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.
See PLEADING-EXECUTION, 14.
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.
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.
VENDOR AND PURCHASER. See ASSIGNEES, 7-MORTGAGE, 10.
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.
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.
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.
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.
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.
London: C. Roworth and Sons, Printers, Bell Yard, Temple Bar.
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