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persons in the neighbourhood. Quære,
whether this was not a trading within
the bankrupt law. At any rate, the
point was so doubtful, that the Court
declined to annul the fiat on the pe-
tition of the bankrupt, but would
only give him leave to try the ques-
tion in an action at law. Ex parte
Salkeld, 3 M. D. & D. 125.

TROVER.

See PLEADING-EXECUTION, 14.

TRUST.

1. An hotel-keeper dies intestate,
leaving four children, upon which
one of her daughters takes possession
of the stock and effects, and continues
the business for a short time, when
she admits one of her brothers into
partnership, and the two carry on the
business together in their own names
for nearly two years, paying some of
the intestate's debts as well as her
funeral expenses.
The daughter
then retires, and assigns her share
in the business to her brother, who
carries it on in his own name for six
months longer, when a joint fiat
issues against the two. After their
bankruptcy, one of the other children
takes out administration to the intes-
tate, and claims the property from
the assignees. Held, that this could
not be considered trust property, but
passed to the assignees under the
clause of reputed ownership.
parte Thomas, 3 M. D. & D. 40.

Ex

2. By a marriage settlement a sum
of money was to be received by the

trustees, and invested in government
or real securities, and the interest
was to be paid to the wife for life for
her
separate use, with remainder to
the children. One of the trustees
receives the money, and advances it
to a partnership of merchants, with-
out taking any security. He receives
the interest from the partnership, and
pays it over to the wife regularly up
to the time of his death; afterwards
the partnership pays the interest to
the wife directly and without the in-
tervention of the surviving trustee.
In the partnership books the accounts
relating to the whole transaction are
entered as between the wife and the
partnership only. Upon the part-
nership becoming bankrupt, held,
that the partners constituted them-
selves directly, and not merely con-
structively, trustees, and that the
proof on behalf of the trust estate
might be made either against the
joint estate or the separate estates.
Quare, whether there would have
been a right of proof against the se-
parate estates, if the firm had been
constructive trustees only; or whe-
ther the term "constructive trust" is
sufficiently definite to admit of any
general rule being laid down upon
the point. Ex parte Woodin, 3 M.
D. & D. 399.

3. A trustee under a will permits
the trust fund, as the monies are
from time to time realized, to be paid
into the hands of certain bankers,
who have knowledge of the trusts.
One of the partners, without the as-

sent of the trustee, deals with a por-
tion of the fund by investing it on
mortgage. Held, that the bankers
were not jointly and separately liable
in the character of trustees, but that
they only incurred a liability as be-
tween banker and customer; and that,
on the bankruptcy of the bankers, the
trustee could only prove against their
joint estate for such balance as was
in their hands at the time of their
bankruptcy.

Semble, that the sum laid out on
mortgage must be considered as in
their hands at the time of the bank-
ruptcy, although the mortgage itself❘
might enure for the benefit of the
cestui que trust. Ex parte Burton, 3
M. D. & D. 364.

4. Infant cestuis que trustent are
entitled to a sum of stock stand-
ing in the names of trustees, subject
to a life interest in their mother, and
to a power of appointment, which has
not yet been exercised. The trustees
are charged with having sold out the
stock, and advanced the proceeds to
the father of the cestuis que trustent;
and, in a Chancery suit, instituted by
the infants, the trustees are ordered
to pay into Court the amount which
by their answer they admit they re-
ceived upon such sale. They do not
comply with the Order, but become
insolvent, and one becomes bank-
rupt. Held, that the cestuis que trust-
ent were not entitled to an Order to
prove against the estate of the latter,
either for the value of the original
sum of stock, or the sum ordered to

be paid into Court, but only to an
Order to go in and make such proof
as they could establish, the dividends
on the proof being payable into
Court. Ex parte Coles, 3 M. D. &
D. 327.

5. A bankrupt's reversionary in-
terest under the trusts of a will or-
dered to be sold and the proceeds
applied in making good monies come
to his hands as trustee under the
same trusts and misapplied.

The residence of a party, inte-
rested in trust funds out of the ju-
risdiction, does not authorize the
Court to appoint new trustees with-
out notice being given to such party.

A testator bequeathed his resi-
duary estate to two trustees, whom
he appointed executors; one of them
renounced; and after the death of the
other, the trust funds came into the
possession of the latter's legal per-
sonal representative, who became
bankrupt. The cestuis que trustent
presented a petition for the appoint-
ment of a new trustee.
On its ap-
pearing that the original testator had
been dead for twenty years, and that
the interest of the trust fund had ever
since been applied according to the
trusts, and on the petitioners' de-
posing that to the best of their belief
all the original testator's debts, &c.
had been paid: Held, that a new
trustee might be appointed without
its appearing that any personal re-
presentative of the original testator
was before the Court.
Ex parte
Hardman, 3 M. D. & D. 559.

6. Where a fund, arising from
dividends upon a proof, has been
transferred to the separate account
of a marriage settlement, a petition,
by parties claiming under the settle-
ment, for payment of the fund out of
Court, need not be served upon the
assignees. If, under a power to ap-
point new trustees, which is in the
ordinary form, and is silent as to any
increase in the number of trustees,
four trustees be appointed in the
room of three, (the original number),
the appointment is bad, and the fund
will not be paid over to the persons
so appointed. Ex parte Davis, 3 M.
D. & D. 304.

See LIEN, 7.

VENDOR AND PURCHASER.
See ASSIGNEES, 7-MORTGAGE, 10.

VENUE.

1. Where a fiat has been opened,
and the bankrupt's examination has
commenced, it is a sufficient answer
to a petition to change the venue of
the fiat, that the petitioners do not
make out a grave case of benefit to
the estate, combined with the absence
of injustice to the bankrupt. Ex
parte Mitchell, 3 M. D. & D. 397.

2. The venue of a fiat will not be
changed, because the existing means
of communication between the place
of trading and the District Court to
which it belongs are not so conve-
nient as those between the place of
trading and another District Court.
Re Oram, 3 M. D. & D. 330.

VIVA VOCE.

1. The evidence at the hearing of
a petition may be partly by affidavit
and partly vivá voce. Leave given to
the respondents to examine their own
witnesses viva voce, when affidavits
had been filed in support of the peti-
tion. Ex parte Fell, 3 M. D. & D.

472.

2. Where, upon an application on
the part of the respondents (the as-
signees) for an examination of wit-
nesses viva voce, the petitioners ob-
jected that there was a preliminary
question, which might render the
matter of fact in dispute immaterial;
Held, under all the circumstances of
the case, that the respondents ought
to be at liberty to examine their own
witnesses viva voce, undertaking to
abide personally and otherwise by
the Order of the Court as to costs;
the petitioners being at liberty to
produce evidence, either by affidavit
or viva voce. Ex parte Melville, 3
M. D. & D. 474.

VOLUNTARY DEED.

A person gave a bond for 5000l. to
his sister, but failing to pay the in-
terest due on that bond, gave her
another bond to secure the arrears of
interest. He afterwards deposited
with his sister the title deeds of his
real estates as a collateral security
for the bond debts, and subsequently
in contemplation of the marriage of
the sister the two bonds were, with
the consent and privity of the obli-
gor, settled upon trusts for the bene-

fit of the intended husband and wife,
no reference, however, being made
in the settlement to the deposit of
title deeds. The marriage took
effect, and about four years after the
obligor became bankrupt. Held, that
assuming the consideration for the
first bond to have been voluntary,
yet there being no fraud suggested
against any party, or insolvency
proved against the obligor, the set-
tlement was a valuable security: and
that by virtue of the bonds, the in-
strument of deposit and the settle-
ment, the trustee of the settlement
was equitable mortgagee of the real
estate for the monies due on the
bonds. The circumstance that the
Court of Bankruptcy has concurrent
jurisdiction in the case, is not a
necessary ground for refusing costs
to a party seeking the assistance of a
Court of Equity. Meggison v. Foster,
2 Y. & C. C. C. 336.

See ACT OF BANKRUPTCY, 1-RE-
PUTED OWNErship.

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his answers to the questions then put
to him were unsatisfactory to the
Commissioner, who, however, then
stated that he should not grant a
fresh warrant of commitment, but on
a subsequent day issued a warrant
under which the bankrupt was de-
tained in custody. Held, first, that
the warrant so issued was valid;
secondly, that it was not necessary to
set forth the questions and answers
on the first examination in 1841;
thirdly, that a single Commissioner
has power to commit in such a case,
under the 5 & 6 Vict. c. 122. ss. 46
and 52. Ex parte Dauncey, 12 M.
& W. 271.

2. A bankrupt was committed by
the Commissioners upon a warrant,
the concluding words of which were,
"which said several answers so given
on the said several examinations as
aforesaid of the said W. D., and the
schedule by him referred to and here-
unto annexed as part of this our war-
rant, not being satisfactory to us the
said Commissioners, these are there-
fore to require you, &c. to take him
into custody and keep him," &c.

Upon an application to the Court of
Queen's Bench that the prisoner might
be brought up to be discharged for
the insufficiency of the warrant, it ap-
peared from the affidavit that several
examinations of the prisoner had taken
place, but the part of the warrant
containing the question and answers
was not brought before the Court by
the affidavit, nor any part excepting
the conclusion above set forth: Held,

that the part of the warrant before | judgment was signed and execution

the Court was insufficient. Ex parte
Dauncey, 3 G. & D. 640.

See COMMITMENT.

WARRANT OF ATTORNEY.

1. A warrant of attorney was given
while the provision of 7 Geo. 4. c. 57.
s. 33, (as continued by later acts),
that such warrants or judgments on
them should be void as against the
assignees of an insolvent, unless filed
within twenty-one days, or judgment
entered up within the same time, was
in force. Between the 16th August
1838, when the last of these acts, the
6 & 7 Will. 4. c. 44, expired, and
the 1st October 1838, when the 1 &
2 Vict. c. 110. s. 60, came into effect,
there was an interval during which
no such provision was in force.
Held, that notwithstanding this inter-
val, a judgment on the warrant of
attorney entered up since the 1 & 2
Vict. c. 110, was not valid as against
assignees appointed under the act.
Collis v. Stone, 3 G. & D. 625.

2. Where a defendant had given a
warrant of attorney, upon which

issued and levied, but the instrument
was not duly filed in pursuance of
the 3 Geo. 4. c. 39. s. 1, and the
defendant afterwards became insol-
vent, and petitioned the Insolvent
Court under the provisions of the
5 & 6 Vict. c. 116, under which
petition assignees were appointed;

the Court refused to set aside the

judgment and execution upon the
application of the assignees, holding
that such instrument was not void as
against them by reason of the non-
filing thereof, as it did not fall within
the provisions of the 3 Geo. 4. c. 39.
s. 2, the 7 Geo. 4. c. 57. s. 33, nor
the 1 & 2 Vict. c. 110. s. 60, and
that the 5 & 6 Vict. c. 116. ss. 1 and
7, contained no words extending the
provisions of those enactments to
such an instrument. Lawrence v.
Lawrence, 3 Dowl. N. S. 219.
See BILL OF EXCHANGE, 3-EXECU-
TION, 1, 4, 7.

WIFE.

See HUSBAND and Wife.

London: C. Roworth and Sons, Printers, Bell Yard, Temple Bar.

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