Ex.] CRUGER V. DUNLOP. [Ex. CH. the absolute and visible control over the property. I comes within the concluding portion of the 7th section Here the plts. put their own agent in possession to of the Act; but I think that is not so. It strikes me carry on the business for them, and they added largely that the words there, to the stock by purchasing with their own funds. In he shall occupy in the ordinary sense of the term, and fact, it appears to me that the transaction was as fair do not mean a person merely having a legal interest occupied by him," mean which and open as it could by possibility be, and that it was in a lease. Then as to the concluding words of the notorious to all people that there was a change of pos- section, "notwithstanding that formal possession thereof session and ownership. In my opinion the Act of may have been taken by or given to any other person," Parliament was never meant to have any bearing on a that means that possession would have no effect if the case like the present, and from the last clause in the grantor remains in the house, and in the use and en7th section of the Act, which provides that the apparent joyment of the goods. But if, at the time of the exeownership shall be deemed to continue where the cution of the bill of sale, the grantee openly, really and delivery is formal only, it is, I think, clear that it is truly takes possession of the goods, then the grantor's not applicable to the present case in which there has been remaining in the house is nothing, and the Act does not a mere formal possession, but a bona fide sale, an not apply. Assuming the plts.' case to be true, the actual delivery, and a complete change of possession. verdict was rightly found for the plts. The rule will As to the rest, assuming bona fides, it was for the jury, be discharged. and they have found for the plts. The rule must be discharged. MARTIN, B.-I am of the same opinion. What are the facts? John Davies became insolvent, and applied to the commissioner, at Manchester, to obtain relief. The plts. agreed to become his sureties for payment of the instalments of his composition with his creditors, provided they were secured. Accordingly, the promissory notes, which have been referred to, were executed on the 14th Oct., and placed in the plts.' attorney's hands until the plts. should be properly secured, and on the 16th Oct. the bill of sale was executed. J. Davies had carried on business in the shop for a long series of years. On the execution of the bill of sale the plts. employed an agent of their own, one Bartlett, to carry on the business for them; they took him to the place openly; there was no secrecy in the matter; every one in Newtown must, or might, have known the real nature of the transaction; and the statement was, that it was communicated to every one. that the name over the door was not altered; but it It is true appears to me that there was, notwithstanding that, a complete change; and that, on the evidence, it was as plain and straightforward a transaction as could be. On the 26th Nov. the deft. puts in an execution, under which the goods are seized, which the plts. then claim under their bill of sale; and, assuming bona fides, which there is no reason to doubt, the property was clearly theirs. Then comes the Act of Parliament, which, in my judgment, has no bearing on the case. BRAMWELL, B. concurred. I need not recapitulate the grounds on which I have CHANNELL, B.-I also am of the same opinion, but arrived at that conclusion. there has been a misdirection on the part of the learned judge, it is necessary to look into the Bills of Sale To see whether or not Act. The effect of the 1st section is, that, if a deft. seeks to impeach a bill of sale, it is not enough to make out a want of registration within twenty-one days, but he must also make out a possession, or an "apparent possession," in the grantor; and I agree with my brother Martin in what he has said as to the meaning of the concluding part of sect. 7. objection made here is, that the learned judge left to the jury what was a matter of law, but I think it was a question of fact, and not one which the judge should have taken upon himself to decide. right, as I think it was, to leave it to the jury, the question comes, was the verdict against the weight of If, then, it was warrant the verdict. I think the verdict entirely right, evidence? In my judgment, there was evidence to and that this rule must be discharged. The agents for Sale and Co., Manchester. EXCHEQUER CHAMBER. ERROR FROM THE EXCHEQUER. KEATING, CROMPTON, WILLES, BYLES, May 17 and June 25. BLACKBURN and MELLOR, JJ.) Deed of arrangement with creditors-Validity of— CRUGER V. DUNLOP. Bankruptcy Act 1849-Provision to be made for A debtor entered into a deed with his creditors and the distribution of the whole of the debtor's estate. certain inspectors, for the purpose of winding-up kis estate for the benefit of creditors, and distributing his assets under inspectors. It recited that it should be a deed of arrangement under the 224th section of the Bankrupt Law Consolidation Act 1849 (12 It is clear, from the very title of the Act, that it has application only in cases of "secret bills of sale; 99 and the bill of sale in this case and the transfer under it were as open and notorious as they could be. Then the preamble of the Act is pointed at "frauds (Before committed upon creditors by secret bills of sale, whereby persons are enabled to keep up the appearance of being in good circumstances and possessed of property," and "the grantees or holders of such bill of sale have the power of taking possession of the property of such person to the exclusion of the rest of the creditors, for remedy whereof be it enacted," &c. But if Mr. Giffard's contention be right, it would be rather an Act to encourage fraud. This was a public open bill of sale; all who had any interest in the matter knew, or, if they had thought fit so to do, might have known of it. Looking at the preamble and the evils against which the Act was manifestly pointed, it is clear, to my mind, that the present case does not come within it. The insolvent Davies did not 66 ance of being in good circumstances and possessed of keep up the appearproperty;" on the contrary, he gave up the possession and went away, and never came back to the place until after it was all over. daughter's remaining behind and living in the house The bare fact of the amounts to nothing, and could not have operated deceive any one as to the real nature of the transaction between the insolvent and the assignees under the bill of sale. It is then said by deft.'s counsel that the case or 1 13 Vict. c. 106). The debtor was to get in his estate and divide the proceeds among his creditors, except such allowances, payment of money effects of the debtor as the inspectors in their discretion might authorise, not exceeding the allowance to debtors out of their estate under the bankruptcy statutes, in case a petition had been filed against him on the 22nd Jan. 1858, and he had been adjudged bankrupt, and that his estate was to be administered as nearly as circumstances would permit, having regard to the provisions of the deed, upon the prin ciples and according to the rules and practice of the bankrupt law: Ex. CH.] CRUGER V. DUNLOP. [Ex. CH. Held (affirming the judgment of the Court of Ex.), Į arrangement. [BYLES, J. mentioned Cooper v. that the deed was invalid. Error from a judgment of the Court of Ex. upon a demurrer to a replication. It was an action upon a bill of exchange by the plt. as drawer against the deft. as acceptor. Deft. pleaded that he had entered into a deed of arrangement with his creditors pursuant to the Bankrupt Law Consolidation Act 1849, 12 & 13 Vict. c. 106, s. 224. Replication setting out the deed, and averring that the plt. had not executed it. Demurrer and joinder. The deed was not, in fact, a deed of assignment for the benefit of the debtor's creditors, but for winding-up his affairs and distributing his assets under inspection; it was made between the debtor, the inspectors, and several persons whose names were subscribed and affixed, and recited a resolution of the creditors, that it should be a deed of arrangement under the 224th section. It contained, among other stipulations, a covenant by the debtor with the inspectors to get in his estate and divide the proceeds among his creditors; and it was agreed and declared that the estate, with the exception of such allowances and payment of money or effects of the debtor as the inspectors might in their discretion authorise, but not exceeding in quantity or amount the allowance which might have been made to the debtor out of his estate under the bankruptcy statutes, in case a petition had been filed against him on the 22nd Jan. 1858, and he had been adjudicated bankrupt, should be administered, as nearly as circumstances would permit, having regard to the provisions of the deed, upon the principles and according to the rules and practice of the bankrupt law, and as if such petition had been filed and adjudicated on. The Court of Ex., when the case came on for argument there, considered they were concluded by their decision in Snodin v. Boyce, 4 H. & N. 391, and gave judgment for the plt., without hearing the argument, in order that the question might be determined by a court of error. Thornton, 1 E. & B. 544, where it was held, that a deed signed by six-sevenths of the creditors to the amount of 10l. and upwards, was not valid under the 224th section, notwithstanding it conveyed the whole of the debtor's estate to trustees, if it empowered them to give back to the debtor effects to the value of 201.] No doubt that case will be relied on by the plt., as well as March v. Warwick, 1 H. & N. 158, which decided that such a deed was void for excepting from the assignment the wearing apparel of the debtor and his family. Marchv. Warwick proceeded upon the authority of Cooper v. Thornton, which was decided before the passing in 1854 of the 17 & 18 Vict. c. 119, the 25th section of which authorises the bankrupt to retain household furniture, &c. not exceeding the value of 201. The allowance is for the necessary subsistence of the debtor, and it might to some extent be considered as an inducement to wind-up his estate at an early period, thereby doing the best he could for his creditors; otherwise he would go at once to bankruptcy, where he would directly get an allowance. The effect of the decision in the court below was to vitiate any deed of winding-up under inspection, and the effect would be to put an end to them. It was merely optional for the inspector to make the allowance. By the Bankrupt Law Consolidation Act 1849, ss. 194, 195 and 166, the court had power to make an allowance to a bankrupt for maintenance, and such was the policy of the entire Bankrupt Act. Aspland (Blaine with him) for the plt. below.This deed is void, according to the decision of Snodin v. Boyce; such a deed to be valid must provide for the distribution of the whole of the trader's property. The Bankrupt Act of 1849, 12 & 13 Vict. c. 106, does not except anything, not even wearing apparel; but by the subsequent Act of 17 & 18 Vict. c. 119, s. 25, wearing apparel is excepted to the extent of 20.; that, however, applies only to cases of bankruptcy, and not to deeds of arrangement. It was intended that the Mellish, Q. C. (Beresford with him), for the plt. entire assets of the debtor should be distributed; but a in error, contended that the present deed was valid. deed giving a power of making an allowance to a This was not a deed of assignment, nor a composition debtor could not be considered an entire distribution. deed, but a deed of arrangement for winding-up a It might be that the inspector was not a creditor; he debtor's estate under inspection. In Irving v. Gray, might be a personal friend of the debtor, and not par3 H. & N. 34, a similar deed was held valid, not- ticular in the disposal of the person's property. There withstanding it had been decided that a deed under the is a clause in the deed providing that, if there was a 224th section of the Bankruptcy Act 1849 must pro- surplus, it should belong to the debtor. This is not a vide for the distribution of all the debtor's estate and complete distribution, as it does not provide for the amongst all his creditors; but, in Snodin v. Boyce, payment of interest on the debts. The non-executing 4 H. & N. 391, which will be relied upon by the other creditors are not bound by the deed, as they are not side, the court (Pollock, C. B. dissentiente) held a referred to in the deed, but only those who deed, under the same section, void which provided signed it. The provisions of the deed are unreafor the distribution of the debtor's estate in sonable, as it is to be a defence to any action the same manner as if he had become bank- a non-executing creditor might bring. The deed rupt, upon the ground that such a deed must is void because it is not an assignment of the debtor's provide for the distribution of all the debtor's property: it is merely a covenant to assign if called estate, but a bankrupt is entitled to certain excepted articles. This deed differs from the deed in Snodin v. Boyce, as it provides that the allowance shall be in the discretion of the inspectors, provided that the same should not be more than might be made by assignees in bankruptcy. It would be the duty of the inspectors to exercise that discretion so as not to violate the Act. There is nothing in the statute to render it essential that all the estate should be distributed, and it could never have been the intention of the Legislature to prevent all or any allowance. Whenever a trader is in insolvent circumstances, generally the longer it goes on the worse it is, until at last he becomes so much involved that he is compelled to give up. The policy which sanctions allowances in bankruptcy as an inducement to the debtor to yield the property for his creditors, should equally be held to apply as an encouragement in reference to deeds of : upon. The deed is void because it gives the inspector power to defend actions brought by non-executing creditors at the expense of the estate. The authorities are numerous that show the whole estate must be distributed (Ex parte Wilkes, 5 De G. M. & G. 418; Drew v. Collins, 6 Ex. 670; Tetley v. Taylor, 1 E. & B. 521; Fisher v. Bell, 12 C. B. 363.) He also referred to Tabor v. Edwards, 4 C. B., N. S., 1; Legge v. Cheeseborough 5 C. B., N. S., 741; Gardner v. Chapman, 8 C. B., N. S., 317.) Mellish replied. The intention of the Legislature was, that if six-sevenths of the creditors signed such a deed, it should bind the creditors who did not sign. Traders now found out that these winding-up deeds brought them more money than bankruptcy or assignments. Cur. ade, cult. June 25.-CROMPTON, J.-We have considered this case, and we are of opinion that, under the authorities ADM.] DIGEST OF MARITIME LAW CASES. [ADM, 1348 a. "Salvage has, from the earliest times, been affecting the question, the deed ought to be considered as invalid, and the judgment of the court below deemed a lien on the ship." Salvors held entitled to affirmed. I have entertained some doubt whether the holds the ship in his possession in security of expense of priority of payment before the lien of a shipwright who case might not have been brought under the authority repairs. Wages previously incurred to the crew, and the of Irving v. Gray, 3 H. & N. 34; but I am not pre-ordinary allowance for return to their own country in case of foreigners, have likewise a priority, but not wages pared to differ from the rest of the court in affirming the decision of the court below. Judgment affirmed. DIGEST OF MARITIME LAW CASES (EXCEPTING SALVAGE AWARDS.) FROM 1837 TO 1860. (Continued from p. 102.) [N.B.-The LAW TIMES REPORTS, N. S., will give all the Maritime Law Cases decided from Michaelmas Term 1859. This Digest will contain all (except the Salvage Awards) decided from 1837 to Nov. 1859. A Digest of the Salvage Cases during the same period is appearing in the LAW TIMES.] LIBEL. during the time the vessel was in the shipwright's yard, nor a claim for necessaries. Case of Perseverante com- 1349. Dock company held to have a lien on goods in their possession for payment of dues left unpaid on other goods: (Green v. St. Katherine's Dock Company, Q. B., Feb. 25, 1847, 13 Jur. 1116; 19 L. J. 53, Q. B.; Harrison's Digest, 2949.) As to lien on ship, see "Dock Dues," 1069.) V. ON CARGO (and see 1358, 1361). 1350. Case touching upon the shipowner's lien on goods for proportion of salvage: (The Joseph Alexander; Briggs v. Merchant Traders Ship Loan and Assurance Association, Q. B., 1345. A letter published in the Times, stating that a ship April 26, 1848, 13 Q. B. 167; 13 Jur. 787; 18 L. J. 178 Q. B., which was there advertised to sail from London to Calcutta (See "Freight;""Collision," 584, as to proceedings against II. Of master on ship or freight, 1347, 1348. III. Of salvors, 1348, 1348 a, 1356, 1358. IV. Of dock company, 1349. V. On cargo, 1350 and 1358, 1361. Arnould, 308.) VI. MISCELLANEOUS CASES (in order of dates). 1351. In a case where a British ship put into Acapulco, in Central America, and there incurred necessary expenses to enable her to continue the prosecution of a voyage, Dr. Lushington said it was not to be expected that the parties advancing the money would allow the ship to depart till the "Where a person furnishes charges were paid or secured. goods or does work for the absolute necessities of a ship, he is entitled to retain possession of her until he obtain adequate security:" (The Gauntlet, A. C., July 14, 1848; & E. & M. Cases.) 1352. Question whether the holder of a mortgage on a vessel, or an arresting creditor, had a preferable claim to the sum in a policy effected by the owner in general terms. An elaborate exposition of the law and equity applicable to this subject by the Sheriff Substitute of Fifeshire: (The Aberdeen Marine Insurance Company v. Inglis, &c., Sheriff VI. Miscellaneous cases (in order of dates) 1355 to 1361 a. Court, Fife, Shipping Gazette, May 2, 1850.) Agent advancing moneys for necessaries, 1351, 1360. Or to pay accounts of material men, 1363. Bill of lading, freight and chartered freight, 1361. Collision. See 584 as to proceedings against ship in Admi- Dock company, lien on goods, 1349. Foreign law, 1355. Freight, Sect. II. and 1355, 1361. Insurance brokers' lien on policy, 1353, 1354. Master (ship) 1347, 1347 a, 1355. Material men, 1346, 1351, 1363. Miscellaneous cases (in order of dates) 1355 to 1361 a. Neutral's and enemy's ships, 1359. Policies of insurance (lien on), 1352, 1353, 1354. Proctor's lien on seamen's wages for costs, 1357. Salvors and salvage, 1348, 1348 a, 1350, 1356, 1358. Ship and freight, Sects. II., III., V., VI. and 1360. 1346. A sailmaker cannot exercise his lien upon the sails of a ship for the amount due to him for repairing the sails when the ship is arrested under warrant of the Admiralty Court. The court can protect his just rights. Proceedings under 3 & 4 Vict. c. 65: (The Harmonie, A. C., Feb. 9, 1841, Shipping Gazette; 1 W. Rob. 178; Pritchard's Digest, 227.) II. OF MASTER ON SHIP OR FREIGHT. 1347. Held that the master of a ship has not, in the ordinary course, any lien upon the vessel for money owing to him by the owner. Right of purchasers to displace master, and to require him to deliver up the vessel after the original owner's bankruptcy: (The Windsor Castle, A. C., July 21, 1841; Shipping Gazette.) 1347 a. Captain held to have no lien on freight for disbursements in a question with mortgagees: (Bristowe v. Whitmore, Court of Appeal in Ch., June 3 and 8, 1859; 1 L. T. Rep. N. S. 173.) III. OF SALVORS. 1348. Salvors in possession of a ship with cargo on board, have a right to carry her to a convenient port to have their reward determined; this right to be exercised with discretion. If they once part with the property to the owners, they cannot again recover possession, except through the medium of a court of competent jurisdiction: (The Palinurus, A.C., July 23, 1842, Shipping Gazette. See No. 1358.) 1353. Insurance broker's lien on policies: (Bird v. Marshall, Northern Circuit, Liverpool, Aug. 19, 1851, Shipping Gazette.) 1354. Case relative to broker not having a general lien upon policy of insurance: (Dixon v. Stansfield, C.P., Nov. 10, 1851, Shipping Gazette.) 1355. Case relative to lien of master on freight in merchant's hands for wages; enforcement of law of Hamburg at discretion of the court; jurisdiction in case of general average and application of specie forming part of the cargo to pay expenses at an intermediate port: (comments on Dons. Lippman, 5 Cl. & F. 1; The Johannes Christoph, A. C., Dec. 29, 1854; 2 E. & A. R. 93.) 1356. Questions as to salvors' lien upon property saved: (An Indian Prahu v. The Blackburn, Calcutta Supreme Court, Jan. 16, Shipping Gazette, April 4, 1855; The Lady Worsley, A. C., April 8, 1855, Shipping Gazette) 1357. The proctor in a suit instituted at the instance of a seaman for wages has a lien on them for the costs, where costs are given: (The Araminta, A. C., Feb. 29, 1856, W. Rep. 396.) 1358. Whether the lien of a salvor is lost by giving up possession of the property. Their right to sue the owners personally: (American case: The Eleanora Charlotte, i Hagg. 156, referred to in the case of The Perkins, &c.; District Court of U. S. for Massachusetts, 1856, 9 M. L. R. 497 -date not given. See No. 1348.) 1359. Liens, whether in favour of a neutral on an enemy's ship, or in favour of an enemy on a neutral ship, are disre garded in a court of prize: (The Ariel, J. C. P. C., Feb. 19 and March 21, 1857, W. Rep. 430.) 1360. In pronouncing a decree in favour of agents, in Queenstown, who had advanced a large sum for repairs of damage to a foreign ship, which had put into that port on her voyage from Rio Grande, in South America, to Barnstaple, in England, Dr. Kelly said, that, by the general maritime law, the agents had a lien on the foreign ship for the amount due for repairs: (The Harriett and Molly, of Hamburg, A. C., Dublin, Nov. 20, 1857, Shipping Gazette.) 1361. Question as to lien on cargo between holders of bill of lading with letter of hypothecation as collateral security for bill of exchange and shipowners for freight due by charterers, the captain having signed bill of lading at nominal freight in consideration of advance made by charterers. Lien prevails against indorsee of bill of lading only for bill of lading freight, though less than the freight by charter-party: (Foster v. Colby, C. E., Dec. 19, 1837; 28 L. J. 81, Ex.) 1361 a. Held that the master transhipping cargo in case of his ship being totally wrecked, can transfer only his lien for freight at risk, and not for freight advanced: (Matthews v. Gibbs, Q. B., Nov. 19, 1860; 1 Mar. L. C. 14.) [Note. But if the whole freight was paid in advance, and a total loss of it is paid by the underwriters, the cargo being sent forward at a current rate of freight equivalent to the original freight, is the captain of the new ship to BANK.] Ex parte MARTYN, re MARTYN-Ex parte ASPIN, re ASPIN. have no security? To prevent fraud in such a case it would seem to be enough that the captain of the first ship is bound to forward the cargo for the benefit of the merchant on the best terms he can obtain. There the cargo is unnecessarily transhipped; however, the merchant might suffer great prejudice if the lien for the full freight were enforced, notwithstanding that a part had been paid at the port of loading.] Other cases as to lien on cargo for freight: (See **Freight.") 499.) VII. ADDITIONAL CASES, 1352. Lien of seamen for wages not sustained in preference to ship recovering for damage by collison; owners not bankrupt: (The Linda Flor, A. C., Dec. 24, 1857, 4 Jur. N. S. 172; see Maclachlan on the Law of Merchant Shipping, 1363. Agents at Quebec receiving captain's bill on owners for funds advanced to disburse accounts at that port of those who are material men, held not to have a lien on ship entitling them to arrest and sell her by Admiralty Court process on arrival in this country. Comparison of bottomry and maritime lien. Sundry cases cited founded on by court: (The Moffat, A. C., Dublin, March 3, 1858, Shipping Gazette. See No. 1472.) (To be continued.) COURT OF BANKRUPTCY. Reported by A. A. DORIA, Esq., Barrister-at-Law. Tuesday, Sept. 30. (Before Mr. Commissioner FONBLANQUE.) Ex parte MARTYN, re MARTYN. Dismissal of petition-Omissions in statement. Where the bankrupt, being in custody, inserted in his statement of debts and liabilities filed in pursuance of the 93rd section of the Bankruptcy Act 1861, persons as creditors to a much smaller amount than was really due to them, and entirely omitted from it the debt of his detaining creditor, and accounted for the omissions by the absence of his books when he prepared the statement, and the fact that the detaining creditor, although suing in his own name, was the representative merely of the original creditor, who was inserted in the statement, the court declined to dismiss the petition. Dowse appeared for the bankrupt, and asked that his client might be released from prison, where he was detained at the suit of one Heller, a judgment-creditor, for about 1277. Sargood, for Heller, referred to the statement of debts and liabilities filed by the bankrupt upon presenting his petition pursuant to the 93rd section of the Bankruptcy Act 1861, in which the debt of the detaining creditor was entirely omitted. There were also other creditors whose debts were there stated at scarcely half the amount actually due to them. He contended that the court had no alternative under the 4th General Order of Oct. 12, 1861, but to dismiss the petition. The bankrupt stated that, being in prison and without his books, he had made out the statement to the best of his recollection and belief. With regard to Heller's debt, he was in the employ of Attenborough, whose name appeared as a creditor in the statement. Attenborough was since dead, and Heller sued the bankrupt in his own name; but he conceived that Attenborough was his creditor, as his name and not Heller's was upon the invoice of the goods. Dowse. The simple question was, whether or not the bankrupt should be released. Munns (solicitor), for the assignees, said, his clients did not desire that the petition should be dismissed. Mr. Commissioner FONBLANQUE.-I think it will be better to retain the petition. It will be of no use to dismiss it, as the only effect of so doing will be to turn the bankrupt out of one door in order to let him in at another. But I shall not release him for the present. Ordered accordingly. The [BANK. Ex parte JOHNSON, re JOHNSON. court will not order the bankrupt's release from Release from custody-Constructive slander. custody where it appears that he is in prison for damages and costs recovered" against him for a constructive slander," except upon bail. Release from custody. The bankrupt was a furniture broker, and being in custody for damages obtained against him in an action for an alleged malicious trespass and slander, was adjudicated upon his own petition. The plt. in the action was an auctioneer, and the bankrupt having, with other persons, created a disturbance at one of his sales, he brought an action against them for a conspiracy, &c., and recovered judgment. The damages were assessed at 297., and the costs amounted to 1354. It was stated in the declaration that "the deft. wrongfully and maliciously conspiring and intending to injure the plt. in his said business, and to obstruct him in carrying on the same, and to injure him in his reputation as an auctioneer, and cause the goods sold by him to fetch a less price than they otherwise would and wrongfully and maliciously made a great noise and disturbance, and thereby interrupted the said sales, and knowingly, falsely, maliciously and fraudulently made to divers persons attending the said sales false statements as to the character, condition and value of certain goods about to be sold by him, whereby,' &c. Holt (solicitor) appeared for the bankrupt, and asked for his release under the 112th section of the Consolidation Act 1849. Griffiths, for the detaining creditor, opposed the application, on the ground that the damages for which the bankrupt was in custody, being in respect of one, if not more, of the exceptions of the 112th section, namely, slander and malicious trespass, the court had no power to order his release. Holl, in reply, contended that the bankrupt was in custody for debt merely, and not for a malicious trespass. [The COMMISSIONER.-Is it slander ?] It did not appear to be so. The 112th section must be construed strictly. If the bankrupt had committed an offence, he might be called upon to answer it at the proper time. Mr. Commissioner FONBLANQUE.-This 112th section is not a penal clause. It is an exception from a benefit. Although I do not think that the bankrupt has brought himself within the direct words of the exception of this 112th section, as having been guilty of slander, yet certainly the evidence goes very far to show a constructive slander. I think he is not entitled to his release except on bail. The bankrupt must give bail, himself in 2001. and two sureties for 1001. each. Ordered accordingly. Thursday, Oct. 2. (Before Mr. Commissioner HOLROYD.) 24 & 25 Vict. c. 134, s. 104-Plt. in custody for costs of nonsuit under 201.-Whether entitled to petition in formâ pauperis. A plt. in custody for the costs of a nonsuit, แ not exceeding 201.," is within the 104th section of the Bankruptcy Act 1861, whereby he is disabled from presenting a petition in formâ pauperis for an adjudication against himself. The plt., being in custody under a ca. sa. issued against him for about 117. 5s., the costs of an action which he had brought against the deft. and in which he was nonsuited, presented his petition in formå pauperis for an adjudication against himself. Mr. Aldridge, the solicitor appointed by the Lord Chancellor to prepare or attest all pauper petitions, declined to proceed in the matter, in consequence of a refusal of Mr. Registrar Millar to adjudicate upon a petition in a precisely similar case, a few days previously BANK.] Ex parte SKINNER, re SKINNER-STANLEY v. STANLEY. (Re Drake) (a) upon the ground that it came directly within the words of the 104th section of the Bankruptcy Act 1861, whereupon the present application was made for the interposition of the court. By the 104th section it is enacted that no person who is in custody solely or by reason of any warrant or order made, or issued by or by the authority of a judge under the provisions of the Act of the 8 & 9 Vict. c. 127, or of the Act of the 9 & 10 Vict. c. 95, or by the authority of any court having the power to commit any person to prison upon or by reason of any order or judgment wherever there shall have been recovered a sum for debt not exceeding 201., exclusive of costs, shall be included in the return so directed to be made by gaolers as aforesaid, or released from such imprisonment by virtue of any order to be made by the registrar as aforesaid, or be entitled to petition in forma pauperis under this Act. Lucas appeared in support of the application. Mr. Commissioner HOLROYD having referred to the 104th section, expressed an opinion that the registrar was right in his construction of the clause in question, and that the Legislature must have intended it to apply to cases like the present. He therefore declined to interfere with the discretion exercised by Mr. Aldridge. Application refused. Saturday, Oct. 4. (Before Mr. Commissioner FONBLANQUE.) Ex parte SKINNER, re SKINNER. Release from custody—Attachment in Admiralty Court. If a bankrupt be in custody under an attachment for nonpayment of money, that is a debt within the 112th section of the Bankruptcy Act 1849, and there being no other circumstances in the case to warrant his detention, he is entitled to his release. Release. The bankrupt was in custody under an attachment issued out of the High Court of Admiralty, for not obeying a monition of that court, whereby he was monished to pay 941. 15s. 1d. to John Ennis and others, trustees of the British and Irish Steam-packet Company, the amount of taxed costs incurred on behalf of Ennis, &c. in a cause brought by Skinner against the company. Holt (solicitor) appeared for the bankrupt, and asked for his release under the 112th section of the Bankruptcy Act 1849. Sargood, for the detaining creditors, opposed the application, and contended that the bankrupt, being in custody under an attachment, was not in custody for debt within the meaning of the 112th section, which therefore did not apply. He might be entitled to his release when he obtained his order of discharge, if the debt were proveable under the bankruptcy. He referred to the 112th section, and also to sects. 149, 161 and 165 of the Bankruptcy Act 1861. Mr. Commissioner FONBLANQUE.-I entertain no doubt whatever in this matter. The framers of this section have only endeavoured to do what had been settled law long before. It has been long settled that wherever an attachment can be purged by the ment of money, that is a debt; and being a debt, it is proveable under the bankruptcy. If there be no other circumstances in the case, I hold that the bankrupt is entitled to his release. pay Ordered accordingly. (a) In Re Drake, the petitioner was in custody under a ca. sa. for 141. 78., the costs awarded to the defts. in an action brought against them by the petitioner, and, wishing to obtain his release, presented his petition in forma pauperis, under the 98th section of the Bankruptcy Act 1861. Mr. Registrar Millar was of opinion that the petitioner, being in custody for "a sum not exceeding 201," came within the direct words of the 104th section of the Bankruptcy Act 1861, and refused to adjudicate him bankrupt as a pauper. [V.C. W. Ex parte SMITH, re SMITH. Release from custody-Assignment immediately beforebankruptcy. The court will not, in the first instance, order the release from prison of a bankrupt who only a few days before presenting his petition denudes himself of all his property, leaving nothing for his creditors. Release from custody. The bankrupt being in custody at the suit of his brother, on the 25th Sept. last, assigned all his interest under his father's will, which was in fact all his property, to a third party, and on the 1st Oct. presented his petition for adjudication against himself, under which he was declared bankrupt. He had not yet filed the statement of debts required by the 93rd section of the Bankruptcy Act 1861. Holt (solicitor) applied on behalf of the bankrupt for his release. The bankrupt had surrendered that morning, and would file his statement that day. Sargood appeared for the detaining creditor, a brother of the bankrupt. Mr. Commissioner FONBLANQUE.-If a man denudes himself of all his property, and then, having nothing to offer to his creditors, comes to this court, I will never release him from prison in the first instance. There is nothing which the court ought to look to more strictly than the case of a man getting rid of all his property immediately before he comes here. It is a fraud upon the creditors and an insult to the court. I shall make no order. Application refused.. Equity Courts. V. C. WOOD'S COURT. Reported by W. H. BENNET, Esq, Barrister-at-Law. June 27, 28, and July 26. STANLEY V. STANLEY. Will-Construction-Devisavit vel non-Issue. An issue devisavit vel non will not be directed on the ground of mistake in framing the will; otherwise, if fraud or undue influence is charged and sufficiently supported. no An estate, called the Tedworth estate, was situated in By her will she described the estate, as it was alleged, On bill filed to have the trusts of the will declared: should remain in possession, with liberty to defend The bill in this important case was filed on behalf of an infant Francis Sloane Stanley, against parties entitled in the same interest as himself, and the devisees in trust and heir-at-law of Mrs. Matilda Assheton Smith, to have the trusts of her will declared; the principal question being, whether the Tedworth estate, partly in the county of Wilts and partly in Hants, passed by the will in its entirety, or whether that portion of it situated in the county of Wilts was or was not undisposed of. The late Mr. Assheton Smith and his father had from time to time purchased considerable portions of land in the parish of Tedworth, and attached them. together, so that at the latter gentleman's death, in |