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BANKRUPT.

founded on that act of bankruptcy,
1. Rights and Liabilities of Assignees. under which fiat assignees were ap-
Mortgagor and mortgagee of an un.

pointed.
divided moiety of certain premises,

In an action by A. against B. for an
jointly with the owner of the other irregular and excessive distress of the
moiety, demised the whole for twenty goods so obtained by him, the defence
one years to one Green, the latter co-

set up by B. was, that A. had procured

the goods by way of fraudulent prefer-
venanting with the three lessors jointly
and severally to pay the rent reserved, ence, and that S. caused them to be
but not saying to whom. Green en-

taken in execution with intent to de-
tered upon the premises, and after-

feat or delay his creditors, being then

indebted to some in a sum sufficient to
wards became bankrupt. His assignees
having accepted the lease, -Held, - constitute a good petitioning.creditor's
deferring to the authority of Wakefield

debt: and it was proved, that, on the

14th of June, 1851 (which was after
v. Brown, 9 Q. B. 209,—that the de-
fendants were liable in covenant at the

the commencement of this action), the
suit of the three lessors, for rent accru-

assignees under the fiat gave notice to
ing while they were possessed of the

A. that they meant to treat the warrant
premises. Magnay v. Edwards, 479.

of attorney, judgment, and execution,

as void, and should claim the goods
II. Fraudulent Preference. against B., as being wrongfully taken
1. A. obtained certain goods by pur- under a distress; and that they also
chase from the sheriff under a writ of gave notice to B. that they had brought
fi. fa. at his own suit, founded on a an action against A. to try the vali-
warrant of attorney for 6001. given to dity of the warrant of attorney, and
him by one S. The writ was put into had recovered 2301., the value of the
the sheriff's hands on the 25th of May, goods seized under A.'s writ; and re-
1839, and a bill of sale given to the quiring B. to pay to A. the value of
plaintiff by the sheriff on the 21st of the goods distrained, and claiming from
June, for 6001. On the 29th of May, B. the damages for the illegal distress,
another writ against S. was put into the the subject of this action:-
sheriff's hands, at the suit of one M., Held, upon a bill of exceptions, that,
for 621. A. paid M.'s debt; and the as the adjudication of bankruptcy pro-
assignment to him was under both ceeded on the bankrupt's own applica-
writs.

tion, the assignees could not treat the
A. took possession of the goods ; and, alleged fraudulent preference, or taking
on the 5th of October, 1849, B. seized in execution, as an act of bankruptcy ;
and sold them as a distress for rent due but that they were entitled to treat it as
to him from S.

a fraudulent preference, or an execution
S., on the 5th of October, 1849, procured by the bankrupt in contempla-
filed a declaration of insolvency, and tion of bankruptcy, under the old law,
thereby committed an act of bank- prior to the 6 G. 4, c. 16,--and conse-
ruptcy; and, on the 8th,—the statute quently voidable, upon the established
7 & 8 Vict. c. 96, being then in force, principle, that fraud only gives a right
-a fiat was awarded against him, to avoid a contract or purchase, that

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the property vests until avoided, and to B., and by B. to C., became due on
that ail mesne dispositions to persons Saturday, the 15th of November, and
not parties to, or at least not cognizant was presented, and dishonoured. C.
of, the fraud, are valid. Stevenson v. gave notice of dishonour to B., on
Newnham, 285.

Monday, the 17th, and to A. on the
2. Whether a fraudulent preference following day,-B. having given no
can be impeached (as an act of bank- notice.
ruptcy), under a fiat on a bankrupt's In an action by C. against A.,-
own petition, if there was at the time Held, upon an issue on a plea travers.
of such fraudulent preference a suffi. ing the notice of dishonour, that the
cient debt to constitute a petitioning. notice was too late. Rowe v. Tipper,
creditor's debt,- quære. Ib.

249.

2. By an Agent.]—The bill was
III. Order under 12 & 13 Vict. c. 106, placed in the hands of D. for the pur-
s. 125, for Sale of Goods in the Pos.

pose of receiving payment:-Held,
session, Order, and Disposition of the

that D. was sufficiently authorised to
Bunkrupt.

give a notice of dishonour on behalf of
1. An order by a commissioner in

the holder. Ib.
bankruptcy "that all goods and chattels
which at the time the said A. B. became

II. Accommodation Bill.
bankrupt, were, by the consent and In assumpsit by indorsee against ac-
permission of the true owner thereof, ceptor, the defendant pleaded that he
in the possession, order, or disposition accepted the bill for the accommoda-
of the said A. B., whereof the said A. B. tion of the drawer, who negotiated it
was reputed owner, or whereof he had for his own use, and paid it at matu-
taken

upon himself the sale, alteration, rity; and that the bill was delivered
or disposition as owner,” should be sold by the holder to the drawer, who,
for the benefit of the creditors,-is not without the consent of the defendant,
a compliance with the 125th section of and without having it re-stamped, in-
the 12 & 13 Vict. c. 106; it must spe- dorsed and delivered it to the plaintiff.
cify the particular goods which are to It appeared, on production of the bill,
be so sold. Quartermaine v. Bittleston, that the defendant's name was written
133.

on the back, and that there was a
2. Such an order is properly made memorandum on the face of it denoting
upon an ex parte application. Ib. the time of its maturity; and it was

3. Quære, whether the order should proved that the bill was delivered by the
recite the circumstances which gave drawer to the plaintiff after that date:
the commissioner jurisdiction to act. 16. -Held, no evidence to shew that the

bill had been negotiated by the drawer,
BARON AND FEME.

and paid by him at maturity. Jewell
See HUSBAND AND WIFE.

v. Parr, 909.

III. Bill obtained by Fraud.
BILL OF EXCHANGE.

In an action by the indorsee against
I. Notice of Dishonour. the acceptor of a bill of exchange, in
1. Time for. ]-A bill indorsed by A. order to raise a presumption that the

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plaintiff had received the bill fraudu. there at once, and putting up the horse,
lently and without value, evidence was as it was his duty to do, he, without
offered to shew that the defendant had his masters' knowledge or consent,
been defrauded of it, that one H., the drove a fellow-workman to Euston
person from whom the plaintiff received Square; and, in his way back, ran
it, had, in the year 1847, stood in the over and injured the plaintiff and his
dock at the Old Bailey, that he retired wife:-Held, that, inasmuch as the
thence, and was seen no more at large carman was not at the time of the acci.
for eighteen months, and that the dent engaged in the business of his
plaintiff had admitted that he “had masters, they were not responsible for
known H. for a considerable time :"- the consequences of his unauthorised
Held, no evidence to go to the jury, act. 16.
that the plaintiff was aware of H.'s 3. The declaration alleged that “ the
conviction or disreputable character. defendants were possessed of a certain
Berry v. Alderman, 674.

cart and horse, which was being driven
[Upon a second trial, the defendant by and under the care and direction of
obtained a verdict upon both issues, their servant,”—not saying, at the time
and retained it. Ed.]

of the grievance complained of; and
BOTTOMRY.

that, "whilst the plaintiff was crossing
See SHIPPING, II.

a certain street, &c., the defendants,
by their servant, so negligently and
improperly drove and directed the said

cart and horse along the said street,
CASE.

that the plaintiff was knocked down
1. For Negligence.

and injured :"-Held, that the first
In driving Carriages.]–1. A master allegation was immaterial, and not tra-
is responsible for an injury resulting versable; and that, under "not guilty,"
from the negligence of his servant the defendants might shew that the
whilst driving his cart or carriage, pro- driver was not at the time of the acci.
vided the servant is at the time engaged dent acting as their servant. Ib.
in his master's business, even though In Navigation.]—4. By the 26th sec-
the accident happens in a place to tion of the 14 & 15 Vict. c. 79, the
which his master's business did not call commissioners of the Admiralty are
him: but, if the journey upon which authorised to make regulations re-
the servant starts be solely for his own quiring the exhibition of such lights
purposes, and undertaken without the by such classes of vessels, whether
knowledge or consent of his master, steam or sailing vessels, within such
the latter is not responsible. Mitchell places and under such circumstances
v. Crassweller, 237.

as they think fit; and provides, that
2. The defendants' carman, having all owners and masters or persons
finished the business of the day, re- having charge of vessels shall be bound
turned to their shop in Welbeck to take notice of such regulations, and
Street, with their horse and cart, and shall exhibit such lights, and no others,
obtained the key of the stable, which at such times, within such places, in
was close at hand; but, instead of going such manner, and under such circum-

stances as are injoined by such regula fairway, between the said hours of sun-
tions; and that, in case of default, the set and sunrise, and under the care and
master or other person having charge management of the servants of the de.
of any vessel, or the owner of such fendant; that it was their duty to ex-
vessel, if it appear that he was in hibit a bright light at the mast-head of
fault, shall for each and every occasion the defendant's vessel; but that they,
upon which such regulations are in not regarding their duty in that behalf,
fringed forfeit and pay a sum not ex neglected to exhibit such bright light,
ceeding 201.

&c.; and that, while the said steam-
And the 28th section of the statute vessel of the plaintiffs was so proceed-
provides, that, "in case any damage to ing, &c., the same, by and through the
person or property be sustained in con carelessness and neglect of the defend-
sequence of the non-observance of any ant, in not exhibiting the bright light
of the said rules, the same shall in all at the mast-bead of the vessel of the
courts of justice be deemed, in the defendant, ran foul of and struck the
absence of proof to the contrary, to

vessel of the defendant, and greatly
have been occasioned by the wilful de. broke and damaged the said steam-
fault of the master or other person vessel of the plaintiffs :-
having charge of such vessel, and such Held, on demurrer, that the declara.
master or other person shall, unless it tion disclosed no breach by the defend.
appear to the court before which the ant of any duty imposed upon him by
cause is tried that the circumstances of the statute; and that, striking out the
the case were such as to justify a de allegations as to the statute, the de-
parture from the rule, be subject in all claration shewed no cause of action, it
proceedings, whether civil or criminal, being consistent with the statements
to the legal consequences of such de therein that the damage resulted from
fault."

the plaintiff's own negligence. The
A count in case, after setting out the General Steam Navigation Company v.
26th section of the above statute, and Morrison, 581.
averring that the commissioners had Sub-Contractor.]-5. If one employs
made a regulation that “all sailing another to do an act which may be
vessels at anchor in roadsteads or fair done in a lawful manner, and the latter
ways shall be bound to exhibit, between in doing it unnecessarily commits a
sunset and sunrise, a constant bright public nuisance, whereby injury re-
light at the mast-head," proceeded to sults to a third person, the employer
allege that the plaintiffs were possessed is not responsible. Peachey v. Roro-
of a certain steam-vessel called the A., land, 182.
then proceeding, between the hours of 6. A. employed B. to construct a
sunset and sunrise, down the river drain in a public highway; B. em.
Thames, in a certain roadstead or fair ployed C. to fill in the earth over the
way thereof, called Gravesend Reach ; brick-work, and to carry away the sur-
that the defendant was then possessed plus : C., in performing his work, left
of a certain sea-going and sailing vessel the earth 'raised so much above the
called the V., then being at anchor in level of the road, that D., driving by
thie Thames, in the same roadstead or in the dark, was thereby upset, and

sustained injury :-Held that A. was in execution with intent to defeat or
not responsible for the negligence of delay his creditors, being then indebted
C. Ib.

to some in a sum sufficient to constitute

a good petitioning-creditor's debt: and
II. For Non-feasance.
One who gratuitously accepts the

it was proved, that, on the 14th of June,

1851 (which was after the commence-
office of steward of a horse-race, is not

ment of this action), the assignees
responsible for a loss resulting to one

under the fiat gave notice to A. that
who enters a horse for the race, from

they meant to treat the warrant of
his mere non-feasance in omitting to

attorney, judgment, and execution, as
appoint a judge,-at all events, unless

void, and should claim the goods against
it appears that he has actually entered

B., as being wrongfully taken under a
upon the duties of the office. Balfe v.

distress; and that they also gave notice
West, 466.

to B. that they had brought an action
III. For Illegal Distress.

against A. to try the validity of the
1. A count in case for distraining for

warrant of attorney, and had recovered
more rent than was due, is bad, though

2301., the value of the goods seized
it alleges it to have been done mali-

under A.'s writ, and requiring B. to pay
ciously,-for, an act which does not A. the value of the goods distrained,
amount to a legal injury, cannot be

and claiming from B. the damages
actionable because it is done with a

for the illegal distress, the subject of
bad intent. Stevenson v. Newnham, 285.

this action :
2. A. obtained certain goods by pur-

Held,-Erle, J., dissentiente,- that,
chase from the sheriff under a writ of

inasmuch as the subsequent interfer-
fi. fa. at his own suit, founded on a

ence of the assignees had no relation
warrant of attorney for 6001. given to

back to the original delivery of the
him by one S. The writ was put into

goods to A., so as to avoid the trans-
the sheriff's hands on the 25th of May,

action ab initio, A. had an undoubted
1839, and a bill of sale given to the right of action against B. for the illegal
plaintiff by the sheriff on the 21st of

distress. 16.
June, for 6001. On the 29th of May,

IV. In Nature of Waste.
another writ against 8. was put into Lessee of a Mine.]-Case in the na-
the sheriff's hands, at the suit of one M., ture of waste will lie against a lessee of
for 621. A. paid M.'s debt; and the as. a mine, for an injury to the reversion,
signment to him was under both writs. by the removal of a barrier or boundary

A. took possession of the goods ; between it and an adjoining mine,
and on the 5th of October, 1849, B. although the act complained of might
seized and sold them as a distress for

also be the subject of an action for a
rent due to him from S.

breach of an express covenant. Marker
In an action by A. against B. for an

v. Kenrick, 188.
irregular and excessive distress of the
goods obtained by him, the defence set

CERTIORARI.
up by B. was, that A. had procured the To remove a Cause from the County.
goods by way of fraudulent preference,

Court.
and that S. caused them to be taken Semble, that a cause removed by cer-

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