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the usual assignment to the provisional assignee of all his estates and effects: Held (dissentiente Best, C. J.), that, notwithstanding the provisional assignee had not taken possession, nor assigned to any after-appointed assignee, and that the rent had always been paid to the lessor of the plaintiff, the ejectment could not be maintained; the property being, by the assignment, absolutely divested out of the insolvent. Doe d. Palmer v. Andrews, 5 Law J. C.P. 194, s. c. 4 Bing. 348, s. c. 2 C. & P. 593.

In a suit against a clerk of the peace, as owner of an estate, under an insolvent act, it was deemed requisite that an assignment should be obtained from him, and his assignee made an additional party. Cook v. Lawson, 1 Ken. 425: sed vide 1 Geo. 4, c. 119.

(b) Estate Paper.

Where the insolvent filed a negative estate paper, and his excepted articles amounted to 19l. 19s.; and he sold other property for his own benefit after the filing of his petition,-the Court held, that this was a fraud against the act of parliament. In re Drysdale, Co. 31.

An insolvent will not be discharged forthwith, who shall falsely file a blank estate paper, he being possessed of property beyond his excepted articles at the time of filing his petition. In re Drakeford, 1 Cress. 100.

Fraudulent making away of property. In re Jacklin, 1 Cress. 93.

Where the opposing creditor intrusted furniture of the value of upwards of 100l. to the care of the insolvent during his absence on a voyage, and on his return therefrom, wishing to remove the furniture, offered the insolvent 21., but he demanded 61., and refused to allow the creditor to see it, and the creditor afterwards arrested him for the value thereof; and the insolvent swore he had disposed of the whole of this property since his commitment to prison, but could not tell to whom, or for what sum it had been sold; but omitted all notice of it in his estate paper, and, in his special balance sheet, did not account for the produce of the sale: Commissioner Harris dismissed the petition. In re Ormerod, Co. 31.

(D) OF THE ASSIGNEES.

(a) Appointment.

On an application for the appointment of an assignee to the estate of an insolvent discharging himself out of custody prior to adjudication, the Court refused to grant the motion on account of the insufficiency of the affidavit in support thereof. In re Bradbury, 1 Cress. 71.

Where forty years had elapsed since the appointment of an assignee, whose conduct was the subject of the application, the Court refused to interfere, by appointing a new assignee; nor would they call for an account under the 16 Geo. 3, c. 17. Ex parte Heathfield, 8 Taunt. 403.

An application by a creditor to be appointed assignee before bearing, refused.

A creditor not named in the schedule, not entitled to vote for the appointment of assignee. In re Day, 1 Cress. 8.

(b) Powers, Rights, and Duties. Under the 18th section of the Insolvent Debtors Act, 53 Geo. 3, c. 102, the provisional assignee, as a public officer, has no power to accept or reject, at his discretion, the property of the insolvent. Crofts v. Pick, 2 Law J. C.P. 20, s. c. 1 Bing. 354, s. c. 8 B. Mo. 348. [but see 7 Geo. 4, c. 57, s. 23.]

The provisional assignee of the Insolvent Debtors Court may maintain an action of ejectment under the statutes 1 Geo. 4, c. 119, and 3 Geo. 4, c. 123; and it is not necessary for him, previously to commencing the suit, to obtain the consent of the major part of the creditors of the insolvent, or approbation of one of the commissioners, or order of the Court, as provided by the 11th section of the former, and 2nd section of the latter act.

Where the provisional assignee of the Insolvent Debtors Court brought an action of ejectment, and did not shew that he had previously obtained the consent of the major part of the creditors of the insolvent, or approbation of one of the commissioners, or order of the Court, to proceed as required by the statutes 1 Geo. 4, c. 119, s. 11, and 3 Geo. 4, c. 133, s. 2, the Court, after verdict, refused to stay the proceedings, on the ground that an application should have been made to the Insolvent Debtors Court, to restrain such assignee from going on in the action. Doe d. Clarke v. Spencer, 4 Law J. C.P. 101, s. c. 3 Bing. 370.

The statute 1 Geo. 4, c. 119, s. 11, enacts, that no suit in law be proceeded in further than an arrest on mesne process, by any assignee of an insolvent estate, without the consent of creditors and approbation of one of the commissioners of the Insolvent Court: Held, in an action brought by an attorney to recover his bill of costs incurred in an action at the suit of such an assignee, that it was incumbent on the attorney to prove that the consent of creditors and the approbation of one of the commissioners of the Insolvent Court had been obtained, or at all events that he had informed his client that such consent was necessary. Allison v. Rayner, 6 Law J. K.B. 85, s. c. 7 B. & C. 441, s. c. 1 M. & R. 241.

Unclaimed dividends remaining in the hands of an assignee, allowed to be distributed rateably amongst the creditors named in the insolvent's schedule; they having proved their debts, due notice having been previously given by advertisement. In re Yeates, 1 Cress. 12.

Executors becoming possessed of property accruing to an insolvent after his discharge, ordered to retain it, and upon insufficient cause being shewn, one moiety thereof directed to be delivered over to the insolvent's assignees, under 1 Geo. 4, c. 119, s. 30. In re Hewlett, 1 Cress. 34.

Where an insolvent dies after petition and assignment to provisional assignee, but before examination and assignment to his assignees in chief: Held, that the assignees in chief take, nevertheless, all the property assigned by the provisional assignee. Willes v. Elliott, 6 Law J. C.P. 8, s. c. 4 Bing. 392, s. c. 1 M. & P. 19.

If one of two co-plaintiffs takes the benefit of the Insolvent Act, his assignee cannot sustain a supplemental bill to which the other co-plaintiff is not a party. Lester v. Meddowcroft, 2 Law J. Chanc. 181.

The assignee of an insolvent debtor must be con

sidered as standing in the same situation as the assignee of a bankrupt. Where, therefore, the former accepted a lease of premises occupied by the insolvent, from the provisional assignee, and retained it five months, and endeavoured to let the premises, but failed in so doing: Held, that this did not amount to an absolute acceptance of the lease by him; and the jury having found, that he had not retained it an unreasonable time, the Court refused to disturb their verdict. Lindsay v. Limbert, 5 Law J. C.P. 52, s. c. 2 C. & P. 526.

Assignees of an insolvent's estate are bound to file an account prior to the declaration or payment of a dividend. In re Smith, 1 Cress. 73.

(E) OF THE Schedule.

Where the insolvent had been known by several other names than that in which he petitioned, during the period averred by his schedule and balance sheet, none of which were set forth in his description, although he swore he had not contracted any debts under any of these false names, and that he had assumed them solely for the purpose of avoiding arrests the Court dismissed the order for hearing, with leave to amend the description in the schedule, to advertise in the Gazette again, and to give seven days notice of the further hearing, to his opposing creditor. In re Spittle, Co. 63.

Insufficient description of insolvent. In re Loader, 1 Cress. 142.

The last usual place of abode must be inserted in an insolvent's schedule. In re Staves, 1 Cress. 56.

The Court at any time prior to adjudication will adjourn a case, if there be found any error in an insolvent's description. In re Cooper, 1 Cress. 168. Insolvent's case adjourned for want of a sufficient description of residence. In re Thompkins, 1 Cress. 85.

Insolvent omitting to give a proper description of all his places of residence, where he may have contracted any of his debts, remanded. In re Worster, 1 Cress. 80.

Where an objection is raised as to the misdescription of the residence of an insolvent, and held to be good, the insolvent may insist upon the opposing creditor going on with his individual case. Say, 1 Cress. 168.

In re

An insolvent, who described a debt in his schedule, as due to an agent of a society of persons, who were the real creditors, was held to be protected by his discharge, where the real creditors were so referred to in the schedule, as to give their agent notice of a debt stated to be due to him in that capacity. Wood v. Jowett, 3 Law J. K.B. 277.

Sect. 6, of stat. 1 Geo. 4, c. 119, (the Insolvent Act,) must be construed liberally; and a description, by the prisoner in his schedule, sufficient to point out to a creditor that he the prisoner had applied to be discharged in respect of his debt, will suffice, though the name of a mere agent be inserted as the actual creditor, under circumstances which might have fairly been supposed to have induced the insolvent to consider him a principal. Nor will the difference of 2s. 6d. between the debt actually due and that stated in the schedule, invalidate the insolvent's discharge, where no intention to mislead the creditor appears. Forman v. Drew, 3 Law J. K.B. 129, s. c. 4 B. & C. 15, s. c. 6 D. & R. 75.

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Where an insolvent, in his schedule, stated that "he was indebted to A for goods, and that A held his acceptance for the amount, which became due in October 1823,"-it was holden a sufficient description within the meaning of the 1 Geo. 4, c. 119, although A had indorsed the bill, the insolvent being ignorant of the fact; therefore, in an action by the indorsee against the insolvent, it was decided, that he might plead his discharge under the act. Reeves v. Lambert, 4 B. & C. 214.

An insolvent's schedule must include sums to which he supposes he has even an erroneous right. Memorandum, 7 D. & R. 235.

In describing a bill of exchange in a schedule, it is sufficient to shew what the bill is, and through whom it passed.

If in the schedule the insolvent state a bill as drawn by himself on M, whereas it was drawn by M on him, it is for the jury to say, whether the mistake was wilful or not: and, if they think the misdescription happened through mistake, it is a good discharge. Nias v. Nicholson, 2 C. & P. 120, s. c. 1 R. & M. 322. [Abbott]

An executrix who had become insolvent, had set forth in her schedule, not only her own debts, but also the debts of the testator: The Court held, that as she was not personally liable, and as her private estate was not responsible for those debts, they ought to be struck out of her schedule. In re Smith, 1 Cress. 69.

Insolvent's balance sheet, commencing at the time of his commitment, instead of his arrest, a ground for the dismissal of petition. In re Bear, 1 Cress. 41.

An insolvent having been once discharged and having omitted to insert a debt in his former schedule, owing prior to such discharge, on coming up a second time remanded to obtain the consents of three-fourths of his creditors. In re Rawlings, 1 Cress. 32.

(F) OF THE HEARING.

(a) Order for.

If an insolvent has two christian names, and has taken his discharge by only one of these names, abandoning the other, the Court will dismiss the order for hearing, and require a re-advertisement in both names. In re Newman, 1 Cress. 161.

(b) Notice of.

Insolvent obliged to re-advertise notice of hearing, in consequence of an error by accident in the first advertisement. In re Cooper, 1 Cress. 4.

The solicitor to the assignee of a bankrupt is not competent to give a consent to waive notice of the hearing of an insolvent's petition, although delivery of notice to the solicitor, is equivalent to personal service on the assignee. In re M'Carthy, 1 Cress. 56.

(c) Evidence.

Should any deed, will, paper, or writing, be in the possession of the insolvent, or under his control, and it be proved to the Court, by sufficient evidence, that it relates to his or her estate and effects, the Court will not proceed to hear the case until it shall be delivered into the office of the Court, so as to enable the creditors to examine it. In re Serres, Co. 79.

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An attorney not being paid the usual fee of one guinea on the service of the subpoena, may object to give evidence. Wives of creditors and insolvents not competent to give evidence in support of their busbands' testimony. In re Parker, 1 Cress. 4.

The evidence of a married woman will be received against an insolvent, the debt being contracted with her, and an action thereon, with a verdict in her favour recovered, with costs, during the time she was a feme sole, notwithstanding proceedings were had by scire facias to make the husband a party to charge the defendant in execution, she having married between the verdict and execution. In re Wolff, 1 Cress. 13.

Counsel for an opposing creditor may examine an insolvent as to the disposition of his property, for the purpose of establishing a case of fraud, notwithstanding such property would be affected by a prior bankruptcy of the insolvent. In re Mill, 1 Cress.

159.

An opposing creditor, on an application to the Court to refer the insolvent's schedule and accounts to the proper officer of the Court, is bound to prove the existence of that debt at the hearing-notice having been given him to that effect. In failing therein, the Court will reject the application.

Upon proof by the opposing creditor of his debt, as required by the 43rd section, he will be entitled to oppose, and the debt cannot be invalidated either by the Statute of Limitations, or upon the stamp act these grounds of defence can only be taken advantage of in a court of law. In re Winter, 1 Cress. 50.

In cases of fraud, although the opposing creditor is not present to substantiate his case, the Court will, upon the evidence of the insolvent alone, exercise the discretionary power vested in it under the 47th section. In re Tanswell, 1 Cress. 147.

(G) OPPOSITION.

(a) Notice of.

Courts requiring in all entries of opposition the several columns in the book kept in the office to be particularly observed, upon failure thereof the creditor will not be allowed to oppose. In re Biggins, 1 Cress. 82.

Notice of opposition entered in the country is not sufficient to entitle a creditor to oppose in London. In re Samwell, 1 Cress. 148.

Notice of opposition to an insolvent by a wrong christian name, but altered, when too late, to the right name-held to be bad notice. In re Hatton, 1 Cress. 77.

Where a case is fully gone into on behalf of one creditor, and the examination of the insolvent concluded, the Court will not allow counsel to appear for another creditor who has not entered notice of opposition or even mentioned, when the case was called on, that it was his intention to oppose. In re Blore, 1 Cress. 165.

(b) Falsification of Books.

An insolvent on his first hearing, being taken suddenly ill, and finding means to settle with his detaining creditor, goes out of custody without the adjudication of the Court; having filed his books of account previous to such hearing, on coming up

a second time, it being discovered he had obtained those books from the office of the court, and had assigned them to a creditor; the Court ordered tha they should be produced, together with the assignment, on pain of having his petition dismissed. In re Hulme, 1 Cress. 23.

(c) Fraudulently concealing or making away with Property, and Fraudulent Preference.

[See In re Turner, 1 Cress. 54; In re Presley, ib. 163; In re Gould, ib. 130.]

Where a verdict, with 500l. damages, had been obtained against the insolvent, and immediately afterwards, but before the judgment was entered, he assigned his property to his mother and sister, in consideration of debts previously owing to them, and of some money paid by them at the time of the assignment, which he immediately employed in discharge of several other debts: the Court decided, that this disposition of the insolvent's property was fraudulent, and that the party who had obtained the verdict, upon which a judgment was in fact subsequently entered, was entitled to be considered a creditor competent to oppose the insolvent's discharge. In re Thompson, Co. 89.

Where insolvent twice obtained leave to amend his schedule, inserting therein the second time property which he was apprised had been discovered by his ereditors to have been left in the hands of another person, this was held a fraudulent concealment. In re Husson, Co. 91.

Insolvent had concealed the furniture of one of several lodging-houses of bad character, of which she was the keeper, and fraudulently made away with the furniture of another. Her husband was a sailor serving on the Jamaica station: Held, no objection to her discharge, inasmuch as this property could not be made available, under her assignment, for the payment of any debts incurred by her during her husband's absence. In re Abbott, Co. 140.

The disposal of any property that would benefit an insolvent's creditors, between the period of arrest and render to prison, is a ground for the dismissal of such insolvent's petition. In re Tuckey, 1 Cress.

162.

An insolvent having taken up a business, and obtained money for the purpose of carrying on that business, is bound, on failing, to deliver up his property for the general benefit of his creditors, and the delivery of such property to the party who supplied the money, will be considered an undue preference to that creditor, and a fraudulent making away with property to the detriment of his other creditors. In re Johncock, 1 Cress. 170.

Where the insolvent had borrowed from one of the opposing creditors a sum of money for which he gave him a note of hand payable with interest, and two years afterwards, without any apparent necessity, gave his brother a bill of sale for the amount of his share of a legacy, which he had promised to pay to his brother two years before borrowing the money of the creditor, but continued to pay interest upon the note of hand for four years subsequently, when he was arrested thereon, and the bill of sale was then put in operation against all his property: this was held not to be a fraudulent preference. In re Bartlett, Co. 93.

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dispute" is conclusive, as preventing an opposing creditor from going into a question of fraud. In re Taylor, 1 Cress. 155.

(g) Vexatious Action.

If an insolvent wilfully puts his assignees to unnecessary expense, by instituting law proceeding against them, for acts done by them in the discharge of their duty, with intent to consume his property and diminish the fund to be distributed to his creditors, the Court will remand him until he obtain the consent of three-fourths of his creditors.

Notwithstanding an insolvent obtain a verdict in an action at law, the Court will still consider the action as frivolous and vexatious, if the verdict be afterwards set aside, and it appear from other circumstances, that the action ought never to have been brought. In re M'Beath, 1 Cress. 45.

(h) Vexatious Defence, or Delay of Suit. Where the insolvent had admitted the opposing creditor's claim to be just, pleaded the general issue, offered no defence at the trial, and the plaintiff obtained a verdict for the whole amount: Held, a vexatious defence. In re Clayton, Co. 104.

An insolvent, to an action brought against him by the opposing creditor, pleaded the general issue and the Statute of Limitations. There was no defence at the trial, and the plaintiff proved that the whole amount of his demand had been contracted within three years. By the plea of the Statute of Limitations, the plaintiff's expenses had been considerably increased, and the costs were taxed at 401. Held, a vexatious defence, although the insolvent swore that he believed he had a good defence under the statute, and that no part of the debt had been contracted within six years. In re Bedford, Co. 104.

The insolvent was arrested by the opposing creditor for the sum of 251. part of an original debt of 451. for mason's work, he having previously made a part payment of 201. He pleaded the general issue, but there was no defence at the trial. The insolvent swore, that the whole of the work had been measured and valued, by a person employed by the plaintiff, at 251.; that not more than 51. was therefore justly due; and that he had, previous to the trial, offered to pay 201. and half the costs, which was refused: The Court held that this defence was not vexatious. In re Wilcock, Co. 104.

The insolvent was supplied with goods by the opposing creditor, who at the end of three months twice wrote to him demanding payment, to which the defendant answered, "I have no money to send you, and if I had, I should not give you any, as you have put me to the expense of two letters;-if you write to me any more, you shall have it back double." The insolvent pleaded the general issue, but there was no defence at the trial. He asserted that the uniform credit given by the trade was seven months, and that, although no agreement was made as to time, he was always allowed discount if he paid within three months: Held, (dissentiente Commissioner Law,) not a vexatious defence. In re Hindle, Co. 105.

General issue, and writ of error, vexatious defence to an action on a bill of exchange. In re Baker, 1 Cress. 110.

What a vexatious defence. In re Gills, 1 Cress. 127; In re Gould, ib. 130.

Insolvent, being sued as one of the bail on a writ of scire fucius, files a false plea, thereby delaying the opposing creditor, and putting him to unnecessary expense. Judgment, ten months. In re Loving, 1 Cress. 117.

(i) Damages.

In cases of damages for crim. con., seduction, breach of promise of marriage, malicious prosecution, libel, slander, or malicious injury, the Court will give its judgment according to the verdict. In re Palmer, Co. 106; In re Marsh, Cress. 28.

But if the facts of the case be let in, the Court will consider them. In re Harrison, Co. 107.

In cases of tort or trespass, the Court must hear the facts to judge of the malice. In re Shepherd, Co. 109.

In cases of slander, the Court will regulate its judgment by the amount of damages. In re Jackson, 1 Cress. 37.

Although the damages in a case of slander be small, the Court will go out of its regular scale and award its judgment according to the relative situation in life of the parties. In re Allen, 1 Cress. 100.

Slander of the grossest kind could not, under 1 Geo. 4, c. 119, be construed to mean a malicious injury.

But now the Court is empowered to pronounce an adverse judgment, according to the circumstances of the case, upon an insolvent against whom damages have been given in an action for libel or slander. In re Thompson, Co. 89.

(H) PRIOR INSOLVENCY OR BANKRUPTCY.

The fact of a prior insolvency must be stated in the petition of an insolvent, notwithstanding such prior insolvency took place 17 years previous to the second insolvency. In re Bradford, 1 Cress. 149.

Insolvent's petition dismissed, he having omitted to state his previous bankruptcy in the petition. In re Bentley, 1 Cress. 134.

An omission in an insolvent's petition of his having been bankrupt even twenty years prior to his insolvency, is fatal to his petition. In re Wall, 1 Cress. 127.

If an insolvent has been a bankrupt more than once, that fact must be mentioned in his petition, notwithstanding the first commission issued during his minority. In re Francis, 1 Cress. 155.

The creditors consenting to an insolvent's discharge, under section 64 of 7 & 8 Geo. 4, must be duly entered in the schedule, and must be creditors from whom the insolvent seeks to be discharged.

Therefore, the consent of a mortgage or other security creditor, unless he will agree to give up his security, or of creditors on account of new contracts for debts which had been discharged by previous bankruptcy or insolvency, unless they have obtained judgment, will not be sufficient. In re Rice, Co.

112.

An insolvent will not be discharged without the consent of creditors, where a debt has been contracted by accepting accommodation bills. In re Wilmot, Co. 114.

An insolvent will not be discharged without consent of three-fourths of his creditors, where he omits