On the 14th October, the bankrupts,
being then in full credit, proposed to
the brokers to accept bills in their
favour to the amount of 3000l., and
to induce them to do so, informed
them that a cargo of oil was con-
signed to the bankrupts from Bom-
bay by the ship Majestic, which they
intended to place in the broker's
hands for sale, and undertook to
hand over to them the bill of lading
when received. On the 24th Oct.
a fiat is issued against the bank-
rupts, and the bill of lading comes to
the possession of the assignees.
Held, that the brokers were entitled
to have the bill of lading delivered
up to them, and had a lien upon the
cargo of oil for their general balance.
Ex parte Barber, 3 M. D. & D. 174.
2. Under an arrangement between
A. at Manchester, and C. at Liver-
pool, A. bought goods for C. in A.'s
name, and consigned them for sale in
A.'s name to the correspondents of B.
in India. At the time of the ar-
rangement and of the shipment of
the goods C. was the factor of B. at
Liverpool (which fact was known to
A.), and advised B. of the shipments,
and as to the advances B. might
safely make thereon to A. B. had
from time to time accounted with A.
and handed over to him the balance
of the proceeds of each shipment,
after deducting commission, &c. C.
having become bankrupt B. refused
to pay over to A. the balance in his
hands, claiming a lien thereon in
respect of the debt due to him from
C., on the ground that the goods
were the property of C. and not of
A., and alleging that the cause of
dealing between A. and C. was a
fraud upon B. A. having brought
an action for money had and received
against B., the judge left it to the
jury to say, first, whether, as between
A. and B., the goods were the pro-
perty of A.; and, secondly, whether
the transaction, as between A. and
C., amounted to a fraud on B., pro- .
ductive of injury to the latter. The
jury having found a verdict for A.
for the amount of the balance in the
hands of B., the Court refused to
grant a rule nisi for a new trial.
Scott v. Crawford, 4 M. & G. 1031.
3. B. S. & Co. of Calcutta, having
consigned certain goods to G. B. in
England, on which they had a lien
for the price, write him word that
they intend to draw in favour of
G. K. & Co. for the balance of such
shipments, and that they inclose bills
of lading and policies of insurance for
the goods in question, and they also
draw a bill for the amount on G. B.
in favour of G. K. & Co., which
they direct G. B. to place to account
of shipments per Gardner. Before
the goods reach England G. B. be-
comes bankrupt, and the goods come
to the possession of his assignees.
Held, that the above expressions in
the bill and the letter amounted to
a specific appropriation of the goods
for the payment of the bill, and that
the assignees were bound to account
to G. K. & Co. for the proceeds.
Ex parte Gledstanes, 2 M. D. & D.
4. A. & Co. and B. & Co. engage
in an ndventure to India and China
upon the following terms, that
10,000l. was to be invested in India
bills, the proceeds of which were to
be remitted to China, A. & Co.
giving instructions as to one half,
and B. & Co. as to the other half;
and the outlay of money to either
party to be saved by A. & Co. nego-
tiating their drafts upon B. & Co.,
and receiving them till the funds
came home. The 10,000l. was to
be advanced by the parties in equal
shares, but B. & Co.'s moiety was to
be provided for by a bill drawn on
them by A. & Co., payable at six
months, and A. & Co.'s moiety by
another bill drawn by them on B. &
Co. payable at four months. Bills
and goods are accordingly remitted
from India to China, where the same
are realised by the agents of A. &
Co., and the proceeds invested by
them in the purchase of other goods,
one portion of which is consigned to
A. & Co., and the other to B. & Co.,
in England. B. & Co. become
bankrupt before their portion of the
return proceeds arrive, and A. &
Co. are obliged to pay the bill drawn
by them for B. & Co.'s moiety of
the 10,000l. Held, that this was not
such a joint adventure as to give
A. & Co. a lien on R. & Co.'s por-
tion of the return proceeds, for the
amount of the bill. Ex parte Gem-
mell, 3 M. D. & D. 198.
5. A railway company contracted
with R. that R. should build a bridge
for the company on their railway :
R. was to provide implements and
materials; and, if the company's
architect considered that R. did not
proceed with proper expedition, the
company, on seven day's notice,
might employ other or additional
workmen, and, in that case, might
use the implements and materials
of R., which, for the time being,
should be used by R. in or about
the works, and R. was to repay all
additional expenses. The company
were to have a lien on the imple-
ments and materials which, for the
time being, should be upon the
ground whereon the bridge was to be
built, as a security for the completion
of the works; R. undertaking to
execute such deeds as counsel for
the company should advise for con-
firming the lien and security. A fiat
in bankruptcy issued against R. on
31st July, on which day the company
took possession of the implements and
materials used by R. in building the
bridge. On 1st August the company
gave notice as provided in the con-
tract. On 2nd August they com-
menced completing the bridge, and,
in so doing, used some of the mate-
rials and detained the rest. Held,
that the agreement was lawful, not
being made in contemplation of bank-
ruptcy.
That the company were not en-
titled to use the implements and
materials till the expiration of the
seven days' notice, and that the
previous use was a conversion.
That they were entitled, after the
seven days, to use all implements
and materials used by the contractor
on any part of the works for con-
structing the bridge.
That they were entitled to a
lien upon all such implements and
materials so used as were upon any
land possessed by the company, on
which the building of the bridge was,
in a popular sense, being carried on.
But not a lien upon the materials of
a temporary railway constructed for
bringing articles to the bridge from
an adjoining river, nor to a crane at
the end of such temporary railway,
not being on the company's land.
But that these last materials were
liable to be used by the company as
above.
That these rights of the com-
pany were not invalidated by the
possession of the bankrupt, under
stat. 6 Geo. 4. c. 16. s. 72, he being
the true owner.
Nor by other implements and
materials, so used, having been re-
moved without any objection from
the company's authority, the lien
being a shifting one, and attaching to
such articles as were brought from
time to time, and ceasing as to such
only as were removed.
Nor by the implements and mate-
rials not being scheduled.
The assignees of R. having
brought trover against the company
for all the implements and materials
above-mentioned, the
pleaded the contract specially, and
alleged that the implements and ma-
terials were brought and used for
the bridge, and were on the ground
whereon the bridge was to be built;
and that the defendants had posses-
sion by R.'s permission, and con-
tinued to possess under the lien. On
replication de injuria: Held, that the
defendants were entitled to judg-
ment, although the facts did not
bring all the articles to which the
declaration applied within the lien,
the plaintiffs not having new as-
signed.
The rules as to new assignments
apply to trover as well as trespass.
Hawthorn v. Newcastle-upon-Tyne
and North Shields Railway Company,
3 Ad. & Ell. N. S. 734.
6. The principle that one creditor
shall not take a part of the fund
which otherwise would have been
available for the payment of all the
creditors, and at the same time be
allowed to come in pari passu with
the other creditors, for satisfaction
out of the remainder of that fund,
does not apply where that creditor
obtains by his diligence something
which did not, and could not, form a
part of that fund. The Orphan
Chamber of Batavia, being the execu-
tors of a foreign creditor in the island
of Java, by their agent in Calcutta
proved the amount of their whole debt
against the estate of A. B., who had
been declared insolvent under the
Indian Insolvent Act, 9 Geo, 4. c. 73,
and after making such proof, and
receiving the dividends upon the
whole debt, instituted a suit in the
island of Java, to recover a planta-
tion or estate there, held by one of
the insolvents as trustee for the firm
of A. B. and C. D. in equal shares;
to which suit the assignees of the in-
solvent appeared as defendants, but
judgment was given in favour of the
creditor, and for the sale of the estate
for his benefit, the proceeds of which
amounted to three-fifths of his whole
debt. The assignees of A. B. filed a
bill on the equity side of the Supreme
Court at Calcutta against the agent
of the foreign creditor resident within
the jurisdiction, praying that the divi-
dends might be refunded, and that
the defendants might be restrained
by injunction from receiving any
further dividends until all the other
creditors were put on an equal
footing with the creditor at Java,
the defendant demurred and obtained
judgment against the assignees.
Held, on appeal by the Judicial Com-
mittee, that the estate in Java, not
passing to the assignees under the
assignment, did not form any part
of the fund that was available for the
benefit of the general creditors, and
that the creditor was therefore not
bound to refund the dividends, nor
ought to be prevented from receiving
any future dividends, provided he
did not receive more than 20s. in the
pound upon his whole debt. But
the bill having stated that the credi-
tor had also instituted proceedings
against certain debtors of the insol-
vents at Bencoolen: Held, that the
assignees were entitled, under the
prayer for general relief, to an in-
junction to stay the receipt of further
dividends until the proceedings at
Bencoolen were abandoned. Cock-
erell v. Dickens, 3 Moore, 98.
7. A cestui que trust, entitled to
monies payable out of a fund in the
hands of trustees, is indebted to his
bankers in a large amount, by which
his account is overdrawn, and in con-
sideration of not being pressed to
reduce this amount, he agrees to give
the bankers a lien on the monies
coming to him out of the trust fund.
He therefore addresses a note to one
of the trustees, requesting and autho-
rizing the trustee to pay to the credit
of the account of the cestui que trust at
the bank the monies payable to him
out of the trust fund. The trustee is
apprised of the arrangement between
the parties. Held, on the cestui que
trust becoming bankrupt, that the
bank had a good lien, and that the
authority given by the note was not
countermandable. Ex parte Steward,
3 M. D. & D. 265.
8. Semble, That the statute 2 & 3
Vict. c. 29, operates to protect a
claim of general lien on the goods of
a bankrupt coming into the hands of
a party before the fiat without notice
of an act of bankruptcy. Bowman v.
Malcolm, 11 M. & W. 833.
See ASSIGNEES, 11, 12-BANKER
AND CUSTOMER, 5-SHIP-TRUST,
LIMITATIONS, STATUTE OF.
Indebitatus assumpsit against J.
and W.; plea, the Statute of Limita-
tions; replication, that the debt ac-
crued within six years. The debt
was originally contracted with J., W.
and S.; and S. more than six years
afterwards, and within six years of the
action being brought, made a pay-
ment in respect of it to plaintiff. S.
became bankrupt shortly after; and
the jury found that he made the pay-
ment in fraud of J. and W., and in ex-
pectation of immediate bankruptcy.
Held, that nevertheless the pay-
ment barred the operation of statute.
Goddard v. Ingram, 3 Ad. & Ell. N.
S. 839.
MARRIED WOMAN.
See HUSBAND AND WIFE.
The assignees of a bankrupt are
not bound to continue the services of
a messenger appointed by the com-
missioners. Robson v. Jonassohn, 8
Scott, N. R. 35.
MISDESCRIPTION.
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, in-
sufficient, and the fiat annulled. To
annul a fiat for insufficient descrip-
tion, it is not necessary that the exist-
ence of actual fraud or mischief
should be shown. Ex parte Lewis, 3
M. D. & D. 93.
1. The bankrupts, being mortga-
gees of various policies of life as-
surance, of which the respective in-
surance offices had notice, deposit
them with their bankers to secure
the repayment of advances; but the
bankers give no notice of such de-
posit to the different offices. Held,
that the policies must be considered
as in the order and disposition of the
bankrupts within the 72nd section of
the bankrupt act; and that the same
principle applied to one of the po-
licies, which was effected with a
mutual assurance company,
A. writes word to B. that he has
"inclosed the particulars of certain
title deeds of property, which he has
deposited with B. for the security of
a debt," and in the schedule inclosed,
among other entries, is the follow-
ing: 90007. buildings, houses, &c. at
Titherington." A. sends B. a box
containing the deeds and other secu-
rities, which B. does not examine
until after 4.'s bankruptcy, when he
finds that the only deed relating to
the Titherington estate is an old paid
off mortgage. Held, nevertheless,
that the letter and schedule, taken
together, created an equitable charge
on the Titherington estate.
Ex parte
Arkwright, 3 M. D. & D. 129.
2. There must be some actual
deposit to constitute an equitable
mortgage. An order on a third
party to deposit a lease, when exe-
cuted, is not sufficient. Ex parte
Perry, 3 M. D. & D. 252.
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