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Analytical Digest of Cases : Court of Review.


should be paid in respect of monies due to him Act of bankruptcy.-Semble, That a lunatic in any bankruptcy until he had made good all cannot commit an act of bankruptcy by omitting the amounts due from him in other bank. to pay or give security. Exparte Stamp; Ex- ruptcies. Exparte Graham and another, i De parte Jones, i De Gex, 345.

Gex, 328.

2. Appearing separately. - Costs. — Where, MISDESCRIPTION OF BANKRUPT'S RESI

upon an equitable mortgagee's petition, the DENCE.

mortgagee and the creditors' assignees apA bankrupt's usual place of business for two peared by the same solicitor, the court ordered years before the bankruptcy had been at the salt to be conducted as the commissioner Hownslow, but he had taken for his family a should think fit, having regard to this circumhouse at Durdham Down, near Bristol, where stance; and the official assignee was allowed he had resided for some months previous to his bis costs of appearing separately. Eæparte bankruptcy and contracted debts. A Bristol Bromage, 1 De Gex, 375. fiat, describing him as of Durdham Down, and naming him Clarke, instead of Clark, was transferred to the London Court, to which a

Winding up joint-stock company. - Form of fiat with a correct description had been issued, order in Chancery under the act 7 & 8 Vict. c. and the proofs were ordered to be transferred, 111, s. 20, for winding up the affairs of a bankthe Bristol fiat being impounded. Eaparte rupt joint-stock company. In re Forth Marine Burbidge, 1 De Gex, 256.

Insurance Company, i De Gex, 335.


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1. Solicitor's Bill.—Bill of solicitor of bank- See Reputed Ownership, 4. rupt suing out a fiat against himself, under which no assignees were chosen, ordered to be

PETITION TO LORD CHANCELLOR. paid out of the fund in the hands of the Ac- On a petition to the Court of Review for an countant-General without making any reserve injunction to restratn an action in which the for the office fees of 101. and 201. The Ac- plaintiff has demurred to the plea, the court countant-General ought not to be served with makes a qualified order restricting the plaintiff the petition of payment. Exparte Jerwood, 1 as to the grounds of the demurrer. On appeal, De Gex, 373.

this order is discharged, and the respondents 2. Deficiency of assets. - On a petition to present a petition to the Lord Chancellor for annul a fiat with consent of creditors, the com- an unqualified injunction. Held to be an missioner declined to certify the consent with original petition, which ought not to be preout payment of the office fees of 101. and 201.

sented to the Lord Chancellor, and dismissed Assignees had been chosen, but it was stated with costs. Exparte Van Sandau; Exparte that there were not and were not likely to be Turner and another, 1 De Gex, 303. any assets. The court requested the commis- PETITIONING CREDITOR'S DEBT. sioner to certify his opinion whether there were

An affidavit of debt filed as the foundation of any available assets. Erparte Davis, i De Gex, 267.

an affidavit of bankruptcy, stated the demand 3. Annulling fiat:- Where a bankrupt sued particulars of demnand the greater portion of the

to be for goods sold and delivered, but by the out a fiat against himself, and only one creditor debt was stated merely as due on bills of ex, proved, and assignees were chosen, but there were no assets, and the office fees of 101. and change, which, however, it afterwards turned 201. had not been paid, the court refused to livered. Held, that the proceeding was irregu.

out were given in respect of goods sold and dedispense with the usual certificate of the com- lar, and an insufficient foundation for an act of missioner, on an application to annul with the bankruptcy. Greenstock, exparte, 1 De Gex, consent of the creditor. Erparte Nicholls,

231. i De Gex, 331. 4. Solicitor's Costs.- Under the bankrupt’s

PRIORITY OF Solicitor's costs. own fiat, there being no probability of any

Bankrupt suing out fiat against himself.choice of creditors' assignees, and the office Where a bankrupt siied out a fiat against himfees of 101. and 201. having been paid to the self, and creditors' assignees were chosen, his Accountant-General: Held, that they might be solicitor was ordered to be paid the amount of applied in payment of the bill of costs of the his bill of costs up to the choice out of the first bankrupt's solicitor. Exparte Buchanan, 1 De monies received by the assignees. Exparte Gex, 344.

Parsons, 1 De Gex, 342. 5. Return of.—Where a bankrupt sued out a fiat against himself which was annulled, and

1. Joint estate. — Where a partner gives a no creditors' assignees had been chosen, the office fees of 201. and 10l. paid by him into the separate security for a joint debt and becomes Bank, were ordered to be returned. Exparte the creditors may have, under the separate fiat,

bankrupt, the other partners remaining solvent, Reynolds, 1 De Gex, 373.

the usual order for sale, but can only have

liberty to prove for the deficiency against the 1. Default.- In the case of a defaulting joint estate. Exparte Leicestershire Banking official assignee, the court ordered that no sum Company, 1 De Gex, 292.






Analytical Digest of Cases : Court of Review, 2. Costs.-A judgment creditor has a right was sued out against A. by a creditor who knev to prove for the costs of an action in which he of the deed, though he had not executed it. obtained judgment before the bankruptcy, He was a friend of A., and indifferent to the where the debt itself has been paid after the payment of his debt, but permitted his name bankruptcy by another party liable to it. Ex- to be used by the creditors who had signed the parte Cocks, re Barwise, 34' L. 0. 37.

deed for the purpose of suing out the fiat. 3. Legality of transfer of shares. Pro- Held, 1. That the composition deed was an visionally registered railway company.A pur- act of bankruptcy, and not a sale for value ; chase by brokers, in pursuance of the order of 2. That the assigned property was not in the a customer, of shares in a projected railway reputed ownership of B. 3. That the circumcompany, provisionally registered, held not stances under which the fiat was sued out illegal, but a sufficient ground for the admis- against A. did not prevent A.'s assignees from sion of a proof tendered by the brokers for the recovering the property. In re Marshall and loss occasioned by the non-completion of the others, 1 De Gex, 273. purchase by the customer. Exparte Barton 3. Notice of lien to holders of property and another, 1 De Gex, 316.

abroad.—London sub-mortgagees of shipments And see Dividend, 1, 2.

at Ceylon and Hong Kong send thither, directed to the parties in possession, notices of

their security by the next mail, there being Afidavit.- The affidavit for removal of a fiat another and earlier mail by a different route, by from one commissioner to another ought to which the notices might possibly have sooner state that such removal will be for the benefit reached their destination. Before, however, of the creditors generally. Re Pyne, 34 L. O. this could have taken place by either mode of 64.

transmission, the sub-mortgagors became bankrupt : Held, that the notice was sufficient to

take the goods out of their reputed ownership. 1. Shares in water company.-A procedendo Exparte Kelsall and others, 1 De Gex, 352. ordered to issue where a commission had been

4. Rights of proof.-Nominal partnership. superseded three years previously by consent of the creditors, on the ground that the bank- under the firm of J. R. & Co., announced

- A wine merchant carrying on business rupt had not disclosed the fact of his being by a circular that he had taken his nephewy entitled to shares in a waterworks company, into partnership. The business was thence. his defence being that the shares were subject forth carried on under the style of J. R. to a mortgage for more than their value, but sen. & Co., but as between the uncle and which turned out to be invalid for want of nephew, the latter receiving a salary only, and notice to the company.

did not participate in the capital, profits, or Shares in such a company held subject to losses of the concern. On both becoming bankthe law of reputed ownership, the company's rupt : Held, that a creditor who supplied goods act of parliament declaring them to be personal to the firm, might prove against the separate property. Exparte Lawrence, 1 De Gex, 269. estate of the uncle.

2. Acts of bankruptcy. - By a composition deed between A. and B. and scheduled credi.

5. Part of the stock in trade consisted of tors of A., after reciting that it had been agreed wines in the docks, which the uncle, on anthat A. should pay the creditors 10s. in the nouncing the partnership, directed the Dock pound, and after reciting that B. had agreed to Company to deliver to the order of the new join in the deed for the purpose of better se

firm : Held, that these wines were in the recuring payment of the composition, on having puted ownership of the two, and ought to be such assignment made to him as was therein

administered as joint estate. after contained, it was witnessed,-1. That A. 6. Other property consisted of wines in the and B. covenanted to pay the creditors the hands of a lien creditor of the uncle, and after composition; 2. That in consideration of this the announcement of the partnership, some of covenant, A. assigned all his stock in trade, the wines were withdrawn and replaced by machinery, and effects to B. to hold as B.'s others in the name of the new firm : Held, that own goods and chattels ; 3. That the creditors the possession of the lien creditor did not precovenanted on receiving the composition to re- vent the application of the 72nd section, but lease A. Contemporaneously with this deed that those wines would, subject to the lien, be the leasehold trade premises were assigned by administered as joint estate. A. to B. with the privity of the creditors. 7. Where a large number of creditors had a

At the time of the execution of the deed all right of election to prove against the joint or the assigned property was in the possession of separate estate, and the estates were not so ascertain mortgagees of the leasehold premises certained as to enable the creditors to elect, a and machinery, who afterwards gave up posses- temporary order was made that no larger division to B. on his guaranteeing payment of the dend should be declared of the one than of the mortgage money. Immediately after the exe- other estate. Exparte Arbouin and another; cution of the deed, B. gave the creditors his Exparte Gonne and others, 1 De Gex, 359. promissory notes for the amount of the composition. B. remained in possession till he became bankrupt, and after his bankruptcy a fiat Goods at sea.-A man may give a valid se







Analytical Digest of Cases : Court of Review.

273 curity on merchandize at sea belonging to him, creditors' assignees, although the bankruptcy although at the time he is ignorant of the par- is not disputed. Exparte Potts, 1 De Ĝex, ticulars of which it consists. Exparte Kelsall 326. and others, 1 De Gex, 352. SET-OFF.

The retainer by the solicitor under such cir. See Annuity.

cumstances, of the amount of his bill of costs as taxed by the commissioner, and the allow

ance of such retainer at the audit, held no such See Proof of Debt, 3; Reputed Ownership, 1. payment of the bill as to preclude taxation. SOLICITOR.

Exparte Rees and another, 1 De Gex, 205. Purchasing estate. -Under particular circumstances, solicitor to the fiat permitted to pur- Confirmation by commissioner of conveyance chase part of the bankrupt's estate. Exparte in fee.--Where a trader sold an estate and con, Watts, 1 De Gex, 265.

veyed it as tenant in fee simple, with the usual See Office Fees; Priority.

covenant for further assurance, and became bankrupt, and it was afterwards considered

that he was tenant in tail only, it was ordered Conversion of separate into joint demand by that the commissioner should be at liberty to parol.--A parol agreement is sufficient to con- execute a deed of confirmation to the purvert a separate into a joint debt, such an agree- chaser. Exparte Tripp and another, 1 De ment not being “ a promise to answer the debt Gex, 293, of another” within the Statute of Frauds, but the contraction of a new debt in consideration

TRADING of the former being extinguished. Exparte Cowkeeper.-A farmer who rented 104 acres Lane, 1 De Gex, 300.

of arable land, which he principally used for

the cultivation of carraway seeds, and who kept STOPPAGE ÎN TRANSITU.

four cows which were not used for the purposes Rescinding contract. - A vendor of cotton of his farm, but sold the whole of the milk, was in America, by direction of the purchasers in held not to be a cowkeeper within the meaning England, ships the cotton on board a vessel of the Bankrupt Laws. Eæparte Dering re belonging to the latter, who became bankrupt Cramp, 33 L. 0. 356. before its arrival. A mortgagee of the ship, who happens to be an agent of the vendor, takes possession of the ship under his mortgage,

1. Question as to who are the cestuis que and sells the cotton under a supposed right on

trustent. Upon a petition to appoint new the part of his principal to stop it in transitu, trustees, the Court of Review will not decide and the principal sanctions the transaction as any question as to who are the cestuis que between himself and the agent by accepting a

trustent. credit in account for the proceeds of the cotton.

In case of doubt, all who by possibility may The assignees of the purchasers then bring an be held to fill that character must be parties. action against the mortgagee for this seizure, Exparte Congreve, 1 De Gex, 267. and he pays them, under a compromise, the 2. Monies employed in trade.

Breach of amount for which the cotton sold.

trust.- Construction of will.-A testator diHeld, that under the circumstances, the con- rected that it should be lawful for his wife to tract was not rescinded by the seizure of the retain in her hands and employ in his business cotton, but that the vendor was entitled to prove any part of his assets not exceeding 6,0001., so for the purchase money. In re Humbersion, 1 long as she should think fit, if she should conDe Gex, 262.

tinue his widow, and appointed her and his son

executor and executrix. The widow took the 1. Petition.—A bankrupt, who has not sur

son into partnership with her in the trade, and rendered, may yet be heard, upon a petition they both becane bankrupts. Held, that the

use of the 6,0001, in this trade was not an emfor annulling the fiat, provided, that he was not in default, at the time when it was pre; ing to the directions of the will, but was a

ployment of it in the testator's business accordsented. Exparte Hodson, in re Hodson, 33 breach of trust on which proof might be made L. O. 260. 2. Costs.--Where the bankrupt left England against the joint estate. Erparte Butterfield, 1

De Gex, 319, on account of his embarrassments, and consequently did not hear of the fiat till after the 3. Impeachment of Deed. - A trust deed, time for surrendering had expired, he was not which could not have been impeached under a allowed his costs on petitioning for leave to fiat sued out by any creditor, held incapable of surrender. Exparte Perry, 1 De Gex, 377. being impeached under the bankrupt's own And see Annulling Fiat, 3.

fat. Exparte Philpott, 1 De Gex, 346.


See Committment, 3. The official assignee represents the creditors sufficiently to enable the court to suspend the advertisement by consent before the choice of







Superior Courts : House of Lords. RECENT DECISIONS IN THE SUPE- | described by his christian and surname and RIOR COURTS.

some other distinctive circumstances, and no person answers both descriptions, and there is nothing in the rest of the will or the admitted evidence to show who was meant, the name

would prevail, and the descriptive circumHouse of Lords.

stance be rejected. But the maxim - Veritas

nominis tollit errorem demonstrationis is not Lord Camoys v. Blundell. Jume 29, 1847.

inflexible, as has been explained by Lord Chief CONSTRUCTION

FOR Justice Gibbs in the case of Doe v. Hathwaite,

2 Moore's Reports, p. 323. For if it be clear, The following is the opinion of the judges in upon the due construction of the will with rethis case :

ference to the evidence of the state of the family Mr. Baron Parke.... Your lordships have re

as known to the testator, that the meaning of quested the opinion of the judges upon the the testator as expressed by the will was that following question :--

the person described, and not the person named, "Whether, upon the construction of the win was to take, the description will prevail over of Charles Robert Blundell, dated 28th No- the name; for the rule in question has no other vember, 1834, regard being had to the proofs of the will, and is not applicable where it leads

object than to assist in discovering the meaning in the cause, Thomas Weld Blundell is entitled, as tenant for life in possession, to the real es

to a construction contrary to the expressed tates devised by such will to John Gladstone, meaning of the testator. Robert Gladstone, and Thomas Robinson

Here, then, the question would be, supposing

upon trust, (except such as were specifically devised even this were a devise for a person by name, to any other person or persons, and all real whether the context and the evidence of the reversion for his life to the houses and gardens We think the context, coupled with that eviestates held by him in trust,) and entitled in state of the family does not cause the descrip

tion to prevail over the designation by name? by the said will devised to William Hall and James Massam respectively for the lives of the dence, clearly denotes that the name of "Ed. said will mentioned ?"

ward” is a mistake. We have considered this question proposed is not merely the name of baptism, but the

It may be admitted that the christian name by your lordships, and being all agreed upon name by which a person is commonly known, the answer to be returned to it, and the reasons and that in this case the evidence shows that for that answer, we think it unnecessary hear any further argument.

Edward Joseph, the eldest son of Joseph, was It appears to us, upon hearing the will, and commonly knowr. by the name of Edward, so looking only at the evidence of the state of the as properly to be described and take by that Weld family at the time the testator made his name if the devise had been to him. Nor is will, and without adverting to the parol evidence it worth while to argue whether the description received in the Court of Chancery, and, as we

of Lulworth ” (though certainly more applithink rightly received, that the meaning of the cable, in ordinary parlance, to the possessor of words used by the testator to designate the de

the place) would not be applicable to him visee are clear ; that the devise is not void for though he only resided in Lulworth, and was uncertainty, and that the respondent Thomas not the possessor of the castle. Weld Blundell is entitled to the estates men- been nothing more than a devise to Edward

Admitting that it did, and that if there had tioned in the questior. put by your lordships. The question is, who is the person whom the

Weld of Lulworth, Edward Joseph the eldest description of devisee in the will, applied to the son would have taken, we are of opinion that facts, properly fits ?

the other parts of the will, coupled with the In this case it is to be remarked, that he is evidence of the state of the family, do clearly designated not by name, but by 'description point out that the devisee is the second son of only; neither his christian nor his surname is Joseph Weld, the possessor of Lulworth

Castle. mentioned, but he is described by bis relation only to other individuals. The case, therefore,

In the first place the devise is clearly framed is not the same as if it had been a devise to so as to show that the testator meant an exEdward Weld himself

, upon which supposition isting person. The limitation to that son for a good deal of the argument at your Lordships' life, with a devise over to his first and other bar has proceeded.

sons in tail, is properly applicable to an existe It may be conceded that, where a devisee is ing person, as, if it were to one not in esse, the

limitation over would be void. If it be said

that the testator might not know the rule of * The following judges were also present : law, the context shows that he did, for he proMr. Baron Alderson ; Mr. Justice Patteson ; vides in the next clause, which comprises fuMr. Justice Coltman ; Mr. Justice Maule; ture sons of Edward Weld, that the estate sball Mr. Baron Rolfe ; Mr. Justice Wightman ; be in as strict settlement upon each son and Mr. Justice Cresswell ; Mr. Justice Erle ; Mr. his respective issue male as the rules of law or Baron Platt; and Mr. Justice Vaughan Wil-equity allow. liams.

Secondly, on failure of the first taker and the


Superior Courts : House of Lords.-Rolls.-Vice-Chancellor.

275 other branches of Edward Weld's family, the order nisi, but made the defendant pay

the next remainder is limited to the other brothers costs of the motion to discharge it. of Edward Weld except his eldest brother, and the will, therefore, describes Edward Weld as nisi, to dissolve an injunction upon the putting

This was a motion to discharge an order having an elder brother.

in of the answer for irregularity. It appears Thirdly, Edward Weld is described as the that the answer was filed on the 24th of April, brother of Lady Stourton. Taking all these descriptions together, and tained the same day as of course; but the no

which was a Saturday, the order nisi was oblooking to the will alone, we have this as the tice of the answer having been filed, which the description of the unnamed devisee: he is to 24th order of 1842 requires to be given “on be an existing person; the second son of an the same day” to the solicitor of the adverse Edward Weld, and who certainly had an eldest brother, and was bimself the brother of Lady licitor, was not given until the Monday fol

party, or to the party himself if he has no som Stourton.

lowing: Now, by the evidence, we have at the time

Mr. Wilcock and Mr. Dickenson for the moof the will made Thomas Weld an existing tion, contended, that the court could not carry person, the second son of Joseph Weld, who the order into execution if it allowed an answer had an eldest brother, and was the brother of to be acted upon before notice had been given Lady Stourton. And we have also a non- of its being on the file; that in the case of existing child, and a possible father for him in pleas, demurrers, or replications, to which the an Edward Joseph Weld, not having an eldest order equally applied, as well as in that of anbrother, but himself the eldest, and having no swers, great inconvenience might result from sister Lady Stourton at all. And there is no such a construction of the order. They reother possible person whom the testator could ferred to Bradstock v. Whateley, 6 Beav. 61. have meant, unless it be one of these two. Add to this, that the description of the person the order was a substitution for the notice cus

Mr. Turner and Mr. Toller, contrà, said that as being “ of Lulworth” is better adapted to tomarily given by the clerks in court, which in one who is the possessor of that place, and not its origin was a mere act of civility; that no a mere resident there.

substantial inconvenience had been sustained Under these circumstances, which was the by the plaintiff; and that by taking an office devisee clearly meant by the description in the will? We entertain no doubt that Thomas larity; and asked how long were the conse

copy of the answer he had waived the irreguWeld was that person. It is to be observed that this construction is the defendant's head.

quences of such an irregularity to hang over alone consistent with the obvious intention of

Lord Langdale, after ascertaining that in form the testator, that the remainder to the children the notice was for the day on which the answer of Lady Stourton should follow the remainders was filed, said, that he thought the order must to the children of her brother, which would be strictly enforced. It was true that it was a not be the case if the Edward Weld, whose se substitute for what was originally a courtesy of cond son was to take, be her nephew and not office only; but it had become a law of office; her brother.

he considered that when the order nisi was obWe have to add, that the other extrinsic evi- tained, it was on an implied undertaking to dence, on which we have not relied, does not, serve the notice the same day. Then it was taken altogether, lead us in the least to doubt clear that here there had been a default : the the propriety of the conclusion to which we

question was only what was he to do. He was have come from the will and the extrinsic evi, urged to discharge the order, whatever might dence to which we have referred as the ground be the result; but he did not think so.

He of our opinion.

thought that it would be sufficient to let the We, therefore, state our humble opinion to order stand, making the defendant pay the be, that the question proposed by your lord. costs. If any inconvenience could have been ships should be answered in the affirmative.

shown to have resulted to the plaintiff, it would have been his duty to have relieved him from

it; but he could not find that any inconveniRolls Court.

ence had arisen. There was no suggestion

that it had interfered with the right of exceptLord Suffield v. Bond. May 7, 1847.

ing. Ordered, that the order nisi stand; the 23RD ORDER OF 1842.-ANSWER.-NOTICE. defendant paying the costs of the present mo

tion. The 23rd Order of 1842, which requires no

tice of the filing of an answer, demurrer, Vice-Chancellor of England. plea, or replication, to be given the same

Druce v. Denison. June 16, 1847. day to the adverse party or his solicitor, must be strictly acted on. But where an CONSISTORIAL COURT OF LONDON. - BONA answer was filed on a Saturday, and an

NOTABILIA. order nisi served the same day, while notice A probate or administration granted by the was not given till the Monday following, Consistorial Court of the Bishop of London, but no inconvenience: was shown to have

is not sufficient to obtain the payment of arisen; the court refused to discharge the

money out of court.

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