APPOINTMENT.
Under a marriage settlement, the
husband and wife had a power of
appointing a fund among their
children, and in default of ap-
pointment, or so far as it did not
extend, the fund was to go to the
children equally. There were three
children of the marriage. An ap-
pointment of one-third of the
fund was made in favour of one
of the children, yet so as not to
affect the same power further than
to the extent specified, and also,
in case of no complete exercise or
execution of the same power or
authority as to the share of the
fund not affected by the appoint-
ment, so as not to prejudice or
affect the right or contingent in-
terests of the appointee under
the proviso for accruer, in case of
the death of any or either of the
other children, in such manner as
specified in the settlement, and
notwithstanding that in case of no
complete appointment the then
"appointment was intended to be
made in lieu of all claims and
demands" of the appointee to or
for any original or principal share
of the fund-Held, that the ap-
pointors must be taken by neces-
sary implication to have appointed
the other two-thirds to their two
other children, and that the ap-
pointee was not entitled to share
in such two-thirds. Foster v.
Cautley.
A. being indebted to B. on three
promissory notes was applied to
by B. for payment on account of
interest, but without referring to
any debt in particular: in conse-
quence of this application A. paid.
51. at the time of this payment
two of the notes were barred by
the Statute of Limitations and one
was not barred:-Held, that the
payment must be attributed as
made exclusively in respect of the
note not barred, and that the effect
was as to it to prevent the opera-
tion of the Statute. Nash v.
Hodgson.
474
See PRINCIPAL AND SURETY.
A testator, after directing payment
of all his debts, devised the re-
sidue of his freehold and copyhold
estates to trustees, upon trust to
sell and absolutely dispose of the
same, and he directed the monies
to arise from such sales should be
deemed to be part of his personal
estate, and that the rents and
profits of the hereditaments, till
their sale, should be deemed to be
part of the annual income of his
personal estate, and that the same
monies, rents and profits should
be subject to the disposition there-
inafter made concerning his per-
sonal estate and the annual in-
come thereof respectively; and as
touching his personal estate, he be-
queathed the same to the trustees,
upon trust to invest the same in
consols and pay certain legacies.
The testator made no disposition
of the residue of his estate :-
Held, impugning the authority of
Chitty v. Parker (4 Bro. C. C.
411), and approving that of Ro-
berts v. Walker (1 Russ. & Myl.
752), that the real and personal
estate was constituted a blended
fund, and applicable, pari passu,
in payment of debts and legacies:
-Held, also, that the heir was not
entitled to an inquiry as to the
real and personal estates, with a
view to ascertain the amount for
which he was liable to contribute,
but that a sale of such real estate
must be made. Simmons v. Rose.
Page 411
See EXONERATION.
BANKERS.
See BANKRUPTCY, 12, 13.
1. Where a mortgagee submitted the
question of the validity of his se-
curity to the jurisdiction of the com-
missioner, on an application of the
petitioning creditor to set it aside:
-Held, that the commissioner in
deciding the question was acting
judicially and not as an abitrator,
and that his decision was subject
to appeal.
An assignment of the machinery
and effects of a trader necessary
for carrying on his trade, and com-
prising all his property except
his household furniture and book
debts, which were of small value,
he being at the time in insolvent
circumstances:-Held, to be frau-
dulent and void against the assig-
nees on his becoming bankrupt.
Ex parte Bland, In re Murgatroyd.
Page 757
2. It is in general inexpedient to an-
nex to a certificate a condition
that it shall not afford protection
against particular debts.
Accommodation bill transactions are
not regarded with favour, and
a bankrupt who has engaged in
such dealings must expect them
to be subjected to a rigid inves-
tigation; but where such a bank-
rupt had not been shown to have
been guilty of any dishonesty, or
to have represented that the bills
were not accommodation bills, the
Court considered such transactions
not sufficient ground for suspend-
ing the certificate for two years,
without protection, as regarded
liability in respect of the bills. Ex
parte Hammond, In re Hammond.
Page 699
3. Attempted concealment by a
bankrupt of property, although of
small intrinsic value, and prized by
him for the sake of family recol-
lections and associations, held suf-
ficient ground for refusing to dis-
turb in his favour a suspension of
his certificate for eighteen months
without protection. Ex parte War-
wick, In re Warwick.
curity to the client being pre-
pared), and afterwards the trans-
ferror, who was one of the trustees
of the trust fund, procured the
concurrence of the cestuis que
trustent, and also of his co-trustees
(to whom he never disclosed the
transfer) in selling out the fund,
and thus realized the mortgage
money and applied it to his own
use, but continued to pay the in-
terest to the client, to whom he
represented the mortgage as still
subsisting:-Held, the solicitor
having become bankrupt, that his
certificate had been properly re-
fused, and that the client's having
continued to correspond with him
after discovering the misconduct,
did not alter the case.
Ex parte
Selby, In re Selby.
6. In 1846, L. lent a sum of money
to P., to enable him to purchase
the requisite amount of shares in
two public companies to qualify
him for the office of director in
each, and P. assigned the shares in
both the companies in which he
had become director, to L., as a
security for the loan. The quali-
fication for the office of director in
one of the companies, which was
constituted by Act of Parliament,
would have been lost by the dis-
posal or reduction of the amount
of that qualification, and the pro-
visions of the deed, by which the
other company was constituted,
required that its Directors should
be possessed of or entitled to the
requisite amount of shares in their
own right. In June, 1854, P.
signed a declaration of insolvency,
upon which he was adjudicated a
bankrupt, the shares then stand-
ing in his name, but five days
previously L. gave notice to the
directors of both companies of the
assignment to him. At the time
of his bankruptcy P. was actually
a Director of one of the companies,
and out of office by rotation in the
other, in which he probably would
have been re-elected :- Held, that
the shares in neither company
were in the possession, order or
disposition of P. at the time of his
bankruptcy, with the consent of
the true owner. Ex parte Little-
dale, In re Pearse. Page 714
7. Personal service of a trader
debtor summons under the 78th
section of the statute 12 & 13
Vict. c. 106, means showing the
original summons and leaving a
true copy.
A document in which the signature
of the Commissioner is not copied
is not a true copy of the sum-
An omission on the part of the
trader to object to this defect at
the time of the service:-Held,
no waiver of the objection within
the 80th rule. Ex parte Tindall,
In re Tindall.
741
8. A covenant by sureties that the
principal debtor would pay a debt
by three yearly instalments, held
on the principal debtor becoming
bankrupt after payment of the
first, and before the time for pay-
ment of the second instalment, to
be a contingent liability, properly
the subject of a claim under the
168th section. Ex parte Barwis,
In re Strahan.
Page 762
9. A., and B. his surety, entered into
a bond for payment by instalments
of a debt of A., and also of interest
and premiums on a policy. As part
of the same arrangement A. and C.
(his partner) entered into a counter
security to B. by way of joint cove-
nant of indemnity. A. and C. be-
came bankrupt, and the condition
of the bond having been fulfilled
up to the date of the fiat, was after-
wards broken-Held, that B. who
paid the amount could not prove
against the joint estate of A. and C.
on the counter security. Ex parte
Meyer, In re Meyer.
775
10. Where a Defendant to an action
for injury to the Plaintiff's pro-
perty caused by the explosion of
the Defendant's steam-engine, con-
sented at the trial to an order of
reference, and the award was not
made till after the Defendant's
bankruptcy-Held, that the De-
fendant had not before the bank-
ruptcy contracted a liability to pay
money upon a contingency within
the meaning of the 178th section
of the Bankrupt Law Consolida-
tion Act. Ex parte Todd, In re
Williamson.
11. A bankrupt had, in consideration
of the payment of a sum of money
to him by the vendors of goods,
guaranteed the payment of the pur-
chase-money by the purchasers ac-
cording to the contract of purchase,
viz. by the due honour of a bill
of exchange accepted by the pur-
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