Page images
PDF
EPUB

Held, that as the proceeds of the A. survives B., his partner, and
railway shares were not applied to continues the business in the same
the use of the partnership, the bank- firm of “ A. and B.;" at the time of
ing firm were not answerable for this B.'s death a large balance was owing
tortious act of their partner for his by them to their bankers, to whom
own benefit, and consequently that A., some time after B.'s death, in-
the customer had no right of proof dorses several bills in the partnership
against the joint estate for the firm of A. and B. Held, that it
amount of the difference between could not be inferred from this cir-
the value of the shares subtracted cumstance alone, that the bills were
and those that were substituted. Ex so indorsed upon a partnership trans-
parte Eyre, 3 M, D. & D. 12; 1 action of A. and B., and that the
Phill. 227.

bankers might prove the amount of
Held, also, that the partners were the bills against the separate estate
not chargeable with any loss occa- of A. Ibid.
sioned by this subtraction of the 6. The rule that a joint creditor
shares, on the ground of negligence; cannot prove against one of his
and that even if they were, it would debtors, if another be solvent, is not
be a claim for unliquidated damages, confined to cases of partnership, but
and therefore not provable against applies to co-contractors generally.
the joint estate. Ibid.

Ex parte Field, 3 M, D. & D. 95.
5. A. and B., who are partners,

7. Two of the members of an iron
and C., as their surety, give a joint company carry on a distinct trade as
and several promissory note to D., bankers, but are not the ordinary
by which they "jointly and severally bankers of the company. They make
promise to pay" to D. the amount of advances at interest to the company,
a partnership debt, due from A. and for the purpose of relieving it when
B. The note is signed by A. and B., it is in a state of difficulty and pres-
not as individuals, but in their part- sure, and without taking or asking
nership firm, and by C. the surety.

for any security, and under such cir-
Held, that this note could not be cumstances as to lead to the inference
treated as the several note of each that the advances would not have
one of the three, but as the several been made, had not the bankers been
note only of the surety, and the joint partners in the iron company. On
note of A. and B.; and that, on the the company becoming bankrupt, and
bankruptcy of A., who had survived there being no evidence, except such
his partner B., the holder of the note as was furnished by the nature of
could only rank as a creditor against the transaction itself, that the cha-
the joint estate. Er parte Wilson, racter of a banking transaction be-
3 M. D. & D. 57.

longed to it: Held, that the advances,

788

Payment bona fide.

INDEX.

Petitioning Creditor.

though made by bankers, were not PAYMENTS, APPROPRIATION
made by them in their character of

OF.
bankers, and were consequently not

See Proof, 6.
dealings between trade and trade,
giving a right of proof against the PENDING PROCEEDINGS.
estate of the company, the use of the

See CONTEMPT.
facilities afforded by a trade not being
necessarily a use of them in the trade

PETITION.
itself. Ex parte Williams, 3 M. D. 1. Signature of the London agent
& D. 431.

of petitioners residing in Scotland
See AssiGNEES, 11-BANKER AND declared to be sufficient, on the agent

CUSTOMER, 7-EXECUTION, 10– undertaking to be answerable for
PROOF, 1, 3-Trustee, 2, 3. costs. In re Topling, 3 M. D. & D.

93.
PAYMENT BONA FIDE,
See FRAUDULENT PREFERENCE.

2. A petition signed by only one

of several assignees cannot be re-
PAYMENT INTO COURT. ceived, unless it is served upon the

A. and B. insured, in their joint other assignee. Ex parte Brereton,
names, certain leasehold premises 3 M. D. & D. 614.
which A. had mortgaged to B., and 3. On a petition to stay the banke
B. paid the premium on the insu- rupt's certificate, the Court will not
rance, and the policy was delivered grant the petition for further time to
to him.

Afterwards the premises file affidavits in reply, unless in the
were destroyed by fire; and then course of the hearing there appears
A. became bankrupt, and the as- to be just ground for granting such
signees prevailed on the insurance indulgence. Ex parte Alsop, 3 M.
company to pay the money due on D. & D. 180.
the policy to them; and they after- See ADVERTISEMENT, 3, 5-AFFIDA-
wards paid it into the bank to the credit VIT-PETITIONING CREDITOR, 3-
of the accountant in bankruptcy. B. Trust, 6.
filed a bill against the assignees, pray-
ing that the money received from the PETITIONING CREDITOR.
company might be applied in satis- 1. Where a petitioning creditor's
faction of his mortgage debt. The debt consists of a certain principal
answer of the assignees tended to sum and interest, but, by reason of
impeach the mortgage on the ground its insufficiency, another debt is sub-
of usury. The Court, however, or- stituted for it under the 6 Geo. 4.
dered them to pay the amount of the c. 16. s. 18, it is sufficient to con-
money into Court. Rogers v. Graze- stitute such second debt a debt “not
brook, 12 Sim. 557.

anterior to the former," that the prin-

Petitioning Creditor. INDEX. Petitioning Creditor. 789
cipal sum was due before the accru- petitioning creditor's debt must be
ing of the substituted debt, although served upon the petitioning creditor,
the interest thereon may have been although his debt has been expunged,
accruing up to a period subsequent and although the petition does not
thereto.

pray costs against him. Ex parte
The proof of a petitioning credi- Ward, 3 M. D. & D. 24.
tor's debt may be received in evi- 4. An order by the Court of Re-
dence without its having been in- view, substituting another debt in
rolled, provided the handwriting of lieu of that of the petitioning creditor,
the petitioning creditor be proved, stated that the Court “ doth declare
and the deposition be produced from that the debt of the said T. R. (the
the original proceedings under the petitioning creditor), &c. is an in-
fiat.

sufficient debt to support the fiat,
Semble, that where a creditor proves &c. ; and it appearing that the debt
under a fiat in bankruptcy for a debt of the said petitioners, proved by
due on bills of exchange of which the them under the said fiat, &c., was
bankrupt is the drawer, it is not ne- incurred not anterior to the said debt
cessary for him to aver in his dep of the said T. R. &c." An action hav-
sition that the bills were duly pre- ing been subsequently brought by the
sented, and that notice of their dis- assignees, the order was amended by
honour was given to the bankrupt. the Court of Review, on the eve of
Fletcher v. Manning, 1 Car. & Kir. a new trial, by introducing a recital
350.

contained in the petition upon which
2. A petitioning creditor had sold the order had been made, “ that the
the bankrupt goods, in payment for said petitioners had duly proved a debt
which he took three bills of exchange under the said fiat;" but no statement
accepted by the bankrupt, which the to that effect was inserted in the man.
creditor negotiated, and which were datory part of the order: the amend-
not in his hands nor due at the time ment was made without notice to the
he issued the fiat. The Commis- defendant.
sioner expunged the proof of his debt, Held, that it was not necessary to
on the ground that the bills were not give notice of the amendment to the
in his possession at the time of the defendant.
bankruptcy. Held, that an order Held, also, that the amended order
might be made, under the 18th sec- must be taken to operate from the
tion of the 6 Geo. 4. c. 16, for the date of the original order, and not
substitution of the debt of another from the date of the amendment.
creditor. Ex parte Smith, 3 M. D. & But held further, that such amended
D. 341.

order was insufficient, inasmuch as it
3. A petition to substitute a new did not allege, as required by the

he to

statute, that the debt of the petiti-, trading has ceased, can constitute a
oners had been proved prior to their good petitioning creditor's debt. Er
petition. Brancker v. Molyneur, 4 parte Veysey, 3 M. D. & D. 420.
M. & G. 226.

See ASSIGNEES, 6.
5. A joint creditor of A. and B.
strikes a docket for a separate fiat

PLEADING.
against A., and after the docket is 1. Assumpsit against acceptor of
struck, A. delivers to him certain a bill of exchange, stating an indorse-
bills of exchange, forming a portion ment by S. the drawer, to one R.,
of the joint estate of A. and B., in and by R. to the plaintiff.
part satisfaction of his debt: Held, The defendant pleaded, sixthly,
that the creditor did not thereby in- in effect, that he accepted the bill in
cur a forfeiture of his debt, under the question for the accommodation of
6 Geo. 4. c. 16. s. 8, and that the S., the drawer, to enable him to de-
words of that section," whereby such posit it with R. as a collateral secu-
person may receive more in the pound rity for a debt due to R. from S.;
than the other creditors," mean the that R. took it on those terms; that
creditors entitled to receive dividends S., before the bill became due, paid
under the particular bankruptcy; and R. part of that debt, and tendered
that the property, to the payment, the residue ; that R. refused to re-
gift or delivery of which the section ceive the money tendered, kept the
is meant to relate, is property which bill, and indorsed it to the plaintiff
forms a subject of distribution under as a mere trustee, R. and the plaintiff
the particular fiat. Ex parte Smith, conspiring and colluding to cheat the
3 M, D. & D. 144.

defendant: Held, on demurrer, that
6. The Commissioners have power the injuriâ was a good replication to
to dispense with the attendance of this plea, and the plea contained
the petitioning creditor at the open- merely matter of excuse.
ing of the fiat.

The defendant pleaded, seventhly,
The circumstance that the affidavit in effect, that the plaintiff had been
of debt was sworn before the solicitor twice bankrupt, and obtained his
to the petitioning creditor, held not certificate each time, but that his es-
sufficient ground for annulling the tate under the second bankruptcy had
fiat; but it is an improper practice, not paid 15s. in the pound, and that
and if it become general may be here- the bill was indorsed to him after his
after considered sufficient ground. second certificate: Held good, by
Ex parte Wright, 3 M, D. & D. 320. the Court of Queen's Bench on spe-

Quære, whether rent covenanted cial demurrer.
to be paid by a lease made during Held bad, by the Court of Ex-
the trading, but falling due after the chequer Chamber, reversing the judg-

ment in B. R., because it did not made no claim, and B. retained pos-
state that the assignees had interfered, session of the goods until 1841, when
or required the defendant to pay the the sheriff under a fi. fa. against B.
amount to them.

seized and sold the goods : after the
The plea stated the plaintiff be- sale B.'s assignees gave notice of their
came and was a bankrupt; but did claim to the sheriff, who, upon re-
not state any act of bankruptcy on ceiving an indemnity, handed over
which the commission or fiat was the proceeds to them. In trover,
founded : Held sufficient, on special brought by A. against the sheriff,
demurrer, by the Court of Queen's held, that under the plea of not pos-
Bench.

sessed, the sheriff might set up the
After judgment for the plaintiff in title of the assignees. Leake v. Love-
the Court of Error, the Court of day, 4 M. & G. 972.
Queen's Bench allowed the plaintiff 4. Declaration in trover by as-
to enter a retraxit for the defendant signees of a bankrupt stated that M.
of a plea which involved an issue in and H., the bankrupts, before their
fact, and which had been left on the bankruptcy were lawfully possessed
record, and carried up in the tran- of certain goods; that before the
script, for the sole purpose of ex- bankruptcy they came to the pos-
plaining the record, which would session of the defendants; and that
have otherwise been unintelligible. the defendants, knowing the goods
Herbert v. Sayer, 2 Dowl. & L. 49. to belong to the plaintiffs as as-

2. A plea (in assumpsit) setting signees, after the bankruptcy con-
out three commissions of bankruptverted them. A separate commis-
against the plaintiff, one fiat and two sion issued against M. alone on the
discharges under insolvent debtors' 7th of November; on the 8th the
acts, and alleging that the plaintiff's goods were sold by the defendant
estate did not on any occasion pro- as sheriff; on the 9th a joint com-
duce 15s. in the pound, is bad for mission issued against M. and H.,
duplicity.

under which the plaintiffs were ap-
The Court permitted the defendant pointed assignees; and the plaintiffs
to amend on payment of costs, but afterwards, and after the goods were
refused to allow him to plead the delivered to the purchasers, de-
various bankruptcies, &c. in several manded them of the defendants, who
pleas. Alexander v. Townley, 5 M. refused them: Held, first, that the
& G. 300.

sale, and not the demand and refusal,
3. A. in 1837 bought goods of B., constituted the conversion; secondly,
and allowed B. to remain in posses. that the allegations of the declaration,
sion of them up to 1839, when B. that the plaintiffs were possessed of
became a bankrupt. B.'s assignees the goods as assignees of both bank-

VOL. III.

3

« PreviousContinue »