. 110. s. 8, the twenty days
after service of the notice are to be
reckoned inclusively of the day of
service. Ibid.

The question whether a fraudulent
preference was given appears to be
one of law rather than of fact. Ibid.

A payment really and bond fide
made is a payment made without the
intention of its being reclaimed. Ibid.

4. In an action by assignees of a
bankrupt to recover back money
alleged to have been paid by the
bankrupt to the defendant by way
of fraudulent preference, in contem-
plation of bankruptcy, the judge,
assuming that there had been such a
degree of importunity on the part of
the creditor as would under ordinary
circumstances repel the presumption
of the payment being voluntary, left
it to the jury to say whether it was
made in consequence of that impor-
tunity, or with a view to a fraudulent
preference of the defendant. Held,
that this was a proper direction.
Cook v. Pritchard, 6 Scott, N. R. 34;
5 Man. & Gr. 329; and see Pritchard
v. Hitchcock, 6 Scott, N. R. 851.

5. One Martin being in embar-
rassed circumstances, executed a
deed of composition to secure to his
creditors the payment of 7s. in the
pound upon the amount of their re-
spective debts. The defendants, who
were creditors, refused to sign the
deed until they had obtained from
Martin a promise to give them secu-
rity for the difference between the
composition and the full amount of
their demand; and afterwards, in
pursuance of that agreement, Martin
gave them his promissory notes pay-
able to themselves or order. The
defendants indorsed the notes, and
paid them into their bankers at Leeds,
to whom they were in the habit of
indorsing all bills and notes received
by them, and drawing generally on
account. The notes were presented
at maturity by the London corre-
spondents of the Leeds bankers, and
paid by Martin, who continued his
dealings with the defendants down to
the bankruptcy, (which took place
about three years afterwards,) with-
out ever complaining of the transac-
tion, or attempting to set off the pay-
ments made in respect of the notes
against the subsequent demands of
the defendants upon him. There
was no evidence to show the state of
the account between the defendants
and the Leeds bankers at the time of
the payments, nor any evidence that
Martin knew in what character the
bankers who presented the notes held
them. In an action for money had
and received, brought by the assig-

nees of Martin to recover back the
amount of these notes, it was left to
the jury to say whether or not the
payment was voluntary; and they
were told, that if the payment was
made to the bankers as agents only,
it must be considered as voluntary,
and that if they found the payment
to be voluntary, and to have been
made with a full knowledge of the
circumstances, they must find for the
defendants, otherwise for the plain-
tiffs. The Court directed a new
trial, in order that the attention of
the jury might be more precisely
directed to the question, whether
Martin knew the character in which
the bankers presented the notes, as
agents or as holders for value. Gib-
son v. Bruce, 6 Scott, N. R. 309; 5
M. & G. 199.

See BILL OF EXCHANGE, 3-LIMITA-
TIONS, STATUTE OF, 2-PROTECTED
TRANSACTIONS.

FRAUDULENT PREFERENCE.

See FRAUD.

FRIENDLY SOCIETY.
Country bankers, appointed by a
friendly society to receive monies,
and to transmit them to their Lon-
don agents for the purpose of invest-
ment in the Bank of England to the
account of the commissioners of the
national debt, are not to be consi-
dered as appointed to an office in
the society, within the meaning of
the Friendly Society Act, 4 & 5 Will.
4. c. 40, s. 12; Ex parte Whipham, 3
M. D. & D. 564.

FREIGHT.

See SHIP.

FUTURE DEBT.

Plaintiffs, having taken B. in exe-
cution for a debt, discharged him
upon the following undertaking of
defendant: " In consideration of your
discharging B. out of custody, I un-
dertake that he shall pay the debt
due to you by four half-yearly in-
stalments," &c. Held, that the plain-
tiff might have proved the unpaid
instalments under a fiat in bank-
ruptcy against defendant, and that
defendant's certificate was therefore
a bar to an action upon the contract
for instalments becoming due since
his bankruptcy. Lane v. Burghart, 1
Ad. & Ell. N. S. 933.

GAZETTE.
See ADVERTISEMENT.

GUARANTEE.

A. guarantees to a banking com-
pany "all current obligations in their
hands to which B. may be a party,
and also all his future obligations
and engagements that may come into
their hands." Held, that the latter
part of the guarantee as to the future
obligations implied of itself a con-
sideration, and did not require the
specific statement of one in the body
of the guarantee, according to the
requisition of the Statute of Frauds,
and that the banking company might
therefore, on the bankruptcy of A.,
prove for the amount of their ad-

HUSBAND AND WIFE.
1. The assignees of a bankrupt
cannot maintain an action in their
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
v. Yates, 1 Dowl. & L. 1032, re-
versing Yates v. Sherrington, 11 M.
& W. 42.

2. A testator devised and be-
queathed two freehold houses to his
daughter, her heirs and assigns, with
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
that the daughter having, after the
testator's death, intermarried with
K., who afterwards became a bank-
rupt, was entitled, as against the
assignees, to the whole of the furni-
ture for her separate use.
Ex parte
Killick, 3 M. D. & D. 480.

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
was made at the hearing of the cause,
the husband being absent from the
record, by which it was referred to
the Master to approve of a proper
settlement for the wife. On the

VOL. III.

cause coming on for hearing for fur-
ther directions, the Court declined
to proceed in the absence of the hus-
band.

A trust for the wife's own use and
benefit is not a trust for her separate
Beales v. Spencer, 2 Y. & C.

use.

C. C. 651.

See BANKRUPTCY.

INDIA.

See EVIDENCE, 1.

INJUNCTION.
See LIEN, 6.

INSOLVENT.

See EXECUTOR, 8-ASSIGNEES, 7, 8-
PROTECTION FROM ARREST.

INSPECTOR.

In an order appointing an inspec-
tor, liberty was given to him to apply
to the Court, or to the Commissioner.
Costs of appointing an inspector do
not, as of course, come out of the
estate, on behalf of which he is ap-
pointed. Ex parte Sanderson, 3 M.
D. & D. 300.

INSTALMENT.
See FUTURE Debt.

:

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.

See EXECUTION, 3.

JOINT DEBT.

See PARTNER.

JOINT FIAT.

See ADVERTISEment, 3.

JUDGMENT.

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.

Quare, 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.

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 COSTS, 6-EXECUTION-PROOF,

5-RECEIVER-WARRANT OF AT-

TORNEY.

JURISDICTION.

See COMMISSIONER-VOLUNTARY
Deed.

LACHES.

See ANNULLING, 2, 4, 8.

LANDLORD.

See ASSIGNEES, 11, 12.

LAST EXAMINATION.
See CERTIFICATE, 2.

LIEN.

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.