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Full text of "An analytical digest of the cases published in the new series of the Law journal reports : and in all the reports of decisions in the courts of common law and equity, in the ecclesiastical and admiralty courts, by the House of Lords, and election committees of the House of Commons, at nisi prius, and in bankruptcy : from Michaelmas term 1840 to Trinity term 1845, inclusive"

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*v 


ANALYTICAL   DIGEST 

* 
OF  CASES  PUBLISHED  IN 

THE   LAW  JOURNAL   REPORTS 

▼OIiB.  Z — KXV.  NBW  8BBIB8, 


AND   IN 


ALL    THE    REPORTS, 


FBOM 


1840  TO  1845 


INCLUSIVE. 


t 


s^ 


This  DIGEST  is  in  continuation  of  four  others,  published  at  different  times,  con- 
taining the  cases  reported  in  the  Law  Journal  Reports,  and  in  all  the  contemporary 
Reports  since  the  year  1 822,  either  of  which  may  be  had  as  published,  at  the  following 
prices : — 

First,     1822  to  1828,  price  12.  lU.  6d.  boards. 

Second,  1828  to  1831,  price  15s,  boards. 

Third,     1831  to  1835,  price  IL  Ss.  boards. 

Fourth,  1835  to  1840,  price  11.  10s.  boards. 


\ 


AN 

ANALYTICAL    DIGEST 

OF  THE  GASES  PUBLISHED  IN  THE 
NEW  SERIES  OF  TOB 

LAW  JOURNAL   REPORTS 

AND   IN 

ALL  THE  REPORTS 

OF  DECISIONS  IN  THE 

COURTS  OF  COMMON  LAW  AND  EQUITY, 

In  tit  lEccIniasttcal  anly  ^mixalts  ®ottm> 

BY  THE  HOUSE  OF  LORDS, 
Ahd  ELECTION  COMMITTEES  of  the  HOUSE  OF  COMMONS, 

AT  NISI  PRIUS, 

^nDi  (n  ISanftniptcs, 
From  MICHAELMAS  TERM  1840  to  TRINITY  TERM  1845, 

INCLUSIVE. 


By  FRANCIS  TOWERS  STREETEN,  Esq.,  Barrister-at-Law, 


AND 


THOMAS  DICKSON  ARCHIBALD,  Esq.,  Special  Pleader. 


LONDON : 

Printed  by  James  Holmes,  4,  Took^  Court,  Chancery  Lane. 
PUBLISHED  BY  EDWARD  BRET  INCE,  5,  QUALITY  COURT,  CHANCERY  LANE. 

1847. 


i.i*l»4'*r  OF  7tiE 

iMUHIt  STAHFOUD,  JR.,  UMIVEKtTt 

I^W  D-FaRTMLHT. 


A  LIST  OF  THE  REPORTS  AND  ABBREVIATIONS 


IN  THIS  DIGEST. 


Abbretiations, 
Ad.  St  E. 

Bar.  &  Arn. 
Bar.  &  Auri||  . 

Bea. 

Co. 

C.  &  F.  . 
Car.  &  K. 
Car.  &  M. 

Car.  &  P. 
Coll.  or  Coll.  C.C. 
Cr.  &  P. 
Curt 

D.  &  M. 
I)e  Gex 

Dowl.  &  L.  P.C. 
Dowl.  P.C. 
Dowl.  P.C.  (N.8.) 
G.  &  D. 
Hagg.      . 
Hare 

I^w  J.  Dig. 
Lav  J.  Hep.  (n.8.)  Bankr 
Law  J.  Rep.  (if.8.)  Ch. 
Law  J.  Rep.  (n.s.)  C.P. 
Law  J.  Rep.  (n.s.)  Exch. 
Law  J.  Rep.  (n.s.)  Ex.Eq 

Law  J.  Rep.  (n.s.)  M.C. 

Law  J.  Rep.  (n.s.)  Q.B. 
Law  J.  Stat. 

Al.  C.C. 

M.  &  Cr. 

M.  D.  &  D.      . 

M.  &  G. 

M.  G.  &  S. 

M.  &  R. 
M.  &  W. 
Ph. 
P.  &  D. 

Q.B. 

Rob. 

Robertf  , 

Sc.  (n.8.) 

Sim. 

Wert 

Y.  &C.    . 

y.  &  Coll.  C.C. 


Reportt, 
Adolphus  &  Ellis's  Reports 

Barron  &  Arnold's  Reports  h 
Barron  &  Austin's  Reports  I 

Beavan's  Reports 

Common  Bench  Reports,  by  Manning 

Grainger  &  Scott     . 
Clark  &  r  innelly's  Reports 
Carrington  &  Kirwan's  Reports  . 
Carrington  &  Marshman's  Reports 
Carrington  &  Payne's  Reports 
Collyer's  Chancery  Cases 
Craig  &  Phillips's  Reports 
Curties's  Reports 
Davidson  &  Meri vale's  Reports  . 
De  Gex's  Reports 

Dowling  &  Lowndes's  Practice  Cases 
Dowling's  Practice  Cases 
Dowling's  Practice  Cases,  New  Series 
Gale  &  Davidson's  Reports 
Haggard's  Reports 
Hare's  Reports 
Law  Journal  Digest. 
Law  Journal  Reports,  New  Series  * 


{ 


I 


{Magis-  \ 
trates*  > 
Cases    I 


Law  Journal  Statutes 

Moody's  Reports  of  Crown  Cases  Re- 
served   . 

Mylne  &  Craig's  Reports 

Montague,  Deacon,  &  De  Gex's  Reports 

Manning  &  Grainger's  Reports 

Common  Bench  Reports,  by  Manning 
Grainger,  &  Scott 

Moody  &  Robinson's  Reports 

Meeson  &  Welsby's  Reports 

Phillips's  Reports    . 

Perry  &  Davidson's  Reports 

Queen's  Bench  Reports,  by  Adolphus 
&  Ellis 

Robinson's  Reports 

Robertson's  Reports 

Scott's  New  Reports 

Simon's  Reports 

West's  Reports 

Young  &  Collyer's  Reports 

Young  &  Collyer's  Chancery  Cases. 


} 
} 


C<mrts,  8fc. 

Queen's  Bench. 

Election  Cases  and  Cases 
on  Appeal  from  Revis- 
ing Barristers. 

Chancery. 

Common  Pleas. 
House  of  Lords. 

Nisi  Prius. 

Chancery. 

Ecclesiastical. 
Queen's  Bench. 
Bankruptcy. 

Queen's  Bench,  Common 
Pleas,  and  Exchequer. 

Queen's  Bench. 

Admiralty. 

Chancery. 

Bankruptcy. 
Chancery. 
Common  Pleas. 
Exchequer  of  Pleas. 
Exchequer  in  Equity. 
Queen's  Bench,  Common 

Pleas   and    Exchequer 

of  Pleas. 
Queen's  Bench. 
Abridgment  of  Statutes. 

Exchequer  Chamber. 

Chancery. 
Bankruptcy. 

Common  Pleas. 

Nisi  Prius. 
Chancery. 
Exchequer  of  Pleas. 

Queen's  Bench. 

Admiralty. 
Ecclesiastical. 
Common  Pleas. 
Chancery. 
House  of  Lords. 
Exchequer  in  Equity. 
Chancery. 


•  See  the  next  leaf  for  the  Names  of  the  Barristers  who  contributed  the  Reports. 

t  This  Abbreviation  has  been  used  under  titles  Salvage  and  Ship  and  Shipping  by  mistake  for  Rob. 


# 


NAMES  OF  THE  BARRISTERS 

WHO  HAVE  REPORTED  THE  CASES  CONTAINED  IN  THE  NEW  SERIES  OF 

THE  LAW  JOURNAL  REPORTS. 

DURING  TUB  PERIOD  OOSfPRISED  TS  TB3S  DIGEST. 


VOL.  In  t|^  (ZDottrts  of  (ZDfiancerSi 

X.  PHILIP  TWELLS,  Esq.,  FREDERICK  JAMES  HALL,  Esq. 

and  THOMAS  HARE,  Esq. 
PHILIP  TWELLS,  Esq.,  FREDERICK  JAMES  HALL,  Esq., 
XL  XII.  XIII.  \         THOMAS    WYATT    GUNNING,     Esq.,    BENEDICT 
XIV.  J  LAWRENCE  CHAPMAN,  Esq.  and  EDWARD  COOKE, 

Esq. 

Sxtj^quer  in  Squftg,* 

X.  EDWARD  COOKE,  Esq. 

3Saniintpt(B, 

X.  CHARLES  STURGEON,  Esq. 

XI.  CHARLES  STURGEON,  Esq.  and  EWEN  HENRY 

CAMERON,  Esq. 

XII.  BENEDICT  LAWRENCE  CHAPMAN,  Esq. 

XIII.  XIV.  PHILIP  TWELLS,  Esq.  and  BENEDICT  LAWRENCE 

CHAPMAN,  Esq. 

X.  XL  XII.    '       JOHN  DEEDES,  Esq.  and  HERMAN  MERIVALE,  Esq. 

XIII.  JOHN  DEEDES,  Esq.  and  PHILIP  BOCKETT  BARLOW, 

Esq. 

XIV.  PHILIP  BOCKETT  BARLOW,  Esq.  and  HENRY  SELFE 

SELFE,  Esq. 

3Saa  ODoartt 

X.  XI.  PHILIP  BOCKETT  BARLOW,  Esq.  and  HENRY  SELFE 

SELFE,  Esq. 

XII.  WILLIAM  LEECE  DRINKWATER,  Esq. 

XIII.  GEORGE  MORLEY  DOWDESWELL,  Esq. 

XIV.  HENRY  JOHN  HODGSON,  Esq. 

♦  The  jurisdiction  of  this  Court  abolished  and  transferred  to  the  Court  of  Chancery  from  the  IJth 

of  October  1841. 


NAMES  OF  THE  BARRISTERS— con/inttcrf. 

VOL.  (iTommon  Peas^ 

X.  XI.  XII.  PHILIP  BOCKETT  BARLOW,  Esq.  and  HENRY  SELFE 

SELFE,  Esq. 

XIII.  HENRY  SELFE  SELFE,  Esq.  and  WILLIAM  LEECE 

DRINKWATER,  Esq. 

XIV.  WILLIAM   LEECE    DRINKWATER,  Esq.  and  GEORGE 

MORLEY  DOWDESWELL,  Esq. 

Sxci^equet  of  ^as  anlK  Sxcj^equer  (S^ftamitt^ 

X.  HENRY  HORN,  Esq.  and  FRANCIS  TOWERS  STREETEN, 

Esq. 

XI.  XII.  Xlll.       HENRY  HORN,  Esq.  and  FRANCIS  TOWERS  STREETEN, 

Esq.  (Exchequer),  and  GEORGE  MORLEY  DOWDES- 
WELL, Esq.  (Exchequer  Chamber). 
XIV.  HENRY  HORN,  Esq.  and  FRANCIS  TOWERS  STREETEN, 

Esq.  (Exchequer);  GEORGE  MORLEY  DOWDES- 
WELL, Esq.  and  HENRY  JOHN  HODGSON,  Esq. 
(Exchequer  Chamber). 

®l^e  iWagisttates'  (SCases 

Are  contributed  by  the  Barristers  of  the  respective  Courts  in  which  they  are  decided. 


Edited  by  MONTAGU  CHAMBERS,  EtJQ. 


TABLE  OF  TITLES. 


ABATEMENT. 
Of  Suit,  1 
Plbas  in  Abatement. 

Fonn  and  RequisiteM,  1 

4gldaHi  rf  TnUh  rfPlea^  2 

ABDUCTION,  2 

ACCORD  AND  SATISFACTION. 
What  AJiouNTB  TO,  2 

ACCBPTANCB  IN  SATISFACTION,  3 

ACCOUNT. 

AT  COMMON  LAW. 
Action  of  Account. 
CkiptM  ad  Compufandum,  3 
By  Tenant  in  Common^  3 
Account  stated. 
By  an  Ii^ant,  3 
PUadingM,  3 
Evidence  qfj  3 

m  EQUITY. 
In  general,  4 
Bill  for  an  Account, 

Jn  general,  4 

Neeetsary  Parties,  5 

Special  Decree,  5 

IN  THE  ECCLESIASTICAL  COURT,  5 

ACCUMULATIONS.— See  Thbllusson  Act. 

ACKNOWLEDGMENT.— See  Account  stated 
— Evidence — Fines  and  Recoveries. 

ACQUIESCENCE,  5 

ACTION. 
When  maintainable,  6 
Parties  to  Actions,  8 
Form  of  Action,  8 
Notice  of  Action. 

When  neceesary,  9 

Form  and  Requisitee  qf,  10 

Service  qf,  10 . 
Consolidation  of  Actions,  10 

ADMINISTRATION. 
When  and  to  whom  granted,  10 
Limited,  11 
Bond,  11 

ADMINISTRATION  OF  ESTATE. 
In  oeneral,  11 
Under  THE  Court,  11 
Mabshallinq  Assets,  13 

ADMIRALTY. 
Jurisdiction  and  Authority  of  Court,  13 
Droits,  14 
Affeal  from  High  Court  of  Admibaltt,  14 

Digest,  1840— 184d. 


Practice  of  Court. 

In  general,  14 

Bail,  14 

Pleading,  14 

Amendment,  14 

Cotte,  14 
Contempt  of  Court,  16 

ADMISSIONS.— See  Evidence— Pleading. 

ADULTERY.— See  Divorce— Marriage— Se- 
duction. 

ADVANCEMENT.— See  Parent  and  Child. 

ADVERSE  POSSESSION,  15 

ADVOWSON,  16 

AFFIDAVIT. 
Bt  whom  an  Affidavit  mat  be  made,  16 
Form  and  RsauisiTES  of. 

In  general,  16 

Title,  16 

Deponent' M  Name,  Abode,  and  Addition,  16 

Jurat,  17 
Before  whom  to  be  sworn,  17 
Wren  admissible. 

In  general,  18 

Ae^tondTime,  18 
Amending  and  Re-swearing,  18 
Erasure  in,  18 
Waiver  of  Defect  in,  18 
Office  Copies,  18 
Stamp,  19 

Affidavit  of  Merits,  19 
Affidavit  of  Increase,  19 

AGENT,  19 

AGREEMENT.  —  See  Assumpsit— Contract 
— Specific  Performance. 

ALIEN,  19 

AMENDMENT.— For  Amendments  in  Equity, 

see  titles  Pleading  and  Practice,  in  Eauity. 
Generally,    when    and    in    what    Cases 

allowed,  19 
To  SAVE  THE  Statute  of  Limitations,  21 
In  Cases  of  Variance,  under  9  Geo.  4.  c.  16, 
AND  3  &  4  Will.  4.  c.  42.  s.  23. 

At  Nui  Print,  21 

In  Banc,  22 
Of  the  Misprisions  of  Clerks,  22 
Of  Affidavits,  22 
Of  the  Postea,  22 

Of  Informations  and  Indictments,  22 
Rescinding  and  abandoning  JudoeIb  Order 

FOR,  22 

Costs  of,  22 

Jurisdiction  of  Court  of  Error  over,  22 


a 


11 


TABLE  OF  TITLES. 


AMENDS.— See  Action. 
ANIMALS. — See  Neoliosncb. 
ANNUITY. 

Inrolmemt  of,  under  5Z  Geo.  3.  c.  HI. 
When  necessary  f  23 
Form  and  Requisitet  of  the  Memorial,  23 

Grant  of,  when  void  or  voidable,  23 

Rights  of  Annuitant,  23 

Revocation. — See  Will. 

Recovering  back  Consideration  Monet,  24 

Plea  of  Solvit  Post  Diem,  24 

APOTHECARY.—See  Surgeon  and  Apothe- 
cary. 

APPEAL. —  See  Mandamus  —  Parliament — 
Poor — Privy  Council — Sessions. 

APPEARANCE.— See  Practice. 

APPOINTMENT,  24 

APPORTIONMENT  OF  RENT.— See  Land- 
lord AND  Tenant. 

APPRAISEMENT.- See  Distress. 

APPRENTICE,  24 

APPROPRIATION  OF  PAYMENTS.  —  See 
Corporation — Money  had  and  received. 

ARBITRATION. 
Submission  to. 
Partiee^MuiuaUty,  25 
Making  the  SubmUtion  a  Rule  qf  Court,  25 
Construction  </,  25 
Revocation  qf. 

By  application  to  the   Court,   under  3  4*  4 
Will,  4.  c.  42.  f .  39,  25 

By  Marriage,  25 

By  Bankruptcy  and  Insolvency,  25 

By  Death,  25 
Arbitrators. 
Power  and  Duty  of,  25 
Jurisdiction  of  Court  over,  26 
Costs  o/R^erence  and  Fees,  26 
Umpire,  26 
Witnesses,  26 
Award. 

Within  what  Time  to  he  made,  26 
Enkwging  the  Time  for  making,  27 
General  Form  and  Requisites  of,  27 
Certainty  and  Conclusiveness,  28 
Inconsistency,  32 
Excess  of  Authority,  32 
Surplusage,  33 
Performance  qf,  33 
Execution  qf,  33 
Construction  of,  33 
ParHal  FalidUy  of,  33 
Sending  back  to  Arbitrator,  33 
Particulars  qf  Demand,  34 
Remedies  for  enforcing. 

Attachment,  34 

Execution^  under  l  Sf2  Vict,  c.  110.  s.  18,  34 
Setting  aside. 

Grounds  for,  35 

Matters  qf  Practice  on,  37 
CosU. 

Generally,  37 

Certificate  of  Arbitrator  for,  37 

Taxation  qf,  38 

Attachment  for  non-payment  of,  38 
Making  Award  an  Order  of  Court,  38 


ARMY  AND  NAVY,  38 

ARREST. 

Under  1  &  2  Vict.  c.  1 10.  s.  3. 
4ffidamt,  38 
Order  to  hold  to  Bail,  89 
Privilege  from  Arrest,  89 
Protection  from,  on  Final  Process,  under 

7  &  8  Vict.  c.  96.  s.  57,  40 
Detainer  and  Second  Arrest,  40. 
Discharge  from  Arrest. — See  title  Prisoner. 

ARSON,  41 

ARTICLES  OF  THE  PEACE,  41 

ART-UNION,  41 

ASSAULT,  41 

ASSIGNMENT,  42 

ASSUMPSIT. 
When  maintainable,  43 
Consideration,  43 
Pleas,  44 
ATTACHMENT. 
When  it  Lies,  44 
Rule  for,  44 
ATTORNEY  AND  SOLICITOR. 
Articles  of  Clerkship. 
Inrolment  of,  45 

Discharge  <md  Assignment  qf,  45 
Senrice  under,  46 
Ekamination,  46 
Admission,  46 

Amendment  of  the  Roll,  47 
Annual  Certificate. — See  Re-admission. 
Re-admission. 

Notice  of  Application  for ^  47 
General  Objections  to,  47 
^ter  Neglect  to  procure  Annual  Certificate,  47 
Privileges. 

To  be  sued  in  his  own  Court,  47 
Arrest,  48 
Duties  and  Liabilities. 
Generally,  48 
NegHgeuce,  49 
Attachment,  49 

Summary  Jurisdiction,  generally,  60 
Striking  off  the  Roll 
At  his  own  Request,  50 
For  Misconduct,  50 
Retainer,  51 
Changing  Attobmey,  51 
Dealings  with  Client,  51 
Partnership,  52 
Agreement  not  to  practise,  52 
Bill  of  Costs. 
Delivery  rf. 
Taxation  of,  52 

Generally,  how,  when,  upon  wluose  application, 

and  by  whom  to  be  taxed,  53 
Order  of  course  for,  under  6  4"  7  Vict,  c.  73. 

4.37,  54 
Upon  Terms,  where  Bill  delivered  more  than  a 

Month,  under  6^7  Vict, e.  73.  s,  37,  55 
Upon  Special    Circumstances,   after  Verdict, 
Writ  of  Inquiry,  or  the  Expiration  qfa  Year, 
under  6^-7  Vict,  c,  73.  s,  37,  55 
Upon  Special  Circumstances,  ^fter  Payment  qf 

BiU,  under  6  4*  7  Vict,  c.  73.  t.  41,  56 
Costs  qf  Taxation,  57 


TABLE  OF  TITLES. 


m 


RemeSet. 

By  Aeiionf  i{9 

Bff  Bxectaion  under  14-2  Vict.  c.  1 10.  s,  18,  59 
Lien  foh  Costs,  59 

ATTORNEY  GENERAL,  60 

AUCTION. 
DuiT  AKD  Liability  of  Axjctiomesb,  60 
Sals. 

Atmdanee  tff,  by  Vendor. — See  Auction  Duty. 
CondUUms  qf,  60 

Parol  Variation  of  the  Contract  of  Sale,  61 
Auction  Duty,  61 
AVOWRY.— See  Replevin. 
AWARD. — See  Arbitration. 

BAIL. 
Affidavit  and  Order  to  hold  to  bail.— 

See  Arrest,  Under  1  &  2  Vict  c.  1 10.  s.  S. 
Bail-bond,  Procbbdinqs  on,  61 
Justifying  Bail,  62 
Bxcbftino  to  Bail — Waiver,  62 
Discharge  of  Bail,  62 
Taking  Money  out  of  Court,  62 
Bail  in  Error,  62 
In  Criminal  Cases,  62 

BAILIFF,  63 

BANK  OF  ENGLAND,  68 

BANKERS  AND  BANKING  COMPANY. 
Public     Registered     Officer  —  Appoint- 
ment, 63 
Change  of  Name  of  Company,  63 
Acceptance  of  Bills  by,  64 
Actions  and  Suits. 

Generally^  64- 

Pleadings  and  Evidence,  64 

Judgment  and  Execution,  66 
Notice,  66 

BANKER'S   CHEOUE.— See  Bills  op    Ex- 
change AND  Promissory  Notes. 

bankruptcy. 

Persons  liable  to  become  bankrupt,  68 
Act  of  Bankruptcy. 

Departure  from  DwetUng^houee^  and  otherwise 
absenting  himse\f,  68 

Fraudulent  Conveyance^  ffc^  69 

Under  1  j-  2  Vict.  c.  110.  #.  ^.See  Protected 
Payments. 

Under  S  Sf  Q  Viet.  c.  122,  69 
Petitioning  Creditor. 

Who  may  be,  70 

SubstituHen  of  one  Debt  for  another,  70 

Attendance  at  Opening  of  PicU,  70 

Amount  and  Nature  rf  Debt,  70 
Fiat. 

Date  and  Issuhsg^  71 

Registration  ^71 

Direction,  71 

Changing  the  Venue,  71 

Consolidating,  71 

Second  Fiat,  72 

Third  Fiat,  72 

Amending,  72 

VaUdily  ef,  72 

Oper^ng,  72 

Superseding,  72 

Auxiliary  Fiat,  72 


Annulling  Fiat. 

Causes  for,  73 

Practice — Petition  and  Order  for  annulling,  74 
Adjudication  and  Advertisement,  75 
Commissioners. 

Jurisdiction  and  Power  of^  76 

Duties  and  Liabilities,  77 
EauiTABLB  Relief,  77 
Inspector,  77 
Compromise,  78 
Proof  of  Dbbt. 

Jn  general,  78 

Under  joint  Fiat,  78 

By  Bankrupt  Creditor,  Feme  Covert^  and  other 
Persons,  78 

Annuity,  79 

Bonds^  79 

Bills,  Notes,  and  Cheques,  79 

Banking  Company,  80 

Damages,  81 

Joint  and  Separate  Debts,  81 

Mortgages,  82 

Partners,  83 

Servanis,  83 

Where  there  is  Security  for  the  Debt,  83 

Sureties,  85 

Trust  Money,  85 

Legacy,  86 

Decrees,  Judgments^  and  Costs^  86 

Contingent  Debts,  86 

Amount  proveable,  87 

Expunging,  88 

Restoring^  88 

Election,  88 

Evidence  and  Practice,  88 
Mutual  Credit  and  Set-off,  88 
Assignees. 

Choice  of ,  S9 

Duties,  Rights,  and  Liabilities,  90 

Allowance  qf  Costs,  90 

Actions  and  Suits,  91 

SaU,  92 

Official  Assignee,  92 

Removal  tf  Assignees,  93 
Messenger,  93 
Bankrupt's  Property. 

What  passes  to  the  Assignees  in  general,  98 

Investment  qf,  96 

BilU  and  Notes,  96 

Wife's  Property,  96 

Joint  and  Separate  Estate,  d6 

Trust  Money,  96 

Leaseholds,  97 

Fixtures,  97 

Order  and  Disposition  and  Reputed  Oumership,  97 

Retaining,  101 

Concealment,  101 
Mortgages  and  Lien. 

Legal  Mortgages,  101 

Equitable  Mortgages,  102 

Interest  and  Rents,  103 

Redeeming,  104 

Tacking,  104 

Lien,  104 
Protected  Dealings,  Executions,  and  Pay- 
ments. 

Operation  of2SfZ  Vict.  c.  29,  104 

Oilier  Cases,  108 


IV 


TABLE  OF  TITLBS* 


Dividends,  110 
Of  the  Bankrupt. 

Surrender,  110 

ExammaUcnj  110 

Rights  and  LiabiUties,  111 

AUowancej  111 
Cebtificate. 

AUowmcerf,  112 

Staying,  112 

Confirming,  112 

Effect  qf,  112 

EVIDSNCB. 

In  general,  118 
Mienomer,  114 
4fidavits,  114 
Vivd  voce  Examinations,  114 
In  Proceedings  under  the  Fiat,  114 
Inactions,  114 
Vn/neM,  116 
Petition, 

Who  may  petition^  115 
Form  q^  115 

Practice,  115 
Pbactics. 
In  general,  117. 

-^*  to  ^^  Hearing  of  Petitions,  117 
Or<fer#,  118 

Production  of  Documents,  118 
Separate  Issues,  118 
Accounts,  118 
Reference,  119 

Appeal  and  Special  Case,  119 
Contempt,  119 

Cornier  1  *  2  FFt«L  4.  c.  56.  *.  22,  119 
I7iwfer  14-2  ricf.  c.  110,  120 
Execution  and  Attachment,  120 
Audit  OF  Accounts,  120 

JUBISDICTION. 

Qf  the  Lord  Chancellor,  121 
0/tt«  Coatr^  qfRetnew,  121 

solicitob  to  the  flat,  121 
Costs. 

In  general,  122 

Taxation,  and  Reviewal  lif  Taxation,  124 
BANNS.— See  Mabbiaoe. 
BAPTISM,  125 

BABON  AND  FEME. 
Husband. 

RighUqf,  in  Property  of  Wtfk,  125 
Liability  of,  on  Contracts  with,  and  on  Repre- 
sentations  and  Admissions  rf  the  Wife,  126 
Wife. 

Property,  and  Settlement  thereqf,  126 

Consent  and  Election,  128 

Allowance  to,  128 

Rights  qf,  128 

LiabiUties,  129 

Lunacy  if,  129 
Sbpabate  Estate. 

Power  over,  and  Disposition  qf,  129 

Liability  in  respect  qf,  130 
Sepabatjon  of  Husband  and  Wipe,  180 
Suits,  151 

Pleading,  131 

Cbiminal  Pboceedings,  131 

BART£B% — See  Goods  soij>  and  beuvbbed. 


BASTARD. 
Obdbb  of  Affiliatiov. 
At  Quarter  Sessions,  182 
At  Petty  Sessions,  138 

Jurisdiction  qf  Justices  to  make  the  Order,  183 
Appeal  to  Quarter  Sessions  from  Order  at  P^tty 

Sessions,  133 
Election  to  go  to  Quarter  gemioiu  under  the 
2  4-8  Fic/.e.85.  f.8,  138 
Obdbb  fob  Costs  und»b  4  &  5  Will.  4.  c*76. 

8.  78,  184 
Settlement  of,  134 
BEER  ACT,  135 
BENEFIT  SOCIETIES.— Sec  Fbimtoly  So- 

CIETIES. 

BIGAMY,  135 

BILL  OF  EXCEPTIONS.— See  Pbactice. 

BILL  OF  LADING.— See  Skiv  ANi»Sflipnil«— 

Stamp. 

BILL  OF  SALE.— See  Deed— Instt&ancb,  Bot- 
tomry Bond' — Stamp. 

BILLS  OF  EXCHANGE  AND  PROMISSORY 
NOTES. 

FOBM  AND  CoNSTBUCTION  OP,   136 

Stamp.— See  title  Stamp,  137 

CONSIDEBATION  TO  8UPPOBT. 

Suficiency  qf,  187 

Failure  of  Consideration,  138 

When  Plaiitliff  bound  to  prove  Consideration,  138 

AlTBBATION — EfFBCT  of,   and   WHEN   TO   BE 
SPECIALLY  PLEADED,    188 

Acceptance. 

What  amounts  to  an  Acceptance,  139 

Qualified  and  special  Acceptance,  139 

^y  Person  to  whom  Bill  not  addressed^  139 

Cancellation  qf  Acceptance,  189 
Liability   of   Contbactino    Pabtzbs    and 

Othebs,  140 
Indobsement  of,  140 
Pbesbntmbnt  of,  142 
Payment  of,  142 

Intebest—Bate  and  Recovbby  of,  143 
Notice  of  Dishonoub. 

Sufficiency  of,  as  to  Form,  143 

Suffkieney  ef,aeto  T^me^  144 

Who  entitled  to-'Branch  Banks,  l^e.  144 
Where  to  be  sent,  144 
Excuse  for  not  gismg,  144 
Proof  of,  145 

DlSCHABQB  OF  LIABILITY  ON. 

By  Payment,  145 
By  Release,  145 
^y  gMng  Tkne,  145 

By  Lapse  qf  Time— Note  payable  on  Demmd,l45 
Lost  BUI,  145 

Pbotest  fob  Non-Acceptance. — ^See   JBUght 

of  Action  on. 
Right  OF  Action  ON,  146 
FoBM  OF  Action — Debt,  146 
Consolidation  of  Actions,  147 
Pleading. 

In  general,  147 

Particular  Averments,  148 

Argumentative  Traverse,  149 

Duplicity,  149 

Replication  de  Injurid,  140 


TABLE  OF  TITLES. 


EOoppei^  150 
AUowamxqfPkas,  ISO 
IssuaMe  PleoM,  150 
Falsehoody  151 
FHvohta  Demwm^,  151 
rariaiM,  151 

EVIDENCS. 

In  g§mral,  151 

FrodMeiionqfBUUaHdCheqtMt  152 
Ida^tUf  i^PmrtUs,  152 

RULB  TO  COMPUTE,   155 

BISHOP,  153 

BOND. 

VXLtt^m  OF,  153 

constructiom  of,  154 

LostBomd,  154  .  . 

Pbocebdinos  on,  in  aeNBiUL,  154 

Debt  on  Bond. 

Amgument  rf  Brwmthetf  154 

Pleag  and  de  Ii^uridf  155 

J)amag9t*  155 

WrU  qf  Inquiry,  155 

Payment  qfMoneuinto  Court,,  155 
DlSCHABOB  ot,  155 

BOTTOMRY  BOND.— ^m  Insubancx. 
BREACH  OF  THE  P£AC£.-~8ee  Falsb  In- 

PBI80NMBNT. 

BRIDGE,  155 

BROKER,  156 

BURGIARY,  156 

BURIAL. — See  BAfTi8M*~Ci.BBaT. 

BUTTER  AND  CHEESE,  157 

CANADA,  157 

CANAL  COMPANY,  157 

CARRIER. 

Rights  and  Liabilities  of,  158 
Limitation  of  Liability  bt  Notice,  159 
Tbndeb  of  Ca&biaob  Monet,  159 
When  a  Bailee  fob  Rewabd,  159 
CoNVBRsioN  bt  Mis-deliybby,  159 

CASE,  159 

CATTLK  —  See  Labcbnt -^  Malicious  Mis- 

CHIBF. 

CENSUS,  160 

CENTRAL  CRIMINAL  COURT,  160 

CERTIFICATE.— See  Cownu 

CERTIORARI. 
Whbn  it  lies,  160 

Affidavit  and  Notice  td  obt^un,  161 
CosTS^  162 

CESTUI    QUE    VIE.  —  See  Pbacticb  in 
BauiTT. 

CHAMPERTY,  162 

CHANCERY,  162 

CHARGE. 
Satisfaction,  162 
Mbbobb,  163 
Pbiobity,  163 

CHARITY. 
Cbeation  and  Validity,  164 
Constbuction,  164 


Devise  and  Bbauest  to,  165 
Administbation. 

Scheme,  168 

Trutteet,  170 

Ettatet,  170 

Jubisdiction  ovbb. 
In  general,  171 
OnPeiiHon,  171 
Visitor,  172 
Attorney  General,  172 

Inbolmbnt  undbb  thb  9  Gbo.  2.  c,  36,  172 
Plbadinq  and  Pbacticb,  172 

CHARTER.— See  Custom. 

CHELSEA  HOSPITAL  AND  PENSIONERS, 

174 
CHEMIST  AND  DRUGGIST,  174 
CHILD  MURDER,  174 
CHINA,  174 
CHURCH,  174 

CHURCH WA  RDENS  AND  OVERSEERS,  1 75 
CLERGY,  176 
CLERK  OF  THE  CROWN  IN  CHANCERY, 

177 
COAL,  177 
COGNOVIT.— See  Wabbant  of  Attobnby  and 

COONOVIT. 

COINING,  177 

COLLIERS,  178 

COLONY,  178 

COMMISSIONER.— See  Poob—Witnbss,  Com- 
mission to  EsLsmine. 

COMMITMENT,  178 

COMMON,  179 

COMPANY,  180 

COMPENSATION,  182 

COMPOSITION.— See  Debtob  and  Cbbditob 
— Insolvent — Release. 

COMPROMISE,  184 

CONCEALMENT  OF  BIRTH,  184 

CONFIDENTIAL  COMMUNICATION.— See 
Evidence. 

CONJUGAL  RIGHTS.  — Suit  fob  Restitu- 
tion OF ;  see  title  Divobce. 

CONNIVANCE.— See  Divobce. 

CONSIDERATION,  184 

CONSOLIDATION.— See  Action— Pbacticb. 

CONSPIRACY,  184 

CONSTABLE,  185 

CONTEMPT,  185 

CONTRACT. 
What  amounts  to,  185 
Validity  and  Legality  of,  186 
constbuction  of,  187 
Rescission  of,  190 

How  FAB  BINDING,   190 

Pleading  and  Evidence,  190 
CONTRIBUTION,  192 
CONVENTION  ACT,  192 
CONVERSION  AND  RECONVERSION,  192 


vi 


TABLE  OF  TITLES. 


CONVICT,  194 

CONVICTIONS.— See  Justices  op  the  Peace. 

COPYHOLD. 
Tenure  and  Customs,  194: 
Admittance — Mandamus,  195 
Court  Rolls,  195 
Fine,  195 

COPYRIGHT,  196 
CORNWALL,  197 
CORONER,  198 

CORPORATION. 
RiQHTs,  Powers,  and  Liabilities,  198 
Charter,  200 
Bye- Laws,  201 

•  Members  and  Officers. 

Qualification,  201 

Election,  202 

Righti,  Ikities,  and  LlabiUtiei,  203 

jftnoHon,  204 

Compensation,  204 
Property,  205 
Penalties,  205 
Bo&ouoB  Fund,  205 

COSTS— AT  LAW. 
In  general. 

Upon  Feigned  Issue  under  Interpleader  /2ii&,  20.6 

Liability  of  Official  Assignee,  206 

Liability  of  Party  interested  not  a  Party  to  the 

Record,  206 
Upon  Interrogatories,  206 
Power  of  Judge  at  Chambers  to  impose  Costs,  206 
Plaintiff's  Right  to. 
In  general,  207 
Where  he  succeeds  as  to  Part  of  Claim,  or  where 

there  are  several  luues,  207 
In  Trespass  for  Mesne  PrqfJi*,  207 

•  On  Proof  qf  Documents,  207 
Operation  qfZSf^  Vict.  c.  24. 

Where  the  Judge  r^es  to  certify  for  Costs, 

207 
Where  Plaintiff  obtains  Judgment  on  Demurrer, 
208 
Operation  qf4i8c5  Vict,  c,  28,  208 
On  Judgment  on  Nul  Tiel  Record,  208 

Defendant's  Right  to. 
In  general,  208 
jffter  Discontinuance,  209 
Wfiere  there  are  ssteral  Issues,  200 
Costs  of  Trial  qfter  Special  Verdict,  209 
/tjter  Reversal  of  Judgment  by  Court  tf  Error, 
209. 

Double  Costs,  209 

Costs  of  the  Day,  and  Costs  in  the  Cause, 

209 
Expenses  of  Witnesses,  209 
Costs  of  making  Order  a  Rule  of  Court, 

210 
Suggestion  on  the  Roll,  210 
Judge's  Certificate,  211 
Security  for,  212 
Taxation  of. 

In  general,  213 

Scale  of  Taxation,  215 

Reviewal  of  Taxation,  216 

Costs  of  Taxation,  216 


Payment  of. 

Rule  fir,  and  Bjteeution  under  1&2  FieL  o.  110. 
s.  18,  216 

Attachment,  216 

To  Co-defendant,  216 
In  the  Ecclesiastical  Courts,  216 
In  Criminal  Cases,  216 
In  Error. — See  Quo  Warranto. 

COSTS— IN  EQUITY. 
In  general,  217 

Defendant's  Right  a.nd  Liability  to^  218 
Bill,  218 

Specific  Performance,  219 
Plea,  219 
Demurrer,  219 
Petition,  219 

Rehearing  and  Appeal,  219 
Motions,  220 
Mortgages,  220 
Administration  Suits,  221 
Creditors'  Suit,  221 
Attorney  General,  222 
Vendor  and  Purchaser,  222 
Agent,  222 

Trustees  and  Executors,  222 
Infant,  224 
Pauper,  224 

Production  of  Documents,  224 
Appearance,  224 
Affidavits,  224 
Subp(ENa  for,  224 
Lunacy,  224 
Contempt,  224 

Case  sent  to  a  Court  of  Law,  225 
Claimants  not  Parties  to  Suit,  225 
Advancing  Cause,  225 
Establishing  Will,  225 
Copyright,  225 
Amendment,  225 
Setting  Off,  225 
Interest  on,  225 
Costs  of  the  Day,  226 
Taxation  of. 

In  general,  226 

Attorney's  and  Solicitor's  Bills,  226 

Apportioning,  227 

Reviewing,  227 
Rate  of. 

In  general,  227 

Pauper,  Tfl 
Out  of  what  Fund,  228 
Security  for,  228 

COUNTY,  228 
COUNTY  ASYLUM,  228 
COUNTY  BRIDGE.— See  Bridge. 
COUNTY  COURT.— See  Inferior  Court. 
COURT  BARON.— See  Inferior  Court. 
COURT  OF  REQUESTS.— See  Costs,  at  Law, 

Suggestion  on  the  Roll — Inferior  Court. 
COVENANT. 

Construction  of  Covenants,  229 

Enforcing,  232 

Validity  of,  282  / 

Action,  when  maintainable,  232 

Pleading  and  Evidence,  233 

Damages,  234 


TABLE  OF  TITLES. 


vu 


COVENTRY,  285 

CRIMINAL    CONVERSATION.— See    Mar- 
&IAOB — Seduction. 

CRIMINAL  INFORMATION.— See  Informa- 
tion. 

CRUELTY. — See  Diyorcs — Seduction. 

CURTILAGE,  235 

CUSTOM,  235 

DAMAGES. — See   Pbwaltt— Principal   and 
Surety — Trespass. 

DEBT. 
When  maintainable,  236 
Recotert  of  less  Sum   in    Action  por  a 

LARGER,   236 

Discharge  of,  236 
Pleadings,  236 

DEBTOR  AND  CREDITOR. 
Creditor. 

JUghtt,  237 

Remedies,  237 

Speeialiy  Creditor,  237 
Assignment,  237 
Payment  by  Debtor,  237 
Composition  Deed,  237 

DECEIT,  239 

DEED. 
Construction,  239 
Escrow,  242 
Validity,  242 
Cancelling,  242 

DEFAMATION.— See  Libel— Slander. 

DE  INJURIA.— See  Pleading. 

DEMAND,  243 

DEMURRER.— See  Pleading- Practice. 

DEODAND,  243 

DESERTION. — See  Diyorcb. 

DETINUE,  243 

DEVISE. 
What  amounts  to  a  Devise,  244 
Construction  op,  in  general,  244 
Of  the  Deyisee. 

JFho  take  as,  250 

Duties  and  Liabilities,  250 

Rights,  251 
What  passes. 

In  general,  25 1 

Legal  Estate,  251 

Trust  Estate,  252 

Leasehold  Property,  252 

Fee,  252 

Estate  Tail^  253 

Life  Estate,  253 

Mortgaged  Premises,  254 

Ben^eial  Estate,  254 
Charges,  255 

Deyisb  for  Payment  of  Debts,  25G 
Revocation,  257 
Void  Devise — Remoteness,  257 

DIOCESE,  258 

DISORDERLY  HOUSE.— See  Overseers. 

DISSENTERS,  258 


DISTRESS. 
Who  may  distrain,  258 
What  may  be  taken,  258 
Second  Distress,  258 
Distress  for  Damage  Feasant,  258 
Excessive  Distress,  258 
Forcible  Entry,  259 
Double  Costs,  259 

DISTRICT  COURT,  259 
DISTRINGAS.— See  Peer— Practice  at  Law. 
DIVIDENDS.  —  See  Bankruptcy— Custom — 
Debtor  and  Creditor. 

DIVORCE,  259 
DOCKYARD,  260 
DOCUMENTS,  260 
DOG-STEALING,  260 
DOMICILE,  260 
DONATIO  MORTIS  CAUSA,  261 
DOWER,  261 
DRAINING,  261 

ECCLESIASTICAL  COMMISSIONERS,  262 

ECCLESIASTICAL  COURTS. 
Jurisdiction  of,  262 
Pleading,  262 
Practice,  262 

ECCLESIASTICAL  DISTRICTS,  264 

EJECTMENT. 
When  maintainable,  264 
Declaration  and  Notice,  265 
Service  of  Declaration. 

In  general,  266 

On  Wife  of  Tenant,  266 

On  Members  of  the  Family,  266 

On  Servants,  267 

On  Keeper  of  Lodging-house,  267 

On  Companies  and  Public  Bodies,  267 

Where  Tenant  abroad,  267^ 

Where  Premises  are  deserted,  267 

Where  Tenant  is  an  Attorney,  267 

Where  Tenant  is  a  Foreigner,  267 

Where  Tenants  Name  is  unknown,  267 

Wliere  Tenant  is  a  Bankrupt,  267 

Affidavit  of  Service,  268 

Proof  of  Service^  268 
Consent  Rule,  268 
Pleadings  and  Evidence,  268 
Trial,  269 
Judgment,  269 
Execution,  269 
Amendment,  269 
Admission  to  defend,  270 
Writs  of  Possession  and  Rbstitution,  270 
Staying  and  Setting  aside  Proceedings,  270 
Costs,  271 
ELECTION.— See  Indictment— Parliament. 

ELEGIT,  271 

EMBEZZLEMENT. 
The  Offence,  and  who  may  be  convicted 

OF  it,  271 
By  Clerks  and  Servants,  271 
By  Brokers,  272 
Indictment,  Form  op,  and  Demurrer  to,  272 


VllI 


TABLE  OF  TITLES. 


ERROR,  272 

ESCAPE,  272 

ESCHEAT,  278 

ESTATE  TAIL,  278 

ESTOPPEL,  278 

ETON  COLLEGE,  274 

EVICTION. — See  Landlord  and  Tbkant. 

EVIDENCE. 
In  asNBBAL,  274 

Rbcordb  and  Judicial  Procbbdinos,  276 
Public  Instbumbnts,  277 
Pbitatb  Writings. 

Deeds,  277 

WUU,  278 

jigreements,  278 

Letters,  278 

Receipts,  278 

Cheques,  278 

Entries,  278 

Other  Writings,  279 
Depositions  on  Oath,  and  Formbr  Evidbncb, 
279 

CONVBSSIONS. 

To  Magistrates,  280 

To  Constables  and  Others,  281 
Admissions,  281 
Dbclarations. 

In  general,  282 

In  ArHculo  Mortis,  282 

Priyileqbd  Communications,  282 

SUFFICIBNCT    OF,    AND    PRBSUMPTION   ARISING 
FROM,   283 

Rbputation,  284 
NoTicB  to  pboducb,  285 
Handwritino,  285 
Sbcondart  and  Parol,  285 
Admissiblb  with  rbfbrence  to  thb  Plead- 
ings, 287 
Practicb  (in  EauiTT),  287 

EXAMINATION.— See  Poor— Witnbss. 

EXCHANGE.— See  Power. 

EXCHEQUER  BILLS,  288 

EXCHEQUER,  COURT  OF,  288 

EXCHEQUER  IN  EQUITY,  288 

EXCISE.- See  Rbvbnub. 

EXCOMMUNICATION.— See  Ecclesiastical 
Law. 

EXECUTION.— See  Practice. 

EXECUTOR  AND  ADMINISTRATOR. 
Appointment  and  Constitution  of,  288 
Administration  db  Bonis  non,  289 
Db  son  Tort,  289 
Renunciation,  289 
Rights  and  Disabilities,  289 
Duties  and  Liabilities,  290 
Assets,  292 
Actions  and  Suits  by  and  against. 

Where  maintainable,  293 

Pleadings  and  Evidence,  295 

Practice,  294 

Costs,  295 

EXTENT.— See  iNauisiTioN— Sheriff. 


FACTOR,  295 

FACTORY,  297 

FALSE  IMPRISONMENT. 
Partibs  liable  in  Action  for,  297 
Justification,  Pleas  in. 
Sufficiency  ^,  297 

^feet  ofy  in  estimating  Damages,  298 
Evidence,  298 

FALSE  PRETENCES,  298 

FALSE  REPRESENTATION,  299 

FEES  AND  EMOLUMENTS,  800 

FEIGNED  ISSUE,  300 

FELONY,  800 

FINES  AND  RECOVERIES. 
In  general,  301. 

Acknowledgment  by  Married  Women. 
Commission,  and  Commissioners  for  takings  301 
4ffidamt  verifying,  301 
Conveyance  by  Mabried  Women,  undbb  3 
&  4  Will.  4.  c.  74.  s.  91,  301 

FISHERY,  301 

FIXTURES,  801 

FOREIGN   ATTACHMENT— See  Prisoner, 
Discharge  ot 

FOREIGN  LAW,  301 

FOREIGN  PRINCE,  302 

FOREIGN  TERRITORY,  302 

FORESTALLING,  301 

FORFEITURE,  302 

FORGERY  AND  UTTERING  OF  FORGED 

INSTRUMENTS. 
Generally,  what  amounts  to,  308 
Bills  of  Exchanob,  303 
Receipt  or  Acquittance,  303 
Orders,    Warrants,     Undbrtakihgs,    and 

Requests,  303 
Indictment,  Form  and  RBauisiTas  ov,  304 
Conviction  and  Evidence,  304 

FORMEDON.— See  Fines  and  Recovbribb. 

FRAUD  AND  COVIN,  304 

FRAUD,  RELIEF  AGAINST,  305 

FRAUDS,  STATUTE  OF. 
Contracts  required  to  be  in  Writing,  306 
Note  or  Memorandum  in  Writing,  307 
Delivery  and  Acceptance,  308 

FREE  WARREN,  308 

FRIENDLY  AND  BENEFIT  SOCIETIES, 
309 

FROGMORE,  310 

GAME,  310 
GAMEKEEPER.- See  Assault. 

GAMING,  310 

GAOL. — See  Debtor  and  Creditor — Prisonbr. 

GEOLOGICAL  SURVEY,  312 

GIFT,  312 

GOLD  AND  SILVER  WARES,  312 
GOODS  BARGAINED  AND  SOLD,  312 
GOODS  SOLD  AND  DELIVERED,  813 


TABLE  OF  TITLES. 


IX 


GRAND  JURY,  SM 
GRANT,  314 
GUARANTIE. 

CONSTBUCnOlT  OP,  814 
CoidlDSBATION,   316 

Alteration,  bt  Stranosr,  316 
Pleading  and  Svtdbnce,  316 

GUARDIAN,  817 

HABEAS  CORPUS. 
JuRiaDicnoN  lo  qbaitt,  317 
pubpobb  of  granting^  318 
Return,  318 
Irrbgularitt,  Waiver  of,  318 

HACKNEY  AND  STAGE  COACH,  319 

H£IR»  319 

H£AIOT-^«e  Trotbr. 

HIGHWAY. 
Rbpair  of,  819 

Indictment  for  Non- Repair  of,  320 
Surveyors,  321 

Divbrtino  and  stopping  up,  821 
Mandamus,  322 
Costs,  322 

HORSE,  322 

HOUSE,  322 

IDENTITY,  322 

IMPRISONMENT.— See  Prisonbr. 

INCLOSURE.  ACTS,  322 

INCUMBRANCES.— See  Charges. 

INDEBITATUS  ASSUMPSIT,  324 

INDICTMENT. 

General  Sufficibmct  of,  824 
Sufficibbct  op,  in  its  dbscriptiye  Parts. 

Pertons,  Z25 

Fropertjff  32fi 

Animals,  ZU 

CmuUjfJ^mrt,  326 

HighuSSi  326 

Vemuy  326 
Conclusion  of,  326 
Pleading,  826 
Practice  and  Trial,  327 
Evidence,  327 
Quashing,  327 
Traverse,  327 
Judgment,  327 
Second  Indictment,  328 
Removal  of,  bt  Certiorari,  328 

INFANT. 
Maintenance,  328 
Guardian,  329 
Ward  of  Court,  330 
Actions  and  Suits,  330 
Rights  and  Liabilities,  380 
Marriage,  331 
Sale  of  Property,  881 

INFERIOR  COURT. 
Courts  of  RxauEST. 

Comnn$9i9n€rgyQuo^ficatvmof^  331 

Clerk  of  the  Court,  331 
Separate  Demands^  332 

Digest,  1840— 18i5. 


Process,  332 

False  Judgment,  332 

Execution,  332 

Costs,  332 

Entry  of  Suggestion,  333 

Removal  qf  Judgment,  333 
County  Court,  333 
Borough  Coubv,  333 
Court  Baron,  333 
Court  of  Conscience,  833 
Debt  on  Judgment  of,  333 

INFORMATION. 
At  the  Suit  of  the  Attobvby  GfiNBRALy  334 
Criminal  Information. 

When  granted,  in  general,  334 

Against  Magistrates,  334 

Time  for  moving  for,  335 

INJUNCTION. 
Special  Injunction,  335 
To  restrain  Proceedings,  338 
Extending  AND  continuinO,  341 
Brbach  op,  341 
Dissolving,  342 
Practice,  342 

INNKEEPER,  345 

INQUISITION,  345 

INSANITY,  346 

INSOLVENT  DEBTOR. 
Assignees,  346 
schbdulb,  847 

Fraudulent  Payments  ani?  Conveyance,  348 
Assets  AcauiRBD  after  Insolvency,  348 
Warrant  of  Attorney  by,   under  1   &   2 

Vict.  c.  110.  s.  87,  849 
Order  for  Protection,  849 
Discharge,  349 
Praotiqb,  350 

INSPECTION.— See    Evidence— Production 
and  Inspection  of  Deeds,  &c. 

INSURANCE. 
Interest,  350 
Policy,  350 
Loss,  351 

On  Pledge  of  Goods,  352 
On  Lives,  852 
Against  FiRB,  353 
Over-Insurance,  353 

INTEREST. 
Where  payable,  353 
Computation  and  Rate  of,  354 
Common  Count  for,  354 

INTERPLEADER  AT  LAW. 
To  what  Gases  APPLICABLE,  354 
Relief  to  the  Sheriff,  355 
JuDGBfs  Order,  S65 
Costs  of  Parties,  in  general,  855 
Sheriff's  Costs,  when  allowbd,  B66 
Practice,  356 

INTERPLEADER  SUIT,  IN  EQUITY,  356 

INTRUSION,  357 

JOINT  STOCK  COMPANY,  357 

JOINT  TENANT  AND  TENANT  IN  COM- 
MON, 339 

b 


1 


TABLE  OF  TITLES. 


JUDGMENT. 

SlQNINQ  AND  ENTEBING. 

Ingtneral,  B59 

After  Judge's  Order  f or ^  359 

Under  what  Date  entered^  859 

Nunc  pro  tunc,  360 
Foe  Want  op  a  Plea,  860 
Op  Non  Peos.,  860 
Nolle  PEOBEaui,  860 
As  in  case  op  Nonsuit,  860 
Non  obstante  Veeedicto,  S63 
Judge's  Oedbr  for. 
By  Consent,  863 

Charging  Stock,  ^c„  under  1  *  2  Viet.  c.  1 10. 
«.  14,  363 

^^^fo^Lo**^'^'^'  ^^^^  1  *  2  Vict.  c.  110. 
8.  18,  363 

After   Defendant's   Death,  when   Lands 

BOUND  BY,  363 

Against  One  op  several  Joint  Debtors.  863 
Revival  op,  864 
Execution  on,  864 
Arrest  op,  864 
Setting  aside,  364 
Entering  Satisfaction  on,  365 
Judgment  recovered,  365 
Foreign  Judgment,  365 
Proceedings  upon,  in  EauiTY.  365 
JURY. 

In  general,  366 
Challenging,  366 
Exemption  prom  serving,  866 
Special  Jury,  366 
Tales,  367 

JUSTICES  OF  THE  PEACE. 
Jurisdiction  op,  867 
Orders,  Convictions  and  Warrants,  368 
Certificate  OP  Dismissal  op  Complaint,  369 
Actions,  369  ' 


LANDLORD  AND  TENANT. 
Rights  and  Liabilities  op  Landlord,  870 
RIGHTS  AND  Liabilities  of  Tenant,  871 

CONTRACTS  BETWEEN,   371 

Holding  over,  Effect  op,  372 
op^'^7^3''''  '''  '^^'^^  ""'  Tenancy,  Effect 

Tenancy  from  Year  to  Year,  873 

Tenancy  at  Will,  373 

Rent,  378 

Repairs,  375 

Notice  to  quit,  375 

Eviction,  376 

Small  Tenements  Act,  377 
LAND  TAX,  377 
LARCENY. 

Generally,  what  amounts  to  Larceny,  878 
Casks  op  finding,  379  »»*  <»/o 

Breaking  into  and  Stealing  in  a  Shop  or 

Warehouse,  379 
In  a  Dwelling-house,  879 
By  Servants,  379 
Op  Post-Letters,  379 
Op  Ore  in  a  Mine,  380 
Indictment,  380 

Evidence- Pbkm'mption  arising  from  Pos- 
session, 380 


LEASE. 
Lease  or  Agreement,  880 
Op  Charity  Lands,  381 
Valid  or  Void,  381 
Construction  of,  381 
Covenants,  382 
Assignment  op,  388 
Renewal  of,  884 
Surrender,  885 
Forfeiture,  38^ 

LEAVE  AND  LICENCE.— Sec  Licence. 
LEGACY. 
Construction,  in  general,  385 
Who  may  take  as  Legatees,  390 
What  Property  passes,  898 
What  Interest  vests. 
Absolute,  393 
For  Life,  395 
Tenancy  in  common,  897 
Joint  Tenancy,  397 
Separate  Use,  897 
Trust  or  Beneficial,  398 
On  what  Property  chargeable,  398 
Survivorship,  400 
Specific  and  demonstrative,  401 
Cumulative,  402 
Vested  and  Contingent,  404 
Conditional,  407 
By  Implication,  408 
Payment  of,  408 
Investment,  409 
Abatement,  410 

Ademption  and  Satisfaction,  410 

Lapse,  410 

Revoked,  411 

Omitted,  411 

Void,  411 

Assent  to,  412 

Priority,  418 

Residue,  413 

Interest  ON,  414 

Annuity,  415 

Rights  and  Liabilities  of  Lrn^ijTr.  415 

Legacy  Duty,  416  - 

LIBEL. 
Action  for,  where  maintainable. 

In  general,  418 

Privileged  Communications,  418 
Pleadings. 

Inducement,  418 

Innuendos  and  Explanatory  Averments,  418 

Pleas  of  Justification,  419 

Demurrer  to  Part  t/ Libel,  419 
Evidence. 

In  general,  419 

OfMaUce,  420 

In  Mitigation  qf  Damages,  420 
Amendment,  420 
Certificate  for  Costs,  420 
Damages,  420 
Nonsuit,  420 

LICENCE,  420 

LIEN. 

AT  LAW,  421 

IS  EQUITY,  421 


TABLE  OF  TITLES. 


\i 


LIGHTS,  42S 
LIMITATION  ACT,  423 

LIMITATIONS,  STA1*UTE  OF. 
Whe&b  available,  424 
Computation  of  Tins,  427 
Promisb,  and  Acknowledqmbnt  in  Bar, 

427 
Pabt  Payment,  429 
Pleading  and  Bvidencb,  4S0 

LOADED  ARM,  430 

LOAN  SOCIETIES,  430 

LOCAL  ACT. — See  Rate — Tendebof  Ahendi. 

LORD'S  ACT.— See  Pbisoneb. 

LOTTERIES,  481 

LUNATIC. 
In  obnbbal,  431 
Committee,  432 
Commission  and  Practice,  432 
Fees  payable  in  Lunacy,  433 

MAINTENANCE,  433 
MALICIOUS  ARREST,  434 
MALICIOUS  INJURIES,  434 
MALICIOUS  PROSECUTION,  434 
MANCHESTER,  440 

MANDAMUS. 

When  it  lies. 

To  Juttices  and  SessionSf  485 

To  Churchwardent  and  Overseen,  437 

To  InkaHtamts  to  aaaemble  in  Vettry,  487 

To  elect  Organitt,  437 

To  Tithe  Committionere,  437 

To  Regutrar  o/Birtht,  437 

To  the  Excite  to  ietue  a  Permitf  487 

To  Trustees,  487 

To  admit,  in  case  of  Crown  Manor,  438 

For  Priioner''s  Allowance,  438 

For  an  Insolvents  Pension,  438 

For  Compensation,  438 

On  Second  Jpplicationfor,  438 

Jn  other  Cases,  438 
Peremptory  Mandamus,  438 
Writ  op. 

Sufficiency  of,  439 

Return  to,  439 

Parties  interested,  —See  Damages  and  Costs. 

Demurrer — Practice  on,  439 
Damages  and  Costs,  439 

MANOR,  440 

MANSLAUGHTER,  441 

MANUFACTURES,  441 

MARKET,  441 

MARRIAGE. 
Validity  of,  442 
Articles,  442 
Settlement,  442 
Breach  of  Promise,  443 
Nullity  of  Marriage,  443 
Marriage  Act,  443 

MARSHALLING,  443 
MASTER  AND  SERVANT,  443 
MASTERS  IN  CHANCERY,  444 


METROPOLIS,  445 

MIDDLESEX,  445 

MILLBANK  PRISON,  445 

MINE,  445 

MISDEMEANOUR,  445 

MISNOMER,  440 

MISTAKE,  446    • 

MODUS.— See  Tithes. 

MONEY  COUNTS. 
Money  had  and  received,  446 
Money  paid,  449 
Money  lent,  449 

MORTGAGE. 
Constitution  and  Extent,  450 
EouiTABLE  Mortgage,  451 
Rights  of  the  Mortgagee,  452 
Redemption,  454 
Foreclosure,  455 
Accounts,  455 
Costs,  457 
Payment  of,  457 
Merger,  458 
Interest,  458 

MORTMAIN,  458 

MUNICIPAL  CORPORATION  ACT,  4u9 

MURDER,  459 

MUSEUM,  460 

NAVAL  FUND  SOCIETY,  460 
NAVIGATION  ACT,  460 
NEGLIGENCE,  460 

NEW  ASSIGNMENT.— See  Account  Stated, 
Pleadings — Pleading. 

NEWFOUNDLAND,  462 

NEW  TRIAL. 
When  granted. 

In  general,  462 

Damages,  462 

Surprise,  463 

Penal  Action,  463 

Miscarriage  by  Officer  of  Court,  463 

New  Evidence,  463 

On  Terms,  463 
Under  the  Lancaster  Common  Pleas  Act, 

463 
Motions  and  Rules,  463 
Costs,  464 
Matters  of  Practice,  464 

NEXT-OF-KIN,  465 

NONSUIT.— Sec  Jubgment— Practice. 

NOTARY  PUBLIC,  465 

NOTICE,  466 

NUISANCE,  466 

OATH,  467 

OFFENDERS,  467 

OFFICE,  467 

ORDNANCE  DEPARTMENT,  468 

OUTLAWRY,  468 

OVERSEERS,  469 


■■_.^'»  ^ 


XII 


TABLE  OF  TITLES. 


PARENT  AND  CHILD. 
Pabent. 

Rights  in  Property  of  Child^  469 

Advancement,  469 
Child. 

Maintenance  qf,  470 

Custody  of,  470 

PARISH  AND  PARISH  OFFICERS,  470 
PARISH  PROPERTY,  470 
PARISH  REGISTER,  470 
PARLIAMENT. 

ELECTION  CASES, 
Adjournment. — See  Committee. 
Affidavit. — See  Poll. 
Agency,  472 
Bribery. 

What  amounts  to,  472 

Evidence  rf,  478 
Building,  473 

Certificate  of  Registry,  473 
Compromise  Committee,  473 
Committee. 

Proceedings  of,  in  general,  473 

Reports  to  the  House,  474 

Jurisdiction  rf,  ^74: 
DisauALiFiCATioN  OF  Member,  474 
Election,  Holding  and  Notice  of,  475 
Evidence. 

Of  Proceedings  in  Registratum,  475 

Duplicate  Notice,  475 

Hearsay  and  Parol,  475 

Instructions  to  Solicitor,  476 
Freeman,  476 
House,  476 
Identity,  476 

Indemnity  to  Witnesses,  476 
Indictment,  476 
Notice  of  Objection,  477 
Objected  Votes,  List  of. 

Form  qf  List,  477 

Statement  of  Heads  rf  Objection,  477 

Re-hearing,  477 
Objections  before  the  Revibino  Ba&rister, 

477 
Occupation  of  Houses,  &c.  in  BoBouaKS. 

Constructive,  477 

Colourable,  478 

Interruption  of,  478 

Ceasing  to  occupy,  478 

Evidence  qf,  478 

Occupation  of  Land,  479 

Successive  Occupation,  479 
Opening,  479 
Overseers'  Lists,  479 
Petition,  479 
Petitioner,  479 

Poll,  Poll-books,  and  Polling  Booths,  479 
Preliminary  Resolutions,  480 
Qualification. 

Of  Member,  480 

Cf  Elector,  480 
Rate,  481 
Recognizance,  481 
Register  and  Registry,  481 
Reports,  481 
Residence,  481 


Return  and  Returning  Officer,  481 

Revising  Barrister,  482 

Riots,  482 

Scrutiny,  482 

Statutes,  482 

Treating,  482 

Value,  482 

Witness. 

Attendance  qf,  482 

When  compellable  to  give  Evidence,  482 

Examination  qf,  483 

Exclusion  qffrom  Committee  Room,  483 

Expenses  ^  483 

REGISTRATION  CASES. 
List  of  Voters. 

Particulars  of,  484 

Amendment  qf,  484 
Notice  of  Claim,  484 
Notice  of  Objection. 

Contents,  484 

Transmission  qf  by  Post,  485 

Stamped  DuplicaU,  485 

Qualification. 
Personal,  486 
In  Counties,  486 
In  Boroughs,  487 

Practice. 

Entry  qf  Appeal,  488 

Delivery  qf  Paper  Books,  488 

Appearance  of  Parties,  488 

Remitting  Case  to  Revising  Barrister,  489 

Hearing  qf  Case,  489 

Costs,  484 

Alteration  qf  Register,  489 

Decisions  qf  Committees,  489 

PRIFILEGE  OF  PARLIAMENT,  489 

PARTIES  TO  SUITS. 
Necessary  Parties,  490 
Unnecessary  Parties,  494 
Joinder  of,  497 
Dismissal  of,  497 
Objections  as  to,  497 

PARTITION,  500 

PARTNERS. 
Partnership. 

In  general,  501 

Dissolution  of,  501 

Accounts,  502 
Rights  and  Liabilities  of,  503 
Actions  and  Suits,  506 

PATENT. 
Valid  or  Void,  507 
Registration  of  Design,  508 
Inrolment,  508 

Renewed  Letters  Patent,  509 
Disclaimer  of  Letters  Patent,  509 
Licence  to  use,  510 
Infringement  of,  510 
Amendment  of  Clerical  Errors,  512 
Costs,  512 

PAUPER,  512 
PAVING  ACT,  513 
PAWNBROKER,  513 


TABLE  OF  TITLES. 


Xlll 


PAYMENT. 
What  amovsts  to,  514 

IlTTO  ANB  OUT  OF  CoURT,    514 

WhBK  TO  BB  PLBADSD — ^SbT-OFF,  514 

Appropriation,  515 
Judob's  Ordbr  por,  515 

PEER  AND  PEERAGE,  515 
PENAL  ACTION,  516 
PENALTIES,  516 
PENSION,  517 

PERJURY,  517 

PHYSICIAN  AND  SURGEON.— See  Action, 
When  iiudntai&able-~SuROBON  and  Apothb- 

CART. 

PIRACY,  519 

PLEADING,  AT  LAW. 
Declaration,  520 
Plba. 

GneraUjf,  523 

JmomUing  to  ih§  Gentral  lum,  527 

In  CoiifeMtion  and  Avoidtme§,  528 

DupUeity  tM,  529 

Argumentativeness,  529 

Accord  and  Sattrfactum,  550 

Puis  Darrein  Ckmtimiance,  530 

Commencement  and  Conclusion,  530 

Gbnbral  Ibsue. 
GmmaUy^  530 
By  Statute,  532 

Rbplication. 
Generally,  582 
De  Infurid,  535 


Generally,  537 

Material  and  Tmmateridl,  537 

Argumentative,  538 

Too  large  and  too  narrow,  538 

Conclusion  qf,  539 
New  Absionmbnt,  539 
Dbparturb,  540 
Misjoinder  op  Counts,  540 
Dbicurrbr,  540 
Propert,  540 

PLEADING,  IN  EQUITY. 
Bill. 

Statements  and  Charges  in,  541 

Multtfariouatess,  542 

Amending,  548 

Revivor,  543 

Supplemental,  543 
Demurrer,  544 
Answbr,  546 

DiSCLAlMBR,  547 

Plea,  547 

Impertinbncb  and  Scandal,  549 

Admissions,  550 

POACHING,  550 

POISONING,  550 

POLICE,  551 

POOR. 
Guardians,  551 
Maintbnance,  551 


Settlement. 

By  Birth  and  Parentage,  552 

By  Hiring  and  Service,  552 

By  Apprenticeship,  553 

By  Renting  a  Tenemeni,  553 

By  Estate,  554 

By  Payment  <^  Rates,  554 

By  Acknowledgment,  554 

In  a  Township,  554 

Conelusieeness  qf former  Proceedings,  555 
Pauper  Lunatic,  555 
Op  Married  Wombn,  556 
Rbmoval,  Ordbr  op. 

St^fficiency  rf.  In  general,  556 

Examinations,  557 

Cf  Children,  559 

POOR  LAW  ACT  AND  COMMISSIONERS, 

560 
PORT  DUTIES,  560 
PORTIONS,  561 
POST  OFFICE,  561 
POUND,  561 

POWER. 
Construction  op,  561 
Execution  of,  562 
Op  Attornbt,  568 

PRACTICE,  AT  LAW. 
Process. 

In  general,  568 

Issuing,  569 

Direction  qf,  and  Description  qf  Parties,  569 

Indorsements,  570 

Service,  570 

Detainer,  570 

Altering  and  Amending,  571 

Setting  aside,  571 

Return,  571 

Irregularity,  571 

Distringas,  572 
Appearance,  573 
Declaration. 

Form,  574 

Time  to  declare,  574 

Notice  of,  574 

Entitling,  574 

Delivering,  575 

Allowing  and  Striking  out  Counts,  575 

Amendment,  575 
Plba. 

Rule  and  Notice  to  Plead,  575 

Time  for  pleading,  575 

Puis  darrein  continuanee,  576 

Nul  tiel  record,  576 

Issuable  Pleas,  576 

Pleading  several  Pleas,  577 

Adding  and  Striking  out,  578 
Demurrer,  when  set  aside  as  frivolous,  57S 
Rejoininq  gratis,  579 
Particulars,  579 
Oyer,  580 
Similiter,  580 
Security  for  Costs,  580 
Stet  Processus,  580 
Nolle  Prosequi,  580 
Counsel's  Signature,  581 
Issue,  581 


•7=^^. 


xtv 

Notice  to  produce,  581 
Teial. 

Notietqf,  581 
Notice  of  Countermand,  582 
Entry  tjf  Cause,  582 
Poetponmg,  582 
Withdrawing  Record,  582 
JU'tealing  Record,  582 
Issues  in  Law  and  in  Fact,  582 
Proceedings  in  Court. 

In  general,  583 

Right  to  begin,  583 

R^y,  585 

^^niry  qf,  585 
A/rin^  ad<i9,  585 
Amendment  at,  585 
^y  Adjournment,  585 
Speedy  Execution,  586 
C<w^*  o/*A#  Day  oiu/  Witnesses,  586 
Certifying  for  Costs,  5^Q 
New  Trial,  586 
Affidavit  op  Increase,  586 

POSTEA,  586 

Repleader,  586 

Judgment,  587 

Special  Case,  587 

Writ  OP  Error,  587 

Venire  de  novo,  588 

Motions,  Rules,  and  Orders,  588 

Execution,  589 

Bill  of  Exceptions,  591 

Procebdinos. 

Stay  of,  591 

Staying,  592 

Setting  aside,  593 
Waiver,  593 
Master's  Report,  593 
On  Taxation,  593 
Judge  at  Chambers,  593 

PRACTICE,  IN  EQUITY. 
Bills. 

In  general,  594 

Of  Discovery,  595 

Cf  Revivor,  597 

Supplemental  and  qf  Review,  597 

Interpleader,  599 

Amended,  599 

Taken  pro  Confesso,  600 

Taking  off  the  FUe,  601 

Retaining,  602 

Dismissing,  602 
Process,  604 
Contempt,  606 
Appearance,  607 
Answer. 

In  general,  608 

Supplemental,  610  • 

Plea,  610 
Demurrer,  611 
Information,  611 
Motions,  612 
Replication,  612 
Petition,  613 

Production  of  Documents,  613 
Commission,  618 
Exhibits,  619 
Affidavits,  619 


TABLE  OF  TITLES. 


Interrogatories,  620 

Witnesses  and  Depositions,  621 

Publication,  622 

Evidence  before  the  Master,  622 

Conduct  of  Suit,  623 

Staying  Proceedings,  623 

Orders  and  Decrees,  624 

Accounts,  630 

References. 
In  general,  and  Proceedings,  631 
Impertinence  and  Scandal,  632 
R^rt,  632 

Exceptions. 
In  general,  633 
Bill,  634 
Answers,  634 

Reports  and  Cert^lcates,  634 
Notices,  635 

Sales  by  the  Court,  635 

Payment  into  Court,  635 

Payment  out  of  Court,  636 

Suitors  Fund,  637 

Speeding  Cause,  637 

Setting  down,  Advancing,   and   Hearing 

Cause,  637 
Brief  and  Office  Copies,  638 
Issue  and  Trial  at  Law,  639 
Receiver,  640 
Infants'  Suits,  642 
Next  Friend,  642 
Lunatic,  642 
Pauper,  643 

Proceedings  in  different  Courts,  644 
ExCHEaUER  IN  EauiTY,  645 
Petition  of  Rights,  645 
Re- Hearing,  645 
Appeal,  645 

Jurisdiction  of  the  Court,  646 
Creditor's  Claim,  647 
Distringas,  648 
Jurisdiction  and  Duties  of  the  Masters, 

648 
Registrars,  648 
Accountant  General,  648 
Preliminary  Inouiries,  648 
Service  of  Papers,  649 
Irregularity,  651 
Traversing  Note,  651 
Computation  of  Time,  651 
Writs  of  Fi.  Fa.  and  Elegit,  652 
Colonial  Court,  652 
Ne  Exeat,  652 
Cestui  auE  Vie,  652 

PRACTICE    IN    THE    ECCLESIASTICAL 
COURTS,  652 

PRACTICE   IN  THE   HOUSE  OF  LORDS, 
652 

PREROGATIVE,  654 
PRESCRIPTION,  664 
PRESUMPTION,  656 
PRINCE  OF  WALES,  65^ 
PRINCIPAL  AND  ACCESSARY,  ^m 
PRINCIPAL  AND  AGENT,  Q5Q 
PRINCIPAL  AND  SURETY,  658 
PRISONS,  660 


TABLE  OF  TITLES. 


XV 


PRISONER. 

DiSCHABOB  OF,  660 

Charoimo  in  Execution,  662 

PRIVY  COUNCIL,  662 

PROCHEIN  AMY,  662 

PRODUCTION    AND      INSPECTION     OF 
DOCUMENTS,  662 

PROHIBITION,  663 

PROMISSORY    NOTE.—Sec   Bills  op   Ex- 
c HANGS — Attorney  and  Solicitor. 

PROPERTY  TAX,  664 
PROTECTOR,  664 
PUBLIC  COMPANY,  664 

QUEEN  THE,  665 
aUEEN'S  BENCH,  665 
QUO  WARRANTO,  665 

RAILWAY  AND  RAILWAY  COMPANY. 
Construction  op  Acts  op  Parliament,  666 
Calls,  672 

Shares,  Contracts  and  Claims  por,  675 
Precept  to  the  Shbripf,  676 
iNauisiTioN,  676 

Process,  Service  op  on  Company,  676 
Money  in  Court,  676 

RAPE. 
What  amounts  to  Rape,  676 
Indictment,  677 
Evidence  and  Practice,  677 

RATE. 
Church  Rate. 

raUdHy  of,  678 

Persons  and  Property  rateablej  678 

Recovery  of,  678 

Jurisdiction  of  Ecclesiastieal  Courts,  679 

Monition  to  make,  679 
County  Rate,  679 
Highway  Rate. 

RateabiUty,  680 

AUowance  i^,  680 

Demand  rf,  680 

Surveyor  a  competent  Witness  in  Replevin,  680 
Poor  Rate. 

Persons  and  Property  rateable,  680 

Recovery  of,  683 

Misapplication  of,  684 
Sewers  Rate,  684 
Lighting  and  Watching  Rate,  684 
Distress  for  Rates,  685 

REAL  PROPERTY,  686 
RECEIVING  STOLEN  GOODS,  685 
RECOGNIZANCE,  686 
REGISTRY,  686 
RELEASE,  686 
REMAINDER,  688 

REMOTENESS.— See  Action,  When  maintain- 
able. 
RENT  AND  RENT-CHARGE,  688 

REPLEVIN,  688 
REQUESTS,  COURT  OF,  689 
RESTITUTION,  689 


RETAINER.— See  Attorney* 

REVENUE,  689 

REVERSION  AND  REVERSIONER,  692 

RIOT,  692 

ROBBERY,  693 

ROMAN  CATHOLIC,  698 

ROTHWELL  GAOL,  698 

SACRILEGE,  698 

SALE,  698 

SALVAGE,  694 

SAVINGS  BANK,  695 

SCHOOL  AND  SCHOOLMASTER,  696 

SCIRE  FACIAS,  696 

SCRIVENER,  698 

SEA,  698 

SEAMEN.— See  Ship  and  Shipping. 

SEDUCTION,  698 

SEPARATE  ESTATE,  698 

SEQUESTRATION,  698 

SERVANT. — See  Master  and  Servant. 

SESSIONS. 
Jurisdiction  op,  699 
Appeal. 

In  general,  699 
Against  Orders  of  Removal. 
To  what  Sessions,  701 
Notice  and  Grounds  qf  Appeal,  701 
Supersedeas,  703 
Evidence,  703 
Variance,  703 
Against  Rates,  704 
Against  Convictions,  704 
Certiorari,  704 
Costs,  704 
Order  op,  705 
Case,  705 
Interested  Magistrates,  705 

SET-OFF. 
At  Law,  705 
In  EouiTY,  706 

SETTLEMENT. 
Construction  op,  707 
By  the  Court  of  Chancery,  711 

SEWERS,  712 

SHARES,  713 

SHERIFF. 
Rights  and  Privileges. 

In  general,  714 

Fees  and  Poundage,  714 
Duties  and  Liabilities. 

In  general,  714 

Arrest,  715 

Bringing  in  the  Body,  715 

Escape  and  Pound  Breach,  715 

Executions,  715 

Return,  717 

Extortion,  718 

Attachment,  718 

Costs,  719 

Writ  of  Possession,  719 


zvi 


TABLE  OF  TITLES. 


SHIP  AND  SHIPPING. 
Arrest,  719 

AsSIQNMBNTi  719 
AVRRAGE,   720 

Award,  720 

Bill  of  Lading,  720 

Bottomry,  720 

Cafturb,  721 

Charter-party,  721 

Coin,  Declaration  op  Value  of,  725 

Collision,  725 

Costs,  727 

Damage,  727 

Demurrage,  727 

Desertion,  727 

Freight  and  Frbightbr,  727 

Harbour  Master,  728 

Illegal  Voyage,  728 

Insubordination,  728 

Intebbogatoribs,  728 

Jurisdiction  of  Court  of  Admiralty,  728 

Lloyd's  Shipping  List,  728 

Mastbb,  729 

Navigation,  729 

Necessaries,  729 

Owners,  730 

Pilot  and  Pilot  Act,  780 

Register,  739 

Repaibs,  780 

Revolt,  781 

Sale,  781 

Unsbawobthinbm,  731 

Wages,  731 

Wreck,  732 

SLANDER,  732 

SLAVE,  733 

SMALL  DEBTS  ACT,  733 

SOLDIER.— See  Will, 

SPECIAL  CASE.— See  Pbactice— Witness. 

SPECIAL  JURY.— See  Juby. 

SPECIFIC  PERFORMANCE. 
Wbbn  decbeed,  734 
Wren  befused,  736 
Fobm  of  Decree,  739 
Practice  on  Bill  for,  739 

SPIRITUOUS  LIQUORS,  739 

ST.  ASAPH  AND  BANGOR,  739 

STAMP. 
Administration,  739 
Bonds,  739 
Deeds,  740 
Mortgages,  740 
Assignment,  741 
Warrant  of  Attorney,  741 
Agreements,  741 
Leases,  742 
Receipts,  742 
Promissory  Notes,  743 
Copy  of  Court  Roll,  743 
Bill  of  Sale,  743 

STATUTES,  743 

STATUTE  OF  LIMITATIONS,  745 

STOCK,  745 


STOPPAGE  IN  TRANSITU,  746 

STOP  ORDER,  749 

SUBPCENA,  749 

SUBSEQUENT  FELONY,  750 

SUDBURY,  750 

SURGEON  AND  APOTHECARY,  750 

SURRENDER,  750 

SURVEY,  750 

TAXES,  751 

TENANT  FOR  LIFE,  751 

TENANT  IN  COMMON,  752 

TENDER,  752 

THEATRES,  753 

THELLUS80N  ACT,  753 

THREATS    AND    THREATENING    LET- 
TERS,  754 

TITHES. 
What  Titheablb  and  Title  to,  754 
Modus  and  Exemption,  755 
Commutation,  756 
Apportionmbnt,  756 
Boundary,  756 
Actions  and  Suits,  757 
Special  Case,  758 
Pleadings  and  Evidence,  758 

TITLE-DEEDS,  760 

TOLLS,  760 

TJIADE,  RESTRAINT  OF,  761 

TRAFALGAR  SQUARE,  761 

TRAVERSE,  761 

TRAVERSING  ORDER,  762 

TRESPASS. 
When  maintainablb,  762 
Pleadings,  763 
Evidence,  765 
Damages,  765 
Payment  of  Monet  into  Court  in,  766 

TRIAL.— See  Practice,  Trial 

TRIAL  AT  BAR,  766 

TROVER. 
Where  maintainable,  766 
convebsion,  768 
Pleading  and  Evidence,  769 
Damages,  769 

TRUST  AND  TRUSTEE, 
Trust. 

Constiiutum^  769 

Consiructiony  772 

Priority,  773 
Trustees. 

jfppomtmentf  773 

Removal  mtd  Change^  773 

LiabiUty,  774 

PowerSf  Rightt  and  Duties,  775 

Investment  by,  777 

Conveyance from^  777 

Actions  and  Suits  by  and  against,  777 

Breach  qf  Trust,  778 

Costs,  780 
Cestui  auE  Trust,  781 


TABLE  OF  TITLES. 


XTll 


Trustee  and  Mortoaoee  Act. 

Construetiaih  781 
Practice  u»d*r,  782 

TURNPIKE,  788 

UNIFORMITY  OF  PROCESS  ACT,  7«5 

UNIVERSITY,  786 

USE,  785 

USE  AND  OCCUPATION,  785 

USURY,  78« 

VACCINATION,  787 

VAGRANT  ACT,  787 

VARIANCE,  787 

VENDOR  AND  PURCHASER. 

LiEM  OF  Vendob,  788 

Contracts  and  Conditions  ov  Sale,  789 

Title,  790 

PuACHASEBa 

Rights  and  ProtcetUm  qf,  798 

LiabOUut  and  Duties,  793 

Payment  qf  Purcluue-moneff  into  Court,  794 

Cmoeyance  to,  794 
Sale,  795 

Intsbbst  on  Purchase- MONET,  796 
AcTION^  796 
Costs,  797 

VENUE,  797 

VICTORIA  PARK,  796 

VOLUNTARY  CONVEYANCE   AND   SET- 

TLEMENT,  798 
VOLUNTARY  OATH,  799 
WAREHOUSE,  800 

WARRANT  OF  ATTORNEY  AND  COGNO- 

VIT. 
Form  and  Ezbcution  ov. 

In  general,  800 

jittestathm,  800 
Judgment,  801 
Execution  undbr,  804 
Filing,  804 
Setting  aside,  804 


Appearance,  804 

Statute  of  Limitations,  804 

Affidavit  of  Time  of  Execution,  805 

WARRANTY,  80» 

WASTE,  805 

WAY,  805 

WEIGHTS  AND  MEASURES,  806 

WELL,  806 

WILL. 
Validity. 

In  general,  806 

Execution  and  Attestation,  807 
Probate,  808 
Pbobatb  Dutt,  809 
Revocation,  809 
Construction,  810 
Codicil,  820 
Elbction  undbb,  822 
Publication,  822 
Establishing,  822 
Witnesses  and  Evidence,  828 

WITNESS. 
Attendance,  828 
competbnct. 

Olffeetieins  to,  when  to  be  made,  824 
BekUhe  Situation^  824 
Interest,  824 

When  made  ampetent  hff  Statute,  826 
Credit,  826 

Attesting  Witness,  826 
Commission  to  examinb,  827 
Examination,  827 
Expenses,  829 
WOODS  AND  FORESTS,  829 
WORDS,  CONSTRUCTION  OF,  829 
WORK  AND  LABOUR,  829 
WRIT  DE  VENTRE  INSPICIENDO,  829 
WRIT  OF  ASSISTANCE,  829 
WRIT  OF  ERROR,  829 

WRIT  OF  RIGHT,  880 
WRIT  OF  TRIAL,  830 

ADDENDA,  832 


Digest,  1840—1845. 


AN 


ANALYTICAL    DIGEST 


OF   THS 


CASES  REPORTED  AND  PUBLISHED 

From  Trinity  Term  1840  to  Michaelmas  Term  1845, 


AND   CONTAINED   IN   THE 

NEW  SERIES  OF  THE  LAW  JOURNAL  REPORTS, 

SnU  an  otf^er  Conttmporar;  XlqporU ; 

WITH 

REFERENCES  TO  THE  STATUTES  PASSED  WITHIN  THE  SAME  PERIOD. 


ABATEMENT. 

(A)  O?  Suit. 

( B)  Pleas  in  Abatement. 

(a)  Form  tmd  Rtqtuntes, 

(b)  AffidtmU  rf  Trulth  rf  Plea. 


(A)  Of  Suit. 

The  provision  in  the  statute  6  Geo.  4.  c.  16.  s.  67. 
against  the  abatement  of  suit  by  the  death  or  removal 
of  assignees  is  extended  by  the  5  &  6  Vict  c.  122. 
a.  48.  to  the  case  of  official  assignees.  LUtyd  v. 
Waring,  1  CoU.  C.C.  536. 

(B)  Pleas  in  Abatement. 
(a)  Form  and  Bequuitet, 

A  formal  defect  in  a  plea  in  abatement  may  be 
taken  advantage  oi^  though  not  specially  demurred 
to.  Etdmk  v.  Ltwd,  18  Law  J.  Rep.  (n.8.)  Exch.  117; 
12  M.  &  W.  607. 

The  objection  that  a  plaintiff,  who  has  obtained 
judgment  against  the  public  officer  of  a  banking 
copartnership,  has  sued  out,  and  is  proceeding  upon 
separate  concurrent  writs  of  ad,  fa.  against  di^rent 
penons,  members  of  the  company  when  judgment 
was  obtained,  can  only  be  taken  advantage  of  by 
plea  in  abatement  that  another  suit  is  pending ;  and 
a  plea  that  etveral  other  such  suits  are  pending,  is 
bad  lor  multiplicity.   Ibid. 

In  an  action  on  Uie  case  against  a  bailee  of  goods, 
containing  counts  for  a  misuser  of  them,  founded 
on  the  bailment  by  the  plaintifis,  and  other  counts 
in  trover,  the  defendant  cannot  plead  generally,  in 
abatement,  that  the  goods  were  the  goods  of  the 

Digest,  1840~-1845. 


0 

plaintiff  and  other  parties ;  and  a  plea  in  abatement 
for  non-joinder,  to  several  counts,  if  bad  as  to  any 
one  of  them,  is  bad  altogether ;  although  it  would  have 
been  good,  if  pleaded  separately  to  the  other  counts. 
PhiU^y.  Claggettf  11  Law  J.  Rep.  (n.s.)  Exch.  349; 
10  M.  &  W.  102 ;  2  DowL  P.O.  (n.s  )  258. 

Where  to  a  declaration  in  covenant  by  the  executors 
of  a  lessor  against  the  assignee  of  the  lessee,  the  defen- 
dant pleaded  in  abatement  that  the  estate,  &c.  of  the 
lessee  vested  by  assignment  in  the  defendant  jointly 
with  B,  who  became  and  continued  jointly  liable 
to  perform  the  covenants,  and  that  the  breaches 
of  covenant  were  committed  by  the  defendant  jointly 
with  the  said  B : — Held,  that  the  plea  was  bad,  as 
the  defendant,  being  joint  tenant,  and  therefore 
cognizant  of  his  own  title,  ought  to  have  set  it  out 
specially.  Heap  v.  Livingston,  12  Law  J.  Rep.  (n.s.) 
Exch.  482;  11  M.  &  W.  896;  8  Dowl.  P.C.  (n.b.) 
384. 

Where  to  an  action  by  drawer  against  acceptor  of 
a  bill  of  exchange  and  on  an  account  stated,  the  defen- 
dant pleaded,  in  abatement,  that  the  bill  was  accepted 
and  the  promise  in  the  declaration  mentioned  was 
made  by  the  defendant,  jointly  with  B,  who  is  still 
living,  and  resident  within  the  jurisdiction,  and  not 
by  ^e  defendant  alone : — Held,  that  the  plea  was 
bad  for  not  shewing  that  the  bill  was  drawn  on  B  ; 
and  also  for  not  shewing  which  of  the  promises  in 
the  declaration  was  jointly  made.  Bleakley  v.  Jay, 
14  Law  J.  Rep.  (n.s.)  Exch.  78 ;  18  M.  &  W.  464. 

A  plea  in  abatement  for  the  non- joinder  of  co- 
contractors  must  disclose  the  names  of  all  the  co-con- 
tractors.    CreUin  v.  Brook,  1  Car.  &  K.  57 1. 

A  plea  in  abatement,  being  a  dilatory  plea,  must 
be  pleaded  with  strict  exactness.    Where,  therefore, 

B 


ABATEMENT- ACCORD  AND  SATISFACTION. 


defendants  in  an  indictment  in  the  Court  of  Queen's 
Bench  in  Dublin  pleaded  in  abatement,  that  the 
indictment  was  found  on  the  evidence  of  witnesses 
who  had  not  been  sworn  in  open  court,  according  to 
the  Act,  56  Geo.  3.  c.  87,  but  did  not  set  out  in  the 
plea  the  names  of  those  witnesses,  nor  allege  that 
there  were  no  other  witnesses  duly  sworn  on  whose 
evidence  the  indictment  was  found,  nor  allege  that 
the  witnesses  on  whose  evidence  it  was  found  were 
not  affirmed,  the  plea  was  held  bad.  And  for  the 
same  reasons,  a  plea  in  abatement  on  the  ground 
that  the  swearing  of  the  witnesses  had  not  been  duly 
certified  by  the  signature  of  the  foreman  or  other 
member  of  the  grand  jury  under  the  1  &  2  Vict, 
c.  37,  was  held  bad.  O^Commll  v.  the  Queen,  1 1  C.  & 
F.  155. 

[See  Bot\field  y.  Smith,  title  Partners.  King  v. 
Hoare,  and  Dundalk  Railway  Company  v.  Tapsler, 
title  Pleading.  Cocks  v.  Brewer,  title  Variance. 
Davies  v.  Lowndee^  title  Writ  of  Right  Cave  ▼. 
Cook,  title  Parties.] 

(6)  Affidamt  rf  TVvM  of  Plea. 

^  The  affidavit  verifying  a  plea  in  abatement  must 
disclose  the  residence  of  the  party  who  ought  to  be 
co-defendant,  at  the  time  it  is  made.  Wheatley  y. 
Gohuy,  9  Dowl.  P.C.  1019. 

An  affidavit  verifying  a  plea  in  abatement  entitled 
'*  Between  A.  B,  administratrix,  &c.,  plaintiff,  and  C. 
D,  defendant :" — Held  bad,  for  not  naming  the  party 
of  whom  the  plaintiff  was  administratrix.  Fletcher  v. 
Letchmere,  12  Law  J.  Rep.  (n.b.)  C.P.  151  ;  2  Dowl. 
P.C.  (N.8.)  848. 

A  plea  of  coverture  in  abatement,  in  an  action  of 
debt,  is  a  dilatory  plea  within  the  statute  4  Anne, 
c.  16.  8. 11 ;  and  if  there  is  no  affidavit  verifying 
the  plea,  the  plaintiff  may  sign  judgment  as  for 
want  of  a  plea,  although  part  of  the  cause  of  action 
accrued  after  the  coverture.  Loveil  v.  Walker,  1 1 
Law  J.  Rep.  (n.s.)  Exch.  370 ;  9  M.  &  W.  299. 


the  ladder  and  to  elope  with  him.  Held,  also,  no 
defence  that  A.  did  not  know  the  girl  was  under  six- 
teen, or  that  from  her  appearance  he  might  have 
thought  she  was  of  a  greater  age.  Regina  v.  Robins, 
1  Car.  &  K.  456. 


ABDUCTION. 

Where  a  man  by  false  and  fraudulent  representa> 
tlons  induces  the  parents  of  a  girl,  between  ten  and 
eleven  years  of  age,  to  allow  him  to  take  her  away, 
semble,  that  such  taking  away  is  sufficient  to  con- 
stitute the  offence  of  abduction  within  sec.  20.  of 
9  Geo.  4.  c.  31.     Regina  v.  Hopkins,  Car.  &  M.  254. 

Where  a  girl,  under  the  age  of  sixteen,  who  was  in 
service,  was  returning  from  an  errand,  and  was 
asked  by  the  prisoner  if  she  would  go  to  London, 
as  his  mother  wanted  a  servant  and  would  give  her 
61,  wages,  and  the  girl  went  away  with  the  prisoner : 
— Held  not  a  taking  or  cttusing  to  be  taken  sufficient 
to  constitute  the  offence  of  abduction  under  sec. 
20  of  9  Geo.  4.  c.  81.  And,  semble,  that  there  must 
be  something  more  than  a  mere  fraudulent  decoying 
or  enticing  away  to  constitute  an  offence  under  that 
section.     Regina  v.  Meadows,  I  Car.  &  K.  399. 

Where  A.  went,  in  the  night,  to  the  house  of  B, 
and  placed  a  ladder  against  a  window  there,  and 
held  it  for  the  daughter  of  B,  a  girl  under  the  age  of 
sixteen,  to  descend,  which  she  did,  and  then  eloped : 
—  Held,  a  "  taking "  out  of  the  possession  of 
the  father  within  9  Geo.  4.  c.  31.  s.  20,  although 
the  daughter  had  herself  proposed  to  A.  to  bring 


ACCORD  AND  SATISFACTION. 

(A)  What  amounts  to. 

(B)  Acceptance  in  Satisfaction. 


(A)  What  amounts  to. 

Where  in  an  action  by  three  plaintiA  for  a  joint 
demand,  the  defendant  pleaded  an  accord  and  satis- 
faction with  one  of  them,  by  a  part  payment  in  cash 
and  the  set-off  of  a  debt  due  from  that  one  to  the 
defendant: — Held,  that  the  plea  was  good  without 
alleging  any  authority  from  the  other  two  plaintifi 
to  make  the  settlement.  And,  semble,  that  a  repli- 
cation shewing  the  transaction  to  be  a  fraud  on  the 
other  plaintiffs  would  be  no  answer  to  the  plea. 
IVallace  v.  Kelsall,  10  Law  J.  Rep.  (n.8.)  Exch.  12; 
7M.&W.264;  8  Dowl.  P.C.  841. 

To  assumpsit  against  acceptor  of  a  bill  of  ex- 
change, a  plea  that  defendant  had,  before  the  bill 
became  due,  delivered  to  the  drawer  certain  shares, 
as  a  collateral  security  for  the  amount  of  the  bill, 
in  order  that  he  (the  drawer)  might,  by  the  sale 
thereof,  re-pay  himself  the  amount  of  the  bill,  and 
that,  after  the  bill  became  due  and  unpaid,  the 
drawer  sold  the  shares  for  a  large  sum  of  money,  to 
wit,  the  sum  of  2,000/.,  which  he  then  appropriated 
to  the  payment  of  the  bill  and  damages : — Held 
bad,  as  not  shewing  that  the  drawer  received  the 
shares  in  satisfaction  of  the  bill,  or  that  the  bill  was, 
in  fact,  paid  by  the  sale  of  the  shares.  Cannon  v. 
Read,  10  Law  J.  Rep.  (n.b.)  C.P.  242. 

The  plaintiff,  the  acceptor  of  a  bill  of  exchange, 
on  its  becoming  due,  sent  the  amount  of  it  by  his 
son  to  the  defendant,  the  holder,  with  directions 
to  pay  it,  and  bring  back  the  bilL  The  son 
paid  the  money,  but  the  defendant  refused  to  give 
up  the  bill,  but  gave  a  receipt  for  the  amount,  and 
the  son  was  sent  a  second  time  to  demand  the  bill 
or  the  money,  but  returned  without  either.  The 
defendant  afterwards  sent  to  the  plaintiff  a  guaranty 
of  a  third  person  for  the  amount  of  the  bill,  which 
guaranty  the  latter  retained,  and  brought  an  action 
for  money  had  and  received  for  the  amount  of  the 
bill : — Held,  that  the  right  of  action  vested  on  the 
defendant's  refusal  to  return  the  money  or  give  up 
the  bill,  and  therefore  that  the  giving  of  the  gua- 
ranty was  by  way  of  accord  and  satisfaction,  and 
ought  to  be  specially  pleaded.  Alexander  v.  Strong, 
1 1  Law  J.  Rep.  (N.s.)  Exch.  316 ;  9  M.  &  W.  733 ; 
2  Dowl.  P.C.  (N.8.)  256. 

To  assumpsit  for  money  lent,  a  plea  that  defen- 
dant gave  the  plaintifl^  and  plaintiff  received  from 
the  defendant  authority  to  receive,  as  defendant's 
agent,  money  due  to  the  defendant,  to  an  amount 
exceeding  the  amount  sued  for,  and  to  pay  himself^ 
and  that  defendant  agreed  not  to  receive  the  same 
otherwise  than  by  the  plaintiff's  agency ;  and  that, 
through  the  plaintiff's  negligence  and  default,  the 
monies  were  not  received,  but  were  thereby  wholly 
lost  to  defendant: — Held  bad,  on  general  demurrer, 


ACCORD  AND  SATISFACTION— ACCOUNT— At  Commow  Law. 


M  thewing  neithor  acoord  nor  Mtisfaction.     Gifmrd 
T.  WkUimker,  IS  Law  J.  Rep.  (N.11.)  Q.B.  825. 

(B)   ACCEPTAKCB   IN   SATIBTACTIOir. 

The  plaiatiffsi  who  were  brokers  in  England,  were 
in  the  habit  of  consigning  to  the  defendant,  who 
was  a  merchant  and  broker  at  Montreal,  goods  on 
sale  and  return,  and  of  receiving  in  payment  bills 
purchased  by  the  defendant  The  plaintiA  having 
requested  tbikt  undoubted  bills  shoiUd  be  sent  them, 
defendant  remitted  a  bill  drawn  by  parties  whose 
credit  at  the  time  was  supposed  to  be  good.  The 
plAintiflEs^  on  receiving  the  bill,  returned  for  answer 
that  it  had  been  refused  acceptance,  and  requested 
the  defendant  to  do  what  was  needful  to  procure 
security  from  the  drawer,  and  to  take  all  le^l  and 
necesaaiy  steps  for  the  security  of  the  plaintiflb.  In 
an  action  by  the  plaintiff  for  money  had  and  re- 
ceived, to  recover  from  the  defendant  the  proceeds 
of  the  consignment  to  which  the  bill  had  reference, 
the  defendant  pleaded  the  delivery  to  the  plaintiffi 
and  acceptance  by  them  of  the  bill  in  full  satisfac- 
tion. The  Judge  told  the  jury,  that  if,  by  the  course 
of  dealing  between  the  parties,  the  plaintifis  were 
bound  to  take  the  bill,  that  was  a  taking  in  full 
satisfaction  : — Held,  that  this  was  a  misdirection  ; 
for  that  acceptance  in  satisfaction  must  be  an  act  of 
the  will  of  the  party  receiving.  Hardman  v.  Bell- 
house,  1 1  Law  J.  Rep.  (n.8.)  Exch.  135 ;  9  M.  &  W. 
596. 


ACCOUNT. 
[See  MoBTOAQB — Pleading  in  Eauirr.] 

I.  ^T  COMMON  LAW, 

(A)  Action  of  Account. 

(a)  Capuu  ad  Camputandum,  • 
(6)  By  Tenant  in  Common, 

(B)  Account  aTATED. 

(a)  By  am  Iirfant. 

(b)  Pleadinge, 

(c)  Evidence  qf, 

2.  IN  EQUITY, 

(A)  In  gbnbbai.. 

(K)  Bill  TOE  an  Account. 

(a)  In  generaL 

(6)  Neceetary  Partiee. 

(c)  Speeied  Decree, 

3.  IN  THE  ECCLESIASTICAL  COURT. 


1.  AT  COMMON  LAW. 

(A)  Action  o»  Account. 

(a)  Capiae  ad  Computandum, 

In  an  action  of  account,  the  defendant  having 
sulifered  judgment  to  go  by  default,  the  Court 
granted  a  rule,  calling  on  the  defendant  to  shew 
canse  why  he  should  not  appear  and  consent  to  the 
appointment  of  auditors,  or  why  a  capias  ad  eompw 
iandum  should  not  issue  against  him.  No  cause 
was  shewn,  and  the  Court  made  the  rule  absolute 
in  the  alternative,  being  of  opinion,  that  the  process 
was  not  affected  by  the  1  &  2  Vict  c.  110.     Pryor 


V.  PetHngell,  12  Law  J.  Rep.  (n.b.)  Ezch.  219; 
s.  c.  Pryor  v.  Pettindall,  2  Dowl.  P.C.  (n.s.)  755. 

(5)  By  Tenant  in  Comnum, 

In  an  action  of  account  by  a  tenant  in  common 
against  his  co-tenant,  charging  him  as  bailif!)  under 
4  &  5  Anne,  c.  16.  s.  27,  the  declaration  must 
allege  that  the  defendant  has  received  more  than 
his  just  share  of  the  profits.  Semhle,  each  of  several 
tenants  in  common  may  have  a  separate  action  of 
account  under  the  statute.  SturUm  v.  Richardson, 
13  Law  J.  Rep.  (n.s.)  Exch.  281 ;  13  M.  &  W.  17; 
2  PowL  &  L.  P.C.  182. 

(B)  Account  stated. 

(a)  By  an  Infant. 

An  account  stated  by  an  infant  is  not  void,  but 
voidable  only ;  and  an  action  of  debt  as  well  as 
assumpsit  may  be  maintained  against  him,  upon  a 
ratification  a&r  attaining  his  full  age.  WiUiams 
V.  Moor,  12  Law  J.  Rep.  (n.s.)  Exch.  253;  11 
M.  &  W.  256. 

(5)  Pleadings. 

Quare — Whether  to  a  plea  of  infancy  to  an  action 
on  an  account  stated,  the  plaintiff  should  new  assign  a 
ratification,  or  plead  it  by  way  of  replication.  fFt/- 
liamsY.  Moor,  12  Law  J.  Rep.  (n.b.)  Exch.  253; 
11M.&W.256. 

(c)  Evidence  cf. 

The  production  by  the  plaintiff  of  an  I.O.U., 
signed  by  the  defendant,  but  without  address,  is 
pirimd  facie  evidence,  in  proof  of  the  issue  of  an 
account  stated  between  them.  Douglas  v.  Hone,  10 
Law  J.  R^.  (N.S.)  Q.B.  43  ;  a.  c.  Douglas  v.  Holme, 
12  Ad.&£.  641. 

Where  a  clerk  of  the  plaintiffs,  at  his  counting- 
house,  shewed  to  H  an  account  against  H  and  C 
jointly,  consisting  of  three  items,  and  H  objected 
to  one  of  the  items  only,  making  no  remark  as  to 
the  others,  and  took  away  a  copy  of  the  account 
with  him: — Held,  evidence  of  an  account  stated 
by  H,  as  to  the  items  to  which  he  did  not  object. 

C  and  H  having  acted  jointly  in  the  management 
of  a  farm,  of  which  they  were  trustees  for  the 
benefit  of  creditors,  and  in  respect  of  which  the 
sums  in  the  account  above  mentioned  were  ad- 
vanced, and  a  statement  having  been  made  in  the 
presence  and  hearing  of  both  of  them,  subsequently 
to  the  interview  between  H  and  the  clerk  of  the 
plaintiffs,  that  there  was  a  sum  of  money  due, 
"about  110^.,"  to  which  statement  neither  C  nor 
H  objected  : — Held,  evidence  from  which  the  jury 
might  infer  that  H  had  authority  from  C  to  state 
an  account  between  himself  and  C  jointly  with  the 
plaintiffs.  Chisman  v.  Court,  10  Law  J.  Rep.  (n.s.) 
C.P.  124 ;  2  M.  &  G.  807 ;  2  Sc  (n.s.)  569. 

A  company  having  contracted  a  debt  with  the 
plaintiff,  and  the  debt  not  being  paid,  he  laid  an 
attachment  on  money  of  theirs  in  the  hands  of 
bankers.  While  the  attachment  was  in  force,  the 
defendant  representing  himself  to  be  a  director  of 
the  company,  called  on  the  plaintiff^s  attorney  for 
the  purpose  of  making  an  arrangement  about  the 
debt,  when  it  was  agreed  that  the  following  letter 
should  be  written  by  the  defendant  to  the  plaintiff, 
which    was  accordingly   done: — "As  director  of 


4 


ACCOUNT— In  Equity. 


the  B.  W.  Company,  I  haye  to  request  yoa  will 
accept  the  sum  of  501,  on  account  of  your  elaim 
of  116^  \9s,  7d.  against  the  company;  and  in 
consideration  of  your  withdrawing  the  attachment 
ag^nst  the  funds  of  the  company,  I  agree  on  the 
part  of  myself,  and  on  hehalf  of  the  other  directors^ 
to  pay  you  the  balance  of  66L  19«.  7tL  on  the 
27th  of  August  next:— Held,  that  this  letter, 
coupled  with  the  above  facts,  was  evidence  of  an 
account  stated ;  and  that  it  was  no  answer  to  shew 
that  the  defendant  was  not  a  member  of  the  com- 
pany when  the  original  debt  was  contracted.  Barker 
V.  Birt,  11  Law  J.  Rep.  (n.s)  Exch.  375;  10  M. 
&  W.  61. 

Where  in  assumpsit  by  executors  of  the  payee 
of  a  promissory  note,  against  the  defendant  as 
maker,  the  plaintiff  proved  the  note  with  the  fol- 
lowing indorsement  upon  it,  signed  by  the  defendant 
and  one  of  the  plaintiffs:—*'  Hull,  1838.  Memo- 
randum— that  the  sum  of  R  7«.  6<i,  one  quarter's 
interest,  was  paid  on  the  within  note.  William 
Purdon,  Thomas  Purdon:" — Held,  sufficient  evi- 
dence of  an  account  stated  with  the  executors, 
without  any  proof  of  the  time  of  the  testator's  death. 
Furdon  v.  Purdon^  12  Law  J.  Rep.  (K.ft.)  Exch.  8 ; 
lOM.  &W.562. 

Where  in  an  actionbroughton  two  promissory  notes 
for  SOL  each  and  for  lOOA  on  an  account  stated,  the 
plaintiff  set  forth  in  his  particulars  that  he  sought 
to  recover  501  the  amount  of  the  note  in  the  first 
count,  and  t>0^  the  amount  of  the  note  in  the 
second  count,  and  that  he  would  avail  himself  of 
the  whole  or  any  part  of  his  declaration ;  and  no  evi- 
dence was  given  of  the  existence  of  any  promissory 
notes : — Held,  that  a  statement  by  the  defendant 
that  he  could  not  pay  the  plaintiff  the  lOOL  due  to 
him,  was  not,  under  the  above  particulars,  evidence 
of  an  account  stated,  but  that  he  was  bound  to  shew 
an  account  stated  with  reference  to  tiie  promissory 
notes.  Roberts  v.  EUworthf  12  Law  J.  Hep.  (v.8^ 
Exch.  15 ;  s.  c.  Roberts  v.  Elsuwrthy,  10  M.  &  W. 
653 ;  2  DowL  P.C.  (n.s.)  456. 

Where  in  assumpsit  on  a  bill  of  exchange,  with  a 
coun  t  on  an  account  stated,  it  appeared  that  the  bill  had 
been  drawn  by  one  F  and  indorsed  by  the  defendant 
in  blank,  and  having  been  delivered  by  the  defen- 
dant to  F,  was  by  him  taken  to  a  bank  of  which 
the  plaintiffs  ^were  the  managers,  where  it  was 
received  by  them  in  renewal  of  another  bill  dis- 
counted by  them,  and  drawn  and  indorsed  by  the 
same  parties: — Held  that,  though  in  an  action  by  in- 
dorsee against  indorser  the  bill  may  hepritndfaeie 
evidence  of  an  account  stated,  yet,  on  the  above 
facts,  that  evidence  was  rebutted,  and  that  the  plainti£b 
could  not  recover  on  the  account  stated.  Burmester 
V.  Hogarthy  12  Law  J.  Rep.  (n.s.)  Exch.  178;  11 
M.  &  W.  97. 

2.  IN  EQUITY. 
(A)  Im  general. 

Account  decreed  in  a  complicated  case  of  cross 
demands,  between  tenant  and  landlord  under  a  hus- 
bandry lease.  Kennington  v.  Houghton,  2  Y.  &  Col. 
C.C.  620. 

Where  a  suit  was  instituted  by  a  party  entitled  in 
remainder  against  a  trustee,  to  make  him  respon- 
sible for  a  trust  fund  invested  on  an  improper 
security,  and  a  decree  was  made  for  its  restitution : 


— Held,  that  in  this  suit  the  tenant  for  life,  who  was 
a  defendant,  was  not  entitled  against  hit  oo-defen- 
dant,  the  trustee,  to  an  account  of  the  interest  which 
had  accrued  pending  the  suit,  there  being  no  such 
case  made  by  the  pleadings.  Ooodurin  v.  Clewlep, 
2  Bea.  80. 

Where  receiver's  acconnts  were  passed  in  the 
Master's  office  in  the  absence  of  the  executor,  and 
the  warrants  had  been  regularly  served  on  his  clerk 
in  court,  but  not  forwarded  to  him : — ^The  Court, 
under  the  circumstances,  remitted  the  matter  to 
the  Master's  office,  to  give  the  executor  an  oppor- 
tunity of  stating  his  objections  to  the  accounts. 
Oilfield  V.  Cobbett,  2  Bea.  444. 

Where  an  inquiry  was  directed  as  to  a  particular 
account,  and  the  defendant  by  his  answer  and  ex»* 
mination  relied  on  a  generid  account,  including 
both  the  items  of  the  particular  account  and  gene- 
ral items,  but  was  unable  to  prove  the  general 
items  (which  were  in  his  discharge)  by  the  usual 
evidence: — Held,  that  by  such  failure  of  proof  the 
general  account  was  cut  down  to  the  particular  ac- 
count, and  that  the  defendant  must  be  bound  by  the 
result.     Cropper  v.  Knapman,  4  Y.  &  C.  249. 

[And  see  Portloek  v.  Gardner,  title  Acquies- 
cence.] 

(B)  Bill  fob  an  Account. 

(a)  In  general. 

It  is  not  necessary  for  a  plaintiff  in  a  bill  for  an 
account  to  submit  to  an  account  himself;  a  demur- 
rer on  the  ground  of  the  omission  of  such  a  sub- 
mission was,  therefore,  overruled.  Clarke  v.  Tip- 
ping,  4  Bea.  588. 

Where  a  bill  for  an  account  alleged  that  a  de- 
fendant beneficially  interested  was  out  of  the  juris- 
diction, and  the  answer  of  the  trustees  admitted  the 
fact  li^-Held,  that  such  admission  was  not  sufficient 
The  regular  practice  is,  not  to  refer  it  to  the  Master 
to  inquire  as  to  that  fact  and  if  he  find  it  in  the 
affirmative  to  proceed  with  the  accounts,  but  to 
allow  the  cause  to  stand  over,  with  liberty  to  the 
plaintiff  to  exhibit  interr(^atories  before  the  ex- 
aminer to  prove  the  fact  Eggington  v.  Burton,  1 1 
Law  J.  Rep.  (n.s.)  Ch.  272 ;  1  Hare,  488,  n. 

By  articles  of  partnership  in  case  of  the  death 
of  a  partner  the  survivor  was  to  pay  the  amoimt  of 
his  capital  according  to  the  last  half-yearly  rest, 
and  to  take  the  stock,  &c.  After  the  death  of  one, 
a  different  arrangement  was  entered  into  between 
his  executors,  one  of  whom  was  the  surviving  part- 
ner, and  his  widow,  who  was  beneficially  interested 
under  the  will,  by  which  the  surviving  partner  was 
to  take  the  stock  at  a  valuation  and  get  in  the  credits 
and  pay  the  joint  debts,  and  out  of  the  share  of 
the  deceased  partner  in  the  surplus  to  pay  his  sepa- 
rate debts  and  the  widow^s  legacy.  The  widow, 
by  bUl,  sought  to  set  aside  this  arrangement  for 
fraud,  and  to  have  an  account  of  the  partnership 
transactions,  and  of  the  profits  subsequent  to  her 
husband's  death : — Held,  that  the  plaintiff  was  en* 
tiUed  to  the  production  of  the  accounts  of  the  bu- 
siness as  carried  on  after  the  testator's  death.  Hue 
V.  Richards,  2  Bea.  305. 

Under  a  trust  deed  dated  1806,  which  was  to 
operate  during  the  life  of  the  grantor,  the  trustee, 
after  the  performance  of  certain  trusts,  was  to  pay 
the  surplus  rents  to  the  owner  during  his  life.    The 


ACCOUNT— 1»  Equity— ACQUIESCENCE. 


owner  died  in  1816,  the  trustee  died  in  1818  $  tnd 
in  1828  a  bill  for  an  aceount  was  filed  by  the  repre- 
sentatiTe  of  the  former  against  the  representatives 
of  the  latter.  The  answer  was  filed  in  the  follow- 
ing year,  but  no  further  proceedings  were  taken  in 
the  suit  until  1839,  when  the  cause  was  set  down, 
and  was  heard  in  1841 : — Held,  that  no  such  laches 
existed  as  to  bar  the  aceount  Held,  also;  that  as 
regarded  the  lapse  of  time,  the  case  was  to  be  looked 
at  in  the  same  light  now  as  at  the  filing  of  the  bill. 
Diekentom  t.  Lord  Holland,  2  Bea.  810. 

A  bill  was  filed  by  the  residuary  legatee  against 
A  and  B,  the  administrators  of  the  deceased's 
efl^ts,  for  an  account  of  the  assets  received  by 
them.  A  died  without  having  appeared  to  the  bill, 
and  C  obtained  letters  of  administration  of  his 
goods,  limited  for  the  purpose  only  to  attend,  supply, 
substantiate,  and  confirm  the  proceeding  in  the  suit 
until  a  final  decree  should  be  made  and  executed ; 
and  C  was  brought  before  the  Court  by  a  supple- 
mental bill: — Held,  that  owing  to  the  limited  nature 
of  those  letters  of  administration,  an  account  of 
A*s  receipts  could  not  be  taken ;  but  that  a  general 
admininistrator  to  A  must  be  brought  before  the 
Court.  Clough  T.  Ducon,  Collini  v.  Btmdy  Collin*  t. 
Collins,  10  Sim.  56^ 

Certain  consignments  of  oil  were  made  firom 
Columbo  to  certain  persons  resident  in  England. 
During  the  voyage  several  of  the  casks  in  which 
the  oil  was  contained  leaked.  Some  part  of  the  oil 
which  so  escaped  was  wholly  lost,  but  the  greater 
part  was  collected  together,  and  sold  in  one  mass 
by  the  captain  in  the  course  of  the  voyage  for  750L 
The  consignees  then  agreed  to  share  the  proceeds 
in  proportion  to  their  respective  losses : — Held,  that 
a  bill  in  equity  was  sustainable  by  the  consignees 
against  the  ship-owner  for  an  account  of  the  oil  lost 
and  the  oil  sold.  Jones  v.  Moore,  10  Law  J.  Rep. 
(W.S.)  Ex.  Eq.  11  ;  4  Y.  &  C.  851. 

Under  a  decree  in  a  legatees'  nuit  to  take  the 
usual  accounts,  A  B  went  in  and  claimed  the  re> 
sidue,  which  the  Master  found  him  entitled  to,  but 
the  residue  was  not  then  ascertained  and  no  order 
was  made  in  respect  of  it  Held  that  A  B  was 
not  precluded  from  afterwards  asking  relief  against 
the  executor  in  respect  of  an  alleged  breach  of  trust 
in  a  suit  of  his  own,  he  not  having  in  the  first  suit 
been  in  a  situation  to  investigate  the  accounts  of 
the  executor  or  to  claim  the  relief  which  he  asked 
in  the  second.     Guidiei  v.  Kinton,  6  Bea.  517. 

(b)  Neeeeeary  Parties, 

One  of  thirty- eight  proprietors  of  a  newspaper 
was  appointed  bookkeeper,  and  received  the  monies 
of  the  concern :  a  bill  being  filed  against  him  for  an 
account,  &c.  by  twelve  of  the  proprietors  on  behalf, 
&c : — Held  that  the  remaining  twenty-five  were  ne- 
cessary parties.     Bainbridge  v.  Burton,  2  Bea.  6S9. 

(c)  Special  Decree. 

Special  decree  in  a  bill  for  an  account  where  the 
accounts  and  vouchers  were  alleged,  under  special 
circumstances,  to  be  beyond  the  controul  and  power 
of  the  accounting  party. 

The  plaintiff  conveyed  his  property  to  trustees 
for  the  benefit  of  his  creditors.  The  trustees,  who 
were  authorized  to  employ  an  agent,  committed  the 
management  of  the  property  to  an  agent     The 


agent  rendered  his  accounts  to  the  defendants,  and 
left  England,  taking  with  him  the  vouchers.  The 
trustees  being  unable,  f^m  the  absence  of  the 
documents,  to  furnish  a  satisfactory  account,  the 
plaintiff  asked  that  they  might  be  charged  for 
what,  without  their  wilful  default,  they  might  have 
received.  The  Court,  however,  in  the  first  instance, 
made  a  special  decree  ordering  a  general  account ; 
and  if,  in  taking  the  account,  it  should  appear  that 
the  defendants  could  not  render  a  satisfactory  ac- 
count by  reason  of  the  non-production  of  the  docu- 
ments and  vouchers,  it  was  referred  to  the  Master 
to  inquire,  whether  it  was  by  the  neglect  or  default 
of  the  trustees  that  they  were  unable  to  render  a 
better  account,  with  liberty  to  state  special  circum- 
stances.    Turner  v.  Comey,  5  Bea.  515, 

8.  IN  THE  ECCLESIASTICAL  COURT. 

An  application  to  compel  an  administratrix  to 
exhibit  an  inventory  and  account  after  a  lapse  of 
eighteen  years  rejected,  and  the  party  making  the 
application,  under  the  circumstances,  condemned 
in  costs.     Scurrah  v.  Senrrah,  2  Curt  919. 


ACCUMULATIONS. 
[See  Thsllusson  Act.] 


ACKNOWLEDGMENT. 
[See  Account  stated — Evidencb — Fimsb  and 

RSC0V£&1S8.] 


ACQUIESCENCE. 
[See  SpBCiric  Pshformancs — Vbkdor  ahd 

PURCHABSB.] 

De  Montmorency  v.  Devereux,  4  Law  J.  Dig.  7 ; 
7  C.  &  F.  188. 

An  acquiescence  of  twenty-three  years,  with  a 
knowledge  of  the  will,  is  a  good  bar  to  a  claim  by 
a  residuary  legatee  against  an  executor  for  an  ac- 
count, on  the  ground  of  neglect  or  miitfeazance,  and 
that  independentlv  of  the  3  &  4  Will.  4.  c.  27.  A, 
who  under  the  will  was  to  be  a  partner  with  B,  the 
residuary  legatee  in  the  testator's  business,  and  to 
have  a  moiety  of  the  profits,  but  to^hom  no  part 
of  the  stock  in  trade,  &c.  was  given,  under  a  power 
of  attorney  from  the  executor  received  the  assets 
and  paid  debtn,  &c.,  and  in  1817  settled  an  account 
with  B,  on  the  footing  that  he,  A,  was  entitled  to  a 
moiety  of  the  balance  appearing  on  such  account, 
and  aherwards  carried  un  the  trade  on  his  own 
account  in  the  same  premises  till  his  death  in  1838. 
On  a  bill  by  B,  in  1840,  to  charge  A's  executors 
with  a  moiety  of  the  profits  of  the  trade, — Held, 
that  though  A  had  received  the  assets  under  the 
authority  of  the  executor,  and  with  the  knowledge 
that  they  were  trust  property,  yet  as  the  permitting 
him  so  to  receive  them  was  not  necessarily  a  breach 
of  trust  on  the  part  of  the  executor,  A  must  be 
held  but  a  constructive  trustee,  and  as  such  not 
chargeable  with  the  profits  of  trade  after  so  long 
acquiescence.  Secus,  if  A  had  received  the  assets 
concerting  a  breach  of  trust  with  the  executor.  As 
the  settlement  of  1817  was  erroneous  on  the  face 
of  it,  the  bill  was  dismissed  without  costs.     Port' 


6 


ACQUIESCENCE— ACTION. 


lock  V.  Cardmr,  II  Law  J.  Rep.  (n.8.)  Ch.  813; 
1  Hare,  594. 

A  party  claiming  a  title  in  himself,  bnt  privy  to 
the  fact  of  another  dealing  with  the  proper^  as  his 
own,  will  not  be  in  equity  permitted  to  assert  his 
own  title  against  a  title  created  by  that  other, 
although  he  derives  no  benefit  from  the  transaction. 
Nicholson  v.  Hooper,  4  M.  &  Or.  179. 

Distinction  between  the  efileet  of  acquiescence 
upon  a  motion  for  an  injunction  and  on  a  demurrer. 
In  the  former  case  acquiescence  merely  prevents 
the  special  protection  by  injunction ;  but  in  the 
latter  it  must  be  such  as  to  disentitle  the  plaintiff 
to  any  relief  whatever.  Gordon  v.  the  Oteltenham 
and  Great  Western  Union  Rnhtajf  CowKpany^  6  Bea. 
229. 

A  husband  iieised  in  right  of  his  wife  concurred 
with  the  other  tenants  in  common  in  a  partition  of 
estate  and  minea,  but  no  fine  was  levied.  He  died 
in  1828  ;  after  which  his  widow  acquiesced  in  the 
arrangement,  and  took  the  benefit  of  it.  She  and 
her  lessee  afterwards  proceeded  to  get  coal  under 
the  laud  awarded  to  other  parties,  and  defended  that 
proceeding  on  the  ground  that  the  husband's  acts 
were  invalid,  and  that  the  parties  were  still  tenants 
in  common  of  the  whole.  The  Court  restrained  her 
by  injunction.  Maden  v.  Feevers,  6  Bea.  508 ;  12 
Law  J.  Rep.  (ir.s.)  Ch.  88. 

A  feme  covert  was  entitled  to  a  reversionary  in- 
terest in  a  sum  of  money  vested  in  her  husband  and 
another  as  trustees.  By  deed,  expressed  to  be  made 
between  the  tenant  for  life  of  the  one  part  and  the 
trustees  (including  the  husband)  of  the  other  part, 
the  tenant  for  life,  who  alone  executed  the  deed, 
declared  that  the  trustees  should  hold  the  fiind  on 
certain  modified  trusts,  whereby  the  wife's  rever- 
sionary interest  was  made  subject  to  her  power  of 
appointment  by  deed  or  will.  The  wife  died,  leav- 
ing her  husband  surviving,  having  appointed  the 
reversionary  interest  away  from  her  husband.  The 
husband  afterwards  died,  and  the  reversionary  in- 
terest subsequently  came  into  possession.  The 
Court  considered  tnat,  under  the  circumstances,  the 
husband  ought  to  be  deemed  to  have  acquiesced  in 
the  arrangement,  and  accepted  the  trusts  for  the 
benefit  of  the  wife's  appointees ;  and  held  that  the 
appointees  of  the  wife  were  entitled  as  against  the 
representative*  of  the  husband.  Intnan  v.  Whitley, 
7  Bea.  887. 

A  B,  bv  his  will,  devised  his  freehold  estates  to 
his  wife  Martha  for  life,  and  subject  thereto,  he 
devised  the  same  to  Martha,  and  her  heirs,  in  trust 
to  be  divided  to  and  among  all  his  children  who 
should  be  living  at  the  death  of  Martha,  in  such 
shares,  &c.  as  Martha  should  by  will  appoint.  In 
December  1824  Martha  purchased  of  the  children 
their  reversionary  interests  in  the  estates  at  an 
undervalue.  In  June  1827  Martha  died,  having 
deviled  all  her  real  estates  to  B.  Tunttall  in  fee, 
subject  to  a  charge  of  2,000/.  and  other  incum- 
brances. In  1838  Hill,  who  had  married  one  of  the 
daughters  of  the  testator,  and  had  joined  in  the 
i^i/fivfryance  to  Martha,  became  insolvent;  and  in 
isnuAry  1842  the  creditors'  assignee  under  the  in- 
•//(r^m/tv  fil^^d  his  bill  against  B.  Tunstall,  to  set 
*«H#  tb«  trsn«actton  of  December  1824,  on  the 
yf',-iT'i  fff  it«  luring  a  purchase  by  a  trustee  from 
ft*f  f.*»iMi  que  trust,  while  the  influence  was  sub- 


sisting, of  her  revenionary  interests  at  a  gross 
undervalue :  —Held,  that  though  the  vendor  would 
have  had  a  right  to  rescind  the  transaction,  if 
reoent,  yet  the  unexplained  acquiescence  of  more 
than  fifteen  years,  from  the  death  of  Martha  to  the 
filing  of  the  bill,  amounted  to  a  waiver  of  that  right : 
and  that  in  the  absence  of  fraud,  &c.  the  poverty  of 
the  vendor  during  the  whole  of  that  period  was  no 
sufficient  excuse  for  the  delay.  Roberts  v.  TmuteM^ 
14  Law  J.  Rep.  (v.s.)  Ch.  184;  4  Hare,  257. 

[And  see  Price  v.  Blackemore,  title  Tltist  and 
Trustee.] 


ACTION. 

(A)  Week  maintainablk. 

(B)  Pabtibs  to  Actiovs. 

(C)  Form  of  Action. 

(D)  Notice  op  Action. 
(a)  When  necessary, 

(6)  Form  and  Requisites  qf, 
(e)  Service  of. 

(£)  Consolidation  of  Actions. 


(A)  When  uaintainablb. 

Where  a  oanal  act  provided  as  a  aecurity  against 
injury  by  mining  works  being  carried  too  near  the 
canal  works,  that  forty  yards  should  be  left  un worked, 
and  when  the  mines  were  working,  to  be  within  that 
limit;  and  that  compensation  should  be  paid  by  the 
company  to  the  mine  owners,  the  amount  to  be 
ascertained  by  an  issue  at  law: — Held,  that  a  feigned 
issue  was  the  only  remedy,  and  that  he  was  not  en- 
titled to  proceed  by  action  at  law.  Fenton  v.  the  Treni 
and  Mersey  Canal  Company,  9  M.  &  W.  208. 

An  action  is  maintainable  for  damages  against  a 
party  under  a  legsl  obligation  to  perform  a  minia- 
teriid  duty,  for  refusing  to  nerform  it,  and  although 
he  may  also  have  judicial  functions  to  perform; 
and  where  several  are  jointly  bound  so  to  do,  and 
they  are  liable  jointly  and  severally  for  such  reftisal, 
(as,  where  a  presbytery  in  Scotland  refused  to  take 
a  presentee  on  bis  trials,  a  ministerial  act  which 
they  were  bound  to  perform,)  thev  are  liable  in  an 
action,  either  individually  or  collectively ;  and  in 
such  action  no  allegation  of  malice  held  neoeaaary. 
Ferguson  v.  Kinnoull  (Earl),  9  C.  &  F.  251. 

A  declaration  in  case  alleged  that  A  employed 
B  88  a  broker,  to  sell  and  deliver  oil,  on  the  terms 
contained  in  such  contracts  of  sale  as  should  he 
made  with  persons  who  should  become  purchaaers 
thereof,  for  reasonable  commission  to  B ;  that  B 
accepted  the  employment,  and  sold  oil  to  C  on  the 
terms  of  payment  on  delivery;  that  it  thereupon 
became  the  duty  of  B  not  to  deliver  the  oil  without 
payment ;  and  that  B  delivered  the  oil  to  C,  bat 
did  not  obtain  payment,  whereby  the  plaintiff  waa 
damnified : — Held,  that  this  declaration  set  forth  a 
good  cause  of  action  ;  that  the  duty  of  B  arose  out 
of  the  contract ;  and  that,  after  verdict,  judgment 
could  not  be  arrested.  Brown  v.  Boormard,  11  C. 
&F.1. 

Where  G  bought  cotton  goods  of  the  plaintifia 
to  the  amount  of  816/.  and  they  were  aftierwarda 
sold  by  R  to  the  defendants  for  5892.,  and  no  trana- 
actions  were  shewn  between  G  and  R : — Held,  that 
the  connexion  between  the  plaintiffs  and  defendants 


ACTION. 


was  too  remote  to  raSse  a  cauie  of  action,  unless  the 
jary  were  convinced  that  G  obtained  the  goods 
originally  by  frand,  and  that  the  defendants  bought 
them  under  circumstances  from  which  they  must 
have  known  that  the  goods  were  so  obtained.  Shep- 
pardw.Sk»Ubred,CBX,&U.6\. 

Where  the  defendants  erected  buildings  on  land 
of  a  corporation  adjoining  the  plaintiff's  markett 
ooeasioning  a  nuisance  and  obstruction  thereto : — 
field,  that  being  originally  liable  for  the  ii^jurious 
consequences  by  the  wrongful  act  of  erecting,  an 
action  for  continuing  the  nuisance  was  maintainable, 
although  they  were  not  in  possession  nor  interested 
in  the  soil  whereon  the  building  had  been  erected, 
and  although  subject  to  an  action  of  trespass  for 
entering  on  the  land  to  remove  it.  Thompson  ▼.  Gib- 
son, 10  Law  J.  Rep.  (m.8.)  E&ch.  830 ;  7  M.  &  W. 
457. 

A,  a  bankrupt,  in  order  to  induce  B,  a  creditor, 
to  sign  his  certificate,  paid  him  a  certain  sum  at  the 
time  of  signing  it,  and  gave  him  a  prom issoiy  note 
for  a  further  sum,  which  was  aAerwards  paid.  A 
afterwards  made  a  demand  upon  B  for  the  sura  so 
paid  him,  upon  which  B,  before  any  action  brought, 
paid  both  sums  over  to  A's  assignees.  In  an  action 
by  A  against  B  : — Held,  that  the  payment  to  the 
aasignees  was  a  good  answer  {  and  A  was  not  en- 
titled to  recover.  Sievert  v.  BowpeU^  1 1  Law  J.  Rep. 
<ir.8.)C.P.  14;  8  M.&6.524;  4  Sc.  (N.fl.)  165. 

No  action  can  be  maintained  against  one  of  se- 
weral  covenantors  that  some  or  one  of  them  would 
pay  a  certain  sum  to  the  plaintiff  Harrison  v. 
Maiiktwt,  2  Dowl.  P.C.(m.8.)  818. 

Where,  the  plaintifik  being  mortgagees  in  pos- 
■earion  of  eollieries,  and  about  to  sell  under  the 
powers  in  the  mortgage,  the  defendants,  being  sub- 
sequent mortgagees,  agreed,  in  consideration  of  the 
plaintifTs  postponing  the  sale,  to  enter  into  a  deed 
of  covenant  for  payment  of  the  debt  due  to  plaintifis 
by  instalments,  and  on  payment  of  the  first  instal- 
ment the  whole  property  to  be  conveyed  to  the 
defendanta,  and  who  were  to  be  let  into  possession 
amd  have  a  proper  authority  to  collect  the  debts, 
&c : — Held,  that  as  the  relation  in  which  the  parties 
stood  did  not  make  it  the  duty  of  the  plaintiib  of 
making  out  a  title  before  the  execution  of  the  deed 
of  covenant,  the  plaintiils  might  maintain  an  action 
for  breach  of  the  agreement  to  execute  such  deed ; 
and  that  the  allegation  in  the  declaration,  of  the 
plaintiA  being  about  to  sell  their  interest  in  the 
collieries  under  a  power  lawfully  authorizing  them 
in  that  behalf,  was  not  repugnant,  but  was  to  be 
construed  with  reference  to  the  subject-matter,  and 
not  in  a  strict  and  artificial  sense.  HallewellY,  Mor- 
reii,  1  M.  &  0. 867 ;  1  Sc  (v.a.)  809. 

An  act  of  parliament  enacted,  that  certain  com- 
missioners might  sue  and  be  sued  in  the  name  of 
their  clerk,  and  that  all  actions  brought  for  the  re- 
covery of  any  penalty  or  sum  of  money  due  or  pay- 
able by  virtue  of  the  Act,  or  for  any  other  matter 
or  thing  relating  to  the  Act,  might  be  brought  in 
the  name  of  the  clerk : — Held,  that  the  clerk  might 
sue  for  the  recovery  of  the  rates  and  duties  payable 
to  the  commissioners,  although  the  right  of  distrain- 
ing and  of  detaining  vessels  in  respect  of  which  they 
were  demanded,  was  also  given  by  the  Act  Ooodff 
V.  Penny,  1 1  Law  J.  Rep.  (M.8.)  Exch.  289  ;  9  M.  & 
W.  687. 


An  action  of  assumpsit  or  debt  may  be  main- 
tained against  a  defendant  resident  in  this  countryi 
for  the  costs  awarded  against  him  after  appearance, 
by  a  decree  of  the  Court  of  Session  in  Scotland,  in 
a  suit  for  a  divorce.  RutuU  v.  Smyth,  1 1  Law  J. 
Rep.  (n.s.) Exch. 308;  9M.&W.810;  IDowLP.C. 
(V.S.)  929. 

The  sequestrator  of  a  benefice,  appointed  by  the 
bishop  under  a  writ  of  gequeitrari  facias,  is  the  mere 
bailiff  or  agent  of  the  bishop,  and  has  not  such  an 
interest  in  the  profits  as  will  entitle  him  to  maintain 
an  action  at  law  against  a  person  who  wrongfully 
receives  tbeuL  HareUng  v.  HaU,  1 1  Law  J.  Rep.  (n.8.) 
Kxch.854;  10M.&W.42. 

Upon  a  sale  of  goods,  where  no  warranty  is  taken 
by  the  purchaser,  he  cannot  recover  in  an  action 
upon  a  representation  made  by  the  vendor  as  to  tlie 
quality  of  the  gooda,  which  turns  out  to  be  false  in 
fact,  unless  it  be  shewn  that  such  representation  was 
false  to  the  knowledge  of  the  seller  of  the  goods,  or 
that  he  acted  fraudulently  in  making  the  represen- 
tation. Onnro4  v.  Ruth,  (in  error,)  14  Law  J.  Rep. 
(n.s.)  Exch.  306. 

No  action  lies  against  a  Justice  for  words  spoken 
as  to  the  credit  given  by  him  to  a  witness,  in  pro- 
nouncing j udgment  in  the  case.  KendUhm  v.  M<Utby, 
2M.&R.4d8. 

No  action  can  be  maintained  against  a  certificated 
special  pleader  for  negligence  or  unskilfulness. 
Perring  v.  Rebutter,  2  M.  &  K.  429. 

Where  defendant,  a  builder,  contracted  to  make 
certain  alterations  in  a  club-house,  together  with 
necessary  gas- fittings,  and  employed  a  gas-fitter  for 
the  latter  porpoae  under  a  sub-contract;  and  during 
the  progress  of  the  work,  the  gas,  thfough  the  neg- 
ligence of  the  gas-fitter,  exploded,  and  injured  the 
plaintiff,  a  servant  in  the  club-house : — Held,  that 
no  action  for  the  injury  could  be  maintained  against 
the  defendant  for  the  negligence  of  the  gas-fitter,  he 
being  a  sub-contractor,  and  not  the  servant  of  the 
defendant.  Rapson  v.  Cubitt,  11  Law  J.  Rep.  (n.s.) 
Exch.  271;  9M.&W.710;  Car.&M.64. 

Where  the  defendant's  coachman,  in  order  to  pass 
with  his  master's  carriage,  got  off  the  box  in  a  nar. 
row  street  obstructed  by  the  plaintiff's  van,  and  took 
the  plaintiff's  horse  by  the  head  to  move  him,  when, 
by  the  motion  of  the  van,  a  package  fell  off  and 
occasioned  damage: — Held,  that  defgidant  was  liable 
for  the  injury.     Lamb  v.  Polk,  9  Car.  &  P.  622. 

The  owner  of  a  barge  on  the  Thames,  navigated 
according  to  the  provisions  of  the  Watermen's  Com- 
pany's Act,  by  freemen  or  apprentices  of  that  com- 
pany (himself  not  being  a  freeman),  is  liable  for 
injury  occasioned  by  Sie  barge  in  the  course  of 
navigation.  Martin  v.  Temperley,  12  Law  J.  Rep. 
(N.8.)  aB.  129 ;  4  aB.  298 ;  8  O.  &  D.  497. 

A  physician  cannot  maintain  an  action  for  his 
fees,  unless  he  can  shew,  or  a  jury  will  infer,  an 
express  contract  for  remuneration.  Mere  atten- 
dance upon  request  does  not  constitute  such  a  con- 
tract ^eitch  V.  Russtll,  12  Law  J.  Rep.  (n.8.)  Q.B. 
18;  Car.  &M.  862. 

Where  the  plaintiff  practised  both  aa  a  physician 
and  aurgeon,  and  on  a  caae  occurring  in  which  the 
advice  of  a  physician  was  considered  necessary,  as 
well  as  the  aid  of  a  surgeon,  he  was  called  in,  and 
it  appeared  in  evidence  that  he  had  performed  for 
his  patient  some  services  which  usually  are  in  the 


8 


ACTION, 


province  of  a  torgeon :— -Held,  that  he  wm  entitled 
to  recover  for  any  work  done  as  a  stugeoii.  BatUr^ 
V.  Lau/r^met^  Car.  &  M.  277. 

A  declaration  stated,  that  the  defendant  fraudu- 
lently prepared  boxes  of  articles  termed  nnediclne 
in  imitation  of  medicines  sold  by  the  plaintiffs,  and 
caused  the  said  boxes  to  be  wrapped  in  papers, 
bearing  the  same  inscriptions  as  the  boxes  of  the 
plaxntiib,  in  order  to  denote  that  such  medicine 
was  the  genuine  medicine  prepared  and  sold  by  tlie 
plaintifEB,  and  that  he  "  fimudolently  aold  the  said 
boxes  of  such  articles,  so  represented  and  termed 
by  him  to  be  medicines,  by  tne  name  and  descrip- 
tion of  Morison's  Universal  Medicines,  which  had 
been  prepared,  vended,  and  sold  by  the  plaintiffii :" 
— Held,  in  arrest  of  judgment,  that  the  declaration 
shewed  a  good  cause  of  action,  though  it  contained 
no  allegation  that  the  medicines  sold  by  the  defendant 
were  of  inferior  quality  to  those  sold  by  the  plaintifi, 
and  though  the  plaintiffii  alleged  no  patent  right  in  the 
medicines  imitated.  Moritam  v.  Salmon^  10  Law  J. 
Ilep.(M.a.)C.P.91;  2M.&0.385. 

An  action  is  maintainable  against  a  party  for 
conducting  himself  so  negligently,  in  pulUng  down 
his  house,  and  neglecting  to  take  proper  precau* 
tions  in  that  behaU',  tiiat  bricks  and  mortar,  &c.  fall 
on  the  adjoining  house,  break  the  windows,  &o.,  and 
do  other  damage.  And  where  the  houses  of  the 
plaintiff  and  defendants  were  separated  by  a  party 
wall, — Held,  that  the  defendants  were  liable  for 
negligence  in  underpinning  their  half  of  the  wall, 
though  it  did  not  appear  that  they  had  eneroaehed 
upon,  or  meddled  in  any  way  with  die  plaintiff's  hal£ 
Bradbee  v.  ih$  Mayor  qf  London,  at  Oooemor  tfChrUCt 
Hotpital,  11  Law  J.  Rep.  (m.s.)  C.P.  209 ;  6  Sc 
(n.8.)  79. 

Where  A  contracted  with  the  Postmaster  General 
to  supply  and  keep  in  order  a  mail  coach,  and  B  was 
engaged  by  certain  other  persons,  who  contracted 
with  the  Postmaster  General  to  horse  it,  to  drive 
the  mail: — Held,  that  B  could  not  maintain  an 
action  against  A  for  an  injury  sustained  by  him 
while  driving  the  coach  by  its  breaking  down  from 
latent  defects  in  its  construction,  although  he  had 
notice  of  the  contract  and  confided  in  it,  he  not 
being  a  party  to  it  WiaUrbotUm  v.  Wrights  1 1  Law 
J.  Rep.  (n.8.)  Exch.  415 ;  10  M.  &  W.  109. 

In  case  for  running  foul  of  plaintiff's  barge,  it 
being  alleged  that  the  injury  arose  from  the  anchor 
of  the  defendant's  ship  being  in  an  improper  posi- 
tion,—Held,  that  if  it  appeu«d  that  the  occurrence 
of  the  accident  arose  from  the  unskilful  navigation 
of  the  plaintiff's  barge,  the  fact  of  the  defendant 
having  violated  the  river  bye-laws  by  the  position  of 
the  anchor  would  not  render  him  liable  for  the  in- 
jury.    SilU  V.  Bromn,  9  Car.  &  P.  601. 

Where  in  an  action  on  the  case  for  dsmage  by 
running  foul  of  the  plaintiff's  vessel,  the  jury 
found  that  there  were  faults  on  either  side : — Held, 
nevertheless,  that  the  plaintiff  was  entitled  to 
recover  unless  the  fault  on  his  side  was  such  as 
tended  to  the  injury.  Rmsin  v.  MUekell,  9  Car.  & 
P.  613. 

Where  the  defendant  received  into  his  care  a  dog, 
for  reward,  which  was  stolen, — Held,  that  he  was 
not  liable  if  he  took  reasonable  care  of  it ;  the  onus 
of  proving  which  Isy  on  him.  Mackenzie  v.  CoXy  9 
Car.  &  P.  632. 


[And  see  Account  Stated— Attobvst--<7oe- 
POBATioN — Goods  Sold  and  Dblivbbbd — In- 
FBEioa  CouET  —  Loan  Socibtibs  —  Monbt 
Counts — Nboliobncb — Nuisance — Pabtnbbi 
— Shbsiff.] 

(B)  Pabties  to  Actions. 

Where  two  persons  sued  jointly  inoase,  for  injury 
sustained  by  the  unlawful  maintenance  of  an  actioa 
of  trespass,  brought  against  them^  and  which  they 
defended  by  one  attorney,  and  the  jury  found  for 
the  plaintifb,  oo&fining  the  damages  to  the  amount 
of  the  attorney's  bill  in  the  former  action : — Held, 
on  motion  in  arrest  of  judgment,  that  the  costs  and 
expenses  incurred  by  the  plaintiffs,  in  their  defence 
in  the  former  action,  constituted  a  joint  damage, 
for  which  they  might  jointly  sue.  PeckeU  v.  Watten^ 

11  Law  J.  Rep.  (n.8.)  Exch.  225 ;  8  M.  &  W.  691. 
Where  a  demise  is  joint,  and  the  covenants  upon 

which  an  action  is  brought  are  made  jointly  with 
both  lessors,  the  cause  of  action  is  joint,  and  both 
covenantees  must  sue,  although  as  between  them- 
selves their  interests  may  be  separate.  Therelbre, 
where  an  indenture  shewed  a  joint  demise  by  S  F 
and  £  M  F,  bis  wife,  and  M  W,  lessors,  to  A,  his 
executors,  administrators,  and  assigns,  and  cove- 
nants entered  into  between  A  of  the  one  part,  and 
£  F  and  £  M  F  and  M  W  joinUy,  of  the  other 
part;  and,  in  an  action  of  covenant  on  the  inden- 
ture, for  the  breach  of  one  of  these  covenants,  the 
declaration  averred,  by  way  of  inducement,  that 
£  M  and  £  F  M,  his  wife,  were  seised  of  an  undi- 
vided moiety  of  the  premises,  which  hsd  descended 
to  the  plaintiff  as  son  and  heir  of  £  FM:— rHeld,  that 
the  action  was  not  maintainable  by  the  plaintiff 
without  the  joinder  of  M  W.    Fofay  v.  Addenbrook*^ 

12  Law  J.  Rep.  (ns)  aS.  163$   5  aB.  197;  3 
G.  &  D.  64. 

Where  a  joint  note  was  given  to  parties  bv  name, 
to  secure  a  loan  advanced  by  a  society  not  mrolled 
under  the  statute ;  held,  that  it  was  not  necessary 
to  join  the  other  members  of  the  society,  it  no- 
where appearing  that  they  were  partners  trading  in 
the  names  of  the  plaiutifi.  Bmoden  v.  HowoU,  4 
Sc  (N.S.)  331 ;  3  M.  &  G.  638. 

In  assumpsit  on  an  attorney's  bill  for  busi- 
ness done  for  three  persons  jointly,  one  of  whom 
pleaded  the  general  issue,  and  the  others  sufieted 
judgment  by  default: — Held,  that  the  jury  must  be 
satisfied  that  the  plaintiff  was  employed  by  all 
three  jointly,  and  that  if  the  one  defendant  was 
solely  liable,  he  ought  to  be  sued  singly,  and  that 
the  plaintiff  could  not  succeed  in  the  joint  action* 
Robeson  v.  Oanderton,  9  Car.  &  P.  476. 

Where  the  plaintiff  entered  into  a  contract  of 
service  aa  foreman  to  three  in  copartnership  for  a 
certain  period,  before  the  expiration  of  which  one 
of  them  retired,  and  the  pluntif^  with  notice  of 
that  fact,  continued  in  the  service  of  the  continuing 
partners  until  they  became  bankrupt,  held,  that  he 
might  sue  all  the  three  on  the  original  contract. 
Dobbin  v.  Foster,  1  Car.  fir  K.  323. 

(C)  Form  op  Action. 

Wherever  there  is  a  contract,  and  something  is 
to  be  done  in  the  course  of  the  employment  which 
is  the  subject  of  that  contract,  if  there  is  a  breach 
of  duty  in  the  course  of  that  employment,   the 


action: 


9 


party  injured  may  recover  either  in  tort  or  in  con- 
tract.    Brown  ▼.  Bocrmard^  1 1  C.  &  F.  1. 

By  an  indenture  made  between  A,  B,  and  C,  of 
the  first,  aeoond,  and  third  parts,  and  the  plaintiff 
and  defendant  of  the  foorih  and  fifth  parts  respect- 
ively, the  defendant  covenanted  with  the  plaintiff 
that  they,  the  defendant,  A,  B,  and  C,  or  one  of 
them,  would  pay  the  plaintiff  300L :— Held,  that 
tiuB  was  a  collateral  covenant,  and  that  the  aetion 
Ibr  the  recorery  of  the  money  ought  to  be  in  cove* 
Bant,  and  not  in  debt  Harriton  v.  Matthe»9%  12 
Law  J.  Rep.  (ir.s.)  Exeh.  30 ;  10  M.  &  W.  768. 

(D)  NoTicA  or  Action. 

The  law  relating  to,  amended  as  to  time  of  notice, 
by  5  &  6  Vict,  c  97,  20  Law  J.  Stat  App.  4. 

(a)  When  neeeuary. 

In  trespass  and  false  imprisonment  against  Jus- 
tices upon  an  illegal  conviction  under  the  Highway 
Act,  5  &  6  Will.  4.  c.  50.  s.  75,  held,  that  the  clause 
giving  twenty-one  days'  notice  of  action,  did  not 
repeal  the  clause  in  24  Geo.  2.  c.  24,  requiring  the 
notice  in  actions  against  Justices  to  be  giren  one 
month  before  the  suing  out  of  the  writ  Rue  v. 
BMton,  4  P.  &  D.  182. 

By  the  Slst  section  of  a  local  act,  5  Geo.  4. 
e;  czxv.  persons  are  compelled,  under  a  penalty,  to 
perform  the  duties  of  overseers,  and  by  section  148, 
no  aetion  is  to  be  commenced  against  any  person 
for  anything  done  in  pursuance  of  the  act  until 
twenty-one  days'  notice  in  writing  has  been  given. 
The  defendants,  as  orerseers  appointed  under  the 
act,  had  assented  to  the  imprisoument  of  a  party  in 
a  woilLhouse,  who  was  incorrectly  supposed  to  haw 
been  a  pauper  and  a  lunatic.  They  had  intended 
to  act  under  9  Geo.  4^  c.  40.  s.  88,  but  had  not 
complied  with  the  provisions  of  that  statute : — Held, 
that  this  was  not  a  thing  done  in  pursuance  of  5 
Geo.  4w  0.  cxzT.  and  that  the  overseers  were  not, 
therefore,  entitled  to  notice.  BlUot  v.  JUen,  14  Law 
J.  Rep.  (N.S.)  C.P.  136 ;  1  M.  G.  &  S.  18. 

Where  in  trespass  against  a  land-tax  com- 
nrissioiier,  the  tax  having  been  redeemed  without 
tfiedeAndant's  knowledge,  the  defendant  pleaded  not 
guilty  by  statute,  and  delivered  particulars  stating 
that  he  intended  to  rely  on  the  38  Oea  3.  c  5.  and 
31  Jac  1.  c  12,  but  at  the  trial  objected  to  the  want 
of  notiee  of  aetion,  under  5  &  6  Will.  4.  c.  2 : — 
Held,  ^at  having  acted  bondjide,  the  defendant  was 
entitled  to  the  proteetion  of  the  latter  act,  and  that 
the  plainti^  not  being  prepared  to  prove  the  delivery 
of  the  particulars,  was  correctly  nonsuited.  Thomat 
▼.  Wmamt,  13  Law  J.  Hep.  (m.s.)  Exoh.  87 ;  1  Dowl. 
ft  L.  P.C.626. 

In  an  aetion  against  a  collector  of  highway  rates 
for  a  balance  in  his  hands  arising  from  a  sale  of 
goods  distrained  for  non-payment  of  rates.  Semhle^ 
that  no  notice  of  action  was  necessary.  CharingUm 
▼.  Joknsm,  14  Law  J.  Rep.  (h.8.)  Bxch.  299 ;  13 
M.  &  W.  856. 

A  party  who  gives  another  into  custody  upon  a 
fair  belief  of  his  having  committed  a  felony  is  not 
entitled  to  notice  of  action  under  the  7  &  8  Geo.  4. 
e.  29 :  that  aet  applies  only  to  constables,  &c.  Breaker 
V.  Field,  9  Car.  &  P.  650. 

By  the  87th  section  of  the  Staleybridge  Act,  9 
Geo.  4.  c.  26,  the  commissioners  appointed  under 

DiOEBT,  1840—1845. 


the  act  are  empowered  to  nominate  a  constable  and 
assistant  constables  '*  for  executing  all  such  war- 
rants, 8eo.  as  die  Justices  of  the  Peace  acting  for 
the  counties  palatine  of  Lancaster  and  Chester,  or 
either  of  them,  shall  from  time  to  time  direct  to 
them  to  be  executed  within  the  town  of  Staley- 
bridge." And  the  179th  section  requires  notice 
of  action  for  "  anything  done  in  pursuance  of  the 
act" : — Held,  that  a  constable  appointed  under  the 
act,  and  directed  by  a  warrant  of  a  Justice  acting 
for  the  counties  pidatine  to  enter  a  house,  and 
search  for  goods  alleged  to  have  been  clandestinely 
removed  there  to  avoid  a  distress  under  the  1 1  Geo. 
2.  0.  19.  s.  37,  is  not  entitled  to  the  notice. of  action 
required  by  the  179th  section  of  the  act  l^atweli 
T.  HiiU,  12  Law  J.  Rep.  (n.s.)  Exch.  74 ;  10  M. 
&  W.  523  ;  2  DowL  P.C.  (w.s.)  567. 

In  trespass  against  the  clerfc  to  a  poor  law  union, 
for  seizing,  &e.  under  2  &  3  Vict.  c.  84.  s.  1,  as  a 
distress,  the  amount  of  a  rate  made  upon  the  parish, 
of  which  the  plaintiff  had  been  appointed  church- 
warden, but  who  had  reftised  to  act  or  interfere  in 
making  the  rate : — Held,  that  the  defendant  was, 
under  sect  104,  entitled  to  notice  of  action.  Carter  v. 
FiUiter,  Car.  &  M.  489. 

By  the  statute  1  Vict  c.  cxix.  the  London  and 
Brighton  Railway  Compaiiy  are  empowered  to 
make  a  railway  from  London  to  Brighton,  and 
to  become  the  carriers  of  passengers  and  goods 
upon  the  line,  receiving  certain  rates  or  tolls 
for  so  doing,  authorized  by  the  act  Other 
persons  are  also  at  liberty  to  become  carriers 
upon  the  line,  upon  pajrment  of  such  rates  and  tolls 
as  shall  be  demanded  by  the  company,  and  autho- 
rised by  Uie  act  By  sect  258,  "  No  action,  suit, 
or  information,  nor  any  other  proceeding,  of  what 
nature  soeveiv  ^all  be  brought,  commenced,  or 
proaeouted  against  any  person,  for  anything  done 
or  omitted  to  be  done  in  pursuance  of  this  act,  or 
in  execution  of  the  powers  or  authorities,  or  any  of 
the  orders  made,  given,  or  directed,  in,  by,  or  under 
tills  act,  unless  twenty-one  days'  previous  notice  in 
writing  shall  be  given  by  the  party  intending  to 
o<Hnmraee  and  prosecute  such  action,  &o.  to  the 
intended  defendant,  nor  unless  such  aetion,  &c. 
riiall  be  brought  or  commenced  within  six  calendar 
months  after  the  act  committed,  or,  in  case  there 
shall  be  a  continuation  of  danuge,  then  within  six 
calendar  months  next  after  the  doing  or  committing 
such  damage  shall  have  ceased,  nor  unless  such 
action  shall  be  brought  in  the  county,  &c.  where 
the  matter  in  dispute  or  cause  of  action  shall  arise,* ' 
&a  The  company  had  themselves  become  carriers 
upon  the  line.  In  sn  action  against  the  company,  as 
owners  and  proprietors  of  Sie  railway,  for  not 
safely  carrying  and  conveying  the  plaintiff  in  one 
of  their  carriages  upon  the  railway,  whereby  the 
plaintiff  was  much  wounded  and  injured,  &c. : — 
Held,  that  they  were  not  entitled  to  notice  of  action, 
as  for  a  thing  done  or  omitted  to  be  done  in  pursu- 
ance of  the  act.  Carpue  v.  the  Louden  and  Brighton 
Rtdhaay  Company ^  13  Law  J.  Rep.  (n.8.)  Q.B.  133. 

Where  a  landlord,  finding  persons  on  the  pre- 
mises of  his  tenant,  pulling  down  and  cutting  away 
them  aterials,  gave  them  in  charge  for  felony,  under 
7  &  8  Geo.  4.  c.  29.  a.  44,  and  Uie  jury  found  that 
he  bond  fide  intended  to  act  in  pursuance  oi'  the 
statute  :^Held,  that  he  was  entitled  to  the  month's 


10 


ACTION— ADMINISTRATION. 


notice  of  action,  and  in  default  thereof,  to  the  ver- 
dict    Rudd  V.  Scott,  2  Sc.  (n.s.)  631. 

A  had  communicated  to  B  &  Co.,  who  were 
distillers,  a  method  of  rectifying  spirits,  and  they 
were  to  pay  him  an  annuity  and  6d,  a  gallon  on  all 
spirits  rectified  hy  his  method,  and  to  keep  an 
account.  A  having  a  sum  due  to  him,  B  &  Co. 
offered  to  pay  it  at  their  solicitor's  office,  and  to 
produce  the  account  there.  A  sent  to  B  &  Co.  a 
letter,  stating  that  he  should  come  to  the  distillery 
for  a  sight  of  the  account  and  for  payment ;  to 
which  G,  one  of  the  firm  of  B  &  Co.,  replied  hy 
letter,  stating  that  if  A  came  to  the  distillery,  and 
either  rang  or  knocked,  he  would  he  punished,  &c. 
A  went  to  the  distillery,  (which  was  within  the 
Metropolitan  Police  district)  and  gentiv  rang  the 
hell,  when  H,  who  was  the  cashier  of  the  firm, 
gave  A  into  the  custody  of  a  policeman  on  a 
charge  of  having  rung  the  bell,  contrary  to  the 
45th  section  of  the  Police  Act,  2  &  8  Vict  o.  47. 
— Held,  in  an  action  for  false  imprisonment  by  A 
against  G  and  H,  that  this  was  not  a  case  within 
that  act,  and  that  G  and  H  were  not  justified  under 
that  act,  and  were  not  entitled  to  notice  of  action. 
Hotne  V.  Grimble,  Car.  &  M.  17. 

(6)  Form  and  Requisites  qf. 

The  statute  24  Geo.  2.  c.  44,  which  requires  that 
in  a  notice  of  action  to  Justices  "  shall  be  clearly 
and  explicitly  contained  the  cause  of  action,"  is  not 
complied  with,  if  the  notice  omit  to  state  the  place 
where  the  act  complained  of  was  done.  The  defect 
is  not  cured  by  tender  of  amends.  Martins  v.  Upeher, 
1 1  Law  J.  Itep.  (n.s.)  Q.B.  291  ;  1  Dowl.  n.s.  556. 

A  notice  of  action  to  a  magistrate  signed  by  the 
plaintiff  himself,  but  indorsed  by  his  attorney,  is 
sufiScient  under  24  Geo.  2.  c.  44.  s.  1.  Morgan  v. 
Leach,  12  Law  J.  Rep.  (n.s.)  M.C.  4 ;  10  M.  & 
W.  558,-  2  Dowl.  P.C.(N.8.)522. 

Under  the  10  Geo.  4.  o.  44,  which  requlies  **  that 
notice  in  writing  of  such  action,  and  of  the  cause 
thereof,  shall  be  given  to  the  defendant,"  &c.,  a 
notice  omitting  to  state  either  the  time  or  place  of 
the  committing  of  the  act  complained  of,  is  insufiS- 
cient  The  meaning  of  the  provisions  of  10  Geo. 
4.  c.  44,  and  of  24  Geo.  2.  c.  44,  in  this  respect,  is 
substantially  the  same,  and  the  same  effect  is  to  be 
given  to  both.  Breese  v.  Jerdein,  12  Law  J.  Rep. 
(N.s.)  Q.B.  234;  4  as.  585. 

A  notice  of  action  against  a  magistrate,  for 
causing  the  plaintiff  to  be  falsely  imprisoned,  is 
sufficient,  although  it  does  not  state  when  the 
defendant  did  the  first  act  leading  to  the  imprison- 
ment, nor  the  form  of  the  action  about  to  be  com- 
menced.    Prickett  v.  Gratrex,  1  Car.  &  K.  651. 

(c)  Service  of. 

Service  of  notice  of  action  to  a  magistrate  by  the 
attorney's  clerk, — Held,  equivalent  to  service  by 
the  attorney  himself.  Morgan  v.  Leech,  12  Law  Jj 
Rep.  (N.s.)  M.C.  4;  10  M.  &  W.  558;  2  Dowl. 
P.C.  (n.s.)  522. 

Where  the  witness  who  served  a  notice  of  action 
did  not  know  the  handwriting  of  the  plaintiff,  whose 
signature  the  notice  purported  to  bear;  and  no 
evidence  was  given  of  the  plaintiff's  handwriting : 
Held,  sufficient,  as  it  was  a  notice  served  on  tlie 
plaintiff's  behalf.   Forman  v.  Dames,  Car.  &  M.  127. 


(£)  Consolidation  ov  Actiomb. 

Where  ten  actions  were  brought  against  the 
commanders  of  different  vessels  for  various  small 
sums,  alleged  to  be  due  from  them  individually 
for  tolls,  port  dues,  anchorage,  buoyage,  and 
other  duties,  in  respect  of  their  ships: — Held, 
that  the  Court  had  no  power,  without  the  conaent 
of  the  plaintiffii,  to  consolidate  the  actions  at  tho 
request  of  the  defendanta,  though  it  was  sworn  that 
the  question  in  dispute  was,  whether  the  plaintifib 
had  any  right  to  demand  these  tolls,  &c.,  and  that 
the  trial  of  any  one  action  would  decide  it  The 
Corporation  qf  Saltash  v.  Jacknum,  13  Law  J.  Rep. 
(N.s.)  as.  105  ;  1  DowL  &  L.  P.C.  851. 


ADMINISTRATION. 
[See  EzBCUTOK  and  Administratqe — Stamp.] 

!A)  When  and  to  whom  g&antbd. 
B)  Limited. 
(C)  Bond. 


(A)  When  and  to  whom  o&amtsd. 

General  grant  of  administration  to  a  stranger  for 
carrying  on  a  suit  in  equity,  rejected,  though  re^ 
quired  by  the  Court  of  Chancery.     In  ike  goods  of 
Chanter,  I  Robert.  273. 

Where  no  personal  service  of  the  citation  had 
been  made  on  parties  having  prior  title  to  the  admin- 
istration, the  grant  being  prayed  by  the  official  as- 
signee of  the  deceased,  a  bankiupt,  the  Court 
refused  to  dispense  with  the  rule  for  justifying  the 
security.    Belcher  v.  Maherly,  2  Curt.  629. 

Where  testator  died  in  1801,  leaving  bona  notabiUa; 
and  probate  was  taken  in  the  Archdeaconry  Court  of 
Bucks  under  5,000Z.,  and  the  property  nearly  all 
administered, — motion  for  administration,  with  the 
will  annexed,  of  the  unadministered  effects,  to  be 
granted  by  the  Prerogative  Court,  under  lOOL,  re- 
jected, the  original  grant  being  void,  and  the 
whole  effects  unadministered.  In  the  goods  of 
Hogg,  3  Curt  61. 

Administration  of  the  effects  of  a  former  wife  re- 
fused to  the  representative  of  a  second  wife,  who 
had  taken  out  administration  to  her  husband,  the 
next-of-kin  of  the  husband  not  having  been  cited. 
In  the  goods  of  Sower  by,  2  Curt  852. 

One  of  two  joint  administrators  having  become 
imbecile,  and  incapable  of  acting,  ordered,  that  the 
joint  letters  of  administration  (brought  into  the 
registry)  be  revoked,  and  special  letters  of  adminis- 
tration j^ranted  to  the  same  administrators.  In  the 
goods  qf  Newton,  3  Curt.  428. 

If  a  party  be  entitled  to  a  grant  in  a  superior,  the 
Court  will  not  make  the  grant  to  such  person  in  an 
inferior  character ;  and  administradon  with  the  will 
annexed  to  the  executor  in  the  character  of  a  resi- 
duary legatee  rejected.  In  the  goods  of  BuUock, 
1  Robert.  275. 

Administration  granted  to  the  brother  of  an  intes- 
tate in  preference  to  the  widow.  ChappeU  v.  ChappeU, 
3  Curt  429. 

Motion,  for  administration  with  the  will  annexed 
to  the  attorney  of  a  residuary  legatee,   a  married 


ADMINISTRATION-ADMINISTRATION  OF  ESTATE. 


11 


woman,  upon  ber  proxy  alone,  her  husband  refusing 
to  join,  rejected.     Bubbert  v.  Harhy,  3  Curt  50. 

Wherea  niinor,executor,e1ected  hi88tepmother,the 
widow  of  the  testator,  his  guardian,  for  the  purpose 
of  taking  administration  with  the  will  annexed,  for 
his  use  and  benefit,  such  administration  was  granted 
to  her,  under  the  circumstances,  without  citing 
those  having  a  prior  claim.  In  the  good*  of 
Widger,  3  Curt  55, 

Administration,  with  will  annexed,  de  bonis  non, 
granted  to  the  executors  of  a  sister,  the  adminis- 
tratrix deceased,  for  the  use  and  benefit  of  the  sur- 
viving sister,  the  sole  next-of-kin,  during  her 
imbecility,  without  citing  her  next-of-kin.  In  the 
goods  of  Somthmeod,  3  Curt  28. 

Administration  with  the  will  annexed  (the  execu- 
tors and  residuary  legatees  intrust  havingrenounced ), 
granted  to  the  attorney  of  the  g^uardian  of  the  sole 
legatee,  a  minor,  in  preference  to  the  attorney  of  a 
creditor.     Graham  v.  Maciean,  2  Curt  659. 

(B)  Limited. 

Administration  to  an  intestate's  estate  is  taken 
out  by  Mrs.  B,  whose  husband  acts  for  her  and  by 
Dixon.  Mr.  B  and  Dixon  distribute  the  estate, 
and  pay  the  afaaie  of  the  plaintiff  one  of  the  next- 
of-kin,  who  is  abroad,  into  a  bank  in  their  names, 
omitting  Mrs.  B's  name.  Mr.  B  dies,  whereupon 
Dixon  draws  out  the  money,  and  spends  it  He 
tben  dies,  and  a  bill  is  filed  by  the  plaintiff,  for  an 
account  of  assets  received  by  Mrs.  B  and  her  hus- 
band and  Dixon: — Held,  that  an  administration 
od  Utem  U>  Dixon's  estate  is  not  sufiicient,  but  that  it 
it  is  necessary  to  have  a  general  administration. 
CUmgh  V.  Bond,  11  Law  J.  Rep.  (n.s.)  Ch.  52. 

Pending  a  litigation  in  a  Spanish  court,  as  to 
which  of  two  testamentary  papers  of  a  deceased 
Spaniard,  ought  to  be  established,  the  plaintiff,  who 
was  reiddent  in  Spain,  was  appointed,  by  the 
Spanish  court,  tiie  judicial  administrator  of  the 
deceased's  goods;  and  the  plaintiff,  under  the  au- 
thority of  that  Court,  afterwards  appointed  the  de- 
fendant to  be  his  attorney  to  recover  and  receive 
10,000/.,  due  to  the  deceased's  estate  from  C.  & 
Co.,  of  London.  The  defendant,  after  litigation, 
in  the  Prerogative  Court  of  Canterbury,  with  one  of 
tbe  parties  to  the  Spanish  suit,  obtained  letters  of 
administration  to  the  deceased,  to  be  granted  to  him 
as  the  plaintiff^s  attorney,  limited  to  receive  10,000/., 
until  the  plaintiff  should  obtain  administration  to 
the  deceased.  The  defendant  afterwards  received 
the  10,000/.:— Held,  that  he  might  safely  pay  it 
over  to  the  plainti^  although  he  bad  not  obtained 
administration  to  the  deceased.  De  ia  Viesca  v. 
Ubboek,  10  Sim.  629. 

A  devised  his  real  and  personal  estate  charged 
with  the  payment  of  his  debts  to  B,  whom  he 
appointed  his  executor,  and  B  devised  them  to  C, 
whom  he  appointed  his  executor,  upon  trust  for  the 
payment  of  his  own  and  A*s  debts.  After  the  death 
of  A  and  B  a  bill  was  filed  on  behalf  of  the  creditors 
of  A  against  C  and  D,  charging  that,  by  collusion 
between  C  and  D,  the  latter  had  fraudulentiy  ob- 
tained large  sums  of  money  arising  from  the  real 
and  personal  estate  of  A,  and  prajring  that  the 
trsnsactions  between  C  and  D  might  be  set  aside, 
and  for  the  due  administration  of  A's  estate.  There 
were  also  some  charges  of  misapplication  of  A's 


assets  by  B,  and  the  bill  prayed  that  B's  estate 
might  be  charged  with  the  losses  occasioned  thereby. 
To  this  bill  (D  having  refused  probate  of  B's  will) 
a  person  was  made  a  defendant  who  had  obtained  a 
grant  of  letters  of  administration  of  B's  estate,  autho- 
rizing him  to  attend,  supply,  substantiate,  and  con- 
firm the  proceedings  which  had  been  already  had, 
or  which  might  be  had  in  the  suit,  until  a  final 
decree  should  be  had  : — Held,  that  B's  estate  was 
sufficiently  represented  in  the  suit  by  this  adminis- 
trator.    EUiee  V.  Goodson,  2  Coll.  C.C.  4. 

Administration,  with  the  will  annexed,  granted 
to  the  joint  nominees  of  two  charitable  institutions, 
to  whom  legacies,  expectant  on  life  interests,  had 
been  bequeathed,  but  limited  to  a  fund  appropriated 
for  payment  of  the  legacies,  the  parties  entitled  to  a 
general  grant  having  been  cited,  and  not  appearing. 
In  tJie  goods  qfBion,  8  Curt  7S9. 

(C)  BOWD. 

Where  no  proceedings  have  been  taken  to  put  an 
administration  bond  in  suit,  a  sum  due  from  the 
administrator  at  his  death  to  the  estate  of  the  intes- 
tate is  not  a  specialty  debt  Parker  v.  Koang,  and 
Parker  y,  BtOpett,  12  Law  J.  Rep.  (n.s.)  Ch.  835;  6 
Bea.  261. 

The  writ  of  inquiry  on  an  administration  bond, 
breaches  having  been  assigned,  and  j  udgmentsufiered 
by  default,  allowed  to  be  executed  before  a  Judge, 
but  the  rule  only  granted  nisi.  Canterbury  (Arch' 
bishop)  V.  BurUngton,  1  Dowl.  P.C.  (n.s.)  285. 


ADMINISTRATION  OF  ESTATE. 

(A)  In  general. 

(B)  Under  the  Court. 

(C)  Marshalling  Assets. 


(A)  In  general. 

A  joint  creditor  of  a  partnership  is  entitied  to 
sustain  a  bill  for  the  administration  in  one  suit  of 
the  real  and  personal  estates  of  several  deceased 
partners,  against  their  representatives  and  the  sur- 
viving partners.  Brown  v.  WetUherby,  10  Law  J. 
Rep.  (n.s.)  Ch.  190;  10  Sim.  125. 

(B)  Under  the  Court. 

The  joint  creditors  of  a  partnership  are  not  en- 
titied to  have  the  separate  estate  of  a  deceased  part- 
ner applied  in  payment  of  their  joint  debts,  until 
the  separate  creditors  of  such  deceased  partners  are 
paid. 

A  joint  creditor  of  a  partnership  is  entitied  to  a 
decree  in  one  suit,  on  behalf  of  himself  and  all 
other  creditors,  against  the  representatives  of  several 
deceased  partners  and  the  surviving  partners,  for 
the  administration  of  estates  of  all  the  deceased 
partners.  Brown  v.  Douglas^  10  Law  J.  Rep.  (n.8.) 
Ch.l4;  11  Sim.  288. 

A  testator  seised  of  real  estate,  and  possessed  of 
leasehold  and  other  personal  estate,  devised  and  be- 
queathed the  whole  to  trustees  to  make  sale  of  and 
get  in  all  his  real  and  personal  estate,  and  out  of 
the  produce  to  pay  his  funeral  expenses,  debts,  and 
certain  legacies ;  and  he  bequeathed  the  residue  for 
charitable  purposes.     In  a  suit  to  administer  the 


12 


ADMINISTRATION  OF  ESTATE. 


estate,  it  was  decreed,  thai  tbe  ftmeral  ezpenaes, 
debts,  and  legacies  should  be  paid  oat  of  the  realty, 
the  personal  estate  saTouring  of  realty,  and  the  pure 
personal  estate,  pro  raid.  The  Attorney  Oenerai  t. 
SouthgaUt  12  Law  J.  Rep.  (n.s.)  Cb.  147 ;  12  Sim.  77. 
(reversing  the  decision  of  the  Vice-Cluuicellor)  10 
Law  J.  Rep.  (n.8.)  Ch.  241.) 

A  person  who  was  a  lunatic  but  had  not  been 
found  to  be  so  by  inquisitfon,  died  seised  of  a  small 
freehold  estate,  bat  not  possessed  of  any  personal 
property.  His  stepfather  had  received  the  rents  of 
the  estate,  and  had  expended  more  than  the  aiAount 
of  them  in  tnaintainitig  the  lunatic ;  he  alto  paid  the 
lunatic's  funeral  expenses : — Held,  that  he  was  not 
entitled,  tmder  8  &  4  Will.  4.  e.  104,  to  be  paid 
either  the  surplus  expenditure,  or  the  amount  of 
the  funeral  expenses  out  of  the  luKatic's  fipeehold 
estate.     Carter  v.  Beard,  10  Sim.  7. 

The  testator,  a  foreigner,  formerly  resident  in 
England,  but  who  died  domiciled  in  Italy,  by  his 
will,  made  in  England,  after  directing  payment  of 
his  debts,  appointed  A  his  executor  in  England  and 
elsewhere,  (except  in  Italy,)  and  B  a  foreigner,  his 
executor  in  Italy  {  and  Uen  bequeathed  to  A  all 
the  residue  of  his  estate  in  England,  &o.,  upon 
trust  to  convert,  &c.,  and  pay  certain  legacies;  and 
to  transmit  the  residue  to  his  executor  in  Italy,  to 
be  by  him  distributed,  together  with  his  property 
in  Italy,  among  all  the  descendants  of  his  two 
sisters  there.  Upon  bill  filed  by  A  for  the  adminis- 
tration of  the  estate,  &c.f  the  Court  refused,  in  the 
first  instance,  to  order  the  residue  in  the  hands  of 
A  to  be  paid  over  to  B  for  him  to  distribute,  on  the 
ground  that  B  was  a  legatee  in  trust,  and  that  the 
cestuis  que  trust  ought  to  be  before  the  Court, 
though  both  the  trustee  and  the  cettuis  que  trust 
were  foreigners  and  residing  abroad.  But  the 
Court  directed  inquiries  before  the  Master,  that  the 
parties  might  raise  a  case  of  inconvenience,  suffi- 
ciently strong  to  induce  the  Court  to  relax  the 
geocral  rule.  Weather  by  v.  &t.  Oiorgio,  12  Law  J. 
R4;p.(N.8.)Ch.412. 

A  bill  was  filed  by  a  creditor  claiming  in  respect 
of  an  admitted  breach  of  trust  against  B  and  the 
representatives  of  S  deceased,  and  it  prayed  that 
the  accounts  might  be  taken,  and  the  real  estate  of 

5  sold  and  applied  in  paying  the  amoont  due  to  the 
plaintiff,  and  the  other  debts.  A  sum  of  money 
was  paid  into  court  in  this  suit,  and  a  decree  was 
made  against  the  assets  of  S,  and  only  accounts 
and  inquiries  were  directed,  a  creditors'  suit  was 
subsequently  instituted  against  the  representatives 
of  S,  and  the  common  decree  made.  The  plaintifis 
in  the  first  suit  claimed  the  fund  in  court  in  priority 
of  the  creditors  in  the  second  s — Held,  however, 
that  after  payment  of  the  costs  of  the  first  suit,  it 
ought  to  be  applied  in  a  due  course  of  adminis- 
tration towards  payment  of  all  the  creditors  of  S. 
Smith  V.  Birch,  Z  Bea.  10. 

Part  of  a  residuary  estate,  settled  on  one  for  life, 
with  remainder  to  her  issue,  consisted  of  life  annu- 
ities and  policies  on  the  lives  for  securing  the  prin- 
cipal money.  The  Court,  seeing  it  fbr  the  benefit 
of  all  parties,  refrained  from  ordering  a  sale,  but 
directed  the  policies  to  be  kept  up,  so  as  to  secure 
the  principal,  and  that  the  surplus  annuities  should 
be  paid  to  the  tenant  for  life.     Glengallv,  Barnard, 

6  Bea.  245. 


Where,  in  an  administradon  toK,  it  is  itfymA 
to  the  Master  to  take  an  aeoount  of  the  debtd;  &c., 
and  claims  are  made  against  the  estate  of  sueh  a 
nature  that  the  Master  cannot  conveniently  dicpoae 
of  them,  application  must  be  made  to  the  Court, 
which  will  either  give  special  direetioas  to  tbe 
Master  to  proceed,  or  direct  a  soit,  actioB,  or  sncfa 
other  proceeding  as  the  exigency  of  the  oase  may 
require.     Lockhart  v.  Hardy,  5  Bea.  805. 

In  an  administration  suit,  the  Coiut  authorised 
the  legal  personal  representative  to  carry  on  nei 
papers  which  formed  part  of  the  assets,  and  a 
tioner  for  that  purpose  furnished  paper  en  credit  z*^ 
Held,  that  he  was  entitled  to  be  paid  oat  of  die 
fund  in  Court  forming  part  of  the  testator's  ostale, 
though  such  estate  was  insufiloient  to  pay  the  ttos- 
tator's  debts.     Tinkler  v.  Hhuhnenreh,  2  Bea.  Ma. 

While  proceedings  were  pending  in  the  Eoclen- 
astical  Court  between  the  husband  of  a  deeeaaed 
lady  and  her  next-of-^kin,  respecting  the  right  to 
administer  to  her  estate,  the  husband  filed  a  hill 
against  the  next-of-kin,  praying  for  a  receiver 
pendente  lite ;  and  also,  that  upon  the  appoinflnent 
of  a  personal  representative,  and  upon  his  hieing 
brought  before  the  Court,  the  rights  of  all  paittes 
might  be  ascertained,  and  the  estate  administeted 
by  the  Court  A  demurrer  to  the  latt^  part  oi  the 
relief  asked  for,  was  allowed.  Baron  de  PemeMree 
V.  Dawes,  1 1  Law  J.  Rep.  (n.s.  )  Ch.  394;  5  Bea.  1  la 

A  party,  beneficially  entitled  td  one*foQrth  of  a 
fund  belonging  to  the  estate  of  a  testator  who  had 
been  dead  150  years,  having  obtained  letters  of 
administration  debonisnon  to  the  testator,  filed  a  bill 
for  an  account  and  payment  of  the  whole  fund.  It 
appearing  that  no  part  of  the  fhnd  in  qnestioo  was 
required  for  the  payment  of  the  testator's  debts, 
but  that  the  beneficial  interest  in  the  other  three 
fourths  had  passed  under  the  residuary  bequest  in 
his  will,  and  had  belonged  successively  to  the  es- 
tate of  several  persons  who  were  named  in  the 
proceedings  but  who  were  not  represented  in  the 
record,  the  Court  ordered  one  fourth  only  to  be  paid 
to  the  plaintiff  and  the  other  three  fourths  to  be 
paid  into  court,  with  liberty  to  anybody  interested 
to  apply,  giving  notice  to  the  Attorney  GoneraL 
Loy  V.  Duckett,  1  Cr.  &  P.  S05. 

In  a  suit  to  administer  an  estate,  where  inquiries 
are  necessary  to  ascertain  a  class  of  persons  bene- 
ficially interested,  the  regular  course  is,  to  direct 
the  inquiry  as  to  such  persons  in  the  first  instance, 
and  not  (until  that  inquiry  is  answered)  to  order 
the  Master  to  proceed  to  take  the  accounts.  It  is 
only  where  the  circumstances  of  the  case  are  such 
as  to  satisfy  the  Court  that  the  persons  interested 
are  parties  to  the  suit,  that  the  Cotirt  wilU  at  the 
hearing,  direct  the  Master  to  proceed  to  take  the 
accounts,  if  he  should  find  the  persons  interested 
are  parties.     B€Jeer  v.  Harwood,  1  Hare,  327. 

Bill  by  equitable  mortgagee,onbehalf  of  himself 
and  all  other  creditors,  to  administer  the  estate  of  the 
testator,  praying  a  sale.  The  devisees  of  the  estate  dis- 
claimed ;  and  the  executorsclaimed  to  retain  debtsdae 
to  them  from  the  testator  out  of  the  assets  come  to 
their  hands.  The  proceeds  of  the  estate  being  insufil- 
oient to  satisfy  the  mortgi^  debt,  and  the  general 
assets  being  insufficient  to  pay  the  coats  of  the  suit : 
— Held,  that  the  mortgagee  was  entitled  to  the  whole 
proceeds  of  the  sale,  without  deduction ;  that  the 


ADMIN ISTRATIOJN  OJP  ESTATE— ADMIRALTY. 


13 


ei«c«toKB  weCf  entUled  to  leUin  their  debt»  and 
libeir  costs  out  of  the  geAeral  Mseta  ia  priority;  that 
the  plaintiff'a  cotta^  a*  joaortgagee,  waa  the  next 
claim ;  and  that  the  aurplus  waa  to  be  a{4}Ued  pre 
raid  to  the  coats  of  the  other  defendanta.  The  dis- 
daimiog  pojtioB  not  entitled  to  costa  as  auch,  being 
proper  parties  at  the  time  of  the  filing  the  bilil 
Tipping  ▼.  Power,  11  Law  J.  Rep.  (n.b.)  Ch.  2-37  ;  1 
Hare,  405. 

la^niriea  of  the  propriety  of  the  proceedings 
proposed  to  be  taken  6>r  the  beneficial  maoagemant 
and  realization  of  the  estate  of  a  testator  or  intes- 
tate will  not  be  directed  in  a  creditors'  suit.  ColMn- 
«mv.  Ballard,  2  Hare,  119. 

Admimstration  of  an  estate,  where  a  creditor  had 
obtained  judgment  upon  a  plea  of  plena  admmUlravii 
by  two  of  the  exacntorst  and  a  confession  of  assets 
to  a  certain  amount  by  another  executorr-^uch 
assets  consisting  of  monf  y  in  the  hands  of  bankers 
net  reached  by  the  execution, — which  the  two  exe- 
cutors preTented  firom  being  paid  upon  the  cheque 
of  the  third  executor  to  the  judgment  creditor,  and 
which  was  afterwards  paid  into  court.  An  execu- 
tor who,  in  an  action  at  law  by  a  creditor  of  the 
testator,  has  pleaded  according  to  the  truth  of  the 
case,  isy  when  the  aasets  are  taken  from  him  and 
administered  in  equity,  entitled  to  the  protection  of 
the  Court  against  any  personal  liability  in  respect 
of  such  plea.     GommI  ▼.  Tayhr,  2  Har^  413. 

Where  it  appeared*  upon  affidavits,  in  an  admin- 
isUration  suit,  that  the  estate  waa  large,  with  but&w 
debts  or  chaigea  thereon,  the  jointure  of  the  widow 
of  the  testator,  and  annuities  given  by  his  will, 
were  ordered  to  be  paid  out  of  the  income  of  the 
estate,  before  decree,  but  the  payment  of  pecuniary 
legacies  was  refused.   Digby  v.  Boycail,  4  Hare,  444. 
The  vendor  of  an  estate  obtained  a  decree  for  specific 
performance,  with  a  declaration  that  if  the  pur- 
chase-money was  not  paid  by  a  given  day,  the  estate 
should  be  sold  and  the  proceeds  paid  in  discharge 
of  priocipal,  interest  and  costs ;  and  that  the  pur- 
chaser should  be  made  personally  liable  in  the  event 
of  any  deficiency.     Before  the  day  of  payment 
arrived  the  purcnaser  died  insolvent,  and  a  credi- 
tors' suit  waa  instituted  for  the  administration  of 
the  as  seta.     The  estate  was  afterwards  sold,  but  the 
proceeds  were  insufficient  to  pay  the  whole  amount 
due  to  the  vendor : — Held,  that  by  the  construction 
of  the  decree  which  rendered  the  purchaser  liable 
only  for  the  deficiency,  the  vendor  was  entitled  to 
prove  in  the  creditors'  suit  for  the  balance  only  of 
nis  debt;  but  temble,  that,  independently  of  the 
decree,  he  would  have  been  entitled  to  prove  for  the 
balance  only,  the  case  of  a  vendor's  lien  being  difier- 
ent  in  this  respect  from  the  case  of  a  mortgagee's 
security.    Xome  v.  r<mng,  4  Y.  &  C.  204. 

The  administrator  ought  not  to  be  sole  plaintifi^ 
in  a  bill  filed  for  administering  the  intestate's  real 
assets.     Tubby  v.  Tubby,  2  Coll.  C.C.  136. 

(C)  Makshallino  Assets. 

Specific  legacies  are  to  be  wholly  applied  in  pay- 
ment of  debta,  where  the  rest  of  the  personal  estate 
is  insufficient,  after  the  applicstion  of  real  estates 
descended,  but  before  the  application  of  any  part 
of  the  devised  real  estates.  Ccrnewall  v.  Cornewall, 
10LawJ.Rep.(N.s.)Ch.864;  12  Sim.  298. 

In  1811  a  creditors'  suit  was  instituted  by  a 


simple  contract  creditor,  the  answers  were  got  in  in 
1820,  the  plaintiff's  debt  was  admitted,  and  there- 
upon the  assets  were  brought  into  court  In  1828 
another  simple  eontract  creditor  obtained  judgment 
against  tiie  extecutora.  J^o  decree  was  made  in  the 
cause  until  1829  ^— Held,  that  the  jndsment  thus 
obtained  had  priority  over  all  the  simple  oontract 
debts,    Larkmu  v.  Potion,  2  Bea.  219. 

The  Court  will  not  marshal  assets  for  the  pur- 
pose of  giving  effect  to  charity  legacies.  PkiUuar 
ikropic  SocHty  v.  Kempf  11  X4aw  J.  Rep.  (m.8.)  Ch. 
3^0;  4  Bea.  681. 

Sen^ble,  that  a  mortgage  for  yeara,  in  which  atet- 
tator  haa  been  in  posaeaaion  for  upwarda  of  twenty 
years  without  receiviBg  interest,  and  without  any 
claim  being  made  in  respect  of  the  equity  of  re- 
demption, ought,  in  the  administration  of  assets,  to 
be  considered  as  leasehold.  Heam  v.  WslU,  1  Coll. 
C.C.  323. 

[And  see  OUffitld  v.  Cobbett,  title  Ii:gunction — 
Infant — Savings  Bank.] 


ADMIRALTY. 

[See  Insuhancb — Mutiny — Prize — Salvage — 
Ship  and  Shipping.] 

(a)  jxtrisdiction  and  authority  op  court. 

(B)  Droits. 

(C)  Appeal  from  High  Court  op  Admiralty. 

(D)  Practice  op  Court. 

(a)  In  generoL 

(b)  Bail. 

(c)  Pleading. 

(d)  Amendment. 

(e)  Coets. 

(£)  Contempt  OP  Court. 


(A)  Jurisdiction  and  Authority  op  Court. 

A  protest  against  the  jurisdiction  of  the  Court  in 
a  cause  of  collision,  upon  the  ground  that  both  the 
vesaels  were  the  property  of  foreign  owners,  and 
the  oollision  occurred  whilst  they  were  in  the  pro- 
secution of  their  respective  voyagea  upon  the  high 
aeas,  overruled.    The  Johan  Friderieh,  1  Rob.  35. 

The  Court  of  Admiralty  has  a  right  to  interpose 
in  suits  for  wages,  promoted  by  foreign  seamen 
against  foreign  vessels. 

Consent  of  foreign  minister  or  consul  not  essen- 
tial to  found  the  jurisdiction  of  the  Court  in  such 
suits  i  butnotioe  of  intended  proceedings  should  be 
given,  in  the  first  instance,  to  the  representative  of 
the  government  to  which  the  vessel  proceeded 
against  belongs.     The  Oolubekick,  1  Rob.  148. 

Upon  the  construction  of  the  act,  5  Oea  4h  c.  1 18. 
s.  71,  and  of  the  treaty  with  Spain,  the  28th  of  June 
1835,  the  Court  of  Admiralty  held  not  to  be  ex- 
cluded by  a  sentence  of  the  Mixed  Commission 
Court  from  considering  the  question  to  whom  the 
bounties  or  the  proceeds  arising  from  the  condemned 
vessel,  belong.     The  Eagle,  1  Rob.  287. 

The  Court  of  Admiralty  possesses  the  same 
discretionary  power  of  varying  its  decrees  as  is 
possessed  by  other  courts  of  £bis  country.  Such 
variations  should  be  confined  to  an  alteration  of  an 
error  arising  from  defect  of  knowledge  or  informa* 


14 


ADMIRALTY. 


tion  upoD  a  partic«i«r,p9int  In  the  case,  and  the 
error  muat  be  brought  to  the  attention  of  the  Court 
with  the  Qtmost  powdhle  diligenee.  The  Mtmareh, 
1  Rob.  21. 

Where  Che  value  of  a  vessel  oondemned  in  a  cause 
of  damage  was  insufficient  to  answer  the  damage, 
and  the  matter  was  a  part  owner;  aemMe^  that  it 
was  not  competent  for  the  Court  to  engraft  upon  a 
proceeding  m  remy  a  penonal  action  against  him  to 
make  good  the  excess  of  damage  bejond  the  pro- 
ceeds of  the  ship.     The  Hope,  1  Rob.  154. 

The  title  conferred  by  the  Court  in  the  exercise 
of  its  aathoricy  in  decreenig-  th^  sale  of  a  ship,  is  a 
BofBeiant  title  agtnnst  the  whole  world*,  and  a  mo- 
nition againat  the  American  consul  to  bring  in  the 
register  of  an  American  tMp,  sold  at  Liver|»o<d  in 
&  tause  of  bottomry,  was  reflMed.  The  IVemmtf 
1  Rob.  163. 

The  power  of  the  Court  of  Admiralty  to  interpose 
for  die  purpose  of  altering  the  possession  of  a  vessel, 
is  confined  to  cas^  where  the  majority  of  interests 
is  with  the  party  invoking  the  Court's  interference; 
and  therefore  a  motion  to  change  the  possession  at 
the  petition  of  a  moiety  of  the  interest  was  rejected. 
2%e  Bti»abeth  and  Jane,  1  Rob.  278. 

(B)  Droits. 

The  proceeds  of  certain  property  taken  out  of  the 
possession  of  convicted  pirates  (the  ownership  in 
such  property  being  unknown),  were  condemned 
as  droits  of  Admiralty;  and  a  monition  calling 
upon  all  persons  having  or  pretending  interest 
therein,  to  shew  cause  why  the  same  should  not  be 
condemned  in  right  of  the  Crown,  refused.  The 
Pafwfa,!  Rob.  423. 

(C)  Appeal  from  High  Court  of  Admiralty. 

An  appeal  lies  flrom  the  decree  of  the  High  Court 
of  Admiralty  upon  questions  of  bounties  for  seizure 
of  slaves,  although  not  provided  for  by  6  Geo.  4. 
c.  1 13.     The  Donna  Barbaroy  3  Hagg.  447. 

(D)  Practice  of  Court. 

(a)  In  generaL 

In  proceedings  in  the  Court  of  Admiral^,  the 
suitor  is  entitl^  to  choose  his  own  mode  of  pro- 
ceeding, whether  by  act  on  petition,  or  by  plea  and 
proof.  Libel  in  a  cause  of  bottomry  was  admitted. 
The  Minerva,  1  Rob.  169. 

On  the  recapture  of  British  ships  by  the  King*s 
ships,  the  valuation  in  future  is  to  be  made  by 
appraisement  without  sale  or  delivery,  except  under 
special  ciroumstances.  Reg,  30th  of  April  1813, 
Priv.  Co.,  8  Hagg.  445. 

Before  the  Court  will  direct  freight  to  be  brought 
in,  it  must  be  satisfied  that  freight  has  actually 
been  recovered.     The  JUne,  1  Rob.  123. 

Upon  a  question  as  to  the  appropriation  of  the 
proceeds  of  a  ship  and  freight  in  satisfaction  of  the 
standing  judgment: — Held,  that  the  assignees  of  a 
bankrupt  ship-owner  have  a  persona  standi  to  appear 
for  the  benefit  of  the  general  estate,  and  contest  the 
appropriation  of  the  proceeds,  against  the  assignees 
of  the  freight,  seeking  to  make  tiie  ship  alone  liable 
in  the  first  instance. 

Claim  of  a  bondholder,  for  the  payment  of  his 
bond,  directed  to  be  satisfied  out  of  the  proceeds  of 
the  ship  and  the  freight  pro  ratd. 


Parties  taking  an  assignment  of  a  shn>  on  flight 
as  security  for  a  debt,  take  such  security  liable  to 
subsequently  accruing  liens,  viz.  bottomry  bonds, 
salvage,  wages,  &c. 

Same  principles  applied  to  claims  under  a  judg- 
ment of  the  Court  for  pilotage,  tonnage,  and  mari- 
ners' wages.     The  Dowthorpe,  2  Rob.  73. 

{b)  Bail. 

Sureties  are  only  bound  to  the  extent  of  tbe  obli- 
gation expressed  in  their  bond;  and  not  beyond  ita 
plain  and  obvious  meaning. 

Any  departure  from  the  original  agreement  by 
private  arrangement  between  the  principal  and  the 
obligee,  will  cancel  the  liability  of  the' sureties ;  and 
once  discharged,  the  obligation  can  never  be  revived 
in  its  former  shape  against  them.  The  Harriet, 
1  Rob.  189. 

A  mortgagee  is  not  entitled  to  arrest  a  vessel  for 
the  purpose  of  enforcing  bail  for  her  safe  return  to 
this  country;  and  a  motion,  on  behalf  of  the  mort- 
gagee, for  a  warrant  of  arrest,  refused  under  the  cir> 
cumstances  of  the  case.   The  Highlander,  2  Rob.  1 09. 

(c)  Pleading, 

Objections  of  pleading  may  be  taken  to  any  one 
of  the  component  parts  of  an  act  on  petition,  but 
objections  of  this  nature  should  not  be  tdcen  without 
substantial  reasons  to  support  them. 

A  rqoinder  in  an  action  on  petition  must  not 
state  new  matter  of  defence,  unless  such  matter 
has  come  to  the  knowledge  of  the  party  since  his 
answer  was  given  in.  But  matter  subsidiary  to 
the  defence  contained  in  the  answer  may  be  stated 
in  a  rejoinder,  when  the  reply  to  the  answer  takes 
issue  upon  the  matter  of  defence  there  stated.  The 
Hebe,  2 Roh.l4Q. 

In  a  proceeding  by  plea  and  proof,  a  libel  having 
been  admitted  on  behalf  of  the  promoters  of  the 
suit,  the  responsive  allegation  of  the  owners  of  the 
vessel  proceeded  against  was  directed  to  stand  over 
till  the  personal  answers  of  those  owners  had  been 
given  in.     TJie  Manchester,  1  Rob.  93. 

Objections  to  the  admission  of  a  reply  in  a  cause 
of  damage,  upon  the  grounds  of  redundancy  and 
irrelevancy,  overruled.  And,  semble,  where  the  par- 
ties suing  are  foreigners,  the  Court  will  be  more 
indulgent  in  overlooking  mere  technical  defects  in 
the  conduct  of  the  proceedings  than  in  the  case  of 
a  British  suitor.     The  Anne  and  Jane,  2  Rob.  98. 

In  a  rejoinder,  the  matter  pleaded  most  be  con- 
fined to  averments  which  are  responsive  to  the  facts 
suggested  in  the  reply,  or  corroborative  of  the  ori- 

final  statements,  but  it  is  not  competent  to  intro- 
uce  entirely  new  matter.  And  a  rejoinder  of  the 
appellants,  defective  in  this  respect,  was  rejected. 
The  Aurora,  1  Rob.  322. 

{d)  Amendment. 

Upon  appeal  from  a  magistrate's  award,  in  a  case 
of  salvage,  an  application  for  leave  to  withdraw  an 
act  on  petition,  for  the  purpose  of  amendment,  after 
a  copy  had  been  delivered  to  the  adverse  proctor  in 
the  suit,  was  refused.     The  Aurora,  1  Rob.  322. 

(e)  Costs. 

Upon  apportionment  of  a  salvage  award  between 
the  owners  and  crew  of  a  salvage  vessel,  half  costs 


ADVERSE  POSSESSION— ADVOWSON. 


15 


only  ven  given  where  lepwate  apptarimw  had 
been  entered  for  the  mate  and  for  the  ownert  and 
rest  of  the  crew.     The  Nicotine,  2  Boh.  17$. 

Where  a  vessel  was  sold  under  a  decree  of  the 
court  in  a  cause  of  damage,  and  the  proceeds  were 
insufficient,  and  no  bail  had  been  given,  the  owner 
of  the  vessel  was  personally  condemned  for  the  pay- 
ment of  costs.     The  John  Dunn,  I  Rob.  159. 

(£)  Contempt  of  Court. 

An  attachment  for  contempt  of  court  waa  decreed 
against  a  brig  of  war's  agent,  residing  in  the  Island 
of  Grenada,  for  non*payment  into  Uie  Mixed  Com- 
mission Court,  at  Sierra  Leonc^  of  the  proceeds  of  a 
slave  capture,  as  directed  by  a  monition  fzom  the 
Court  of  Admiralty.     The  Florida^  2  Rob.  97. 


ADMISSIONS. 

[See  EvioEKCB — Plkaoing.] 


ADULTERY. 
[See  DivoBCS — Mariliaqs — Seduction.] 


ADVANCEMENT. 
[See  Pabbnt  and  CnitD.] 


ADVERSE  POSSESSION. 

Although  the  right  of  the  husband,  as  tenant  by 
the  curtesy  of  an  equitable  estate  of  the  wife,  may 
perhaps  be  excluded  by  a  possession  of  Uie  estate 
strictly  adverse  to  the  husband  and  wife,  and  to  all 
other  parties  interested  under  the  settlement  during 
the  whole  period  of  coverture ;  yet  the  possession  of 
the  estate  in  conformity  with  the  equitable  interests 
of  the  cestui  que  trusts,  for  however  shorts  time  during 
the  coverture,  and  after  the  interest  of  the  wife  has 
become  vested  in  possession,  will  support  the  title 
of  the  husband  as  tenant  by  the  curtesy.  The  pos- 
session of  the  cestui  que  trust,  under  we  trusts  of  a 
settlement,  is  the  possession  of  the  trustee,  and 
gives  the  trustee  a  seisin  of  the  estate,  which  is  not 
interrupted  by  the  death  of  the  cestui  que  trust,  but 
immediately  enures  for  the  benefit  of  the  person 
next  entitled  to  the  equitable  interest;  ana  not- 
withstanding the  adverse  possession  of  another  party 
soon  afterwards  commenced,  the  Court  cannot  pre- 
sume such  adverse  possession  to  have  commenced 
so  instantaneously  on  the  death  of  the  first  cestui 
que  trust,  as  wholly  to  exclude  the  equitable  seisin 
of  the  parties  next  entitled  to  the  beneficial  inter- 
est    Parker  v.  Carter,  4  Hare^  400. 

If  the  coverture  begins  after  an  adverse  pos- 
session has  commenced,  and  terminates  during  the 
continnance  of  such  adverse  possession,  or  if  both 
the  trustee  and  the  cestui  que  trust  are  disseised 
before  the  equitable  estate  of  the  wife  begins,  by  a 
party  claiming  by  a  title  paramount  to  the.  trust, 
who  retains  possession  until  after  the  death  of  the 
wife^  the  husband  would  not  acquire  any  title  as 
tenant  by  the  curtesy.  Parker  v.  Carter,  4  Hare,  416. 


ADVOWSON.  • 

A  teslntor  devised  and  bequeathed  hia  advowseo 
and  presentation  to  a  living  of  which  he  was  the  in- 
cumbent, and  ala»  «ll  hia  real  and  peraoaal  estate, 
to  trustees^  with  a  power  to  sell  at  their  diacniios 
his  said  advowson  and  aU  dhtx  bis  ettatea,  smL 
invest  the  proceeds  for  the  benefi^fc  of  the  children 
of  his  sister  who  ahould  attain  tiwenty-oae,  widi 
powers  of  maintenance  aftd  advanoeme&t  in  the 
meantime  out  of  the  renta»  divtdendai  interest,  and 
annual  iooeoie  :-^Held,  that  the  next  pnesentatfen 
to  the  livings  tbQiagh  in  law.  ftbetaefieialintereae^ 
could  not  be  aoconsideffed  sfhcie  there  iwere  pow^sa 
of  maintenance  ogt  of  tbarenta*  dividmdfli  8te.t  and 
passed  in  the  pcesmt  c«9o  to  the  heic-«t«la««  Mar^ 
tin  V.  MartiMi  U  Law  J.  Rep.  <HA)*Gh.  291  (.  12 
Sim.  579. 

By  deed  the  advowsoo  of  the  vicarageof  C  was  vested 
in  nine  trustees,  upon  trust  from  time  to  time  a»aA 
avoidance  should  occur,  that  they  or  the  major  part 
of  them,  within  the  spaoe  of  four  calendar  months 
next  after  such  avoidance,  should  publish  notice  in 
the  parish  church,  upcsi  two  several  Sundays,  ink- 
mediately  after  divine  service,  of'a  certain  time  for 
the  meeting  of  the  parishioners  within  such  four 
calendar  months  for  electing  a  vicar ;  and  should, 
within  six  calendar  months  next  after  such  avoid- 
ance, by  writing,  under  their  hands  and  seals,  pre- 
sent to  the  ordinary  for  institution  and  induction 
as  vicar,  such  clerk  as  should  be  elected  by  the 
parties  therein  mentioned.  By  the  terms  of  the 
deed,  this  election  was  to  be  by  the  parishioners 
having  a  certain  qualification  in  land  in  the  parish, 
"  or  the  major  part  of  such  parishioners,  together  with 
the  trustees  as  aforesaid,  or  the  major  part  of  them 
then  assembling  in  or  at  the  parish  church  or  mar- 
ket house  of  C,  within  the  said  four  calendar 
monUis."  On  the  oocasion  of  an  election  in  1840 
there  were  eight  trustees;  two  of  whom  were  out 
of  the  jurisdiction.  Of  the  remaining  six,  five 
signed  a  written  notice  of  the  intended  election; 
which  notice  was  duly  published  pursuant  to  the 
deed,  though  previous  to  pnbiication  one  of  the 
signatures  was  erased.  The  same  five  attended  at 
the  meeting,  which  was  held  within  the  proper 
time,  and  four  of  them  voted  for  the  suoceaaful  can- 
didate. These  four,  and  the  trustee  within  the 
jurisdiction,  who  was  not  present  at  the  meeting, 
joined  in  the  presentation,  which  was  subsequently 
approved  of  by  the  trustees  out  of  the  jurisdiction. 
The  remaining  trustee  refused  to  join  in  the  pre- 
sentation:— ^Held,  that  the  election  was  valid;  that 
the  dissentient  trustee  was  bound  to  sive  effect  to  it 
by  joining  in  the  presentation,  and  that  the  bishop, 
subject  to  any  question  arising  as  to  professional 
unfitness  in  the  clerk,  or  corrupt,  simoniacal,  or 
scandalous  proceedings  at  the  election,  was  bound 
to  present.  Attorney  General  v.  Cummgf  2  Y.  & 
Coll  C.C.  139. 

By  deed  of  trust  of  1682,  for  the  appoint- 
ment of  a  vicar,  it  was  declared,  that,  upon  the 
death  of  any  of  the  trustees,  the  survivors  should, 
from  time  to  time,  when  and  as  often  as  they  should 
Uiink  fit,  before  the  number  of  the  trustees  should 
be  reduced  to  the  number  of  five,  or  within  three 
months  after  they  should  be  reduced  to  the  number 
of  four,  appoint  new  trustees,  and  convey  the  pre- 


16 


ADVOWSON--AFPIDAVIT. 


mifet  to  them,  to  as  to  oosipleto  the  number  of  nine 
trustees.  It  appears  that,  from  the  date  of  the 
deed  to  the  election  of  a  clerk  in  1840,  this  clanse 
had  never  been  strictly  acted  upon,  though  the 
number  of  the  trustees  bad  generally  been  kept  up 
to  nine : — Held,  that  the  informality  in  the  appoint- 
ment of  the  trustees  did  not  vitiate  the  election. 
Ibid. 


i 


ii 


AFFIDAVIT. 
[Fox  Affidavit  of  Debt,  see  titles  Bail  and  Ab- 
SB0T — -for  Affidavit  verifying  Acknowledgments 
of  Married  Women,  see  title  Fives  and  Rbcovbries 
— ^for  Affidavit  of  Truth  of  Plea  in  Abatement, 
see  title  AjBATBMBirT— for  Affidavit  of  Service,  see 
titles  Cbktiora&i  and  Pbacticb.] 

A)  Bt  whom  ah  Affidavit  mat  bb  madb. 

B)  Form  and  Rbouisitbs  of. 

a)  In  general. 

b)  Title, 
e)  Deponenfi  Name,  Abode,  and  Addition, 

(d)  Jurat, 

C)  Bbfobb  whom  to  bb  sworn. 

D)  Whbn  admissible. 

a)  In  generaL 

b)  A  second  Time, 

E)  Ambhdiho  and  Re-swbarino. 

F)  Ebasubb  in. 

(0)  Waivbb  of  Defbctb  in. 
(H)  Ofpicb  Copies. 

( 1 )  Stamp. 

(K)  Affidavit  of  Msbits. 
(L)  Affidavit  of  Incebase. 

(A)  Bt  whom  an  Affidavit  mat  be  made. 

The  affidavit  of  a  person  convicted  of  subornation 
of  perjury,  ordered  to  be  taken  off  the  file.  In  re 
Sawyer,  1 1  Law  J.  Rep.  (n.b.)  aB.  234 ;  2  G.  &  D. 
141. 

Affidavits  of  jurors  as  to  what  occurred  in  open 
eonrt,  on  the  delivery  of  their  verdict,  are  receivable. 
BoberUY.  Hughee,  10  Law  J.  Rep.  (n.8.)  Ezch.  337  ; 
7  M.  &  W.  399. 

[See  Skmdemek  v.  Hopkins,  ffost,  (D)  {a)—Dobson 
V.  Groves,  title  Arbitration.] 

(B)  Form  and  Reouisites  of. 

(a)  In  generaL 

Theeffeet  of  affidavits  in  equity  as  to  facto  on  belief 
is  only  to  put  the  opposite  party  to  answer  them. 
Busk  V.  Beetham,  2  Bea.  537. 

An  affidavit  commencing  thus :  **  O.  S.,  of,  &c., 
maketh  and  saith,"  the  word  "  oath'*  being  omitted 
will  not  be  received  by  the  Court,  even  though  it 
puTporto  by  the  jurat  to  have  been  duly  sworn. 
Doe  d.  BritUm  v.  Clark,  12  Law  J.  Rep.  (n.8.)  Q.B, 
69  ;  2  DowL  P.C.  (n.8.)  393. 

An  affidavit  of  service  "  on  the  day  of  the  date 
hereof,"  there  being  no  date  mentioned  except  the 
jurat,  cannot  refer  to  that  date,  and  is  therefore 
insufficient.  Hughes  v.  Broume,  18  Law  J.  Rep. 
(n.8.)  C.P.  73  ;  7  M.  &  Q.  517 ;  7  Sc.  (n.s.)  517 ; 
1  Dowl.  &  L.  P.C.  788. 

The  affidavit  on  a  motion  to  rescind  a  Judge's 
order  need  not  disclose  the  refusal  of  a  similar 


application  at  ohambeM,  unless  for  the  poipoee  of 
aooonnting  for  delay.  Thomas  v.  Beans,  12  Law  J. 
Rep.  (na)  Exch.  41 ;  9  M.  &  W.  829. 

(b)  Title, 

The  affidavit!  to  strike  an  attorney  off  the  roll  for 
misconduct  in  a  cause,  may  be  headed  in  it,  though 
judgment  has  been  given  in  the  cause.  Stephens  v. 
HiU,  11  Law  J.  Rep.  (n.s.)  Exch.  329 ;  10  M.  &  W. 
28 ;  1  Dowl.  P.C.  (n.s.) 669. 

J  A  E  was  served  with  a  writ  of  sumrooBCy  in 
which  he  was  described  as  J  £.  The  writ  of  sum- 
moos  was,  in  other  respects,  iuformaZ.  The  affi- 
davit of  J  A  E,  upon  which  to  found  an  application 
to  set  aside  the  copy  of  the  writ,  was  entitled  in  a 
cause  A  B  against  J  A  £  sued  as  J  £ : — Held, 
that  it  was  properly  entitled.  Jones  v.  Eldridge, 
1 1  Law  J.  Rep.  (n.8.)  C.P.  192 ;  1  Dowl.  P.C.  (n  ji.) 
710. 

An  affidavit  in  support  of  a  rule  for  judgment  as 
in  case  of  a  nonsuit,  was  entitled  "  Between  John 
Singleton,  plaintiff  and  George  Johnstone,  defen- 
dant" On  shewing  cause,  it  was  sworn,  that  there 
were  two  George  Johnstones ;  and  that  all  former 
proceedings  in  the  cause  were  entitled  John  Single- 
ton V.  George  Johnstone  the  elder: — Held,  that  the 
affidavit  was  sufficiently  entitled.  Singleton  v. 
Johnstone,  II  Law  J.  Rep.  (n.s.)  Exch.  88  ;  9  M.  & 
W.  67 ;  1  Dowl.  P.C.  (n.s.)  !i56. 

Where  money  was  paid  into  court  in  a  cause  en- 
titled Levy  v.  Coyle,  and  a  feigned  issue  directed 
under  the  title  of  Lane  v.  L^'y.— Held,  that  the 
affidavits  for  obtaining  the  money  out  of  court  ought 
to  be  entitled  Levy  v.  Coyle.  Levy  v.  Coyle,  12  Law 
J.  Rep.  (n.8.)  aB.  294. 

An  affidavit  in  an  action  of  ejectment  in  which 
the  demise  was  stated  to  have  been  made  by  A  B 
and  C  D,  entitled  as  upon  a  demise  by  C  D  and 
A  B,  held  sufficient  Doe  d.  Montgomery  v.  Boe,  J  3 
Law  J.  Rep.(N.&)Q.B.46. 

An  affidavit  to  support  an  application  for  leave 
to  issue  execution  on  a  judgment  in  the  Common 
Pleas  of  Lancaster,  must  follow  the  Isnguage  of 
sect  31 .  of  4  &  5  Will.  4.  c.  62,  and  must  be  entitled 
in  the  superior  court  Wigden  v.  Birt,  1 1  Law  J. 
Rep.  (N.s.) Exch.  8 ;  9  M.  &  W.  50;  1  Dowl.  P.C. 
(n.8.)  93. 

On  moving  for  a  prohibition,  an  affidavit  entitled 
"  In  the  Queen's  Bench,"  between  A,  pwty  agent, 
and  B,  party  respondent,  is  bad,  as  there  is  no  such 
cause  in  the  Queen's  Bench.  Qwyn  v.  Snams,  19 
Law  J.  Rep.  (n.s.)  Q.B.  68. 

Where  an  attechment  has  issued  in  a  cause,  in 
moving  to  discharge  the  person  arrested  under 
It,  the  affidavite  must  be  entiiled,  The  Queen 
against  the  person  arrested  in  the  original  cause, 
and  not  simply  in  the  original  cause.  Brvwn  r. 
Bdmards,  14  Law  J.  Rep.  (n.b.)  aB.  17  }  2  DowL  & 
L.  P.C.  520. 

An  affidavit,  entitled  Doe  "  on  die  demise  or  de- 
mises" of  Ji  N,  and  J,  N.  v.  T,  JL.  is  bad ;  but  upon 
such  objection,  the  Court  will  disehsrge  the  rule, 
without  costs.  Doe  d.  Neville  v.  Lloyd,  12  Law  J. 
Rep.  (n.s.)  aB.  95.    [And  see  the  next  case.] 

(c)  Deponent*s  Name,  Abode,  and  Addition, 

Held,  to  be  no  objection  to  sn  affidavit,  that  it 
was  made  by  **  E.  Charles  Powuall,"  and  signed  by 


AFFIDAVIT. 


!7 


**  ChaTles  Edward  Pownall,"  nor  that  it  was  en- 
titled, "  In  the  Exchequer,"  it  being  8wom  before 
the  officer  of  "The  Exchequer  of  Pleas.**  Hands  ▼. 
OemenU,  1 2  Law  J.  Rep.  (n.8.)  Exch.  437  ;  1 1  M.  & 
W.  817  ;  8  Dowl.  P.O.  (h.8.)  879. 

The  role  requiring  that  every  affidavit  shall  con- 
tain the  place  of  abode  and  addition  of  the  deponent, 
does  not  extend  to  parties  in  the  cause  in  which  the 
affidavit  is  made.  Shhrer  v.  Walker^  10  Law  J.  Rep. 
(w.8.)C.P.228;  9Dowl.P.C.667. 

Where  a  party,  in  order  to  ground  an  application 
to  set  aside  a  writ,  made  an  affidavit  of  having  been 
served,  and  described  his  residence  diiferently  from 
tliat  in  the  writ,  and  made  no  allegation  of  his  being  the 
defendant  in  the  cause : — Held,  ftufflcient  Stevenson 
▼.  Thome,  1 3  Law  J.  Rep.  (s.8. )  Exch.  803 ;  1 3  M.  & 
W.  149 ;  2  Dowl.  &  L.  P.C.  230. 

If  no  addition  ia  given  to  the  surname  of  the 
party  in  the  title  of  an  affidavit,  it  will  be  assumed 
to  be  the  name  of  the  elder;  and  therefore,  such 
an  affidavit  may  be  used  in  a  cause  where  one  of  the 
parties  is  described  aa  "  the  elder,"  if  the  names 
in  other  respects  agree.  Toung  v.  Young,  1  Dowl. 
P.C.  (n.8.)  865. 

In  an  affidavit  "  W.  A,  of  No.  37,  Threadneedle 
Street,  agent  for  the  above-named  plaintiff  in  this 
cause,"  is  a  sufficient  description  of  the  deponent's 
degree.  LuxfordY.  QroomMdge,  12  Law  J.  Rep. 
(N.a)aB.99;  2  Dowl.  P.C.  (n.8.)  832. 

The  addition  of  a  deponent,  as  A  B,  of ,  in 

the  city  of  London,  notary,  clerk  to  C.  K.  of  the  same 
place,"  held  sufficient  Cooper  v.  Folker,  9  DowL 
P.C.  46. 

Where  an  affidavit  described  the  deponent  merely 
as  an  "  articled  clerk,"  without  saying  to  whom  or  in 
what  profession : — Held,  a  substantial  defect,  and 
not  waived  by  an  agreement  not  to  take  any  techni- 
cal objection.    Regma  v.  Reeve,  4  Q.  B.  2 1 1 . 

{d)  Jurat, 

The  rule  is  imperative,  that  upon  every  affidavit 
made  by  two  or  more  deponents,  whether  sworn  in 
court  or  elsewhere,  it  must  appear  in  the  jurat  that 
they  were  severally  sworn.  Pardoe  v.  Terret  and 
LaelHngtm  v.  Atkerton,  12  Law  J.  Rep.  (n.8.)  C.P. 
143;  5M.&G.  290;  6  Sc.  (n.8.)  273. 

The  rule  of  Mich,  term,  37  Oeo.  8,  requiring  the 
names  of  all  the  deponents  to  be  inserted  in  the  jurat, 
— ^Held,  to  apply  to  affidavits  used  before  a  Judge 
at  chambers.  Lackingtomy.AtherUm,  5  M.  &  0. 292; 
6  Sc.  (n.s.)  240. 

Whers  an  affidavit  is  duly  entitled  in  the  court, 
a  jurat  in  these  terms,  **  Sworn  before  A  B,  a  com- 
missioner," &C.  is  sufficient  Burdikin  v.  Potter, 
11  Law  J.  Rep.  (n.s.)  Exch.  82;  9  M.  &  W.  18; 
1  DowL  P.C.  (n.s.)  134. 

The  jurat  of  an  affidavit,  in  the  following  form, — 
**  Sworn  before  me,  J  £  S,  6y  eommUsUm,** — Held, 
sufficient  Fahrhrau  v.  PetHt,  18  Law  J.  Rep.  (n.8.) 
£xch.  121;  12  M.  &  W.  468;  1  Dowl.  &  L.  P.C« 
622. 

Affidavits  sworn  before  a  commissioner  must 
shew  by  the  jurat  that  they  were  sworn  within  his 
jurisdiction.  Cass  v.  Cass,  13  Law  J.  Rep.  (n.s.)  Q.B. 
&2 :  1  DowL  &  L.  P.C.  698. 

An  affidavit  purporting  to  be  sworn  before  "  H  B 
by  commission,"  sufficiently  shews  that  H  B  was 
a  commissioner  for  taking  affidavits.     Hopkins  v. 

DiORST,  1840—1845. 


Pledger,  12  Law  J.  Rep.  (n.s.)  Q.B.  813;  8  Dowl. 
P.C.  (n.8.)  119. 

An  affidavit  entitled  in  the  Court  of  Exchequer, 
and  purporting  to  be  "  sworn  before  J  L,  Master 
Extraordinary  in  the  Court  of  Chancery,*'  is  defec- 
tive, for  not  shewing  that  J  L  was  a  Commissioner 
for  taking  affidavits  in  the  Court  of  Exchequer.  A 
rule  discharged  for  a  defect  in  the  jurat  of  an  affi- 
davit, will  be  discharged  with  costs.  Frost  v.  Hay- 
UHsrd,  12  Law  J.  Reu.  (n.8.)  Exch.  84 ;  10  M.  &  W. 
678 ;  2  Dowl.  P.C.  (n.s.) 566. 

The  want  of  a  date  in  the  jurat  of  an  affidavit,  ia 
a  ground  for  dischai^ing  a  rule  with  costs.  Black* 
well  V.  AUen,  10  Law  J.  Rep.  (n.8.)  Exch.  65;  7  M. 
&W.146. 

A  rule  obtained  in  the  Queen's  Bench  on  affi- 
davits sworn  before  a  commissioner  of  another 
court,  discharged  with  costs.  Shmo  v.  Perkin,  1 1 
Law  J.  Rep.  (n.8.)  Q.B.  52;  1  DowL  P.C.  (n.s.)  806. 

Ad  affidavit  sworn  at  a  Judge's  chambers  need 
not  state  in  the  jurat  that  it  was  sworn  before  the 
Judge.  Rmpeff  v.  Kimg,  14  Law  J.  Rep.  (n.s.)  Exch. 
48;  13M.&W.519;  2 DowL  &  L.  P.C.  375. 

An  affidavit,  the  jurat  of  whi«h  stated  it  to  be 
8Wom  at  the  Judge's  chambers.  Chancery  Lane,  in 
the  county  of  Middlesex,  before  a  Judge  of  the 
Court  of  Common  Pleas,  in  the  absence  of  any 
counter  affidavit,  held  sufficient.  Hemsworth  v. 
BHan.  14  Law  J.  Rep.  (n.s.)  C.P.  134;  1  M.  G.  &  S. 
181;  8  Sc.  (N.8.)  842;  2  DowL  &L.  P.C.  844. 

An  affidavit  entitled  in  one  of  the  superior  courts, 
and  sworn  before  a  Judge  of  that  court,  as  stated  in 
the  jurat,  '*  at  the  Central  Criminal,  in  the  city  of 
London,' ' — Held,  sufficient  Thomas  v.  Slannaway, 
18  Law  J.  Rep.  (n.s.)  aB.  263 ;  2  DowL  &  L.  P.C. 

nu 

Part  of  the  jurat  of  an  affidavit  was  written  on 
one  side  of  the  paper,  and  bdow  it  the  words,  **  a 
commissioner  for  taking  affidavits  in  this  court,'* 
were  enuted;  the  remainder  of  the  jurat  was  written 
on  the  other  side  of  the  paper: — Held,  that  the 
affidavit  was  not  vitiated  thereby.  WiUs  v.  Dmwson^ 
12  Law  J.  Rep.  (N.8.)  Exch.  24;  a.  c.  Dawson  v.  WiUe^ 
10  M.  &  W.  662;  2  DowL  P.C.  (n.8.)  465. 

The  Court  will  not  receive  an  affidavit,  unless  it 
distinctly  appears  to  have  been  sworn  before  a  party 
competent  to  take  it  Therefore,  where  a  commis- 
sioner for  taking  affidavits  took  the  affidavit  of  C  E, 
and  signed  hia  name  to  the  jurat,  but  omitted  to 
add  the  words  "before  me," — Held,  that  the  omis- 
sion was  fatal ;  and  that  the  defect  was  not  cured  by 
a  memorandum  on  the  notice,  the  service  of  which 
was  the  subject  of  the  affidavit,  that  such  notice 
was  "  the  notice  referred  to  in  the  annexed  affidavit 
of  C  E,  sworn  before  me."  Reghta  v.  the  Inhabi- 
tants of  Blaaham,  14  Law  J.  Rep.  (n.s.)  Q.B.  13 ; 
2  DowL  &L.  P.C.  168. 

Where  a  defendant,  who  is  a  marks-woman, 
applies  for  her  discharge  under  the  48  Oeo.  8.  e.  128, 
it  must  appear  in  the  jurat  to  her  affidavit,  sup- 
porting the  q>plication,  that  it  has  been  marked  by 
her.     WiUon  v.  Blakey,  9  DowL  P.C.  i5i. 

(C)  Bbfore  whom  to  be  sworn. 

[See  ante,  (d)  Jurat,"] 

A  British  consul  resident  abroad  is  not  compe- 
tent to  take  an  affidavit  in  a  cause  pending  in  this 

D 


18 


AFFIDAVIT. 


I 


country.    Ltveux  v.  Berkeley^  13  Law  J.  Rep.  (n.b.) 
aB.244;  2£)owl.&L.P.C.31. 

The  rnle  as  to  swearing  affidavits  before  the 
attorney  in  the  cause  does  not  apply  to  cases  on  the 
Crown  side.  Regina  y.  Missen,  1  Dowl.  P.C.  (n.8.) 
865. 

(D)  When  adhissiblb. 

(a)  In  generaU 

A  motion  for  a  rale  to  use  an  affidavit,  sworn, 
hut  not  filed  within  the  time  fixed,  on  the  ground 
of  its  haying  been  mislaid,  is  only  nUi  in  the  first 
instance,    l^yor  v.  Swaine,  2  Dowl  &  L.  P.C.  37. 

In  shewing  cause  against  a  rule  to  rescind  a 
Judge's  order  made  under  1&  2  Vict  cllO.  s.8, 
for  the  arrest  of  a  party,  or  under  section  6.  re- 
fusing his  discharge,  either  party  may  read  other 
affidavits  than  those  used  before  the  Judge.  Gib- 
bow  y.  Spalding,  12  Law  J.  Rep.  (n.8.)  cGcch.  185; 
IIM.&W.  178;  2DowLP.C.(n.s.)74«. 

Though,  in  shewing  cause  against  a  rule  to  re- 
scind a  Judge's  order  made  under  1  &  2  Vict  c.  1 10. 
s.  3,  for  the  arrest  of  a  party,  or  under  section  6. 
for  refusing  his  discharge,  either  party  may  read 
additional  affidavits,  yet  those  used  before  the  Judg^ 
ought  to  be  before  the  Court  Heath  v.  NesbUt, 
12  Law  J.  Rep.  (n.b.)  Exch.  408;  IIM.  &  W.669. 

Where  personal  misconduct  has  been  imputed 
to  jurors  by  affidavits,  upon  which  a  rule  nisi  for  a 
new  trial  has  been  obtained,  the  affidavits  of  the 
jurors  themselves  are  admissible,  in  shewing  cause 
to  rebut  that  imputation.  Slandewick  v.  HopkuUt 
14  LawJ.Rep.(N.s.)aB.  16;  2  Dowl.  P.C.  (n.8.) 
502. 

On  a  rule  being  enlarged,  further  affidavits  to 
be  filed  before  a  day  stated: — Held,  that  an  affidavit, 
sworn  before  the  day,  but  re-sworn  after,  on  acc6unt 
of  a  defect  in  the  jurat,  might  be  used.  Ouchtet' 
hny  v.  Gibson,  5  M.  &  G.  579. 

Semble,  that  the  Court  will  not  allow  affidavits  in 
reply  to  be  used,  although  it  is  suggested  that  in* 
justice  will  be  the  resultof  therefusal.  Bury  v.  Clench^ 
I  Dowl.  P.C.  (n.8.)  848. 

Where  a  defendant  nvakes  an  affidavit  of  merits, 
for  the  purpose  of  setting  aside  a  regular  judgment, 
the  plaintifi*  cannot  make  an  affidavit  in  answer. 
BlewUt  V.  Gordon,  1  Dowl.  P.C.  (n.8.)  815. 

[See  WilUams  v.  Mortimer  and  Hemming  v.  Acra- 
man,  title  NewTbial  ;  Reed  v.  Ford,  title  Practicb, 
Appearance.] 

{b)  A  Second  Time, 

An  affidavit  made  and  filed  in  a  motion  that  has 
been  abandoned,  may  be  used  in  a  subsequent 
motion,  where  the  cause,  the  subject-matter,  and 
the  parties,  are  the  same.  Ryan  v.  Smith,  1 1  Law  J. 
Rep.  (n.8.)  Exch.  77 ;  9  M.  &  W.  223. 

An  affidavit  which  is  upon  the  file  of  the  Court 
may  be  used  afterwards  in  the  same  cause,  though 
for  a  different  purpose.  Chambers  v.  Bryant,  12  Law 
J.  Rep.(M.8.)aB.139;  2Dowl.  P.C.(n.s.)671. 

Where  two  rules  are  moved  for  under  precisely 
similar  circumstances,  they  should  be  founded  on 
distinct  affidavits  ;  and  it  is  not  enough  to  refer,  in 
the  second,  to  the  affidavits  already  sworn  in  the 
first.  Regina  v.  Missen,ll  Law  J.  Rep.  (n.8.)  Q.B. 
1 89 ;   1  Dowl.  P.C.  (n.8.)  865. 

Where  a  rule  is  discharged,  on  the  ground  that 


the  affidavit  upon  which  the  application  rests  is 
defective  in  the  title  or  in  the  jurat,  the  Court  wIB 
allow  the  applicatioa  to  be  renewed  upon  the  affi- 
davit being  amended  and  re-sworn.  But  a  second 
application  will  very  rarely  be  allowed,  where  there 
has  been  any  defect  in  the  body  of  the  affidavit 
Regina,  on  the  prosecution  cfthe  Mayor,  ^e.  qf  Haulm- 
head,  v.  the  Great  fVestem  Railway  Company,  13  Law 
J.  Rep.  (n.8.)  aB.  120 ;  1  D^id.  &  L.  P.C.  874. 

(E)  AVENDINaAVD   RE-8WXABZKa. 

Where  a  party  obtained  a  rule  msi  upon  affidavits 
which  were  badly  intituled,  and,  discoyering  his 
mistake,  he  applied  to  the  Court  for  leave  to  take 
the  affidavits  off  the  file,  and  amend  and  re-swear 
them ;  the  Court  refused  to  allow  such  a  course  to 
be  taken,  on  the  groiind  that  the  affidavit  would 
appear  to  have  been  sworn  after  the  rule  was  drawn 
up ;  and  also  refused  to  allow  a  fresh  role  t^  be 
drawn  up  on  amended  affidavits ;  bat  suggested  a 
new  motion  upon  affidavits,  disclosing  the  ctrcum- 
stance  of  the  error, — giving  no  opinion,  however, 
upon  the  validity  or  effect  of  such  new  motion. 
Doe d.  Hilly.  Tollett,  3  Dowl.  P.C.  (if.«.)  121. 

Upon  objection  made  to  the  reading  of  affidavits 
produced  for  the  purpose  of  shewing  cause  against 
a  rule,  on  the  Kround  of  a  defect  in  the  Jurat  (which 
did  not  shew  ttiey  were  sworn  within  the  Commis- 
sioner's jurisdiction),  the  Court  permitted  the  party 
to  enlarge  the  rule,  on  payment  of  the  costs  of  the 
enlargement  Cau  v.  Cass,  13  Law  J.  Rep.  (n.8.) 
a.B.  52 ;  1  Dowl.  &  L.  P.C.  698. 

On  motion  for  a  prohibition,  the  Court  refused  to 
enlarge  the  rule  to  give  time  for  the  affidavit  (which 
was  wrongly  entitled  **  In  the  Oneea'a  Bench'')  to 
he  re>swom ;  or  to  grant  a  rule  msi  befose  the  affida- 
vit was  sworn. 

Where  an  affidavit  is  re-sworn,  it  need  not  be 
signed  again  by  the  deponent  Liffin  v.  PiUAer, 
1  Dowl.  P.C.  (n.8.)  767. 

(F)  Erasure  in. 

The  first  page  of  an  affidavit  not  being  capable  of 
containing  the  whole  of  the  jurat,  the  words  *'e 
commissioner  fir  taking  qffidamts  in  this  court,'*  were 
erased  from  it,  and  were,  together  with  the  rest  <tf 
the  jurat,  placed  on  the  back  of  the  page : — H^d, 
that  the  erasure  did  not  vitiate  the  affidavit  Wills 
Y,  Dawson,  12  Law  J.  Rep.  (N.8.)£zeh.  24?  tuc  Daw- 
son V.  Wills,  10  M.  &  W.  662. 

If  the  date  mentioned  in  the  jurat  of  an  affidavit 
is  struck  out  with  a  pen,  and  &e  right  date  intro- 
duced, it  is  an  erasure  within  Reg.  Oen.  37  GeOk-S, 
which  will  prevent  the  affidavit  from  being  heard. 
Chambers  v.  Barnard,  9  Dowl.  P.C.  557. 

(G)  Waivsr  of  Dbfect  in. 

Where  affidavits  had  not  been  filed  in  time,  but 
the  agent  of  the  opposite  par^,  who  was  aware  of 
the  defect,  applied  for  and  obtained  office  copies  of 
these  affidavits -.—Held,  that  this  was  a  waiver 
of  the  objection.  In  re  Mackay,  12  Law  J.  Rep* 
(N.8.)  aB.  887. 

(H)  Office  Copies. 

Where  a  counsel  on  appearing  to  shew  cause  is 
not  prepared  vrith  office  copies  of  the  affidavits,  on 
which  a  rule  has  been  obtained,  it  is  a  matter  of  dis* 


AFFIDAVIT— AMENDMENT. 


19 


cretion  in  tlie  Court,  whether  time  shall  be  allowed 
te  tak£  office  copies.   In  re  Bogers,  9  Dowl.  P.  C.  926. 

(I)  Stamp. 

Aa  to  the  admissibility  of  unstamped  affidavits 
in  support  of  a  rule  nisi  for  a  maadamus — quare. 
Ite^tna  V.  the  Mayor,  Sfc,rf  Lichfield^  10  Law  J.  Rep. 
(v.a.)  aB.  171 )  1  G.  &  D.  28. 

(K)  Aktidavit  of  Msbits. 

An  affidarife  «f  laerita  by  •*  dwk  to  the  defen- 
dant's attorney,  "  that  he  is  apprised  and  believes 
that  the  defendant  has  good  grounds  of  defence 
upon  the  merita,"  is  insufficient  Bromley  ▼.  Ge- 
ridge^  13  Law  J.  Rep.  (n.s.)  C.P.  16;  7  M.  &  G. 
5)0;  1  Dowl.  &  L.  P.C.  768. 

(L)  Affidavit  of  Ihchbasb. 

A  copy  of  the  affidavit  of  increase,  required  by 
the  Reg.  Gen.  Mich.  Tenn,  I  Will.  4.  pi.  10,  must 
eontain  a  copy  of  the  jurat  also : — Held,  therefore, 
that  a  paper  purporting  to  be  such  copy,  but  con- 
taining, as  the  juratytbe  words  ''Sworn,  &c."  only, 
was  not  a  compliance  with  the  above  rule ;  and  that 
the  defect  was  a  ground  for  reviewing  the  taxation, 
but  not  for  setting  aside  the  judgment  Wlteldal  v. 
the  BaeUm  Counties  Btnlway  Company^  13  Law  J. 
Rep.  (9.8.)  Exch.  2^8 :  13  M.  &  W.  9 ;  2  Dowl.  &  L. 
P.C.  246. 


AGENT. 
[  See  Atto&hbt  akd  Solxcitob — Principal  anb 

AOE5T.] 

The  law  relating  to  advances  hond  fide  made  to 
agents  intrusted  with  goods,  amended  by  5  &  6 
Vict  c.  29 ;  20  Law  J.  SUt  150. 


AGREEMENT. 
[See    Assumpsit— Contract — Specific    Per- 

FORMANCS.] 


ALIEN. 

[See  CoPYRiOHT — Lunatic] 

The  laws  relating  to  aliens  amended  by  7  ft  8 
Vict  c.  66 ;  22  Law  J.  Stot  132. 

As  to  the  mode  of  inrolling  a  certificate  of  a  Secre- 
tary of  Stole,  under  7  &  8  Vict  c.  66,  granting  to  an 
alien  friend  settled  here  the  rights  of  a  natural  bom 
British  subject, — see  Order  in  Chancery,  7th  Dec. 
1844,  14  Law  J.  Rep.  (n.s.)  Ch.  128 ;  6  Bea.  xvi. 


AMENDMENT. 

[For  Amendments  in  Equity,  see  titles  Pleading 
and  Practice.  And  see  titles  Annuity — Practice 
ANO  Pleading  at  Law — Arrest.] 

(A)  Generally,  when  and  in  what  Cases 

ALLOWED. 

(B)  To  SAVE  THE  Statute  of  Limitations. 

(C)  In  Casbc  of  Varlance,  under  9  Geo.  4. 

e.  15,  AND  8  &  4  Will.  4.  c.  42.  s.  23. 
(a)  At  Nisi  PrUts. 
(h)  In  Bane, 


D)  Of  the  MuFRisioNa  of  Cj^erks. 
'E)  Op  Affidavits. 

F)  Of  the  Postea. 

(G)  Of  Informations  and  Indictments. 
(H)  Rescinding  and    abandoning  Judge's 

Order  for. 
( I )  Costs  of. 
(K)  Jurisdiction  of  Court  of  Error  over. 


(A)  Generally,  when  and  in  what  Casks 

ALLOWED.  # 

An  aM>lication  to  amend  the  pleadings  is  not 
within  the  rule  which  requires  parties  oomplaining 
of  an  irregularity  to  apply  to  the  Court  promptly. 
Welsh  V.  HaU,  1 1  Law  J.  Rep.  (n.s.)  Ezch.  57 1  9  M. 
&  W.  14 ;  1  Dowl.  P.C.  (N.B.)  865. 

Where  a  writ  of  ca.  sa.  erroneously  described  the 
judgment  as  in  assumpsit,  instead  of  debt,  the  Court, 
after  the  lapse  of  more  than  a  year  finom  the  date  of  the 
writ,  allowed  it  to  be  amended,  though  no  scire  facias 
had  been  sued  out  Bicknell  v.  JVetherell,  10  Law  J. 
Rep.  (n.s.)  Q.B.  845  ;  1  G.  &  D.  460. 

Where  the  teste  of  a  writ  of  trial  omitted  the 
day  of  the  month,  and  was  made  retomable  "  im- 
mediately," instead  of  upon  a  day  certain : — Held* 
that  the  objection  was  too  late  after  trial ;  but  semble, 
that  if  the  objection  bad  been  made  at  the  trial,  it 
might  have  been  amended.  Masten  v.  /)aoy,  12 
Law  J.  Rep.  (n.s.)  a.B.  69. 

The  plaintitr,  in  an  issue  under  the  provisions  of 
an  indosure  act,  claimed  to  be  entitled,  in  respect 
of  a  certain  fiirm  called  the  Manor  Farm,  "  to  a 
separate  right  of  feeding  and  folding,  exclusively 
to  his  own  use,  an  unlimited  number  of  sheep, 
called  the  Manor  flock,  having  and  ezercisiog  equal 
rights  of  pasturage  in  every  respect  with  the  town 
flock'*  f  which  consisted  of  the  sheep  of  the  copy- 
holders). After  trial,  and  verdict  for  the  defen- 
dant,— Held,  that  the  Court  could  not  amend  the 
issue,  with  the  view  of  granting  a  new  trial,  it  not 
appearing  that  the  plaintifl[''s  claim,  to  the  extent  of 
sheep  levant  and  couchant,  had  not  already  been 
allowed  for  in  other  parts  of  the  commissioner's 
allotment  Ivatiy^Mamif  1 1  Law  J.  Rep.  (n.s.)  C.P. 
82  ;  8  M.  &  G.  691 ;  4  Sc.  (n.s.)  842. 

Where  the  amount  indorsed  on  a  writ  of  summons 
exceeds  202.,  but  the  particulars  of  demand  claim 
a  less  sum,  a  Judge  has  no  jurisdiction  to  order 
a  writ  of  trial ;  and  the  Judges  will  not  in  such  a 
case  amend  the  writ  by  reducing  the  sum  indorsed. 
Goslm  V.  CottereU,  14  Law  J.  Rep.  (n.s.)  Exoh. 

ao4. 

A  party  suing  t»  formd  pauperis  is  not  allowed^ 
as  a  matter  of  right,  to  amend  his  pleadings  without 
payment  of  costs.  Fowler  v.  the  Bank  qf  England^ 
14  Law  J.  Rep.  (n.s.)  Q.B.  178. 

An  amendment  may  be  made  in  a  plea  of  puis 
darrein  continuance.  Holroyd  v.  Reed,  18  Law  J« 
Rep.  (n.b.)  Q.B.  130;  1  aB.  594 ;  1  D.  &  M.  483. 

Where  in  assumpsit  the  damages  were  laid  at 
lOJL,  though  the  sum  sought  to  be  recovered  in  each 
count  was  150/.,  and  the  jury  returned  a  verdict  for 
1502.,  the  Court  made  a  rule  absolute  for  amending 
the  declaration  by  increasing  the  damages.  And 
semble^  that  this  may  be  done  without  directing  a 
new  trial.  Tebbs  v.  Barren^  12  Law  J.  Rep.  (n.s.) 
C.P.  33;  5Sc.  (N.8.)837. 


20 


AMENDMENT. 


W'bcre  ID  an  action  for  work  and  labour,  the  plain- 
tiff, in  September  1837,  delivered  a  bill  of  particu- 
lars ;  and  the  cause  was,  in  December  1841 ,  refeired 
to  a  barrister;  and  no  mention  was  made  in  the  order 
of  reference  of  any  other  matters  in  difference, — ^die 
Court,  in  June  1842,  allowed  the  plaintiir  to  amend 
his  particulars  upon  payment  of  coets,  by  adding 
certain  items  for  services  rendered  at  the  same  time, 
over  which  the  original  particulars  extended.  Blunt 
V.  Cooke,  1 1  Law  J.  Rep.  {vjb.)  C.P.  824 ;  s.c.  BlumU 
^    V.  Cooke,  2  Sc  (n.s.)  282 ;  2  DowL  P.C.  (k.b.)  89. 

Where  in  ejectment,  a  verdict  had  been  found  for 
the  plaintiff,  which  had  been  set  aside  for  the  im- 
proper reception  of  evidence, — the  Court  allowed  a 
new  denrise  to  be  added,  to  bear  the  same  date  as 
the  previous  demise.  Doe  d.  Bacon  v.  Brvdgos,  18 
Law  J.  Rep.  (k.s.)  C.P.  2H;  1  Dowl.  &  L.  P.C.  954^ 

In  an  action  where  the  venue  was  laid  in  York- 
shire, the  defendant  gave  a  cognovit,  upon  which 
Judgment  was  subsequently  signed  in  March  1840. 
A  writ  of  jS./o.  issued  into  Yorkshire,  under  which 
the  debt  and  costs  were  only  partly  satisfied.  On 
the  6th  of  July,  a  co.  so.  for  the  residue  issued  to 
the  sheriff  of  Middlesex.  On  the  81st  of  August, 
a  ea,  sa.  for  the  residue  was  also  issued  into  York- 
shire, under  which  the  defendant  was  arrested,  bat 
discharged  from  custody,  on  the  ground  of  privi- 
lese,  on  the  26th  of  September  following.  Oli  the 
7&  of  January  1841,  the  defondant  was  again  ar- 
rested, under  the  Middlesex  writ  issued  in  July. 
That  writ  was  not  a  tostatum  writ  Upon  a  motion 
to  discharge  the  defendant  ont  of  custody,  on  the 
arrest  under  the  Middlesex  writ,  on  the  ground  of 
irregularity, — Held,  first,  that  that  writ  should  have 
been  a  Uttatum  writ,  and  was  therefore  irregular ; 
and  secondly,  that  it  could  not  be  amended,  as  it 
issued  previously  to  the  Yorkshire  writ,  from  which 
the  amendment  was  to  be  made^  Tower*  v.  Nnoton, 
10  Law  J.  Rep.  (n.8.)Q.B.  106;  9  Dowl.  P.C.  57«. 

A  declaration  contained  a  special  and  also  an 
indehitmtus  count  for  demurrage;  a  verdict  was  found 
for  the  plaintiffs,  and  judgment  entered  up  on  the 
first  count ;  the  defendant  contending  for  its  being 
entered  up  on  the  indehitatua  count,  and  the  evidence 
being  applicable  to  either  count;  upon  writ  of 
error  the  judgment  was  reversed,  upon  a  technical 
objection  to  the  special  count ;  nearly  two  years 
afterwards  the  plaintifib  applied  to  amend  the  postea, 
by  entering  up  judgment  for  the  plaintiffs,  on  the 
indebitatus  instead  of  the  special  count  The  Court 
refused  the  amendment ;  and,  aemble,  that  it  had  no 
power  to  make  it  after  the  judgment  of  a  court  of 
error.  Jackson  v.  Galloway,  14  Law  J.  Rep.  (k.8,) 
C.P.  141 ;  2  Dowl.  &  L.  P.C.  889. 

The  Court  will  amend  a  fine  levied  in  1771,  by 
adding  to  the  proclamations  indorsed  upon  it, — ^it 
appearing  that  possession  has  gone  in  pursuance 
of  the  fine.  PHce,  dero.,  WatkSts,  def.,  11  Law  J. 
Rep.{N.8.)  C.P.  154. 

Where  a  deed  to  lead  the  uses  of  a  recovery 
conveyed  all  lands  situate  in  the  county  of  M,  and 
the  recovery  was  su£fered  of  all  the  tenant's  lands 
in  the  parish  of  L,  in  the  county  of  M,  and  it  ap- 
peared that  some  of  the  lands  intended  to  be  con- 
veyed lay  within  another  parish  in  the  county  of 
M  : — Held,  that  it  was  not  necessary  to  amend  the 
record.     Anonymous,  10  Law  J.  Rep.  (m.s.)  C.P.  38. 

Where  judgment  on  demurrer  had  been  given 


for  the  plaintiff  and  on  the  trial  all  the  ijMues  in 
fact  were  found  for  him,  the  Court  refused  to  set 
aside  the  trial  on  the  objection  that  the  venire  faeims 
Jnrotores  was  only  to  try  the  issues,  and  not  to  in- 
quire of  the  damages  on  tbe  demurrer ;  saying  diat 
the  defect  was  amendable,  and  that  they  would  leawe 
the  party  taking  the  objection  to  his  writ  «f  error. 
M^ood  y.  Peyton,  14  Law  J.  Rep.  (k.b.)  Eifch.  28 ; 
18  M.  ft  W.  377;   2  Dowl.  St  L.  P.C.  441. 

On  the  trial  of  an  action  against  oflicers  of  a 
court  of  requests  the  Niai  Prins  reoovd  eontatned 
only  the  plea  of  not  guilty,  without  the  words  **  by 
Stat"  being  added.  The  defendants'  counsel  wished 
to  amend  by  adding  the  words  **  by  stat"  to  the 
Nisi  Prius  record.  The  Judge  wt>uld  not  allow  tlM 
amendment,  as  it  could  not  he  shewn  that  the  words 
**  by  statute"  were  on  the  defendants*  plea ;  but, 
semble,  that  if  it  could  have  been  shewn  that  the 
words  *'  by  statute"  had  been  in  the  issue  delivered 
bv  the  plaintiff's  attorney,  the  Judge  would  h«re 
allowed  the  amendment  Farmer  v.  Dawes,  Oar.  St 
M.  127. 

Where  a  writ  of  trial,  which  had  been  re-seeled, 
was  retumableon  a  day  before  thaton  which  the  cenae 
was  tried ;  and  the  defendant  had  appeared  at  the  triel 
without  objecting  to  the  defi^et,  and,  subsequently 
to  the  trial,  the  writ  was  again  re-eealed,  and  the 
return  day  altered ; — ^Held,  that  the  writ  ought  to 
be  set  aside,  as  the  trial  had  taken  place  wit  I  out 
authority  under  the  writ,  and  that  this  was  an  error 
which  could  not  be  either  waived  or  amended. 
Ashbumer  or  Ashburton  v.  Sykes,  12  Law  J.  Repw 
(K.a.)  aa  800  ;  1  Dowl.  &  L.  P.C.  18S. 

Where  the  plaintiff  had,  by  leave  a(  the  Court, 
amended  his  replication,  the  Court,  en  payment  of 
the  costs  of  the  amendxnent  and  the  application, 
made  absolute  a  rule  to  amend  the  second  and  sub- 
sequent writs  issued  in  the  cause  (which  did  not 
support  the  amended  replication)  by  adding  to  the 
memorandum  indorsed  on  each  a  statement  of  the 
day  of  the  date  of  the  return.  IVilliams  v.  WilUasns, 
12  Law  J.  Rep.  (n.s.)  £xch.  128 ;  10  M.  &  W.  174. 

In  an  action  by  a  public  officer,  judgment 
having  been  entered,  and  execution  issued  in  his 
name,  after  he  had  ceased  to  be  such  oflicer,  the 
Court  permitted  a  suggestion  of  his  removal,  and 
the  name  of  another  officer  to  be  entered  nunc  pro 
tunc  upon  the  roll,  and  the  judgment  of  ca.  so.  to 
be  amended  by  the  insertion  of  the  fresh  ofilicer's 
name  without  costs,  though  the  party  had  been 
arrested,  and  had  applied  to  set  aside  the  proceed- 
ings for  irregularity. 

Quare — Whether  a  defendant  is  precluded  from 
taking  advantage  of  such  a  defect  by  a  clause  in 
the  cognovit,  that  he  will  not  obtain  any  summons 
or  rule  of  court  to  set  aside  any  proceeding  for 
irregularity,  or  otherwise  to  do  any  matter  or  thing 
whereby  the  plaintiff  may  be  delayed  in  entering  up 
his  judgment,  and  enforcing  execution.  fVebb  t. 
Taylor,  13  Law  J.  Rep.  {VA.)  Q.B.  24 ;  1  Dowl.  & 
L.  P.C.  676. 

Where  the  trial  of  a  cause,  under  a  writ  of  trial, 
commenced  upon  the  return  day  named  in  the  writ, 
but  the  verdict  was  not  delivered  until  the  following 
day,  and  the  sheriff  returned  that  the  cause  was  tried 
upon  the  return  day,  the  Court  refused  to  order  him 
to  amend  the  return.  Pinkney  v.  Booth,  12  Law  J. 
Rep.  (n.s.)  Q.B.  96 ;  2  Dowl.  P.C.  (h.8.)  421. 


AMENDMENT. 


21 


(B)  To  SAVE  THK  Statute  of  Limitations. 

The  Court  will  »»end  «writ  of  uiHunons,  al- 
though more  than  lour  months  have  eU^aed  sinoe 
it  was  issued,  by  altering  the  cause  of  action  from 
debt  to  astuinpeit<  on  an  affidavit  that,  if  a  fresh 
action  were  coniinenced,  the  Statute  of  LimiJtatioDS 
would  be  a  bar;  but  the  Court  cannot  amend  the 
copy  of  the  writ  served,  as  they  have  no  power 
ovor  it.  Ecciet  or  £^le$  v.  Cole,  10  Law  J.  Rep. 
(h^>  £«ch.  47£ ;  ft  M.  &  W.  ^37  ;  1  Dowl.  P.C. 
(M.S.)  d4S. 

Where  th»  attorney  of  a  party  has  omitted  to 
indorse  on  the  aliag  and  plurie§  writs  of  summons 
iMued  before  October  1843,  to  save  the  Statujte  of 
Limitations,  the  date  of  the  return  of  the  first  writ, 
the  Court  permitted  the  plaintiff  to  amend  the 
iBdorsemeats  and  the  entry  on  the  roll,  by  adding 
that  date,  upon  payment  of  costs,  Mavar  v.  fip^d' 
mg,  13  Law  J.  Rep.  (if.8.)  QLB,  185;  1  Dowl.  &  L. 
P.C.  878. 

The  plaintiff  was  allowed  to  amend  the  writ  of 
iummons  and  subsequent  proceedings  by  adding 
the  name  of  the  official  assignee  as  plaintifi^  in  order 
to  save  the  Statute  of  Limitations.  Brown  v.  Ful" 
ierioM,  14  Law  J.  Rep.  (n.8.)  Exch.  79 ;  13  M.  & 
W.  456;  2  DowL  U  L.  P.C.  261. 

(C)  Iif  Cases  ot  Variance,   tmoER  9  Geo.  4. 
c.  15.  Ain>  3  &  4  Will.  4.  c.  42.  s.  23. 

(a)  At  Nisi  Prius. 

The  declaration  alleged  that  in  consideration,  &c., 
the  defendant  "  undertook  and  promised  the  plain- 
tiff to  repay  him,  aa  well  the  sum  of  24^  before 
lent  and  advanced  by  the  plaintiff  to  XL  B,  and  the 
further  sum  of  21.  per  week,  so  long  as  the  plaintiff 
ahould  continue  to  advance  the  same  to  R.  B,  and 
•nch  other  sums  as  the  plaintiff  should  so  lend  and 
advance  to  the  said  R.  B."  At  the  trial  a  written 
promise  of  the  defendant  was  proved,  as  follows : 
"  I  beg  you  will  continue  to  advance  the  sum  of  2^ 
per  week  to  R.  B,  and  I  hereby  engage  to  repay  to 
you  all  monies  you  may  advance  to  him,  in  addition 
to  the  24eL  you  have  already  let  him  have  at  my 
request": — Held,  a  variance  amendableat  Nisi  Prius, 
under  9  Geo.  4.  c.  15.  Semble,  also  under  3  &  4 
Will.  4.  c.  42.  Smith  v.  Brandram,  10  Law  J.  Rep. 
(h.8.)  C.P.  73  ;  9  DowL  P.C.  430. 

A  declaration  stated  that  the  defendant,  on  the 
9th  of  November  1838,  made  his  promissory  note, 
&C.,  and  thereby  promised  to  pay  the  plaintifli  on 
demand  2502.  The  note  produced  at  the  trial  was 
a  joint  and  several  promissory  note,  signed  by  the 
defendant  and  his  wife  for  250/.,  dated  the  6th  of 
November  1837,  payable  twelve  months  after  date, 
with  interest  There  was  no  proof  of  any  other 
DOte  between  the  parties : — Held,  a  case  of  variance 
in  which  the  Judge,  at  Nisi  Prius,  was  right  in 
allowing  the  record  to  be  amended  under  3  &  4 
Will  4l  c.  42.  s.  23.  Boekett  v.  DutUm,  10  Law  J. 
Rep.  (9.8.)  Exch.  1;  7  M.  &  W.  157  ;  8  Dowl. 
P.C.  865. 

Qu4gre — Whether,  under  3  &  4  Will.  4.  c.  42. 
s.  23,  a  Judge,  at  Nisi  Prius,  ought  to  make  an 
amendment,  which  will  have  the  efiect  of  depriving 
the  opposite  party  of  a  motion  in  arrest  of  judg- 
ment. Atkinson  v.  Raleigh^  11  Law  J.  Rep.  (n.s.) 
as.  165. 


Where  a  deolaration  averred  that  the  defendant 
had  received  money  to  be  invested  in  a  government 
annuity,  and  promised  to  inevst  it  accordingly; 
but  that  he  invested  it  in  a  private  annuity  office, 
whereby  it  was  lost ;  and  evidence  was  given  at  the 
trial  of  a  promise  by  the  defendant  to  invest  the 
money  in  a  government  seourit}' : — Held,  a  proper 
ease  for  an  amendment  under  3  &  4  Will.  4.  c.  42. 
a.  23.  Qurford  v.  Bailey,  1 1  Law  J.  Rep.  (h.b.)  C.P. 
105  ;  1  Dowl.  P.C.  (N.S.)  519. 

Where  the  Judge  at  Nisi  Prius  amended  a  decla- 
ration in  ejectment,  under  the  authority  of  3  &  4 
WilL  4.  c  42.  s.  23,  by  inserting  the  year  of  the 
demise,-^the  Court  held  that  this  was  not  a  variance 
between  the  proof  and  the  record,  and  therefore  was 
not  amendable  under  that  statute ;  but  they  dis* 
charged  a  rule  obtained  by  the  defendant  to  enter  a 
nonsuit.  Doe  d.  Parson  v.  Heather,  10  Law  J.  Rep. 
(n.8.)  Exch.  296;  8  M.  &  W.  158. 

A  Judge,  at  Nisi  Prius,  has  power,  under  2  &  3 
WilL  4b  c  42.  B.  28,  to  amend  a  declaration  in 
ejectment,  by  altering  the  day  of  the  demise.  Doe 
d.  Edwards  v.  Leach,  10  Law  J.  Rep.  (N.a.)  C.P. 
289. 

A  Judge  at  Nisi  Prius  has  power,  under  3  &  4 
Will.  4.  c.  42.  s.  23,  to  amend  a  declaration  in  eject- 
ment by  altering  the  day  of  the  demise,  whether  the 
day  is  a  wrong  day  or  an  impossible  day.  Doe  d. 
Simpson  Y.  Hall,  12  Law  J.  Rep.  (N.s.)  C  P.  239; 
6  Sc.  (N.s.)  689 ;  3  Dowl.  P.C.  (n.8,)  49. 

Where  the  defendant  pleaded  to  debt  onanote,  that 
another  note  had  been  given  jointly  with  another 
party,  and  accepted  by  the  holder  in  satis&ction  of 
the  one  declared  on,  and  at  the  trial  it  appeared  to 
have  been  given  in  snbstitution  and  discharge  of  an 
intermediate  note  made  without  the  additional  party, 
and  not  of  the  one  declared  on : — Held,  a  fatal  va- 
riance, and  a  case  in  which  the  Judge  had  no  power 
to  amend  by  substituting  a  description  of  the  inter- 
mediate note.  David  v.  Preece,  13  Law  J.  Rep. 
(n.8.)  Q.B.  88 ;  s.  c.  Davis  v.  Preece,  5  Q.B.  440. 

llie  original  declaration  stated  that  T  B  was 
possessed  of  ten  shares  in  a  joint-stock  company, 
ftc,  and  had  requested  the  plaintiff  to  make  him 
certain  advances  upon  the  security  of  the  shares,  and 
that  the  plaintiff  had  refused,  unless  farther  security 
should  be  provided  by  T  B  to  the  plaintiff;  and 
thereupon,  in  consideration  that  the  plaintiff  would 
make  advances  by  way  of  loan  on  the  shares  to 
T  B ,  the  defendant  undertook,  &c.  to  repay  him,  at 
the  expiration  of  twelve  calendar  months,  such  sums 
of  money  to  the  extent  of  500/.  as  the  plaintiff 
should  so  advance  to  T  B,  in  case  T  B  should 
make  default,  &c.  and  the  shares  not  make  up  the 
amount  of  money  advanced.  The  declaration  then 
stated  that  the  plaintiff  afterwards  did  make  ad- 
vances to  the  amount  of  4fO0/.  to  T  B,  who  deposited 
the  shares  as  security,  and  then  requested  the  plain- 
tiff to  advance  the  same,  &c.  It  then  stated  that 
twelve  calendar  months  had  elapsed,  and  non-pay- 
ment by  T  B;  and  that  defendant  was  requested 
to  repay  to  plainti^&c.but  had  not  done  so.  The 
defendant  pleaded,  first,  non  assumpsit ;  secondly,  that 
plaintiff  did  not  make  the  advances  in  the  declara- 
tion mentioned,  or  any  of  them,  to  T  B,  modo  et/ormd, 
&c. — Held,  that  the  amendment  of  die  declaration 
and  second  plea,  by  such  alterations  and  insertions 
as  were  necessary  to  shew  that  T  B  had  requested 


22 


AMENDMENT^AMENDS. 


pUintiiF  to  procure  the  British  and  Aastralanan 
Bank,  in  which  the  plaintiff  was  a  partner  and 
manager,  to  make  advances  to  T  B,  and  that  in 
consideration  that  the  plaintiff  would  procure  the 
hank  to  make  the  adYanoea,  the  defendant  promised 
the  plaintiff  to  repay  the  hank ;  and  that  the  plain- 
tiff did  procure  the  bank  to  make  the  advances,  and 
that  the  defendant  had  not  repaid  the  bank,  was  not 
within  the  statute  3  &  4  Will.  4.  c.  42.  s.  23,  as  it 
introduced  new  terms,  and  varied  the  consideration 
and  the  promise.  Boucher  v.  Murrofft  13  Law  J, 
Rep.  (N 8.)  QB.  278. 

In  covenant  by  the  assignee  of  the  reversion, 
the  plaintiff  claimed  under  a  deed  of  appoint* 
ment  under  a  power,  which  the  declaration 
averred  had  been  duly  executed  by  A  B,  and 
attested  by  two  credible  witnesses.  The  defendant 
pleaded  that  A  B  did  not  appoint  in  manner  and 
form.  It  appeared  at  the  tria^  that  one  of  the  wit- 
nesses was  the  plaintiff's  wife : — Held,  that  though, 
the  power  having  been  defectively  executed,  the 
deed  would  not  take  effect  as  an  appointment,  yet 
that  it  might  operate  either  as  a  grant  or  as  a  cove- 
nant to  stand  seised ;  and  that  &e  case  was  one  in 
which  a  Judge  at  Nisi  Prius  might  allow  an  amend- 
ment Perry  Y,  Watte,  11  Law  J.  B«p.  (n.s.)  C.P. 
97 ;  3  M.  &  O.  773. 

By  agpreement  between  C  and  F  of  the  one  part, 
and  S  of  the  other  part,  S,  in  consideration  of  two 
several  sums  of  50/.  and  50/.  paid  to  him  by  C  and 
F  respectively,  agreed  with  the  said  C  and  F,  their 
executors,  &c.,  to  indemnify  the  said  C  and  F,  their 
executors,  &c.,  and  their  and  each  and  every  of  their 
estates  and  effects,  &c.,  from  all  costs,  in  a  certain 
event  therein  mentioned.  In  an  action  against  S 
by  C  alone,  upon  this  agreement,  the  declaration 
omitted  all  mention  of  F,  and  stated  the  promise  by 
S  to  C  alone,  in  consideration  of  SOL  paid  to  S  by 
C.  The  Judge,  at  the  trial,  amended  the  declara- 
tion in  accordance  with  the  consideration,  as  stated 
in  the  agreement : — Held,  upon  motion  in  arrest 
of  judgment,  that  the  amendment  did  not  vitiate  the 
declaration;  that  though  the  consideration  was  from 
two  jointly,  the  promise  was  to  indemnify  C  and  F 
severally ;  and  that  C  might  sue,  alleging  a  pro- 
mise to  himself,  without  joining  his  co-covenantee. 
PaUner  v.  Sporahott^  11  Law  J.  Rep.  (n.s.)  C.P. 
204;  4  M.  &  G.  137;  4  Sc.  (n.s.)  743. 

[See  title  Arbitbation,  Arbitrators.] 

(h)  In  Banc 

The  statute  3  &  4  Will.  4.  c.  42.  a.  23.  does  not 
empower  a  Judge  sitting  in  banc  to  amend  the 
pleadings  in  the  case  of  a  variance  appearing  on  an 
issue  raised  under  a  plea  of  nul  Hel  record.  Davie  v. 
Z>«iin,  1 1  Law  J.  Rep.  (n.s.)  Q.B.  16. 

(D)  Of  the  Misprisions  of  Clbrks. 

Where  a  writ  of  dietringae  juraioree  commanded 
the  sheriff  to  have  the  bodies  of  the  jurors  in  vaca- 
tion, instead  of  on  the  first  day  of  the  following 
term,  and  was  tested  on  the  day  on  which  it  ought 
to  have  been  returned : — Held,  that  the  error  was  a 
misprision  of  the  clerk,  amendable  under  the  Statutes 
of  Amendment,  after  error  brought.  Cheese  v. 
Scaiet,  12  Law  J.  Rep.  (n.s.)  Exch.  14;  10  M.  & 
W.  488;  2  Dowl.  P.C.  (n.s.)  438. 


(E)  Of  Affidavits. 

Where  an  affidavit  i«  support  of  an  interpleader 
rule  was  defective  in  omitting  to  shew  that  the  de- 
fendant had  not  pleaded :-^Held,  that  the  Court 
might  allow  an  amendment    Frost  v.  Hayward, 

12  Law  J.  Rep.  (n.s.)  Exch.  242. 

(F)  Of  the  Postba. 

The  Court,  having  no  power  to  compel  the  pro- 
duction of  a  Judge's  notea,  will  not  iiiterfere  to 
controul  his  discretion  as  to  an  amendment  of  the 
postea.  Sofndford  v.  Alcock,  12  Law  J.  Rep.  (n.s.) 
Exch.  40;  10  M.  &  W.  689 ;  2  DowL  P.C.  (n.8.)  463. 

(G)  Of  Informations  and  Indictments. 

The  rule  to  amend  an  information  at  the  suit  of  the 
Attorney  General  is  absolute  in  the  first  instance. 
Attorney  General  v.  Rayt  12  Law  J.  Rep.  (n.«.) 
Exch.  352 ;  11  M.  &  W.  464. 

After  an  indictment  haa  been  preferred  at  the 
Central  Criminal  Court,  and  removed  by  cerHortsri 
into  this  court,  and  set  down  for  trial  at  the  sittings, 
having  the  venue  such  as  is  prescribed  by  4  &  5 
Will.  4.  c  36-  s.  3,  and  no  other,  the  Court  will,  by 
consent,  order  an  amendment  to  be  made  in  the 
venue,  both  in  the  margin  and  body  of  such  indict- 
ment, in  order  to  admit  of  its  being  tried  by  a  Lon- 
don   or   Middlesex  jury,      Begina    v.   Ashburton, 

13  Law  J.  Rep.  (na)  M.C.  40. 

(H)  Rescinding  and  abandoning  JtiDOE\i 

Order  for. 

A  party  who  has  received  the  costs  of  an  amend- 
ment of  the  record,  under  a  Judge's  order,  cannot 
move  to  rescind  the  order.  Simmons  v.  King,  14 
Law  J.  Rep.  (n.s.)  Q.B.  196  ;  2  DowL  &  L.  P.C.  786. 

Where  the  plaintiff  obtained  an  order  to  amend 
the  postea  at  half-past  nine  o'clock  on  the  22nd  of 
November,  but  did  not  draw  it  up  until  the  23rd, 
and  it  was  not  served  until  four  o'clock  on  the  24th : 
— Held,  that  as  no  fresh  step  could  have  been  taken 
by  the  defendant,  the  plaintiff  had  not  abandoned 
the  order.  Sandford  v.  Alcock,  1 2  Law  J.  Rep.  (n.8.) 
Exch.  40;  10  M.  fie  W.689;  2  Dowl.  P.C.  (n.s.)  468. 

(I)  Costs  of. 

A  Judge  has  power  to  determine  the  amount  of 
costs,  on  payment  of  which  he  will  allow  a  defen- 
dant to  amend  a  plea ;  and  the  Court  will  not  re- 
view his  decision.  Tondinson  v.  BoUardy  12  Law  J. 
Rep.  (n.8.)  as.  267  ;  4  aB.  642 ;  3  G.  &  D.  607. 

(K)  Jurisdiction  of  Court  of  Error  over. 

A  court  of  error  cannot  inquire  into  the  propriety 
of  amendments  made  in  the  record  by  the  Court 
below,  or  question  its  power  tp  make  them,  though 
they  were  made  after  judgment,  and  after  the  issu- 
ing of  a  writ  of  error  coram  vobis.  Scales  v.  Cheese 
(in  error),  13  Law  J.  Rep.  (n.8.)  Exch.  167 ;  12 
M.  &  W.  685 ;  1  Dowl.  &  L.  P.C.  637. 


AMENDS. 
[See  Martmt  v.  Upcher,  title  Action  (D)  (6).] 


ANIMALS— ANNUITY. 


23 


ANIMALS. 
[See  Nbolioence.} 


ANNUITY. 

[See  Limitations,  Statute  of — Stamp — Tbust 

AND  Trustee.] 

(A)  Inrolment  of,  under  58  Geo.  3.  c.  141. 
(a)  Whan  nteenarf. 

{*)  Farm  md  RgquuUet  tfihe  Memonal, 

(B)  Grant  op,  when  void  or  voidable. 

(C)  Rights  of  Annuitant. 

(D)  Revocation  [see  title  Will,  Rerocation]. 

(£)  RsCOVBRINa  BACK  CONSIDERATION  MONET. 

(F )  Plea  of  Solvit  Post  Diem,  under  4  Ann. 
cl6. 


(A)  Inrolment  of,  undbr  53  Obo.  8.  c.  141. 
(a)  Whem  nseetsary, 

A  bond  given  for  the  penal  sum  of  4,000/.,  in  the 
condition  recited,  that  the  obligor  was  indebted  to 
the  obligee  in  2,0001,  and  that  the  obligee  had 
agreed  to  accept  interest fbr  the  same  at  5^  percent 
durinff  the  lives  of  the  obligee  and  another  party, 
in  fall  satisfaction  of  the  debt,  provided  the  same 
was  regularly  paid :  it  then  set  out,  that  if  the  in- 
terest was  paid  half-yearly,  on  the  1st  of  July  and 
I  St  of  January,  the  bond  was  to  be  null  and  void, 
but  in  case  of  failure  for  twenty*eight  days  next 
after  each  half-yearly  payment  had  become  due,  the 
same  having  been  demanded,  the  bond  to  be  in  full 
force,  and  in  case  of  failure  in  making  the  payments 
within  the  respective  times,  the  bond  or  payments 
made  under  it  should  not  be  taken  in  discharge  of 
any  part  of  the  sum  of  2,000/.,  bat  the  same  should, 
immediately  after  such  default,  become  payable 
under  the  bond : — Held,  that  this  was  not  an  annuity 
bond  requiring  inrolment  within  the  meaning  of  53 
Geo.  8.  c  141.  S.2. 

Qfutrg — ^Whether  that  statute  applies  to  annuity 
bonds  granted  for  a  pre-existing  debt 

In  an  action  on  the  bond,  the  defendant  pleaded 
as  to  one  of  the  half-yearly  payments,  that  payment 
had  not  been  demanded  on  the  day  when  it  became 
dne  or  at  any  time  within  twenty-eight  days,  but  that 
the  defendant,  after  the  expiration  of  the  twenty- 
eight  days,  and  before  the  commencement  of  the 
suit,  paid  it  to  the  plaintiff,  and  that  no  other  sum 
was  due: — Held,  a  bad  plea  of  tolvit  pott  Hem, 
under  4  Ann.  c.  10,  because  if  the  principal 
sum  had  become  payable  under  the  bond,  payment 
of  it  should  have  been  pleaded,  and  if  it  had  not 
become  payable  defendant  should  have  shewn  in  his 
plea  that  it  had  not 

Qutere — Whetherthiswas  a  bond  within  the  mean- 
ing of  4  Ann.  c.  16,  and  to  which  therefore  toMt 
pott  diem  could  be  pleaded.  Marriage  v.  Marriage, 
24  Law  J.  Rep.  (n.8.)  C.P.  244. 

( b)  Form  and  Reqtutitet  qf  the  MemoriaL 

A  memorial  of  an  annuity  deed,  under  53  Geo.  3. 
c  141.  s.  2,  must  state  the  names  of  all  the  parties  to 
the  deed,  although  one  of  them  may  take  no  interest 
under  it,  or  have  executed  it  Buggtnt  v.  Coatet,  1 
Dowl.  P.C.  (N.8.)827. 

Where  to  covenant  on  an  annuity  deed,  made 


between  the  defendant  of  the  one  part,  and  the 
plaintiff  of  the  other  part,  the  defendant  pleaded  the 
non -inrolment  of  the  memorial ;  and  the  plaintiff 
replied  that  the  memorial  was  inroUed ;  and  havine 
set  it  forth,  it  appeared  that  the  plaintiff  and  hisw/^ 
were  therein  described  as  of  the  one  part : — Held, 
that  the  memorial  was  sufficient  and  the  replication 
good.  PapineaH  v.  Khig,  12  Law  J.  Rep.  (n.s.) 
Exch.  32 ;  10  M.  &  W.  216;  2  Dowl.  P.C.  (N.8.)  226. 

Where  the  memorial  of  an  annaity  stated  part  of 
the  consideration  to  have  been  paid  in  thus:  **  iZL  by 
a  draft  of  even  date  with  the  aforesaid  recited  inden- 
ture of  assignment,  drawn  by  the  said  W  A  on 
Messrs.  B  H  &  Co." : — Held,  that  the  memorial 
did  not  sufficiently  describe  the  consideration,  under 
53  Geo.  3.  c.  141.  s.  2,  as  it  did  not  state  the  time  at 
which  the  draft  was  payable ;  and  the  Court  upon 
motion  set  aside  a  warrant  of  attorney  given  to 
secure  the  annuity  and  the  judgment  signed  thereon, 
but  refused  to  set  aside  the  annuity  deed.  Abbott 
V.  D<mgiat,  14  Law  J.  Rep.  (n.s.)  C.P.  202. 

The  memorial  of  an  annuity  inrolled  under  53 
Geo.  3.  c.  141.  s.  2,  in  the  column  headed  **  name  or 
names  of  person  or  persons  by  whom  annuity  or 
rent-charge  to  be  beneficially  received,"  contained 
the  names  of  eight  parties,  including  Kymer, 
who  had  advanced  the  consideration  money  of  the 
annaity ;  another  column  headed  **  consideration, 
and  how  paid"  set  forth  against  the  names  of  each 
of  these  parties  the  respective  sums  paid  by  them, 
amounting  to  14,500^.  as  well  as  the  mode  of  pay- 
ment, and  in  a  subsequent  column  headed  *' amount 
of  annuity  or  rent-cbaige"  there  was  set  against 
the  consideration  money  advanced  by  each,  the 
amount  of  each  annuity,  the  aggregate  being  1,050<. : 
^— Held,  that  although  it  was  not  necessary  to  state 
in  the  memorial  the  consideration  at  between  Kymer 
and  hit  granteet,  yetas  the  consideration  between  him 
and  his  grantor  was  truly  stated,  the  memorial  was 
correct  Hogarth  v.  Penny,  14  Law  J.  Rep.  (n.8.) 
£xch.345;  14M.&W.  494. 

(B)  Grant  of,  when  void  or  voipable. 

Where  R  S,  being  in  unlawfiil  cohabitation  with  M, 
granted  an  annuity  to  a  trustee  for  her,  as  an  induce- 
ment to  continue  the  cohabitation,  and  charged  it 
upon  his  present  and  future  realty,  the  first  payment 
to  be  made  upon  the  death  or  marriage  of  R  S,  or 
cessation  of  cohabitation.  R  S  also  gave  a  bond  and 
warrant  of  attorney  to  secure  the  annuity.  The 
cohabitation  ceased,  and  R  S  filed  a  bill  for  can- 
celling the  grant  of  annuity : — Upon  a  demurrer 
pat  in  for  want  of  equity,  held,  that  the  grant 
was  totally  void  at  law,  and  the  demurrer  allowed. 
Smyth  V.  GW^a,  12  Law  J.  Rep.  (n.s.)  Ch.  193 ;  13 
Sim.  245. 

Courts  of  equity  will  give  efiect  to  the  penal 
clauses  of  the  annuity  acts,  not  merely  in  questions 
between  the  grantor  and  the  annuitant,  but  in  those 
between  prior  and  subsequent  annuitant  Searle  v. 
Colt,  1  Y.  &  Coll.  C.C.  36. 

(C)  Rights  of  Annuitant. 

A  bill  in  equity  will  lie  to  recover  the  arrears  of 
an  annuity,  although,  under  the  circumstances,  the 
plaintiff  may  have  no  right  to  call  on  the  Court  to 
direct  security  to  be  granted  for  payment  of  such 
annmty.     Cl^ord  v.  Twreil,  1  Y.  &  Coll.  C.C.  138. 


24 


ANNUITY— ARBITRATION. 


Any  equities  between  gra&ton  of  an  annuity  are 
not  to  aflfect  the  grantees,  unless  they  have  notice 
of  them  at  the  time  of  the  grant  HoiUer  ▼.  Eyre, 
9  C.  &  F.  1. 

R  W  6  executed  a  bond  conditioned  for  the 
payment  of  an  annuity  of  250/L,  in  case  C  M,  the 
intended  wife  of  J  G,  should  survive  him,  for  her 
use,  provided  J  6  should  hold  a  commission  in  the 
anny  at  the  time  of  his  death,  and  there  should  be 
issue  of  the  marriage  then  living.  C  M  and  se- 
veral children  survived  J  G,  who  at  the  time  of 
his  death  held  a  commission  as  colonel  in  the  army, 
butreceiTed  no  pay  in  respect  thereof,  and  was 
liable  to  be  called  into  service: — Held,  that  the 
annuity  was  payable  to  his  widow  during  her  life. 
Grep  y.  Grey,  12  Law  J.  Rep.  (n.8.)  Ch.  458. 

By  an  indenture  dated  in  April  1810,  an  annuity 
was  granted  to  S,  charged  upon  real  estate,  and  by  an 
indenture  dated  in  April  1820,  the  same  property 
was  charged  by  the  same  parties  with  an  annuity 
payable  to  A.  This  annuity  was  void  for  want  of  a 
proper  memorial,  but  until  the  filing  of  the  bill  it 
had  been  always  treated  as  a  valid  annuity,  and  in 
September  1821,  A,  under  a  proviso  in  his  annuity 
deed,  entered  into  possession  and  receipt  of  the 
rents  and  profits  of  the  estate,  and  remained  in  un- 
disturbed possession  of  them  till  his  death  in  1829, 
when  his  personal  representative  took  possession. 
In  1885  S  died,  and  in  November  1839  his  personal 
representative  filed  his  bill  to  set  aside  A's  annuity 
and  to  establish  his  own.  The  bill  alleged  that  S 
had  received  payment  of  his  annuity  down  to  Oc- 
tober 1820,  and  that  A  had  obtained  possession  of 
the  premises  under  miarepresentation.  These  alle- 
gationa,  however,  were  not  proved  against  A,  nor 
waa  it  prored  that  A  ever  had  notice  of  S's  title ; 
but  the  allegation  of  payment  was  admitted  by  the 
graotors  of  the  annuity,  who  were  co-defendants 
with  A  in  the  suit  Under  these  circumstancee, 
and  considering  that  S  had  never  been  in  possession 
of  the  property : — Held,  first,  that,  notwithstanding 
the  infirmity  of  A's  title,  the  plaintiff  was  not  en- 
titled  to  the  relief  prayed  by  his  bill.  Secondly,  that 
he  was  not,  in  consequence  of  the  admission  of  A's 
co-defendants,  entitled  to  any  inquiry  as  against  A 
with  a  yiew  to  obviate  the  eSkd  of  delay  in  filing 
the  bilU  Thirdly,  that  his  bill  must  be  dismissed 
with  costs  as  againat  A,  on  the  ground  of  length  of 
time.    SearU  y.  CoU,  1  Y.  &  Coll.  C.C.  86. 

Where  an  annuity  was  given  for  maintenance,  and 
charged  upon  land  for  a  certain  time  which  ceased 
before  the  time  of  the  year  at  which  the  annuity  was 
payable, — the  annuitant  was  held  entitled  to  an  ap- 
portioned part  of  such  annuity  for  the  time  between 
the  last  payment  and  the  cessation  of  the  charge. 
Sheppard  v.  Wilton^  4  Hare,  395. 

(D)  Revocation. 

[Of  devise  of  an  annuity  by  obliteration,  see 
Locke  V.  JameSf  title  Will,  Revocation.] 

(£)   RSCOVBRXNO    BACK  CONSIDEHATION  MoNEY. 

Where  an  annuity  wss  granted  in  1826,  and  paid 
regularly  down  to  the  year  1829 ;  and  in  1842  the 
warrant  of  attorney  by  which  it  was  secured  was 
set  aside  by  rule  of  court,  but  on  what  ground  did 
not  appear: — Held,  that  the  grantee  was  entitled  to 
recover  the  consideration  money  in  an  action  for 


money  had  and  reeeiyed,  and  that  the  Statute  of 
Limitations  was  no  bar.  Hugghu  v.  Coatee,  13 
Law  J.  Rep.  (N.g.)  aB.  46  ;  5  U.B.  432  ;  I  D.  & 
M.  433. 

(F)  Plea  OF  Solvit  Post DiEM,T7NDEB  4  Ann. c.  16. 
[See  Marriage  v.  Marriage^  ante,  (A)  page  23.] 


APOTHECARY. 
[See  Su&OBON  and  Apothecaby.] 


APPEAL. 

[See  Mandamus — Parliament — Poor 
Council — Sessions.] 


— Pbivt 


APPEARANCE. 

[See  Practice.] 


APPOINTMENT. 

Semhle,  that  the  enactment  in  the  new  Will  Act, 
that  a  bequest  to  a  child  of  the  testator  who  dies  in 
the  testator's  lifetime  leaving  issue  living  at  the 
testator's  death,  shall  not  lapse,  does  not  apply  to 
a  te&tamentary  appointment  Gr^filke  v.  Gale,  12 
Sim.  327. 


APPORTIONMENT  OF  RENT. 
[See  Landlord  and  Tenant.] 


APPRAISEMENT. 

[See  Distress.] 


APPRENTICE. 

[See  Master  and  Servant — Poor,  Settlement 

— Stamp.] 

The  acts  for  the  better  regulation  of  apprentices 
explained  by  5  Vict  c.  7 ;  20  Law  J.  Stat  8. 


APPROPRIATION  OF  PAYMENTS. 

[See  WdUcer  v.  Rottron,  title  Monet  had  and 
RECEIVED,  jimold  y.  Mayor,  Sfc,  qf  Poole,  title  Cor- 
poration.] 


ARBITRATION. 

(A)  Submission  to. 

(a)  Parties — Mutuality, 

(b)  Making  the  Submistiom  a  Rule  of  Court, 

(c)  ConstruetioH  of, 

(d)  Revocation  qf. 

(1)  By  application  to  the  Courts  under  Z  Sf  4 

Will.  4.  c.  42.  e.  89. 

(2)  By  Marriage, 

(3)  By  Bankruptcy  and  Ineohency. 

(4)  By  Death, 

(B)  Arbitrators. 

(a)  Power  and  Duty  of, 

(6)  Jurisdiction  of  Court  orrr, 

\c)  Costs  of  Reference  and  Fees, 


ARBITRATION. 


wt^m 


(C)  Uhvibb. 

(D)  WiTMJMftBS. 
(£)  AWABD. 

(a)  ITtiAtfi  vikaJt  TvKM  to  be  made. 

(b)  Enlarging  the  Time  for  making. 
(e)  General  Form  and  RequUiteM  of. 

(d)  Certabiijf  and  Cemeimheneee. 

(e)  IneoHsiitencjf. 

(J)  Exeees  ^  Auth&rity. 
(g)  Snrpbuage, 
(A)  Petfirmtmee  qf. 
(t)    ExeeuiioH  rf. 
[k)  Conttruetumqf. 
/)   Partial  Vamip  &f. 
[m)  Smiding  book  to  ArkUrater. 
(n)  PartiaUan  rf  Demand. 
(«)  Remedies  far  erforcing. 

(]}  Attachment. 

(2)  EzeeuHon,  nnder  I  Sf  ^  Viet.  c.  110.  e.  18. 
(fi)  Setting  aridt, 

(1)  Crmmdefar. 

(2)  Matters  qf  Praetiee  on. 
(q)  Costs, 

(1)  GtneraUf. 

(2)  Centi^haleqfArbiiratorfar. 

(3)  rojw^MR^. 
(^p)  AttackmmU  far  non-payment  rf* 

(r)  Making  Award  a»  Ordlfr  t^  CW*!. 


I 


(A)  Submission  to. 

(a)  Parties — Mutuality, 

An  sward  made  upon  a  submission  by  executors, 
who  are  tmstees  for  infsnts  snd  married  women, 
leferring  matters  Telsting  to  tbB  estate  of  the  person 
they  represent,  will  not  be  set.  aside  by  the  Court, 
at  their  instance,  for  want  of  mutuality.  In  re 
Warner,  13  Law  J.  Rep.  (n.8.)  Q.B.  370  {  2  DowL 
k  L.  P.C.  148. 

[And  see  this  case  under  Award,  Oeneral  Form 
and  Requisites  of.] 

(b)  Making  the  Submission  a  Bnle  of  Court, 

The  motien  to  make  the  submission  a  rule  of 
court  being  made  on  the  original  submission,  the 
Court  will  grant  a  rule  oalliug  on  the  opposite  party, 
if  shewn  to  be  in  possession  of  it,  to  produce  it. 
Boeton  v.  Meeham,  8  DowL  P.C.  867. 

Where  a  cause  in  the  Exchequer  was  referred  by 
a  Judge's  order,  and  it  was  part  of  the  order  that  it 
should  be  made  a  rule  of  the  Queen's  Bench  :— 
Held,  that  there  was  no  objection  to  its  being  so 
made.     Milstead  v.  Crm^ld^  9  DowL  P.C.  124. 

(c)  Construction  qf. 

Semhle — ^That  a  covenant  to  refer  all  matters  in 
difference  between  shareholders  of  a  company  to 
arbitration,  the  submission  and  award  to  be  binding 
and  conclusiTe  on  the  parties  "without  further 
suit  or  trouble,"  is  no  bar  to  a  suit  in  a  court  of 
equity  between  the  same  parties  and  for  the  same 
matters.  Benson  v.  Heaihom,  1  Y.  &  Coll.  C.C. 
826. 

Where  the  agreement  of  reference  was  of  accounts 
and  of  "all  disputes  and  matters  in  difference" 
existing  at  the  time  of  making  the  agreement : — 
Held,  that  the  arbitrator's  power  was  not  limited  by 

Digest,  1840—1845. 


a  recital  in  the  order  of  reference,  which  claiine4 
a  specific  sum  as  the  balance  due  to  the  plaintiff 
ChoHeten  v*  Spencer^  1 2  Law  J.  Rep.  (ma)  aB.  23 ; 
3  O.B.  693. 

(d)  RevoeaHtm  qf. 

(1)  By  Application  to  the  Court,  under  8  4*  4  IFiU.  4. 

c.  42.  s.  39. 

Qa  a  refisranoe  by  order  of  Nisi  Prias,  with 
liberty  to  raise  qneetaons  for  tlte  opinion  of  the 
Coarti  evidenoe  ofa^cted  to  hanag  been  received, 
whic^  it  WM  suggested  would  gceatly  increase  the 
cests  of  the  rcrfereaoe:-— Held,  that  although  the 
objections  might  be  well  founded,  it  was  not  a  sniB* 
cient  ground  for  giving  leave  under  3  &  4  Will.  4. 
c.  42.  s.  39,  to  revoke  the  sttbnission.  SeoH  v. 
Fan  Sandm,  I  a.B»  102» 

Whcye  there  did  not  appear  to  be  any  miseondMi 
on  the  parl^  the  parties  or  arbitrators,  the  Court 
reAised  to  direot  a  eubnisaion  to  arbitration  to  be 
revoked,    in  re  Weodtrqft,  9  Dewl.  P.C.  538. 

(2)  By  Marriage, 

A  submission  by  a  woman  to  arbitration  is  re* 
voked  by  her  marriage  before  the  awaid  is  msde^ 
M'Can  V.  (PFerrall,  8  C.  &  F.  flO ;  West,  698. 

(3)  By  Bankruptcy  and  Insoloeney, 

A  fiat  in  bankruptcy  does  not  operate  as  a  revo- 
cation of  a  submission  to  arbitration.  Hemswmik 
V.  Brian,  14  Law  J.  Rep.  (M.a.)  C.P.  134;  1  C.  B. 
131 ;  8  So.  (N.e.)  842 ;  2  DowL  &  L.  P.C.  844. 

[And  see  same  point,  in  the  case  of  an  arbitrator 
who  was  a  stakeholder,  Tayler  v.  Marling^  poet^ 
AwABD,  General  Form  and  Requisites  of.] 

Insolvency  does  not  operate  as  a  revocation  of  a 
submission  to  arbitration ;  and  where  the  plaintiflj 
after  the  cause  was  referred,  became  insolvent,  and 
the  arbitrator  gave  notice  of  his  intention  to  pro- 
ceed, and  the  plaintiff  not  attending,  the  arbitrator 
proceeded  e*  parte,  the  Court  refused  to  set  it 
aside.    Hobbs  v.  Ferrars,  8  DowL  P.C.  779. 

(4)  By  Death, 

Where,  by  an  order  of  reference  in  a  cause,  the 
award  was  to  be  delivered  to  the  parties,  or  either  of 
them ;  or  if  they  or  either  of  them  should  be  dead 
before  the  making  thereof,  to  their  respective  per- 
sonal representatives,  who  should  require  the  same : 
— one  of  the  parties  haying  died,  held,  that  the 
Court  had  no  power  to  direct  the  a^itrator  to  pro* 
ceed.  Leunn  v.  Holbrook,  12  Law  J.  Rep.  (n.8.) 
Exch.  267;  11  M.  &  W.  110;  2  DowL  P.C.  (n.s.) 
99  L 

(B)  Arbit&atobs. 

(o)  Power  and  Duty  qf. 

There  is  no  distinction  between  a  professional 
and  a  lay  arbitrator  when  chosen  by  the  parties ; 
they  are  equally  bound  by  the  award.  Huntig  v. 
WaUing,  8  DowL  P.C.  879. 

Where  a  cause  was  referred  to  arbitration,  by  order 
of  Nisi  Prius,  with  power  to  the  arbitrator  to  deter- 
mine all  matters  in  difiference,  and  the  order  di- 
rected that  the  parties  respectively  should  be  exa- 
mined on  oath,  if  the  arbitrator  thought  fit  t — Held, 
that  the  arbitrator  might  examine  either  party  In 
support  of  his  own  ease.     9Vell0  v.  Benskin,  1 1  Law 


ARBITRATION^(WiTiri»8E8). 


J.  Rep.  (h.8.)  Exch.  269 ;  9  M.  &  W.  45 ;  1  DowL 
P.C.  (N.8.)  842. 

An  Arbitrator  cannot,  witbont  leaye  reserved  in 
the  aubmiiaion,  state  a  case  for  the  opinion  of  the 
Court ;  bnt  where  by  the  terms  of  the  order  of  re* 
ference  he  is  empowered  to  state  any  point  for  the 
opinion  of  the  Court,  *<at  the  request  of  either 
party/'  it  is  not  a  sufficient  statement  of  objection 
to  the  award,  that  he  baa  not  raised  such  points  as 
he  was  requested  by  the  parties  to  raise,  but  it 
should  be  distinctly  specified  what  such  points  were. 
BnuUfee  r,  the  Mayor,  8^,  nf  Lmtdom,  at  Oovenun 
rf  Ckritfs  Hosffital,  1 1  Law  J.  Rep.  (n.s.)  C.P.  209 ; 
6  Sc.  (k.8.)  79;  2  Dowl.  P.C.  (9.&)  164. 

Where  an  action  against  a  defendant  forcontinu* 
Sng  certain  walls  and  rooms  wrongrfhlly  erected 
upon  the  plaintiff's  premises  was  referred  to  an 
arbitrator  by  a  Judge's  order,  which  empowered 
him  to  direct  the  entry  of  a  verdict  for  either  party, 
and  to  determine  what  he  ehould  think  Jit  to  be  done 
by  either  party: — Held,  first,  that  the  azbitrator 
had  no  power  under  this  order  of  reference  to  direct 
the  judgment  to  be  arrested;  secondly,  that  the 
arbitrator  was  not  bound  to  state  what  the  right  was 
which  the  action  was  brought  to  try ;  thirdly,  die" 
eentiente  Parke,  B.,  that  the  arbitrator  was  not  bound, 
under  this  order  of  reference,  to  order  eomeihing  to 
be  done.  Angue  t.  Bedford,  12  Law  J.  Rep.  (k.b.) 
Bxch.  180;  11  M.  &  W.69;  2  Dowl.  P.C.  (v.8.) 
786. 

Trespass  ptare  cJaueun^  /regit.  Pleas,  first,  not 
guilty ;  secondly,  that  there  was  a  public  highway 
running  by  and  lying  close  to  and  adjoining  the 
ioeitf  III  quo,  and  that  the  same  having  been  obstruct- 
ed by  the  plaintiff,  the  defendant  was  compelled  to 
commit  the  trespass  complained  of,  in  order  to  pass. 
The  plaintiff  traversed  the  fact  that  there  was  a 
highway  in  the  terms  set  forth  in  the  plea : — Held, 
that  an  arbitrator,  to  whom  the  cause  was  referred, 
with  the  powers  of  amendment  possessed  by  a 
Judge  at  lusi  Prina,  was  justified  in  directing  the 
record  to  be  amended  by  inserting  the  words  "  run- 
ning through,"  for  the  words  *' running  by  and 
lying  close  to  and  adjoining,"  in  the  plea  and  repU- 
eation,  under  sUt  8  &  4  Will.  4.  c.  42.  s.  28. 

A  verdict  for  50^.  damages  having  been  taken  at 
Xfisi  Prius,  subject  to  the  reference,  the  arbitrator 
certified  that  a  verdict  ought  to  be  entered  for  the 
plaintiff  on  the  first,  and  for  the  defendant  on  the 
second  issue.  Semite — that  it  was  unnecessary  for 
him  to  give  any  further  directions  as  to  vacating 
the  verdict  for  these  damages.  NaUer  v.  Batte,  18 
Law  J.  Rep.  (n.b.)  Q.B.  10 ;  1  Dowl.  &  L.  P.C.  700. 

[And  see  Award,  Setting  aside.] 

{b)  JnriidiciUm  Iff  Court  over. 

Where  on  execution  of  a  writ  of  inquiry  the 
parties  agree  to  refer  the  case  to  the  Master  under 
a  Judge's  order,  acting  as  an  arbitrator  and  not  as 
the  officer  of  the  court,  the  Court  will  not  interfere 
with  his  decision.    Either  v.  Pyne,  1  M.  &  G.  266. 

(c)  Ckett  rf  Brferenee  and  Feet, 

An  arbitrator  may  maintain  assumpsit  for  the 
costs  of  a  reference,  tiiere  being  an  express  promise 
to  pay  averred  in  the  declaration^  And,  "in  consi- 
deration that  the  said  plaintiflB,  at  the  request  of 
the  said  defendants,  would  take  upon  tfaemaelves 


the  burthen  of  the  said  reference  :'* — Held,  a  suffi- 
cient statement  of  a  consideration  for  such  a  pramise. 

An  award  directing  that  the  costs  of  the  referesee 
shall  be  paid  ''immediately  after  the  execution  of 
the  said  award :' ' — Held,  on  demurrer  to  a  declaration 
in  assumpsit,  on  a  promise  to  pay  such  costs  as  the 
plaintiffs  should  award,  to  mean  *'  within  a  reason- 
able time." 

Held,  also,  that  an  action  for  theie  costs  might 
be  brought  without  a  demand  being  made. 

The  declaration  stated  that,  by  an  order  of  refereuee^ 
matters  in  dispute  were  referred  to  A  and  B,  and  such 
third  persons  as  Uiey  might  appoint;  that  A  and  B 
nominated  C  to  be  the  third  arbitratofr;  that  the 
defendants  afterwwda,  in  consideration  that  the 
plaintifib.  A,  B  and  C,  would  take  upon  themselves 
the  burthen  of  the  said  reference,  promised  the 
plaintiff  to  pay  them  the  costs  of  the  reference  and 
award ;  and  that  t^e  plaintiffs  made  their  award, 
ordering,  &c. : — Held,  that  the  joint  action  was 
maintainable.  Hoggint  v.  Oordon,  1 1  Law  J.  Rep. 
(N.8.)  aB.  286;  8  aB.466;  2  O.  &  D.  666. 

The  Court  reftised  a  rule,  ordering  the  arbitrators 
and  attorney  preparing  an  award,  to  refund  theezeess 
of  fees  allowed  them  on  taxation  of  thecoets.  Doeeeti 
Y.  Oingell,  8  Sc  (n.s.)  179. 

(C)  Umpisb. 

[As  to  the  examination  of  witnesses  by,  see 
AwABD,  Setting  aside.  And  as  to  enlarging  time, 
see  AwASD,  Enlarging  the  Time  for  making.] 

(D)  WlTlTESSEa. 

A  witness  attending  before  an  arbitrator,  appointed 
by  a  submission,  containing  a  clause  that  it  may  be 
made  a  rule  of  court,  is  privileged  from  arrest 
under  8  &  4  WilL  4.  c  42.  s.  89.  ffebb  r.  IMor, 
18  Law  J.  Rep.  (M.S.)  aB.  24;  1  DowL  &  L.  P.C. 
676. 

A  clause  in  a  partnership  deed,  authorising  a 
reference  in  case  of  disputes  between  the  partner^ 
and  the  making  the  "  award"  of  the  axbitrator,  in- 
stead of  the  "  submission,"  a  rule  of  court,  if  it 
does  not  appear  that  "  award"  was  used  in  place  of 
•<  submission,"  is  not  within  the  meaning  of  the  8 
&  9  Will.  8.  c.  U,  s.  I ;  and,  therefore,  a  Judge  has 
no  power  to  order  witnesses  to  attend  an  arbitrator 
acting  in  such  a  matter.  In  re  Wooderrfi,  9  Dowl. 
P.C.  588. 

(E)  Award. 

(a)  Witldn  what  Time  to  he  made. 

By  a  deed  of  submission  certain  matters  in  difti^ 
ence  were  referred  to  the  award  of  arbttrator^  and 
the  parties  thereby  covenanted  to  perform  their 
award  of  and  concerning  the  premises,  or  anything 
in  anywise  relating  thereto,  and  also  of  snd  con- 
cerning all  actions,  &c,  sums  of  money,  demands, 
&c.  at  any  time  theretofore  had,  oommenoed,  saeit 
prosecuted,  or  depending  between  the  parties,  so  ss 
the  award  was  made  in  writing,  under  the  hands  o( 
the  arbitrators  msking  the  same ;  bnt  no  time  within 
which  the  award  was  to  be  made  was  limited  ^^ 
deed.  By  a  memorandum,  not  under  seal,  indorsed 
on  the  deed  after  its  execution,  and  signed  by  (he 
arbitrators,  but  not  by  the  parties,  the  arbitrstors 
agreed  that  the  award  should  be  delivered  on  or 
before  the  3rd  of  November :— Held,  tiut  the  arbi* 


ARBITRATION*-(AwAK]>). 


27 


tifttan  e«Nild  BoCy  in  tbe  abtenoe  of  any  power  to 
that  effect  in  the  deed,  limit  the  time  for  making 
their  awixd,  ao  as  to  render  an  award  made  after  the 
Srd  of  November  invalid.  In  re  Morphttt^  H  Law 
J.  Rep.  (ha)  a.B.  259 ;  2  Dowl.  &  L.  P.C.  967. 

Where  by  an  agreement  of  reference  to  arbitratora 
with  power  to  appoint  an  umpire,  itwaa  covenanted 
that  the  umpire  ahould  make  nia  award  two  calendar 
wonthn  tfiw  hia  appointment ;  and  he  waa  appointed 
on  the  29th  of  June,  and  afterwarda  the  time  for 
making  hia  award  waa  enlarged  by  consent  for 
three  montha  further : — Held,  that  the  29th  of 
June  waa  to  bo  excluded  irom  the  calculation  of 
tiflK,  and  therefore  that  the  award,  being  made  on 
the  29th  of  November,  waa  nuide  in  due  time.  In 
f  Bightm,  9  Dowl.  P.C.  203. 

(ft)  Bnlarging  the  Time/or  nuiking. 

Where  by  agreement  of  reference,  a  cauae  and  all 
mattera  in  diapute  were  referred  to  two  arbitratora, 
provided  they  made  their  award  on  a  certain  day; 
and  power  waa  given  them  to  enlarge  the  time  tot 
Banking  their  award ;  and  in  case  of  their  non-agree- 
nMnt,  they  were  to  chooae  an  umpire,  who  should 
have  power  to  make  the  award  '*  at  the  time  and 
in  manner  aforesaid," — Held,  that  these  words  gave 
the  umpire  power  to  enlaige  the  time  by  his  single 
authority,  in  the  same  manner  as  the  arbitratora 
■ugbt  have  done.  /•  re  Hmieembe,  10  Law  J.  Rep. 
(N.a.)  OB.  128. 

Where  an  arbitrator  enlarges  the  time  for  making 
hia  award  *'  until"  a  particular  day,  the  time  is  to  be 
eonatrued  as  inclusive  of  that  day.  Kerr  v.  Jeetem^ 
I  DowL  P.C.  (N.a.)  538. 

The  power  to  enlarge  the  time  under  3  &  4  Will.  4. 
0.42.  a.  39,  appliea  to  arbitrators  generally,  and  not 
BMrely  to  arbitrators  under  the  circumstances  there 
mentioned.  In  re  Salkeld,  10  Law  J.  Rep.  (H.a.) 
aB.22;  12  Ad.  &£.  767. 

The  power  of  the  Court  or  a  Judge,  under  3  3(  4 
WilL  4.  c.  42.  a.  39,  to  enlarge  the  time  of  making 
an  award,  ia  not  confined  to  the  oaae  where  a  party 
to  the  reference  haa  revoked  hia  aubmiaaion.  And 
where  two  causea  were  referred  to  an  arbitrator,  who 
waa  to  make  hia  award  on  a  oertain  day,  or  on  auch 
further  day  as  he  ahould  appoint ;  and  the  arbitrator 
had  allowed  the  time  to  expire  without  making  any 
award : — Held,  that  the  Court  had  power  under  the 
act  to  enlarge  the  time  for  making  the  award.  Par* 
herjf  V.  Neumham  and  Nenmbamf^  Parbery,  10  Law  J. 
Repu  (a.a.)  Exch.  169 ;  7  M.  &  W.  378 ;  9  Dowl. 
P.C.  288. 

Where  the  time  for  making  an  award  had,  through 
the  neglect  or  inadvertence  of  the  arbitrator,  been 
allowed  to  expire  in  April  1839,  and  no  subsequent 
step  waa  taken  by  either  party  in  the  reference  until 
January  1841, — the  Court  refnaed  an  application, 
made  by  the  defendant  in  the  cause  referred,  and 
oppoaed  by  the  plaintiff,  to  enlarge  the  time  for  the 
arbitrator  to  make  hia  award. 

SewMe^  per  Tindal,  CJ^  the  Court  doea  not  poa-* 
aaaa  the  power,  under  3  &  4  Will.  4.  c  42.  a.  39,  to 
eonpel  partiea  to  proceed  with  a  reference,  where  the 
time  ft>r  making  the  award  haa  expired,  and  whera  the 
wbitrater  haa  had  the  power  to  enlarge  the  time, 
and  haa  not  exerciaed  iL  Lambert  v.  HuUkkuan^ 
10  Law  J.  Repu  (11.8.)  C.P.  213 ;  3  Sc.  (n.8.)  221. 

When  an  order  of  reierenooauthorixed  thearhitra* 


tor  to  enlaige  the  time  to  the  2nd  of  November  1841 , 
"  or  to  such  other  or  ulterior  day  as  the  said  arbi* 
tntor  ahall  ultimately  appoint  and  signify  in  writing 
under  his  hand,  to  be  indorsed  on  the  said  order  of 
reference:" — Held,  that  the  enlargementa  aubse- 
quent  to  the  2nd  of  November  1841  only  need  be 
indorsed  on  the  order  of  reference.  Dameen  v. 
GauntkU,  3  M.  3(  O.  550 ;  1  Dowl.  P.C.  (n.s.)  198. 

(e)  General  Form  and  Requitite*  rf, 

Qumre — ^Whether  it  ia  competent  to  an  arbi- 
trator to  introduce  a  new  party  into  the  original 
action  referred  to  him,  and  whether  he  ought  not  to 
inaert  a  diatinct  finding  in  the  award  aa  to  the  mattera 
relating  to  such  party.  UawMne  v.  Benton^  14  Law 
J.  Rep.  (ir.a.)  Q.B.  177 ;  2  Dowl.  &  L.  P.C.  465. 

A  cauae  and  all  mattera  in  difference  were  referred 
to  three  arbitratora,  A  B,  C  D,  and  E  F,  (A  B  being 
abarriater,  and  C  D  and  E  F  merchants  in  London,) 
or  any  two  of  them.  The  arbitratora,  after  several 
meetings,  held  one  which  waa  declared  to  be  final, 
and,  at  this  meeting,  C  D  was  in  favour  of  the  plain- 
tiffii,  and  £  F  in  favour  of  the  defendant  They 
both  raferred  to  A  B  a  question  of  law,  on  which  he 
gave  no  opinion  at  the  time,  but  promised  to  look 
into  the  authorities,  and  give  his  judgment,  and, 
subject  to  hia  opinion  on  the  point,  die  amount 
which  waa  due  to  the  plaintifis  waa  agreed  upon. 
A  B  afterwards  made  his  award  generally,  in  favour 
of  the  plaintifis,  and  signed  it  at  Birmingham,  and 
forwarded  it  to  London,  giving  notice  to  C  D  and 
£  F  of  his  having  done  so,  and  deairing  them  to 
attend  at  his  chambera  to  execute  it.  They  both 
attended  thero  on  the  following  day,  when  C  D 
signed  the  award : — Held,  that  the  award  was  bad. 
LitOe  V.  Newton,  10  Law  J.  Rep.  (n.8.)  C.P.  88 ;  2 
M.  &  G.  351 ;  9  Dowl.  P.C.  487. 

An  action  of  trespass  was  raferred  by  order  of 
Nisi  Prius.  The  defendant  pleaded  fint,  not  guilty, 
and  secondly,  a  justification.  The  arbitrator  awarded 
**  that  aa  Uie  defendant  haa  not  proved  his  plea,  the 
verdict  for  the  plaintiff  ought  to  atand,"  and  then 
stated  a  number  of  reaaons  for  his  opinion,  which 
could  not  be  considered  as  satisfiictory : — ^the  Court 
held  the  justification  aufflcient,  and  declined  to 
consider  the  sufficiency  of  the  reason  assigned  by 
the  arbitrator.    Archer  v.  Owenf  9  Dowl.  P.C.  341. 

Where  in  debt  on  bond,  conditioned  for  the 
fiuthful  accounting  by  a  clerk  in  a  bank,  which  waa 
referred,  and  the  award  directed  a  verdict  for 
the  defendant,  but  added  a  long  statement  of  facta, 
leaving  the  iufbrence  to  be  drawn  by  the  Court, 
whether  they  amounted  to  a  breach  of  the  condition, 
and  no  point  of  law  was  raised : — the  Court,  repro- 
bating such  finding,  on  the  whole  of  the  facts,  the 
defects  in  the  accounts  not  being  shewn  to  be  dearly 
wilful,  declared  the  plaintiff  not  entitled  to  re- 
cover. Jepheon  v.  Howkine,  2  M.  &  O.  366 ;  2  So. 
(k.8.)  605. 

Where  a  cauae  in  which  an  issue  {inter  alia)  waa 
joined  on  a  plea  of  aet-ofl^  and  all  mattera  indifference 
were  referred,  and  the  arbitrator  directed  the  verdict 
to  be  entered  for  the  plaintiff  on  all  the  issues,  and 
aaaeaaed  the  damagea  generally,  and  ordered  the 
plaintiff*a  eoata  to  be  paid  on  or  before  a  oertain 
day,  being  Sunday,  and  before  the  time  expired 
for  moving  to  set  aaide  the  award : — Held,  that 
neither  objection  waa  a  sufficient  gpround  for  ini<* 


ARBITRATION— (WiTNBBSEB). 


J.  Rep.  (H.fl.)  Exch.  259;  9  ItL  &  W.  45;  1  DowL 
P.C.  (N.S.)  842. 

An  arbitrator  cannot,  without  leave  reserved  in 
the  snbmisuon,  state  a  caee  for  the  opinion  of  the 
Court;  but  where  by  the  terms  of  the  order  of  re« 
ference  he  is  empowered  to  state  any  point  for  the 
opinion  of  the  Court,  "  at  the  request  of  either 
party,"  it  is  not  a  sufficient  statement  of  objection 
to  the  award,  that  he  has  not  raised  such  points  as 
he  was  requested  by  the  parties  to  raise,  but  it 
should  be  distinctly  specified  what  such  points  were. 
Bradbee  v.  the  Maafor,  S^e.  ^  London,  a$  Oooemon 
of  Ckrigf*  Hotpital,  1 1  Law  J.  Rep.  (n.s.)  C.P.  209 ; 
6  Sc.  (n.s.)  79;  2  Dowl.  P.C.  (ha)  164. 

Where  an  action  against  a  defendant  for  continu- 
ing certain  walls  and  rooms  wrongftiUy  erected 
upon  the  plaintiff's  premises  was  referred  to  an 
arbitrator  by  a  Judge's  order,  which  empowered 
him  to  direct  the  entry  of  a  wr^Uet  for  eiUier  party, 
and  to  determine  what  hi  Mhould  think  fit  to  ho  done 
by  either  party: — Held,  first,  that  the  arbitrator 
had  no  power  under  this  order  of  reference  to  direct 
the  judgment  to  be  arrested ;  secondly,  that  the 
arbitrator  was  net  bound  to  state  what  the  right  was 
which  the  action  was  brought  to  try ;  thirdly,  dit^ 
tentiente  Parke,  B.,  that  the  arbitrator  was  not  bound, 
under  this  order  of  reference,  to  order  tomething  to 
be  done.  Jngus  v.  Retfordj  12  Law  J.  Rep.  (n.s.) 
Exch.  180;  11  M.  &  W.69;  2  Dowl.  P.C.  (v.8.) 
735. 

Trespass  quare  chxtuum  fregiU  Pleas,  first,  not 
guilty ;  secondly,  that  there  was  a  public  highway 
running  by  and  lying  close  to  and  adjoining  the 
isctw  in  quo,  and  that  the  same  having  been  obstruct- 
ed by  the  plaintifi^,  the  defendant  was  compelled  lo 
commit  the  trespass  complained  of,  in  order  to  pass. 
The  plaintiff  traversed  the  fact  that  there  was  a 
highway  in  the  terms  set  forth  in  the  plea : — Held, 
that  an  arbitrator,  to  whom  the  cause  was  referred, 
with  the  powers  of  amendment  possessed  by  a 
Judge  at  Nisi  Prius,  was  justified  in  directing  the 
record  to  be  amended  by  inserting  the  words  "  run- 
ning through,'*  for  the  words  ''running  by  and 
lying  close  to  and  adjoining,"  in  the  plea  and  repli- 
cation, under  stat  8  &  4  Will.  4.  c.  42.  a.  28. 

A  verdict  for  50/.  damages  having  been  taken  at 
X^isi  Prius,  subject  to  the  reference,  the  arbitrator 
certified  that  a  verdict  ought  to  be  entered  for  the 
plaintiff  on  the  first,  and  for  the  defendant  on  the 
second  issue.  Semhio — that  it  was  unnecessary  for 
him  lo  give  any  furdier  directions  aa  to  vacating 
the  verdict  for  these  damages.  Nalder  v.  Batte,  13 
Law  J.  Rep.  (n.s.)  aB.  10 ;  1  Dowl.  &  L.  P.C.  700. 

[And  see  Award,  Setting  aside.] 

(b)  JuHidieiion  qf  Court  over. 

Where  on  execution  of  a  writ  of  inquiry  the 
parties  agree  to  refer  the  case  to  the  Master  under 
a  Judge's  order,  acting  aa  an  arbitrator  and  not  aa 
the  officer  of  the  court,  the  Court  will  not  interfere 
with  his  decision.    Fisher  v.  Fffne,  1  M.  &  G.  265, 

(c)  Coite  rf  Rrference  and  Feet, 

An  arbitrator  may  maintain  assumpsit  for  the 
costs  of  a  reference,  uere  being  an  express  promise 
to  pay  averred  in  the  declaration^  And, '4n  consi- 
deration that  the  said  plaintifls,  at  the  request  of 
the  said  defendants,  would  take  upon  themselvet 


the  burthen  of  the  said  reforenoe  :'* — Held,  a  aofil- 
cient  statement  of  a  consideration  for  snch  n  promise. 

An  award  directing  that  the  costs  of  the  reference 
shall  be  paid  "immediately  after  the  execution  of 
the  said  award:" — Held,  on  demurrer  to  a  declaration 
in  assumpsit,  on  a  promise  to  pay  snch  costs  as  the 
plaintiffs  should  award,  to  mean  "  witknn  a  reason- 
able time." 

Held,  also,  that  an  action  for  these  costs  might 
be  brought  without  a  demand  being  made. 

The  declaration  stated  that,  bv  an  order  of  reference^ 
matters  in  dispute  were  referrea  to  A  and  B,  and  such 
third  persons  as  they  might  appoint;  that  A  and  B 
nominated  C  to  be  the  third  arbitrator;  that  the 
defendants  afterwards,  in  consideration  that  tiie 
plaintiff.  A,  B  and  C,  would  take  upon  themselves 
the  burthen  of  the  said  reference,  promised  the 
plaintiff  to  pay  them  the  costs  of  the  reference  and 
award ;  and  that  the  plalntiflb  made  their  eward, 
ordering,  &c : — Held,  that  the  joint  aetion  was 
maintainable.  Hoggin*  v.  Oordon,  11  Law  J.  Rep. 
(N.s.)  aB.  286 ;  3  aB.  466;  2  O.  &  D.  666, 

The  Court  reftised  a  rule,  ordering  the  arbitrators 
and  attorney  preparing  an  award,  to  reftind  the  excess 
of  fees  allowed  them  on  taxation  of  theeoeta.  Doetoti 
V.  Qingell,  8  Sc.  (m.s.)  179. 

(C)  Umpibe. 

[As  to  the  examination  of  witnesses  by,  see 
AwABD,  Setting  aside.  And  as  to  enlarging  time» 
see  Award,  Enlarging  the  Time  for  making.] 

(D)  WlTHEtSEB. 

A  witness  attending  before  an  arbitrator,  appointed 
by  a  submission,  containing  a  clause  that  it  may  be 
made  a  rule  of  court,  is  privileged  from  arrest 
imder  8  &  4  Will  4.  o.  42.  s.  89.  Wohb  v.  IMsr, 
18  Law  J.  Rep.  (n.s.)  aB.  24;  1  Dowl.  &  L.  P.C. 
676. 

A  clause  in  a  partnership  deed,  authorizing  a 
reference  in  case  of  disputes  between  the  partners!, 
and  die  making  the  "  award'*  of  the  arbitrator,  in* 
stead  of  the  "  submission,"  a  rule  of  court,  if  it 
does  not  appear  that  **  awud"  was  used  in  place  of 
"submission,"  is  not  within  the  meaning  of  the  8 
&  9  Will  8.  c.  15.  s.  1 ;  and,  therefore,  a  Judge  has 
no  power  to  order  witnesses  to  attend  an  arbitrator 
acting  in  such  a  matter.  In  re  IVooderqft,  9  Dowl. 
P.C.  588. 

(E)  Award. 

(a)  WUftin  what  Time  to  be  made. 

By  a  deed  of  submission  certain  matters  in  differ- 
ence  were  referred  to  the  award  of  arbitrators,  and 
the  parties  thereby  covenanted  to  perform  their 
award  of  and  concerning  the  premises,  or  anything 
in  anywise  relating  thereto,  and  also  of  and  eon- 
eeming  all  actions,  &c,  sums  of  money,  demands, 
&C.  at  any  time  theretcrfore  had,  commenced,  sued, 
prosecuted,  or  depending  between  the  parties,  so  as 
the  award  was  made  in  writing,  under  the  hands  o£ 
the  arbitrators  making  the  same ;  but  no  time  widiin 
which  the  award  was  to  be  made  was  Kmited  by  the 
deed.  By  a  memorandum,  not  under  seal,  indon«d 
on  the  deed  after  its  execution,  and  signed  by  the 
arbitrators,  but  not  by  the  parties,  the  arbitrators 
agreed  that  the  award  should  be  delivered  on  or 
before  the  3rd  of  November: — Held,  that  the  arbi« 


ARBITRATION— (AwAKO)* 


27 


tntan  emild  BoCy  in  tbe  abtenoe  vi  any  power  to 
that  efibct  in  the  deed,  limit  the  time  for  making 
their  awmid,  ao  aa  to  render  an  award  made  after  the 
Srd  of  Novemher  invalid.  In  r§  Morphgtt^  14  Law 
J.  RefK  (ha)  a.B.  259;  2  Dowl.  &  L.  P.C.  967. 

Where  by  an  agreement  of  reference  to  arbitratora 
with  power  to  appoint  an  umpire,  itwaa  coyenanted 
that  the  umpire  ahonld  make  hia  award  two  calendar 
■Niitha  rfUr  hia  appointment ;  and  he  waa  appointed 
OD  the  ^th  of  June,  and  afterwards  the  time  for 
making  his  award  waa  enlarged  by  consent  for 
tfaiee  uMHiths  further :— Held,  that  the  29th  of 
June  waa  to  bo  excluded  from  the  calculation  of 
tiaae,  and  therefinre  that  the  award,  being  made  on 
the  29th  of  Norember,  waa  nuide  in  due  time.  In 
f  Highmmt  9  DowL  P.C.  203. 

(()  Enlarging  the  Time  for  making. 

Where  by  agreement  of  reference,  a  cause  and  all 
BMtters  in  dispute  were  referred  to  two  arbitrators, 
pnmded  they  made  their  award  on  a  certain  day; 
and  power  was  given  them  to  enlarge  the  time  for 
Banking  their  award ;  and  in  case  of  their  non-agree- 
UMnt,  they  were  to  choose  an  umpire,  who  should 
have  power  to  make  the  award  "  at  the  time  and 
in  manner  aforesaid," — Held,  that  these  words  gave 
the  umpire  power  to  enlaige  the  time  by  his  single 
authority,  in  the  aame  manner  aa  the  arbitratora 
■ught  have  done.  /•  re  Hnieembe,  10  Law  J.  Rep. 
(]i.a.)  aB.  128. 

Where  an  arbitrator  enlarges  the  time  for  making 
hia  award  **  until"  a  particular  day,  the  time  is  to  be 
coostrued  as  indusiTe  of  that  day.  Kerr  t.  JeetoOf 
1  DowL  P.C.  <H.a.)  538. 

The  power  to  enlarge  the  time  under  3  &  4  Will.  ^ 
e.42.  S.39,  appliea  to  arbitrators 'generally,  and  not 
merely  to  afbitratora  under  the  circumstancea  there 
mentioned.  In  re  Salkeld,  10  Law  J.  Rep.  (H.8.) 
as.  22;  12  Ad.&£.  767. 

The  power  of  the  Court  or  a  Judge,  under  3  &  4 
Will  4.  c.  42.  a.  39,  to  enlarge  the  tune  of  making 
aa  award,  is  not  conftned  to  the  case  where  a  party 
to  the  reference  haa  revoked  his  submission.  And 
where  two  causes  were  referred  to  an  arbitrator,  who 
waa  to  make  his  award  on  a  certain  day,  or  on  such 
farther  day  aa  he  should  appoint ;  and  the  arbitrator 
had  allowed  the  time  to  expire  without  making  any 
award : — Held,  that  the  Court  had  power  under  the 
act  to  enlarge  the  time  for  making  the  award.  Par* 
ftery  v.  Neumkam  and  Newnbam  v.  Parhery^  10  Law  J. 
Rea  (M.a.)  Exch.  169 ;  7  M.  &  W.  378 ;  9  Dowl. 
P.C.  288. 

Where  the  time  for  making  an  award  had,  through 
the  neglect  or  inadvertence  of  the  arbitrator,  been 
allowed  to  expire  In  April  1839,  and  no  subsequent 
step  waa  taken  by  either  party  in  the  reference  until 
January  1841, — the  Court  refnaed  an  applieation, 
made  by  the  defendant  in  the  cause  referred,  and 
emMsed  by  the  plaintiff,  to  enlarge  the  time  for  the 
arbitrator  to  make  his  awnrd. 

Stmbkf  per  Tindalt  CJ,^  the  Court  doea  not  pot- 
aeaa  the  power,  ttnder3  &  4Will.4.  o.  42.  s.  39,  to 
eempel  parties  to  proceed  with  a  reference,  where  the 
time  Ibr  making  the  award  haa  expired,  and  where  the 
arbitrator  haa  had  the  power  to  enlarge  the  time, 
and  haa  not  exerdaed  it  Lamkeri  v.  HuickUteem^ 
10  Law  J.  Repi  (kjb.)  C.P.  213 ;  3  Sc.  (n.8.)  221. 

Where  an  order  of  refereneeauthoiixcd  thearbitra* 


tor  to  enlaige  the  time  to  the  2nd  of  November  1841, 
"  or  to  such  other  or  ulterior  day  as  the  said  arbi- 
trator shall  ultimately  appoint  and  signify  in  writing 
under  his  hand,  to  be  indorsed  on  the  said  order  of 
reference:" — Held,  that  the  enlargementa  subse* 
qnent  to  the  2nd  of  November  1841  only  need  be 
indorsed  on  the  order  of  reference.  Dameon  v. 
Gaantktt,  3  M.  3(  a.  660 ;  1  DowL  P.C.  (N.a.)  198. 

(c)  General  Form  and  Hequititet  rfi 

Qumre — ^Whether  it  is  competent  to  an  arbi- 
trator to  introduce  a  new  party  into  the  original 
action  referred  to  him,  and  whether  he  ought  not  to 
inaert  a  distinct  finding  in  the  award  as  to  the  mattera 
relating  to  such  party.  Uawkine  v.  Benton,  14  Law 
J.  Rep.  (H.a.)  Q.B.  177 ;  2  Dowl.  &  L.  P.C.  466. 

A  cause  and  all  matters  in  difference  were  referred 
to  three  arbitrators,  A  B,  C  D,  and  E  F,  (A  B  being 
a  barrister,  and  C  D  and  £  F  merchants  in  London,) 
or  any  two  of  them.  The  arbitrators,  after  several 
meetings,  held  one  which  waa  declared  to  be  final, 
and,  at  this  meeting,  C  D  was  in  favour  of  the  plain- 
tifi,  and  E  F  in  favour  of  the  defendant  They 
both  referred  to  A  B  a  question  of  law,  on  which  he 
gave  no  opinion  at  the  time,  but  promised  to  look 
mto  the  aoihorities,  and  give  his  judgment,  and, 
subject  to  his  opinion  on  the  point,  the  amount 
which  waa  due  to  the  plaintifis  waa  agreed  upon. 
A  B  afterwards  made  hia  award  generally,  in  favour 
of  the  plaintifib,  and  signed  it  at  Birmingham,  and 
forwarded  it  to  London,  giving  notice  to  C  D  and 
£  F  of  his  having  done  so,  and  desiring  them  to 
attend  at  his  chambers  to  execute  it  They  both 
attended  there  on  the  following  day,  when  C  D 
signed  the  award : — Held,  that  the  award  was  bad. 
lattU  V.  Newton,  10  Law  J.  Rep.  (ma)  C.P.  88 ;  2 
M.  &  G.  361 ;  9  DowL  P.C.  437. 

An  action  of  trespass  was  referred  by  order  of 
Nisi  Prius.  The  defendant  pleaded  first,  not  guilty, 
and  secondly,  a  justification.  The  arbitrator  awarded 
**  that  aa  the  defendant  has  not  proved  his  plea,  the 
verdict  for  the  plaintiff  ought  to  stand,"  and  thea 
stated  a  number  of  reasons  for  his  opinion,  which 
could  not  be  considered  as  satiafacUny :— the  Court 
held  the  justification  sufficient,  and  declined  to 
consider  the  sufficiency  of  the  reason  assigned  by 
the  arbitrator.    Archer  v.  Owen,  9  Dowl.  P.C.  341. 

Where  in  debt  on  bond,  conditioned  for  the 
fiuthful  accounting  by  a  clerk  in  a  bank,  which  waa 
referred,  and  the  award  directed  a  verdict  for 
the  defendant,  but  added  a  long  statement  of  facts, 
leaving  the  inference  to  be  drawn  bv  the  Court, 
whether  they  amounted  to  a  breach  of  me  condition, 
and  no  point  of  law  was  raised : — ^the  Court,  repro- 
bating such  finding,  on  the  whole  of  the  facts,  the 
defects  in  the  accounts  not  being  shewn  to  be  clearly 
wilftil,  declared  the  plaintiff  not  entitled  to  re- 
cover. Jephion  V.  Howkine,  2  M.  &  O.  366;  2  So. 
(N.a.)  606. 

Where  a  cauae  in  which  an  issue  {inter  alia)  waa 
joined  on  a  plea  of  set-off,  and  all  mattera  indifferenoe 
were  referred,  and  the  arbitrator  directed  the  verdict 
to  be  entered  for  the  plaintiff  on  all  the  issues,  and 
aaaeaacd  the  damages  generally,  and  ordered  the 
plaintiff*  a  coats  to  be  paid  on  or  before  a  certain 
day,  being  Sunday,  and  before  the  time  expired 
for  moving  to  set  aaide  the  award: — Held,  that 
neither  olijectaen  waa  a  sufficient  ground  for  itti^ 


» 


AREITRATION*-(AwA&D). 


peaching  tbe  award.    Hokdea  y.  Miller,  2  Sc.  (H.8. ) 
165. 

Where,  in  caae  of  arhitrators  disagreeing,  they 
were  to  name  a  third,  and  the  award  to  be  made  by 
the  majority, — Held  that  the  award  made  by  such 
umpire  with  one,  without  any  farther  meeting  for 
discussion,  was  bad,  and  the  award  was  set  aside.  In 
re  Salkeld,  10  Law  J.  Rep.  (w.s.)  Q.B.  22 ;  12  Ad. 
&  E.  767. 

An  award  made  upon  a  submission  of  all  matters 
in  difference,  by  executors,  respecting  the  estate  of 
the  deceased,  and  the  principal  legatees,  taking  an 
account  of  the  estate,  generally  directing  its  admi- 
nistration, and  awarding  that  one  of  the  parties 
shall  pay  the  legacy  duty,  is  not  Toid.  In  re  War- 
ner, IS  Law  J.  Rep.  (n.s.)  Q.D.  370 ;  2  DowL  &  L. 
P.O.  148. 

Where  one  of  tbe  parties  to  a  reference  objected 
to  an  award,  on  the  ground  that  he  had  not  had 
notice  of  two  meetings,  at  the  first  of  which  no 
evidence  was  received,  but  the  arbitrators  merely 
adjourned ;  and  at  the  second  of  which  he  attended, 
and  handed  in  a  formal  protest  against  the  proceed- 
ings, upou  a  ground  totally  different  from  that  of 
want  of  notice : — Held,  that  he  was  not  entitled  to 
notice  of  the  first  meeting,  and  that  he  had  by  his 
protest  waiyed  the  want  of  notice  of  the  second. 

By  their  award  the  arbitrators  found  that  certain 
sums  were  due  for  principal  and  interest  at  the 
time  of  the  reference,  in  respect  of  two  different 
funds,  and  awarded  that  a  gross  sum  should  be* 
paid,  without  apportioning  it  between  the  two  funds 
to  which  it  belonged.  They  also  awarded  interest 
to  be  paid  in  respect  of  those  sums,  and  went  on  to 
direct  that  certain  paymepts  of  interest  should  be 
made  in  future  i — Held,  that  the  award  was  bad,  for 
not  distinguishing  between  the  two  funds  in  regpect 
of  which  the  parties  were  entitled  to  the  money 
found  to  be  due ;  and  also  that  they  had  gone  be- 
yond the  powers  of  the  submission  in  awarding 
mterest  subsequent  to  the  reference,  fn  re  Morphett, 
13  Law  J.  Rep.(N.8.)  aB.209;  2  Dowl.  &  L.P.C.  967. 

By  order  of  Nisi  Prius,  at  the  trial  of  an  action 
against  the  defendant  for  breach  of  an  agreement 
between  himself  and  the  plaintiff,  a  verdict  was 
entered  for  the  plaintiff  for  10,000i.,  and  it  was 
referred  to  an  arbitrator  to  settle  the  cause,  and  all 
matters  in  difference  between  the  parties.  By  the 
same  order  of  reference,  the  defendant  was  required 
to  pay  to  the  arbitrator  by  the  1 0th  of  October  fol- 
lowing, the  sum  of  3,5002.,  to  be  paid  out  by  the 
aaid  arbitrator  to  such  of  the  parties  as  he  should 
think  fit  If  the  money  were  not  so  paid  by  the 
defendant,  judgment  was  to  be  signed  against  him 
for  10,000/.,  and  execution  was  to  issue  against 
bim  for  2,657^  The  costs  of  the  cause  were  to 
abide  the  event  of  the  award.  The  defendant  paid 
to  the  arbitrator  the  3,500^,  on  the  10th  of  October. 
On  the  14th  of  December  following,  defendant 
committed  an  act  of  bankruptcy,  and  a  docket  was 
■truck  against  him,  of  which  the  arbitrator  had 
notice  on  the  same  day.  On  the  16th  of  December, 
the  arbitrator  made  his  award.  It  awarded,  hUer 
alia,  that  the  plaintiff  was  entitled  to  have  a  verdict 
entered  for  him  on  the  several  issues  in  the  cause; 
that  the  plaintiff  had  susuined  damage  to  the 
amount  of  6,067/.|  and  he  directed  that  the  said 
3,500/.  should  be  paid  to  the  plaintiff  on  account  of 


the  said  damage,  and  th6  baUnoe  on  «  certain  dsy  ; 
he  awarded  that  the  defendant  should  pay  all  oosta 
of  the  reference  and  award ;  and  that  upon  payment 
by  defendant  of  all  damages  and  costs,  the  plaintiff 
should  execute  a  certain  assignment  and  release  to 
the  defendant.  On  the  19th  of  December,  the  fiat  in 
bankruptcy  issued  against  the  defendant,  and  assig- 
nees were  appointed.  Upon  an  issue  directed  under 
the  Interpleader  Act,  between  the  plaintiff  and  tbe 
defendant's  assignees: — Held,  that  the  plaintiff  was 
entitled  to  the  said  sum  of  3,5001 

Also,  that  the  arbitrator  being  also  a  stakeholder 
between  the  parties  to  the  original  action,  hia  autho- 
rity to  make  his  award  was  not  revoked  by  tbe 
bankmptey  of  the  defendant. 

Also,  that  it  was  too  late  now  to  object  that  a 
portion  of  the  consideration  for  the  original  agrefr- 
ment,  for  the  breach  of  which  the  action  was 
broaght,  was  illegal. 

Ako,  that  there  was  nothing  in  the  order  of  rdie^ 
ence,  or  in  the  award,  to  prevent  the  costs  due  from 
defendant  from  being  taxed,  and  the  assignment  by 
plaintiff  thereon  executed,  as  directed  by  the  award. 
Taller  v.  Marling,  10  Law  J.  Rep.  (n.s.)  C.P.  26; 
S.C.  Tayler  v.  Shuttlewarth,  6  Bing.  N.C.  277;  8 
Dowl.  P.C.  281. 

An  act  for  dividing  and  allotting  lands  inapaiiah 
in  Oxfordshire,  and  creating  a  rent-charge  upon 
certain  lands  in  lieu  of  tithes,  enacted,  &at  the 
rent-charge  should  be  charged  on  the  lands  and 
grounds  of  Sir  H.  W,  in  exoneration  of  the  lands 
and  grounds  of  all  other  proprietors  of  lands  and 
heredilamenta  in  tbe  said  parish;  and  further,  thai 
it  should  be  lawful  for  a  barrister  or  commisaioiier^ 
by  his  award,  to  divide  and  apportion  the  rent- 
charge  into  so  many  parts  or  portions  as  he  should 
think  fit,  and  to  charge  each  such  part  or  portion 
on  a  separate  and  distinct  part  of  the  lands  and 
grounds  of  Sir  H.  W,  in  order  that  each  separate 
and  distinct  part  might  be  subject  only  to  that 
part  of  the  rent-charge  which  was  charged  tbexeon. 
The  commissioner  awarded  that  the  yearly  rent* 
charge  of  2362.  Os.  9d.  should  be  charged  in  one 
entire  sum  on  all  the  lands  and  grounds  of  Sir  H.  W. 
situate  in  the  said  parish: — Held,  suffldent;  an 
idthough  the  commissioner  had  the  power  to  specify 
particular  lands,  and  the  amount  of  charge  upon 
them,  it  was  not  compulsory  upon  him  to  do  bol 
WiUoughhff  V.  WilUmgkby,  12  Law  J.  Rep.  (v.a.) 
aB.281;  4Q.B.687. 

[And  see  ante.  Arbitrator,  Power  and  Duty  of— 
Cockbum  V.  Newton  and  ^Uen  v.  Lowe,  post,  (J).] 

{d)  Certainty  and  Concbuieenese, 

Where  arbitrators,  with  power  to  raise  queatioiia 
of  law,  awarded  a  certain  sum,  and  proceeded  to 
stete  the  principle  on  which  they  so  awurded,  and 
that  if  the  Court  should  be  of  opinion  that  they 
ought  to  have  acted  on  another  principle,  then  a 
difierentsum: — Held,thatsuch  hypothetical  acyndi- 
oation  might  be  rejected  as  surplusage ;  and  the 
award  being  positive  in  the  first  instance,  waa 
sufficiently  final ;  and,  quaere,  if  it  had  been  emn 
neous,  if  the  Court  could  haye  sustained  the  hypo- 
thetical abjudication,  or  must  have  set  aside  dio 
award.    In  re  Wright,  1  Q.B.  98. 

Where  the  arbitrator,  in  an  action  of  replevin 
against  husband  and  wifr,  for  goods  distraiiied  ftir 


ARBITRATION^(AwAW)). 


29 


affreftft  of  an  •nAoity  payable  to  the  wife,  was,  by 
ibe  order  of  tefeienoe,  to  decide  "  the  wbole  of  the 
■aid  oause,  and  all  matten  relatiog  to  the  annuity 
in  the  aaid  eause  in  question ;"  w£d.  by  his  award, 
he  directed  a  verdict  for  the  avowants,  end  that  the 
plaintiff  ebould  pay  to  the  wife  the  aire  are  distrained 
for,  and  the  subsequent  arrears  up  to  the  time  of  tlie 
nference:^ — ^Hdd,  that  he  had  not  exceeded  his 
aofhority,  and  that  the  award  was  sufficiently  finaL 
Wymm  ▼.  fFyrnne,  10  Law  J.  Bep.  (ii.s.)  C.P.  301 ; 
9  DowL  P.O.  901. 

All  matters  in  difierence  in  the  cause  were  re- 
ferred to  an  arbitrator,  who  found,  by  his  award, 
that  at  the  date  of  the  order  of  reference  there  was 
a  balance  due  from  the  defendant  to  the  plaintifis 
of  166L  12s.  ItLfin  respect  of  the  sums  claimed  iu 
the  partienlars  of  demand  and  set-off,  except  and 
exohiding  from  anch  account  a  claim  made  by  the 
plaintiflb  for  a  loss  alleged  to  have  been  sustained 
in  respect  of  certain  hatab  He  then  awarded  that 
the  plaintiffii  were  entitled  to  recover,  for  the  said 
balanoe  and  intereat  thereon,  the  sum  of  184^*2f.  Id.; 
and,  after  etafcmg  that  no  sufficient  evidence  had 
been  laid  before  him  of  any  loss  sustained  by  the 
^aintifb  on  the  sidd  hats,  awarded,  that  for  want 
of  sufficient  evidence  of  such  loss,  the  plaintifis 
were  not  entitled  to  recover  anything  in  reepect 
lihercof :— ^Keld,  anffioieotly  certain. 

Whete  \yy  tike  terma  of  the  ovder  of  reference,  the 
eoate  of  the  oauae  were  to  abide  the  event  of  the 
•ward ;  and  the  arbitrator  directed  that  those  costs 
should  be  paid  at  a  particular  time  and  place : — 
Held,  that  this  direction,  though  inoperatiTe,  did 
not  invaHdnte  the  award.  Coekbnrm  v.  ^etci^on,  10 
Law  J.  Reji.  (ii.a.)  C.P.  207 ;  2  M.  &  G.  899 ;  9 
Sc  (H.a.)  264 ;  9  DowL  P.O.  676. 
'  A  eanee  and  all  matters  iu  dUference  between 
the  patties  were  referred  by  order  of  Nisi  Prius  to 
the  award,  arbitrament,  final  end,  and  determination 
of  A  B;  and  the  order  provided  that  the  verdict 
ahottld  be  entered  for  the  plaintiff  for  the  damages 
in  dw  declaration,  subject  to  be  reduced  or  vacated, 
or,  instead  thereof  a  verdict  foe  the  defendant  or 
a  wommU  entered  according  to  his  award.  There 
wen  no  matters  in  difierence,  except  in  the  cause. 
The  arbitrator  awarded  that  the  verdict  should  be 
vacated  and  a  nonsuit  entered  :*-Held,  bad,  as  not 
inally  detemiining  the  matters  in  diffinrenoe  in  the 
eaoae— Pfl-fa,  B.  MumtimtB.  WiU  v.  OoU,  1 1  Law 
J.  Rep.  (n.a.)  £xch.  268;  9  M.  &  W.  161. 

Where  to  a  declaration  in  aasumpsit,  laying  the  da- 
mages at  700i.»aeveral  pleaa  were  pleaded,  but  before 
issue  waa  joined  the  cause  and  all  matters  in  difier- 
ence were  referred  to  an  arbitrator,  who  awarded 
that  jodgment  should  be  entered  up  for  the  plain- 
tiff on  the  whole  deelaiation,  and  that  the  defendant 
should  pay  to  the  plaintiff  5L  :'-«Held,  that  the 
award  waa  void  for  not  shewing  for  what  sum  judg- 
raoit  should  be  entered  up.  Lcmd  v.  ZlvdieM,  12 
Law  J.  Rep.  (H.a.)  Q.B.  866 ;  s.a  Lmd  ▼.  jETadion, 
1  Dowl.  &  L.  PjC«  (m.8.)286. 

An  action  of  trespass  to  housea  and  lands  waa 
leforred  to  an  arbitrator,  who  was  to  aettle  at  what 
price  and  on  what  terms  the  defendant  should  pur- 
cfaaae  the  plaintiff's  <*  property."  The  order  of 
reference  gave  the  arbitrator  no  power  to  determine 
what  the  pn^rty  in  question  waa,  nor  was  there 
soy  dispute  on  the  subject    The  arbitrator  fixed  a 


certain  sum,  as  the  price  at  whiich  the  defendant 
should  ''purchsse  the  plsintifi^s  said  property," 
and  awarded  that  the  defendant  might  use  the 
plaintiff's  name,  to  enforce  certain  rights  and  re- 
medies : — Held,  that  the  award  was  not  bad,  on  the 
ground  of  its  not  specifying  whst  the  *'  property" 
was,  nor  on  the  ground  of  sn  excess  of  authority  in 
respect  to  the  use  of  the  plaintifis  s  name.  Rtmnd  v. 
Hatton,  12  Law  J.  Rep.  (vs.)  Exch.  7 ;  10  M.  &  W. 
660 ;  2  Dowl.  P.C.  (k.8.)  446. 

By  a  submission  to  arbitration  between  A  and  B, 
it  was  recited,  that  all  matters  in  difference  between 
the  parties  had  been  amicably  adjusted,  except  one 
relating  to  a  certain  transaction  for  a  large  quantity 
of  yam,  "  for  which  five  bills  of  exchange  for  1,000A 
each  were  drawn,"  &c.,  and  as  to  the  nature  and 
circumstances  of  and  attending  such  transactions 
and  bills ;  and  it  was  agreed,  that  the  same,  and  all 
matters  in  question  relating  thereto,  should  be 
referred  to  an  arbitrator.  The  arbitrator  awarded, 
that  the  bills  snd  monies  thereby  secured  were  the 
property  of  A,  and  that  the  said  bills  and  monies 
should  be  forthwith  delivered  and  paid  to  A ;  and 
that  in  caae  B  should  have  received  the  whole  or 
any  part  of  the  money  secured  on  the  bills,  B 
should  pay  such  money  to  A  with  interest : — Held, 
that  the  award  waa  not  final,  and  inconclusive ;  the 
latter  part  not  being  immaterial,  but  within  the 
authontj  given  by  the  submission.  In  re  Mar-' 
shall,  12  Law  J.  Rep.  (n.b.>  aB.  104;  8  aB. 
878. 

An  arbitrator,  to  whom,  amongst  other  matters, 
a  cause  was  referred,  of  which  the  costs  were  to 
abide  the  event  or  determination  of  the  award,  and 
the  costs  of  the  reference  and  award  to  be  in  the 
discretion  of  the  arbitrator,  awarded  as  to  the  cause 
in  the  terms  of  the  issues,  but  did  not  otherwise 
determine  the  cause,  by  finding  that  the  plsintiff 
had  no  cause  of  action,  or  that  the  finding  upon 
those  issues  determined  the  suit.  He  also  disposed 
of  the  costs  of  the  reference  and  award: — Held, 
that  the  award  sufficiently  determined  the  cause. 

The  Ccrart,  in  considering  the  sufficiency  of  sn 
award,  will  look  at  the  pleadings  in  the  cause 
referred. 

SembU — That  they  ought  to  be  brou^t  before 
the  Court  by  the  party  moving  to  set  aside  the 
award.  AUin  v.  Lowe  and  Lowe  v.  AUen^  12  Law  J. 
Rep.  (m.8.)  aB.  1 15 ;  4  Q-B.  68 ;  3  O.  & D.  895. 

A  reference  to  arbitration  between  the  executors 
and  A,  the  partner  of  a  deceased  person,  recited 
that  A  asserted  that  partnership  dealings  had  sub- 
sisted between  the  deceased  and  himself,  previously 
to  1887<  that  an  agreement  of  partnership,  to  com- 
mence from  January  1887t  was  entered  into,  and 
that  differences  had  arisen  respecting  the  accounts. 
All  matters  and  accounts  were  then  referred ;  and 
the  arbitrator  found  that  a  psrtnership  had  subsisted 
from  December  1885,  till  the  death  of  the  testatrix, 
and  that  a  balanoe  waa  due  to  the  estate : — Held, 
that  the  award  was  not  uncertain  or  defective,  in 
omitting  to  award  specifically  on  the  partnership 
under  the  agreement.  In  re  Warner,  18  Law  J.  Rep. 
(N.s.)  aB.870;  2  Dowl.&L.  P.C.  148. 

An  action  of  trespass,  in  which  a  declaration  was 
delivered,  and  an  action  on  promises,  in  which  a 
writ  of  summons  had  issued,  were  referred  to  arbi- 
tration ;   the  costs  of  the  causes,  reference,  and 


90 


AaBITRATION-^(AwAU>). 


awazd  to  abide  the  event  of  the  award.  The  arbU 
trator  stated  that  he  made  hie  awaxd  ooncendiig 
the  premises,  and  adjudged  and  detennined  that 
all  nirther  proceedings  should  cease,  and  that  the 
defendant  should  pay  to  the  plaintiff  4R  l7«.9dL  in 
lull  of  all  demands  in  the  said  causes: — Held,  a 
Bufficient  determination  of  both  causes  in  faTour  of 
the  plaintiff  Wynne  t.  EdmtBrdB^  18  Law  J.  Rep. 
(ir.8.)  Ezdh.  222;  12  M.  &  W.  708 ;  1  Dowl.  &  L. 
P.C.  976. 

By  submission,  between  the  plaintiff  and  other 
persons  (who  were  next-of-kin,  and  entitled  to 
distributiTe  shares  of  an  intestate^  estate)  and  the 
defendant,  the  administrator  and  also  one  of  the 
next-of-kin,  reciting  {wtw  aUa)  that  the  estate  of 
the  deceased  consisted  of  debts  due  to  him  at  hia 
death,  farm-stock,  cattle^  com,  com  in  the  ground, 
implements  of  husbandry,  household  goods,  and 
fnnutnre,  ond  other  effeettf  and  that  differences  had 
arisen  as  to  thdr  Tslue,  which  the  parties  had 
agreed  to  refer  to  arbitration  i  the  same  parties 
agreed  that  all  and  every  claim,  demand,  contro* 
renjf  diflerenoe,  and  dispute  between  the  several 
parties  thereto,  concerning  the  matters  and  things 
before  mentioned,  or  in  relation  thereto,  should  be 
paid,  settled,  and  adjusted  according  to  the  arbitra* 
ment  of  two  persona  named.  B^  ue  award,  after 
reciting  the  submission,  the  arbitrators  found  and 
awarded  that  the  defendant,  as  administrator,  at  the 
date  of  the  submission,  had  monies,  fiurm-8tock» 
cattle,  com,  com  in  the  ground,  implements  of 
husbandrjr,  household  goods,  and  furmture  of  the 
intestate  m  his  hands  to  be  administered,  to  the 
value  of  9292.,  independently  of  any  debts  owing  to 
the  intestate;  that  the  ddfendant  should  retain 
140^,  found  to  be  owing  to  him  from  some  of  the 
parties,  and  65L  to  pay  the  rent  and  taxea  of  cer- 
tain tenements  which  were  in  the  intestate's  occu- 
pation at  his  death ;  that  he  should  be  entitled  to 
set  off  15^,  due  to  him  from  the  plainti£(  against 
his  distributive  share;  and  that  he  should,  at  a 
certain  time  and  place,  pay  the  plaintiff  and  the 
other  parties  their  several  distributive  shares  of  the 
intestate's  estate,  first  retaining  his  own  share  and 
the  above-mentioned  sums  of  money ;  and  that 
they  should,  if  required,  execute  releases  to  the  de- 
fendant : — Held,  m  an  action  on  the  award,  that  it 
was  BufiEiciently  final,  although  it  did  not  expressly 
award  as  to  any  *'  other  efiects"  than  those  specifi- 
cally mentioned  in  it,  nor  as  to  the  amount  of  the 
debts  due  to  the  estate,  nor  as  to  the  amount  of  the 
distributive  shares  payable  to  the  plaintiff  and  the 
other  parties  to  the  submission ; — ^it  not  being  shewn 
by  pl^  that  there  were  other  effects,  and  that  the 
ameunts  of  the  debts  or  distributive  shares  were 
matters  in  difierenoe.  Perry  v.  Mitchell  14  Law  J. 
Rep.  (N.S.)  Exch.  88 ;  12  M.&  W.  792;  2  DowL  &  L. 
P.C.  452. 

Where  a  cause  and  all  matters  in  dispute  are  refer> 
red  to  an  arbitrator,  it  is  sufficient  for  him,  in  his 
award,  to  state  that  he  finds  the  plaintiff  **  has  no 
cause  of  action,"  without  making  any  reference  to 
matters  in  dispute,  independent  of  the  action,  it  not 
being  shewn  that  any  matters  in  dispute,  beyond 
the  action,  were  brought  before  him.  Wyatt  v. 
CumelU  1  Dowl.  P.C.  (w.s.)  327. 

Where,  by  an  order  of  Nisi  Prius,  a  cause  was 
referred,  the  costs  of  the  cause  to  abide  the  event. 


and  the  ooets  of  the  veference  and  sward  to  be  io. 
the  discretion  of  the  arbitrator,  **  who  ahall  aaoertalB 
the  aame:" — Held,  that  the  azbitntor  waa  bound 
to  oMfrtem  and  determine  the  amount  of  the  oosts 
of  the  reference  and  award.  Mergtm  v.  Ansift,  1 1 
Law  J.  Rep.  (xta)  Exch.  479 ;  9  M.  &  W.  427 ; 
1  DowL  P.O.  (N.8.)  617. 

Where  an  arbitrator  awards  damages  fat  an 
injury  caused  by  the  defendant  to  tM  plaintUTa 
property  by  aots  done  in  the  a^jaoent  property  of 
the  former,  and  then  having  power  to  direct  the 
mode  of  e^joving  the  property  for  the  futare,  he 
awards  that  the  parties  ahall  respeetivdy  eiyoy  it 
aa  heretofbie,  the  award  ia  not  final,  and,  therefore, 
bad.    AoM  V.  G2i^h»N,  9  DowL  P.C.  866. 

In  covenant  for  non-performance  of  an  award« 
reciting  a  partnership  between  the  plaintiff  and  de- 
fendant, that  the  latter  had  deposited  aeeuritaea  with 
hankers  lor  such  sums  as  they  had  advanoedormiglkt 
advance  to  defendant,  aa  surety  for  the  plaintifl^  and 
that  advaneea  had  be«i  made  to  the  extent  of  4^000A; 
that  the  defendant  had  aatigned  certain  aecnritiea  for 
a  aum  not  exceeding  8,000JL,  and  that  the  partnerahip 
had  been  diaaolved  witheot  any  aettlement  of  the 
aeoounts;  diatby  the  anbmiaaioB  it  waa  provided,  tkat 
in  the  event  of  any  sum  being  awarded  ftom  the 
defendant  unto  the  plaintifl^  the  arbitrators  should 
authorise  the  payment  thereof  to  the  bankers,  in 
seduction  of  the  mertaage  debts,  and  the  plaintifl; 
within  a  atated  time,  u<mld  pav  in  snch  a  sun  aa 
ahonld  entitle  the  defendant  to  luwe  hia  deeda,  fte. 
restored  to  him:-^e  arbitrators  found  a  sum  dne 
to  the  plaintiff  and  the  mortgage  outetandiiy,  and 
directed  payment  to  be  made  on  certain  dajra  to  the 
bankers;  and  they  fiirther  awarded  the  plaintiff  to 
pav  in  "  auch  a  sum  as  should  be  sufficient  to  en« 
title"  the  defendant,  8rc.,  but  omitting  to  state  or 
find  what  tiiat  sum  would  be  t-^Held,  that  the  award 
not  being  final  in  that  respect,  was,  therefore,  bad« 
HemU  V.  HemiU,  1  aB.  110. 

A  finding  by  an  arbitrator,  leading  by  neoee* 
aary  inference  to  the  deciaion  of  the  iaaues  in  the 
eauae,  is  sufficient,  though  there  be  no  expreea 
direction  for  whidi  party  one  of  the  issues  ahall  be 
entered.  AveleH  v.  GeddtBrd,  11  Law  J.  Rep.  (k.8.) 
C.P.  128. 

To  a  declaration  on  the  case  for  polluting  the 
water  of  a  watercourse,  the  defendant  pleaded  not 
guilty,  and  a  plea  denying  the  plaintiff's  right 
to  the  water  as  claimed  in  the  declaration.  By 
order  of  Nisi  Prius  the  cause  and  all  mattera  in 
difference  were  referred  to  an  arbitrator,  who 
was  to  direct  how  the  water  should  be  enjoyed* 
The  arbitrator  awarded  that  the  plaintiff  had  a 
good  ground  of  action,  and  was  entitled  to  40L 
damages.  He  then  went  on  to  awaxd  that  the 
plaintiff  waa  entitled  to  the  benefit  of  the  water  of 
the  stream  or  watercourse  flowing  through  certain 
reservoirs,  without  its  being  polluted  by  the  defen- 
dant in  his  business  as  a  bleacher,  and  that  aa  re- 
garded the  defendants  businessaaadyer,  he  ahould 
at  all  times  take  all  reasonable  precautions  for  pre- 
venting the  water  being  by  auch  hia  busiuese  ren- 
dered leas  fit  for  the  use  of  the  plaintiff  in  her  trade 
and  business  of  a  bleacher  and  dyer,  and  in  par- 
ticular by  passing  the  water,  after  it  had  been  used 
by  the  defendant  in  his  dyeing  business,  through 
certain  filtering  lodges,  so  as  to  be  purified  by  the 


ARBITRATION— (AwABD). 


31 


^Tdinary  and  nott  appvoTed  proeess  of  filtering: — 
H«l^  ttiAfc  the  award  was  amDigoous  in  not  ttftting 
wbat  praeautioaa  were  to  be  ii#ed  by  the  defendant, 
and  ako  for  not  stating  the  nature  of  the  process  of 
filtering  to  be  need. 

Simhie — ^That  it  was  also  bad  for  not  finding  dis* 
tiactly  for  the  plaintiff  or  defendant  on  each  i«sa& 
Stonehewer  T.  Ferrer,  14  Law  J.  Rep.  (n.8.)  CI.B.  122. 

Where  a  declaration  contains  seyeral  counts,  and 
the  eanae  is  reforred  before  plea,  the  aibitrator  is 
not  bound  to  find  upon  each  connt.  Beanp  v.  Pso- 
t9ck^  14  Law  i.  Rep.  ( w.8. )  £xch.  232  ;  14  M.  &  W. 
149 ;  2  Dowl.  &  L.  P.C.  860. 

Where  a  declaration  in  ejectment  contained  de> 
mises  by  three  several  lessors,  and  a  Terdict  was 
taken  for  the  plaStttiff  generally  on  all  the  demises, 
aabject  to  the  award  of  an  arbitrator,  who  directed 
that  the  ffeneial  Teidict  shoold  stand : — Held,  that 
tha  award  was  bad,  as  the  arbitrator  onght  to  haye 
stated  on  which  of  the  demises  the  plaintiff  was  en- 
titled to  recover.  Doe  d.  Starlmg  v.  HtUer^  12  Law 
J.  Bcpi  (V.8.)  aB.  16« ;  2  BowL  P.C.  (n.s.)  694. 

A  dteclaration  on  an  agreement  to  snpply  timber 
and  slates  to  tlie  plaintiff  for  the  building  of  a  house, 
alleged  aa  a  breach  the  non-supply  of  timber  only. 
The  defendant  pleaded,  first,  non  assumpsit;  se- 
eoodly,  Uiat  he  supplied  timber ;  thirdlr,  part  pay- 
-ment.  The  cause  and  all  matters  in  difference  were 
referred,  and  the  arbitrator,  by  his  award,  after 
TCcitiiig  that  he  had  heard  the  eridenoe  produced, 
"  touchiag  the  matters  in  difference,^  stated  that  he 
had  naade  his  award  **  of  and  concerning  the  pre- 
mises^" and  then  proceeded  to  find  specially  on  each 
of  the  issues  in  ^e  action: — Held,  that  the  award 
was  snfiEieient,  although  it  appeared  that  there  was 
a  matter  in  difiereace  submitted  to  the  arbitrator  as 
to  the  supply  of  slatet.  Dunn  v.  IVorUert,  1 1  Law 
J.  Ren.  (ma)  £xch.  188 ;  9  M.  &  W.  298 ;  1  DowL 
P.C.  (ir.8.)  626. 

Where  a  cause  in  which  several  issues  are  raised 
on  the  pleadings  is  referred,  the  arbitrator  is  bound 
to  find  expressly  on  each,  although  he  is  not  re- 
quested to  do  so  by  the  parties.  Therefore,  where 
to  a  declaration  a  defendant  pleaded  several  pleas, 
and  the  arbitrator  was  not  requested  to  find  speci- 
fically on  each,  and  he  awarded  merely  that  the 
plamtiff  had  no  cause  of  action,  and  directed  a  ver- 
dict to  be  entered  for  the  defendant,  the  award  was 
Mdtobebad.  A«2afufv.Da«j«0ji,9Dow1.  P.C.  1052. 

Where,  in  an  cnder  of  reference,  the  costs  d  the 
emuM  are  to  abide  the  event  of  the  award,  the  arbi- 
trator ia  bound  to  find  specifically  upon  each  issuOi 
But  where  the  costs  of  the  reference  emd  moard  onlv 
are  to  abide  the  event,  he  is  not  bound  so  to  finc^ 
unless  required  by  the  terms  of  the  rule  of  refer- 
ence. Bemrke  v.  Llogd,  12  Law  J.  Rep.  (h.b.)  Exch. 
4 ;  10  M.  &  W.  550 ;  2  Dowl.  P.C.  (]i.8.)  452. 

The  defandant  having  pleaded  to  an  action  of 
aasampsit,  non  assumpsit,  payment,  and  set-off,  and 
issues  having  been  joined  thereon,  the  cause  and  all 
natters  in  diSerence  were  referred  to  arbitration  by 
a  Judge's  order,  which  directed  the  costs  of  the 
cause  to  abide  the  event,  and  the  costs  of  the  refer- 
ence and  award  to  be  in  the  discretion  of  the  arbi- 
trator. The  award  was,  that  the  plaintiff  should 
pav  to  the  defendant  *'  the  sum  of  16^  lOi.  td., 
bang  the  balance  which  1  find  to  be  due  firom  the 
said  plaintiff  to  the  said  defendant ;"  and  that  each 


party  should  pay  his  own  costs  of  the  reference^ 
and  a  moiety  of  the  costs  of  the  award : — Held, 
that  the  award  was  bad,  on  the  ground  of  uncer- 
tainty as  to  the  finding  of  the  issues,  and  there 
being  no  adjudication  at  all  upon  the  cause.  Pear" 
ton  V.  Arehbold,  12  Law  J.  Rep.  (N.s.)£xch.  808; 
11  M.  &  W.  477;  2  Dowl.  P.C.  (n.s.)  1018. 

In  an  action  of  debt,  which  was  referred,  the 
defendant  had  pleaded,  except  as  to  19«.  4id,  paid 
into  court,  distinct  pleas  of  tumquam  indebitaiue, 
payment,  and  set-off  to  the  whole  declaration.  The 
costs  of  the  cause  were  to  abide  the  event  of  the 
award,  and  the  arbitrator  was  empowered  to  direct 
a  verdict  to  be  entered  for  such  sum  as  he  should 
find  to  be  due.  Hie  arbitrator  having  directed  a 
verdict  for  14{.  IBs,  Sd,  debt,  and  1«.  damages,  to 
be  entered  for  the  plaintiff  without  finding  each  of 
the  issues, — Held,  that  the  award  was  ba£  Brooks 
V.  Pareons,  18  Law  J,  Rep.  (n.8.)  Q.B.  50 ;  1  Dowt 
&L.  P.C.  691. 

Debt  for  goods  sold,  &c.  Pleas,  never  indebted, 
payment,  and  set-ofiC  The  cause  and  all  matters 
m  difibrence  having  been  referred  by  order  of  Nisi 
Prius,  the  order  directed,  that  if  the  arbitrator 
should  find  that  the  plaintiffs  were  not  entitled  to 
recover,  the  verdict  taken  was  to  be  void,  and  a 
verdict  entered  for  the  defondant.  It  was  further 
agreed  by  the  parties,  that  if  the  arbitrator  should 
think  that  certain  iron  machinery  supplied  to  the 
defendant  ought  not  to  be  charged  for  by  the  plain* 
tifis,  the  defendant  having  alleged  it  to  be  defective^ 
the  plaintiff  were  to  be  allowed  the  value  of  it,  at  the 
market  price  of  pig  iron.  The  arbitrator  awarded 
that  the  plaintifib  were  not  entitled  to  recover ;  and 
that  the  defendant  should  pay  to  the  plaintift  for 
the  machinery  such  sum  ''  as  the  same  amounts  to, 
according  to  the  preaent  market  price  rf  pig  iron**  i 
— Held,  first,  that  under  this  order  of  reference  the 
arbitrator  was  not  bound  to  award  on  each  issue  t 
and,  secondly,  that  the  award  was  not  uncertain,  in 
omitting  to  state  the  time  and  market  at  which  the 
price  of  the  iron  waa  to  be  ascertained.  Waddle  r* 
Doumman,  13  Law  J.  Rep.  (n.8.)  Exch.  115;  12  M, 
&  W.  562 ;  1  Dowl.  fr  L.  P.C.  560. 

An  action  on  three  billa  of  exchange,  and  an 
account  stated,  in  which  issue  had  been  joined  on 
several  pleas,  was  referred,  together  with  all  other 
matters  in  d^erence,  the  costs  of  the  cause  and  of 
the  reference  to  abide  the  result  of  the  award.  Tha 
arbitrator,  on  the  28rd  of  March  1844,  made  his 
award,  and,  after  disposing  of  the  first  count  and 
the  plea  to  it,  stated  that  the  defendant  was  indebted 
to  the  plaintiff  in  a  aum  of  money  on  the  last  tfarea 
counts,  but  on  account  of  all  matters  referred,  in- 
cluding that  sum,  the  plaintiff  was  indebted  to  the 
defendant  in  17^  7i.  5&,  and  this  he  directed  to  be 
paid  to  the  defendant  The  award  also  directed  the 
plaintiff  to  deliver  to  the  defendant,  among  other 
warrants,  the  warrant  for  a  hogshead  of  port  wine 
then  or  lately  in  the  London  Docks.  On  the  16th 
of  March  1844,  a  fiat  in  bankruptcy  issued  against 
the  plaintiS^  and  the  defendant  attempted  to  prove 
under  it,  but  his  proof  was  successfoUy  opposed  by 
the  bankrupt  A  demand  was  made  of  the  pay- 
ment of  the  sum  of  money  and  costs,  and  delivery 
of  the  hogshead  of  wine  and  of  the  other  warrants: 
— Held,  first,  that  the  costs  were  determined  by 
the  finding  of  the  balance,  and  that  no  more  spe- 


ABJQlTBATiON— (AiTABP). 


cific  finding  on  the  uiaea  in  the  action  wu  neoee- 
Baxy;  secondly,  tlmttha'^flttt  did  not  operate  as  a 
reyocation  of  the  aubauswion;  and>  tbizdlyf  that 
the  demand  ought  to  have  been  made  of  the  wap- 
rant,  and  not  of'  the  hogshead  of  wine^  and  that  in 
this  respect  it  was  bad,  but  that  the  attachment 
might  issue  for  non-performance  of  the  other  parts 
of  the  award.  Hemnootih  r.  Britt%  1 4  Law  J,  Map* 
(v.s)  C.P.  134;  1  M.  G.  $c  S.  131;  $  Sc.  (ifis,) 
842  ;  2  Dowl.  &  L.  P.C.  844. 

Issue  haying  been  joined  in  an  action  for  eoods 
sold^  with  the  comipon  money  counts,  to  whidi  th« 
de&ndatit  pleaded  :'non  assu^insit^-  pa^Wht,  and  • 
set-oil^  it  was  agreed  that  all  proceedings  in  tbs 
action  shqpld  be  stayed,  and  ^at  all  matters  in 
dillbrenc^  should  be  referred  to  two  arbitratorSi 
who  were  to  award  concerning  the  same»  the  906ts 
of  the  action  to  abide  the  event  of  the  award.  Tha 
atbit^ators  awarded  that  the  defendant  was  indebted 
to  the  plaintiff'  in  the  sum  of  68/.  lis,  5d^  and  thai 
final  judgpaent  should  W  entered  up  for  the  plaio- 
titf'for  that  aiii^,.  brides  his  costs  of  suit,  (o  bs 
taxed,  and  that  that  sum  with  costs  should  be  paid 
by  the  defendant  to  the  plaintlfiT: — Held,  that  tii^ 
was  no  finding  upon  all  the  issues,  and  that  the  award 
was  bad.  KUbum  v.  Kilhurnt  14  Law  J.  Eep.  (njb.) 
Exch.  160;  13  M.&  W.  671 ;  2  Dowl.  &  L.  PX5. 
0^3. 

A  catis^  in  which  there  were  several  issues,  some 
4>f  which  lay  6n  the  plaintifi*  and  some  on  the  de- 
fendant, bur  all  of  Which  might  havB  bean  found 
for  the  defendant,  was  referred  at  Nisi  Prius^  and 
the  irbitzatoc  awarded  a  general  verdict  te  be  en- 
tered for  the  defendant;— Held,  that  the  arbitrator 
had  Sufficiently  disposed  of  alt  the  issuer 

"Where  a  cause  in  which  there  are  issues  In  fkct 
and  in  law  is  teferred,  the  arbitrator  n^ed  not  assess 
contingent  damages  on  the  issues  in  law,  unless  re- 
qnested  to  do  sob'  Gmpgr  ¥•  Lampiom,  11  Law  J. 
Rep.  ivjB.)  Baiek.  222 1  »  ML  &  W.  €0|  ^  ][)««rL 
B.C.  (H.S.)  392. 

[And  see  Mahmejf  ▼.  iStockky,  p9ft,  («).] 

(e)  InconsuUncy, 

Where  an  action  for  woilc  upon  a  retainer  to 
snperintend  works,  and  all  matters  in  dififerenoe 
were  referred,  the  oosts  to  abide  the  event,  and  the 
arbitrator  Ibmid  for  As  defiaidant  upon  tile  general 
issue  and  issues  of  dcniid  of  nisinar  and  doe  enre 
in  eaanining  the  htU%  aod  far  the  plaintifi'  as  to 
one  issue  of  dve  eare  and  skill  ■■  to  the  works  j 
— ^Hridl,  that  thcfie'was  no  inooaristaioy  ia  siieli 
award,  and  tluit  k  ooold  not  be  inferred  that  any 
etiiejr  matters  were  n  isbosk  Dmk$-  €f  Bumfmt  r, 
Wekk,  10  Ad.  &  B.  527. 

Whone  in  debt  S»r  nae  and  oeoupation,  and  en  the 
comnMm  ooonta,  with  pleas  of  wmgmmi  imkbltmhu 
and  of  set-ofl^  the  verdict  «aa  entered  at  Nisi  Prias 
for  the  plaintiC  svbject  to  a  reference  6f  the  cause 
to  an  arbitmtof,  with  power  to  certify  whether  tile 
verdict  should  stand,  and  for  what  aoMrant,  or  wive- 
ther  it  should  be  vacated,  and  a  Tesdiet  entered  for 
the  defendant:— Heid,  that  the  certMeate  of  the 
arbitrator,  that  a  verdict  ahonld  be  cnleisd  Ibr  the 
defendant  on  both  Issues,  was  not  inconsistent, 
WiUiams  V.  3fouUdaIe,  10  Law  J.  Rep.  (ir,s.)  £xch.  2 ; 
7  M.  &  W.  184. 

Where  in  an  action  of  a««innpsiton  ao  agrrement, 


the  de£^d«»t.plM(M  tlio<g^iMfll 
pleas  iaconfesaioQ  and  avoidaj^ee  9  r  and  aikaiWtvalfl^ 
to  whon  the^eanse  was  referred  at  NialWa^miii^rdfld 
a  general  verdict  fortitf  defendant  :-^Hiid»  thni<l»- 
asmnch  as  the  jury  night  have  l»and'all  tlit  isanes 
ior  the  defendint,  the  award  waa  not  ioeonsiatniil^ 
Cocperj.tm^dmj  ULawJ.B«pu(|t«^fisok222i 
9  M.  &  W.  60:  1  I>o«l*  P-0.  <&».)  S92.< 

Where  an  action 'Ofdebtt  in  whjvl^the  ddendul 
pleaded  the  general  iasue»  paf  menti  and  eeWofl^  wm^ 
with  all  natters  in  di&rancei  refeifed  to  effbimatiM^ 
ibe  costs  of  the  asrard  to  aMde  the  event  t  .and  tkt 
arbitrator,  directed  that  the  vordkt  whMh  had  \mm 
entered  Ua  the  plaintifi*  should  ke,a«^ awid%  Mid  • 
verdict  entered  for,  the  defendant,  hot  said  nothinff 
as  to  the  respective  issues  ^^Held.  thai  the  nmaxA 
was  not  inconsistent.  Also^  that'  it  i^aa  fiet>jfQnl| 
inasmuch  aa  it  did  not  detemine  the  aQi#unt>of  Ite 
set-ofij  which  wna  a  natier  in  diftrenco.  Heleney 
V.  Siodttey,  12  Law  J.  Rep.  (ifj^  aP.  ft2M  2  XHlwJL 
P.C.  (N.S.)  122. 

To  a  declaration  •in  doht«  tbo^  defendant  pleaded 
as  to  part  die  genaial  iasne»  aa  to  the  residne  nr- 
ment  after  action  brought*  and  a  set-off  to  the  whnwu 
At  the  trial  a  verdict  waa  tak^  fei  theplsintifl^  anA 
the  causa  and  all  natters  in  di&Tenoawere  refemaid 
to  an  arbitrator,  who  awarded  thnbtho.veidictibr4kw 
plaintiff  should  be  set  aside  and  lenAered  fer  the  de^ 
fendant  on  all  the  issue!  esoept  the  firsts  on  whidi 
it  was  to  stand  for  the  plaintiff'  without  any  dimsyt 
and  that  there  were  no  other  mal;tera  in  di&rsnoo: 
— Held,  that  the  finding  .in  favour  of  th^plaiolii^ 
without  any  damages^  waa  good.  Also,  that  the 
award  was  not  inconsistent  in  finding  both  the  ple^ 
of  payment  of  a  part  of  the  sun  claiined  after  aetion 
brought,  and  the  plea,  of  set^ofl^  in  favour  of  ^W 
defendant  Wanpick  v.  Cox^  13  Law  J.  Repu  (itSt^. 
Bxcb.  314;  12  H.  3b  W.  774^  .1  Bowi  &  U,  KG» 
986.  ... 

A  declaration  in  case  stated,  that  whereas  H 
Wrongfully  erected  a  mill  on  a  dose,  the  roversion 
whereof  bek)nged  to  the  plaintiff,  the  defendant 
wrongfully  continued  the  vniU  so  wroogfolly  erected 
thereon,  whereby  the  plaintiff  waa  injured  in  hin 
reversion.  Pleas,  not  guilty ;  and  that  the  mill  mtm 
not  wrongfully  erected  eiodo  et  formd.  The  oauan 
was  referred,  and  by  the  order  of  reference  the  arfai<» 
trator  was  to  direct  hew  the  verdict  shnnld  be  entered 
on  the  difierent  issues,  with  power  to  order  what 
should  be  done  between  the  parties,  The.arbitiator 
directed  a  verdict  on  the  first  issue  for  the  plaintifi^ 
without  damages,  and  on  the  second  fiw  the  defendant* 
and  ordered  ''that  nothing  be  done  by  the  paitiea." 
Held,  that  ihe  findings  on  the  issues  were  net  in* 
consistent  and  repugnant  to  each  others  and  that 
the  arbitrator  was  justified  in  ordering  that  nothing 
should  be  done  by  the  pailiea. 

Held,  also,  that  though  the  award  waa  defectiro 
for  not  awarding  nominal  damages  st  least,  yet  na 
the  defect  was  not  made  a  ground  of  objection  ia 
the  rule  nfjri  obtained  for  setting  aside  the  award,  it 
coold  not  afterwards  be  raised.  Gm^ld  v.  JSc^e* 
eombe,  14  Law  J.  Rep.  (n.s)  Q.B.  322. 

</)  Bxcem  <f  AuikoHty. 

Where  a  cause  raising  several  issues  was  referred, 
the  costs  to  abide  the  event,  and  the  arbitrator 
awarded  as  to  each,  and  then  proceeded  to  direct « 


ARBITR  ATI  ON— ( A  w  abi>)  . 


33 


Hit  pTMCtMi*.* — Held,  that  although  bad  as  to  the 
lattar  for  exeeaai  it  waa  good  aa  to  &e  mt,  and  that 
Hm  party  waa  entitled  to  tax  the  ooata  thereon. 
Wurd  ▼.  Ball,  9  Dowl.  P.C.  610. 

An  arbitrator,  on  a  reference  with  reipect  to  the 
B|^t  to  a  certain  houie  and  premises,  directed 
certain  conveyances  to  be  executed  by  one  party 
to  another,  and  awarded  that  in  case  of  any  die- 
pttte  ariaing  with  respect  to  the  form  of  those  con* 
veyancea,  those  disputes  should  be  settled  by  such 
ooonad  or  solicitor  as  he  should  appoint  The 
Court  set  aside  the  award,  on  the  ground  that  the 
arhitimtor,  by  reserring  a  future  power  to  himself 
to  delegate  the  authority  to  determine  disputes  be- 
tween Sie  partlea,  was  an  excess  of  authority,  and 
tbeieftrae  setaaido  the  award,  as  this  direction  could 
not  be  separated  from  the  rest  of  the  award.  In  rt 
Tmmdy,  9  DowL  P.C.  1044. 

[And  aee  lUnmd  r,  HaitoH,  tmte,  (d),  and  StapUi 
▼.  Um9,  pmi,  (p),  (2).] 

(jg)  Surphuagt, 

Where  a  cause  was  referred  to  tiiree  persons  to 
make  an  award,  and,  in  case  they  should  differ,  to 
an  umpire ;  and  the  award  contained  no  statement 
that  the  arbitrators  had  differed,  but  recited  that  they 
had  **  considered  the  decision  of  the  umpire" ;  and 
it  appeared  on  affidarit  that  they  had  not  consulted 
the  umpire  at  all : — Held,  that  the  words  were 
merely  surplusage,  and  must  be  presumed  to  have 
been  mserted  by  mistake.  Uarlom  ▼.  Read,  14  Law 
J.  Rep.  <N.8.)  C.P.  239 ;  1  C.  B.  733. 

A  cause  in  whioh  issue  had  been  joined,  and  all 
nattera  in  difltrence  were  referred  by  a  Judge's 
order  to  arbitration,  without  any  power  to  the  arbitra- 
tor to  direct  a  verdict  to  be  entered,  the  costs  of  the 
cause  to  abide  the  event,  and  the  costs  of  the  refer- 
ence and  award  to  be  in  the  discretion  of  the  arbi- 
trator. The  arbitrator  directed  that  a  verdict  should 
be  entered  for  the  defendants  on  all  the  issues,  that 
each  party  should  pay  their  own  costs  of  the  refer- 
ence, and  that  a  moietv  of  the  costs  of  the  award 
shoald  be  paid  by  each  of  the  parties.  He  then 
awarded  that  the  parties  should  execute  mutual 
general  releases  of  all  and  all  manner  of  actions, 
&c.,  to  each  other:— Held,  that  the  arbitrator  hav- 
ing exceeded  his  authority  in  directing  a  verdict  to 
be  entered,  that  part  of  the  award  could  not  be  reject- 
ed aa  surplusage,  as  it  was  an  event  inconsistent  with 
the  award  of  the  releases  with  respect  to  costs ;  and 
if  the  release  did  not  extend  to  the  action  referred, 
there  was  no  ilnal  determination  of  the  action. 
Hawkford  v.  Grttnwoody  14  Law  J.  Rep.  (n.8.) 
as.  236. 

[And  see  Rou  v.  Cl^um^  poii,  (g ),  page  SS.] 

(A)  Performance  qf. 

Where  an  arbitrator  directed  by  his  award  that  a 
plaintiff  should  execute  deeds  of  assignment,  and 
mortgage,  and  release;  and  a  demand  of  execu- 
tion was  made  by  an  agent  of  the  defendant's  attor- 
ney,— Held,  that  it  waa  not  necessary  that  the  agent 
should  be  authorised  by  a  power  of  attorney. 

Held,  also,  that  it  waa  not  necessary  that  the 
deeds  should  be  prepared  by  the  arbitrator,  or  drawn 
up  until  the  award  was  published.  Tebhnit  y.  Ambler^ 
12  Law  J.  Rep.  (N.a.)  Q.B.  220;  2  Dowl.  P.C.  (n.s.) 
601. 

Digest,  1840—1845. 


(I)  EseemHon  rf, 

A  canse  and  all  matters  in  difference  having  been 
referred  to  three  arbitrators,  with  power  to  any  two 
of  them  to  make  their  award,  an  award  made  and 
signed  by  two,  the  third  having  refused  to  coocur, 
stated  that  it  waa  made  by  the  three.  An  action 
having  been  brought  on  this  award,  and  an  issue 
raised  on  the  averment  in  the  declaration  that  the 
two  arbitraton  duly  made  their  award: — Held,  that 
the  averment  waa  supported,  and  that  the  award 
was  good.  Ifhiie  v.  ^karp,  IS  Law  J.  Rep.  (n.s.) 
Exch.  215;  12  M.  &  W.  712;  1  DowL  &  L.  P.C. 
1030. 

An  award  ought  to  be  signed  by  all  the  arbitral 
ton  in  the  presence  of  each  other. 

The  Court,  however,  refused  to  set  aside  an  award 
on  motion,  because  it  was  signed  by  several  arbitra- 
tors at  differant  times  and  places,  but  intimated  that 
they  should  not  enforce  it  by  attachment  or  rule. 
StiUworth  V.  Inns,  14  Law  J.  Rep.  (n.8.)  Exch.  81; 
13  M.  &  W.  464:  2  Dowl.  &  L.  P.C.  466. 

Affidavits  used  in  answer  to  an  application  to  set 
aside  an  award  made  pursuant  to  a  submission  to 
arbitration  by  deed  must  be  stamped,  notwithstand- 
ing the  6  Geo.  4.  c.  41.  which  repeab  the  54  Geo.  3. 
G.  184.  as  to  stamps  on  legal  proceeding^  in  general, 

A  cause  and  all  matten  in  difference  were  referred 
to  the  award  of  two  named  persons  and  such  third 
person  as  they  should  appoint,  or  of  a  majority  of 
them.  A  difference  having  arisen  between  the  ori- 
ginally named  arbitrators,  a  statement  was  made  by 
each  to  the  third  aa  to  what  he  thought  the  award 
should  be.  An  award  having  been  made  by  an 
umpire  and  one  of  the  arbitrators,  without  any  fur- 
ther meeting,  the  Court  set  aside  the  award.  In  re 
Templeman,  9  Dowl.  P.C.  962. 

(A)  ConetmeHon  of. 

Where  an  award,  dated  on  the  13th  of  October, 
required  a  payment  to  be  made  on  the  28th  day 
of  October  next,  held  that  the  word  "  next"  applied 
to  the  day  aa  well  as  to  the  month,  and  that  the 
money  was  payable  on  the  28th  instant  Brown  v. 
Smithy  8  Dowl.  P.C.  857. 

(/)  Partud  Validity  of. 

A  custom  for  the  lord  mayor  to  authorize  the 
erection  of  a  hoarding,  obstructing  and  inclosing  a 
part  of  the  public  footwav  for  such  a  time  as  he 
should  think  reasonable,  is  a  good  custom ;  and  a 
plea  justifying  under  such  a  custom  is  good,  though 
the  declaration  allege  that  the  hoarding  was  con- 
tinued for  an  unreasonable  time:  and  the  cause 
being  referred  to  an  arbitrator,  who  gave  damages 
for  ii^urv  sustained  by  the  plaintiff"  otherwise  than 
by  keepmg  and  continuing  the  said  hoarding," — 
Held,  that  the  award  waa  not  sustainable  for  so 
much,  but  that  such  finding  did  not  invalidate  the 
award.  Bradbee  v.  Mayor,  Sj^c.  of  London,  as  Oo" 
vemors  of  CkrisVs  Hospital,  1 1  Law  J.  Rep.  (n.s.) 
C.P.  209 ;  4  M  &  G.  714;  5  So.  (n.s.)  79 ;  2  Dowl. 
P.C.  (N.S.)  164. 

[And  see,  ante,  (/).] 

(m)  Sending  back  to  Arbitrator. 

Where  a  verdict  was  taken  for  the  plaintiff  in  an 
action  of  debt,  for  the  amount  in  the  declaration 
and  nominal  damages,  subject  to  the  award  of  an 

F 


84 


AIlBITRATrONi-(AlrAiiD). 


arbitrator,  to  whom  the  cause  and  all  -mattera  in 
difference  between  the  parties  were  referred,  the 
costs  of  the  cause  to  abide  the  event ;  the  arbitrator 
having  made  an  award  in  fitvonr  of  the  plaiotiffi  as 
to  the  action,  but  affaiiist  them  as  to  the  other  mat- 
ters in  difference,  which  was  afterwards  set  aside  by 
the  defendant  for  defects  in  it,— The  Court  reftised 
to  allow  the  plaintiffs  to  issue  execution  for  a  no- 
minal amount  of  debt  and  the  costs,  unless  the  de- 
fendant would  consent  to  refer  the  matter  baek  to 
the  same  arbitrator.  Porch  r.  Hopkins,  13  Law  J. 
Rep.  (n.s.)  Q.B.  137;   1  Dowl.&L.  P.C.881. 

An  order  of  submission  at  Kisi  Prius  proTided, 
"  That  in  the  event  of  either  of  the  parties  disputing 
the  validity  of  the  award,  or  movrag  the  Conrt  to 
set  the  same  or  any  part  thereof  aside,  the  Conrt 
should  have  power  to  remit  the  matters  thereby  re- 
ferred to  the  re-consideration  and  determination  of 
the  arbftrator."  Upon  application  to  the  Court 
under  this  clause,  it  was  oi^ered  that  the  mattera 
referred  to  the  arbitrator  be  remitted  back  to  him 
for  his  re-consideration  and  re- determination.  The 
order  was  made  upon  the  ground  that  the  arbitrator 
had  notfinatly  disposed  of  a  matter  which  had  been 
before  him,  and  upon  which  he  had  received  evi- 
dence : — Held,  that  the  aibitrator  was  bound,  under 
the  order  remitting  the  matter  baek,  to  hear  further 
evidence,  which  was  tendered  to  him. 

Whether  the  Court  has  power  to  send  an  award 
back  twice  to  an  arbitrator,  under  the  clause  giving 
it  power  to  reftr  the  matters  baek  to  him,  quare, 

Semhle — That  the  clause  giving  power  to  the 
Court  to  refer  the  award  back  to  the  arbitrator 
should  be  framed  so  as  to  give  it  power  to  remit  to 
him  all  the  matters,  or  any  of  th«m.  NickaU$  r. 
Warren,  14  Law  J.  Rep.  (K.a.)  Q.B.  70;  2  Dowl. 
&  L.  P.C.  649. 

[And  see  Perry  v.  Dttmr,  po&tj  (^),  page  87.] 

(»)  PmrHeulars  ^  Demand, 

Where  a  verdict  was  entered,  by  consent,  for  a 
sum  greater  than  that  claimed  by  the  particulars 
of  demand,  and  the  amount  of  damages  in  the 
cause  was  referred  to  arbitration ;  and  the  arbitrator 
awarded  to  the  plaintiff  the  amount  of  the  verdict, 
on  motion  to  set  aside  the  award,  temhle,  that  the 
particulars  of  demand  were  not  necessarily  before 
the  arbitrator ;  and  therefore  that  the  defendant,  if 
he  meant  to  limit  the  plaintiff^e  demand,  ought  to 
have  brought  the  particulars  before  the  arbitrator. 
Kenrick  v.  Phillips,  10  Law  J.  Rep.  (n.s.)  Exch. 
226;  7  M.  &  W.  415  ;  9  Dowl.  P.C.  808. 

(o)  Remedies  for  enforcing, 

(1)  Attachment, 

Where  it  is  sought  to  draw  up  a  rule  for  an 
attachment  for  non-performaoce  of  an  award,  it  is 
competent  for  the  ofncer  of  the  Court  to  object  to 
the  absence  of  a  stamp  on  the  award,  and  therefore 
to  refuse  to  draw  up  the  rule.  Hill  v.  Slocombe^  9 
Dowl.  P.C.  889. 

Where  an  arbitrator,  by  mistake,  awarded  pay- 
ment by  the  defendant  in  a  wrong  Christian  name, 
the  Court  refused  to  enforce  it  by  attachment.  Lees 
V.  Hartley^  8  Dowl.  P.C.  888. 

Where  a  cause  was  referred,  costs  to  abide  the 
event,  which  being  for  the  defendant,  he  had  taxed 
the  costs,  which  the  plaintiff  refused  to  pay,  a  rule 


abiol«te  ill  the  %nA  hialaiuM  for  «b  ttttedHMPt  was 
granted.    DemielU  v.  Wemlds^  9iD»«L  P«C.  44w 

On  an  afiplieatuNt  fer  an  attadmiflait  for  noil** 
payment  of  money  puiauant  tosn  award,  the  afiU 
davit  of  the  moaey  beoig  stiil  due  may  be  made  by 
the  aittomey,  where  it  baa  heea  deraanded  by  letter 
of  attorney.    BBgHsa  r.  Pagot^  9  Dowi  P  .C.  946. 

An  arbitrator^  to  whom  anootieo  of  eepieviii 
WIS  referred,  in  which  W  and  S  W,  bk  wifev  wont 
avovianta,  diiccted  tho  plaintiff  ta  pay  to  S  W,  tbt 
wife,  the  sum  of  40/.  W,  the  huaband,  gave  wHieo 
to  the  plitetiff  to  pay  the  noney  to  fain,  whiob  he 
did.  It  appoaiod  tlut  the  yAmotdS  woU  kaev  that 
it  waa  the  intentMii  off  the  Conrt  Aust  the  wife  (who 
wao  separated  from  her  huaband)  sfaokiU  reodve  tbo 
money.  The  Conrt  naide  Ae  mlo  abeoloto  IbeoB 
atfesehmeart  lor  non-payment  of  the-  money  to  tiio 
wife.  Wywse  v.  Wynne,  U  Law  J.  Rep.(ii.B.)  C.P. 
9M  s  8  So.  <x;b.)  4tf ;  1  DewL  P.O.  <9.^j  72& 

Where  an  arbitrator  exceeded  his  jtunodiotioA  by 
ordering  a  sum  of  money  to  be  paid  to  the  defen- 
dant, who  demanded  that  ram,  together  with  the 
eosts,  and  tiica  moved  ^ar  an  attaohment,  atating  in 
Us  aflMavit  tliat  the  plaintiff'  had  not  paid  tho 
aaaoont  demanded,  or  any  port  thorao^-^the  Court 
reftistd  the  attacfainent,  on  the  gionnd  that  it  woo 
oonsistent  viilSk  the  deiendoAfa  afBdasrit,  that  tho 
plsRHtiff  might  hare  tendered  the  aasouit  ootiially 
due.  Poyner  v.  Hmttan,  10  lAw  J.  Bep;*  (n  a.)  Exoiu 
64;  7  M.&  W.  211 ;  8  Dow).  P.C. 891. 

An  arhitratoT  having  awarded  a  sum  of  money 
to  be  paid  by  the  defendant  to  the  plaintiffr  the  Uttor 
iUod  an  affidavit  of  debt  in  the  Court  of  Bankr 
raptcy,  under  1  fc  2  Viet.  c.  UOl  a.  8,  and  tbo 
defendant  liicn  eatered  into  o  bood  conditionodf  in 
the  worda  of  the  aot,  for  the  payment  of  the  money, 
but  omitting  the  altomotive  of  rendering  himaelf 
tofrool : — Hdd,  that  tiie  plaintiff' waa  notpredoded, 
by  having  adopted  tius  proeeeding,  from  proceeding 
by  attachment  Mmdtn  v.  TyrreUt  12  Law  J.  Rep. 
(n.8.)  Exch.  121 ;  B.  c  MmuUU  v.  TyrrM,  9  M.  &  W. 
217. 

[Aod  see  Aaimorth  v.  Ims,  mte,  (i),  page  88 ; 
BmdeU  v.  Beadle^  post^  (q)^  page  86.] 

(2)  Execution,  under  1  Sf  2  Fict,.c.  IIQ.  $,  18. 

Money  ordered  to  be  paid  by  an  oward  made  a 
rule  of  court,  is  not  payable  by  tho  rule,  within  the 
1  ft  2  Vict  e.  110.  s.  18)  and  no  oxeention,  there- 
fore,  can  issne  thereon,  as  on  a  judgment  Jemes  r. 
miHims,  4  P.  ft  D.  217. 

The  superior  ooorts  have  power  to  oaU  on  a,  party 
to  shew  cause  why  he  should  not  pay  money  pur- 
suant to  an  award ;  and  on  a  rule  for  this  purpoee 
being  made  absolute^  exeention  may  iatue  vnder 
1  ft  2  Vict.  c.  1 10.  s.  18.  Doe  v.  Amey,  10  Law  J. 
Rep.  (N.s.)  Exch.  466 ;  8  M.  ft  W.  565 ;  1  Dowl. 
P.C.  (n.b.)  28. 

Where  an  arbitrator  directed  a  v«rdiet  to  be 
entered  fbr  the  defendants,  which,  he  had  no  power 
to  do,  and  ordered  the  plaintiff'  to  pay  certain  coats, 
and  there  was  a  question  of  low  as  to  tho  validity  of 
the  awsrd,  the  Court  reftised  a  rale  calHng  upon 
the  plaintiff'  to  shew  oanso,  under  the  aUt.  1  ft  2 
Vict  c.  1 10.  s.  18,  why  he  should  not  pay  tho  ooato 
awarded.  Diehenson  v.  AUsop,  1 4  Law  J.  Rep.  ( N.8.) 
Exch.  136;  18  M.  ft  W.  722 ;  2  DowL  ft  L.  P.C. 
657. 


AaBITRATION-(AvABD). 


35 


In  Md0r  to  «bhdA  a  rale  Ibv  the  |Mgr«ent  of  money 
under  an  award  and  aUooalur,  pereonal  teiviee  ia 
general  ia  neeateary ;  bat  this  may  be  dis^nied  with 
niider  epedal  cinramttanoeBb 

Where  a  rnie  to  ehcNr  canee  on  the  2<Hh  of  No- 
vember had  not  been  eerf«d  en  the  defendant  till 
that  day  at  Binninghaai,  the  Conit»  on  the  2^th 
(the  laet  day  «f  term),  refneed  to  make  it  absolute, 
hot  enlarged  it  fill  the  nert  terra.  Hamkhu  ▼.  it«f»- 
«M.  14  Law  J.  Rep.  (H.ib)  Q^.  9|  2  DowL.&  L. 
F.G.  46S. 

By  an  ovfer  of  fefeimuse,  the  came  and  all  mat- 
ten  m  dMfinence  between  the  plaintiff  and  deftn- 
duate,  and  alio  all  inatiera  in  difieiettce  between  the 
defendaste  andene  W  C,  wem  referved  «a  Che  arbi* 
Cvatoi^  tihi  ooela  of  the  canee  te  abide  the  event,  and 
all  other  ooMi  to  bo  in  the  diaoretion  el  tbo  acbit»« 
tor;  the  arhkmtor  treated  the  whole  matter  aa  if 
W  C  were  a  pafty  to  the  actten,  and  awarded  40ii. 
daiwagoe  **  to  he  paid  bythedefimdanta  totiraplain- 
tilf  attd  W  G,  who  had  oonaented  to  beoome  a  pa»ty 
In  the  eailee^"  and  that  the  ooeta  of  the  mfercaee 
and  awafd  ehonld  bo  paid  by  the  deimdaota  The 
eeets  harhig  aeeordingly  been  taxed  at  one  enttm 
enm,  the  Court  diechwged  a  mle  eaUmg  upon  the 
defendanta  to  pay  tkt  anunrnt  dnc  npon  the  awand 
and  the  eoeto  whieh  had  been  taxed,  leaving  the 
paniee  to  their  reriiedy  byaetson  upon  the  awaitL 
Jfm^int  T.  BMiSn,  14  Law  J.  Rep.(ii.B.)  QJB.  177| 
2  Dowl.  ft  L.  P.C.'4dS. 

On  shewing  canee  agsinat  a  rale  semiring  a 
partT  to  shew  canoe  why  a  eeetain  sam  should  not 
be  paid,  pavtnant  to  an  award,  in  order  to  isaoa 
execntion  under  1  ft  2  Viet.  a.  110..  s.  18.  it  is 
competent  to  tatoe  any  objoetion  which  wenld 
be  aTallable  on  shewiog  eanae  against  a  rule  for  an 
attaehment  for  nen^perfonnanee  of  an  award ;  and, 
therefore,  if  it  ia  donbtftil  whether  the  award  is  good, 
the  Cwttt  win  not  make  a  raie  abaolute  fiar  pay- 
ment of  the  money,  paranaot  to  the  award*.  Spgnc$ 
Y.  Clarkton^  1  DowL  P.C.  (m.8.)837. 

On  applying  for  a  rale  calling  on  a  party  to  pay 
a  sum  of  money  due  vnder  an  award#  there  ehoold 
be  an  affidavit  that  he  haa  been  served  with  it 
^sorsMi  V.  Arckbold^  12  Law  J.  Rep.  (n.s.)  £xch. 
230 ;  1 1  M.  ft  W.  108  (  2  Dowl.  P.C.  (n.8.)  769. 

Upon  a  rale  calling  npon  a  defendant  to  shew 
eanae  why  he  should  not  pay  a  sum  of  moaey 
awarded  acainat  him  under  a  refbrence  of  a  suit 
tD  arbitration,  the  Court  made  the  rule  absolute^ 
though  the  forms  of  service  required  under  the  old 
practice  on  motions  ibr  attaohmenta  had  not  been 
pnnued. 

The  arbitrator  made  his  award  on  the  Ist  of  Sep- 
tember 1841,  directing  payment  on  the  25ch  of 
January  1842,  of  a  certain  sum,  "with  interest": 
^-416^,  lliat  under  that  award,  upon  a  rule  under 
1  ft  2  Vict.  e.  no.  s.  18.  the  plaintiff  conld  recover 
■0  interest  acerning  subsequently  to  the  2dth  of 
January.  Doe  d.  JWbeJy  ▼.  Sfv^,  2  DowL  P.  a 
(tka.)  827. 

Upon  a  rule  calling  upon  a  defendant  to  shew 
caaae  why  he  should  not  pay  a  sum  of  moosy 
awarded  against  Jiim,  the  Court  refused  to  allow 
aervice  of  the  rule  by  affixing  it  in  the  Master's 
office,  it  appearing  that  the  defendant  was  out  of 
the  kingdom.  WiUon  v.  Foiter,  12  Law  J.  Rep. 
(M.S.)  C.P.  880 ;  1  Dowl.  ft  L.  P.C.  496. 


In  moving  for  a  rule  misi  for  the  payment  of 
money  pursuant  to  an  award,  in  order  lo  give  the 
rale  the  force  of  a  judgment,  pursuant  to  1  ft  2  Vict 
0.  110,  8.  18,  it  is  not  Qecessaiy  to  make  it  part  of 
the  rule  that  the  applicant  should  be  at  liberty  to 
issue  execution,  ftc,  or  that  he  foregoes  his  remedy 
by  attachment.  Burtim  v.  MemUzabel,  I  DowL  P.C. 
(ii.e.)  886. 

On  shewing  cause  against  a  rule  requiring  a  party 
to  pay  money  pumuant  to  an  award,  it  ia  competent 
ta  object  to  the  goodness  of  the  award  in  the  same 
manner  as  on  a  rule  for  an  attaehment  for  non-per* 
formaiice  of  it  But  the  Court  will  not  entertain 
the  diacnaaion  on  the  last  day  of  term.  iCerr  v. 
JefiPB,  1  DowL  P.C.  (x.b.)  840. 

(p)  Setting  tuide. 

(1)  Grounds  for. 

Award  bald  bad  and  set  aside,  first,  becanse  the 
arbitrators  had  awarded  on  a  matter  which  waa  not 
referrad  to  thara,  and  what  they  had  so  awarded 
without  authority  could  not  be  separated  from  the 
other  parte  of  the  award;  aeoondiy,  becauae  they 
had  declined  to  arbitrate  on  oertun  matters  included 
ia  the  refemnoe.  Prineiplea  of  the  Court  in  dealing 
with  awards.  Botpes  v.  Femie,  4  M.  ft  Cr.  150. 

A  snbmjasion  to  arbitration  was  entered  iuto  by 
A  and  B  of  all  matters  in  difierence  between  them. 
The  arbitrator  gave  due  notice  to  the  parties  of  his 
iotendon  to  hold  a  meeting  on  the  26tb  of  September, 
which  was  holdsn  and  attended  by  one  of  the  parties 
aad  the  solicitor  of  the  other  party.  The  parties 
met  on  the  following  day  before  the  arbitrator,  who^ 
after  hearing  both  parties,  and  with  their  consent, 
took  with  him  all  the  hooks,  ftcfor  the  examination 
of  sn  accountant  Shortly  afterwards,  and  before 
making  his  award,  the  arbitrator  was  apprised  by 
the  accountant  of  a  supposed  error  in  the  accounts 
as  to  a  sum  of  money,  upon  which  the  arbitrator 
aummoned  A,  who  was  mora  conversant  with  the 
accounts  than  B,  to  appear  before  him  and  the  ac- 
countant, when  the  supposed  error  was  explained 
and  set  right  to  the  arbitntor's  satisfaction.  About 
a  month  afterwards,  the  accountant  again  disco- 
vered in  the  aceounta  what  he  supposed  an  error  as 
to  a  sum  of  money,  which  was  explained  by  A,  in 
like  manner  as  before,  to  the  satisfiictioo  of  the  ar- 
bitrator ;  but  in  both  instances  no  notice  was  given 
to  the  other  party,  B,  of  A's  intended  attendance  on 
the  arbitrator.  The  arbitrator  shortly  afterwarda 
made  his  award  :<— the  award  waa  ordered  to  be  set 
aside. 

The  same  course  of  proceeding  ought  to  take 
place  in  mercantile  as  in  other  references  to  arbi- 
tration. 

Private  communications  ought  on  no  account  to 
be  made  to  an  arbitrator  by  a  party  previously  to 
the  making  of  his  award.  Harvey  v.  Shellan,  18 
Law  J.  Rep.  (n.s.)  Ch.  466. 

The  Court  will  not  set  aside  the  certificate  of  an 
arbitrator  any  more  than  an  award  on  the  ground 
of  a  mistake  as  to  the  effect  of  evidence.  Price  v. 
Price,  9  Dowl.  P.C.  334. 

Where  a  cause  and  all  matters  in  difference  were 
referred  to  a  legal  arbitrator,  pending  a  demurrer 
to  one  of  the  defendant's  pleas;  and  the  arbitrator, 
by  his  award,  directed  judgment  to  be  entered  on 
that  demurrer  for  the  defendant,  tlie  Court  refused 


n 


36 


ARBFTOATtOKM^fA'wflBt)/). 


to  set  aside  lili  ftwurd  en  tot  gttriaidi  •  iMk^i»  ▼. 
X>ai;ii,  1  l>«wl:  P.C.  (ii.tt.)«T9.  " 

In  order  to  jntftifjr  an  arMtl»tter  prooeedSntf  Mr 
partet  a  very  strong  oMb  mvet  be  ^ewo  of  wuftil 
delay  by  the  party  not  attea^Mu^f  \  atid«  Uierefbve^  tf 
a  reasonable  eiKsuis^  ftnr  hie  not  attend^  S»iBhe«m, 
Che  Court  "Mill  «iBt  asid!^  anawairdtMidep>ai%tUiit  to 
such  a  proceeding.     Gkuhriu  v.  ^hileim,  9  Dbwl. 

p.c.  «;o.  •.,....- 

If  an  umpire  either  refuse  to  rehear  the  e^d^M^ 
already  given  before  the  arbitrators,  or  to  hear  fur- 
ther evidence,  the  award  may  be  set  aside. 

And  it  is  no  waiver  of  the  objection  that  the  party 
did  not  insist  on  it  at  the  time  he  aittended  toi  take 
up  the  award,  inrt  /(teAmj^  11  Las  Ji'Rep»'(flr.a2) 
a.B.  71 ;  1  DowL  ?.€.  (»a)  27«. 

Where  matteora  in  dispute  aip  refemedAo-aitbitn- 
tors,  and,  in  case  tkey  shall  not  agree,  to  an  nmpiie, 
it  is  the  duty  of  tke  umpixie  to'eaamiBe  tlie-witp 
nesses;  and  the CoaM  will eetaaUefais 8wat<d ator 
an  application  to  him  for  that  pnrpote  and.«rcftlBal, 
unless  it  appear  dsstinctly  that  bodi  pactiea  Iwfe 
consented  to  bis  receiving  the  evidence  from  the 
arbitrators,  and  making  his  decision  apon  that  alone. 
In  n  Salkeidy  10  Law  J.  Repc' (v.si)  aBi.  22  j  i2 
Ad.&E.  767. 

The  Court  refused  to  set  aside  an  axratd,  on  the 
ground  that  the  umpire,  by  whom  itWaamadet-luSl 
been  nominated  by  oneef  two  arbiliatofa^  under  a 
claim  of  right  to  appoint  him  ,^aBhcR  it  appeared  that 
the  other  lnid<tboagk  witfaisometthtotanoe  aaid  lor 
the  sake  of  peace)  aoqnieiced  in  aneb  waminatlw. 
In  rt  Kmicola6e,  laiiaW  J;  Rep.  (n.ft#)  Q,S»  IflSi 
.  TheCourt  refuaefr  toset  aaide  «n  awanUon^tfie 
ground  of  the-inegulatr  oondtiet-of  tke'arbkraton, 
in  having  eaamined  widieasea  in  tlwabiewieafi  aud 
without  notiiee  'to  one  tS  the  paittes-  to  the  onkr 
of  mferenec^ -where St  appeared  thf  t  tike  patty  com- 
plaining of  the  irrbgularitj  ivaa  ikuide  >acqnaiBtod 
with  it-dicee  we^s  More  tfaeiaward  waamads* Mid 
gave  no  notice  to  the  axbitmtors  of  hia  -inteBtio&  to 
dispute  thevalidky  otiAmi  award  aatbataceeuBt; 
and  where  it  further  appealed  that  no  Msbataatiai 
injustice  had  been  o<<caaion^d  fay  the  iztegtilarity. 

SembU—ihy  CoUman,  J.)  that  where  arbiti»Cn 
have  examined  a  witness  in  the  absence  of  one  of 
the  parties  to  the  order  of  reference,  Who  has  been 
summoned  to  attend  then,  and  haane^ected-to  do 
BO,  it  is  the  safer  and  regular  oonrae  to  give  the 
absent  party  notice  of  what  had  taken  place  alt  eneh 
meetittg.  BignaU  ▼.  GaU^  10  Law  /.  Bapi  (%jl) 
C.P.  169;  2  M.  &  6.  880;  8  Sc;  (ir.8.)  108$  9 
Dowi  P.C  681. 

An  action  for  goede  sold,  &e.,  to  which  the  de- 
fendant pleaded  a  set-ofi|  having  been  referred  to 
arbitration,  the  defendant  aduHtod  that  the  plain- 
tiff had  a  elaisi  against  hhn  for  llOi,  7«.  ^d,,  the 
produce  of  the  plaintilTs  goods  sold  by  hfm  under 
a  distress  for  rent,  and  that  the  ftntber  tmn  of  82iL 
3<.  %d,  was  due  for  goods  sold,  which  sums  together 
exceeded  the  entire  set-off  doiistfif  by  the  defendant. 
The  arbitrator,  omitting  by  mistake  the  sum  of 
119^  1m.  ^d.  admitted  ta  be  due  to  the  plaintiff, 
awarded  that  the  defendant's  eet-off  amoofited  to 
100(.  0«.  6d.,  and  thereby  exceeded  the  plaintiff's 
damages,  which  he  assessed  at  94t  \Z$,  4mL  It 
appeared  on  affidavit  that  on  the  error  being  pointed 
out  to  him,  he  admitted  it,  and  requested  the  de« 


<frdadne  tor.idldw  Mm  to*  TMonsMw  hi^ 
the^evidene^'bifatfe him,  which  tfhektter  icftuoA. 
fRie  error  did  not  appeak*«pon  theifaee  of  the  awaoa^ 
nor  diU  the  arbitritoii  wake  tany^Vkfidavit  ilUa 
Court,  under  the  'aheve-'CiiiMimttaiioea,  refnactf  Co 
«et  -aside  >iIm  «WHrd^  adheriarg^  to  the/'  geaenlr rule 
that  the  mistake  of  aH  airfaitSB^s'  isv  nm  t^Ue  fisr.  ^et* 
ting  aside  an  award.  Phiilip  j^  JBoofi,  13  Law  J. 
Rep.  (n.s.)  E!Kch.80;  12^1^.  &W.  S09. 
•  Vfa6  fieort  aet'asldr  8n.JtawaTdl'.wfceiwfhe.atbi- 
UaAose  had^  1^  agveement  hafensen  thonaaohw^ 
8ep4)-atdf  exnmindd  witaeaneatmt  M-  oouEtioirthe 
absencd  ^  the  paitiea»  though  it  was  aworta^thafe  the 
thatter  in  ^spnts  amvanUad'  «inly  to  A'^bwt  ahiUHiga. 
iis>fwi»2estM^i4LswJ.>Rap.(v;a.>>aB(.iaa«.'  "i. 
•Where  a  ^plaintiff  tandnred'ta-an  eBbitratoeihia 
boelftS  csBtanuBg  entiles  'fnadei  by  Miaotf  miA 
othera  at  his  dictatk>n^  tuid  on<lhe.defeUdatit.i>h- 
jecting  to  Oteir  race^tionvtheasbitiatorataiad  (hat 
tbeaame  idfaeraiae  te  the  Tolas  of  ciridanoe^raa 
"not  neceaaavyinan  arint^atussM at'Nisi Pgiii%iand 
•thataltfaiaagh  4die'  boeka'weninadflaiaatfale;  lie  had 
angrily  a>inccijve:th«tn|  and  ahanld  da-aa,  and 
ancoiriingly  received  thana,  but  it  did;  not  appair 
that  he  had«etsd  wpon  theai  :**^lie\d,  thatthiif  did 
notaaasunt  to  mieeondBat  in  thearUtrataoi,  aad  the 
eaiBt  -refuted^  to  aet  aaide  the  awnrdon  that  gaound. 
Hugger  ^9.  Bak»,  14  Law  J.  Aep.  (iki.)  Eadku  St&i 
14  M.  &  W.  9^  2  Dowl.  &  L.  FiC«  856<  -       t  • 

The  Court  set  aside  two  awarda,  <t^fc  auh>eet.  of 
one  order  of  reference,)  where,  alter  it  .had  .hsen 
atatad  4y  the 'aabitrator  that  the  maetinga  were 
fcriahed,  aiub  nothing^  move  was  reqiiiicd  cSf  either 
pasty^.the  achitraior^  and  a  witbeaa  mho  had  beon 
examined*  and  tbe  apadal  pleader  of  one  party^'had 
met  (no  one^beii^  preaantifintthe  other  side)y  aal 
thb  wttaesk  had  ipradliced  and-  explatvad  a  plan  to 
the  arbitrator,  for  hia  assistance ;  and- the  arbitrator 
had  aaU^  he  had  imd  the  special  plewder  there  to 
givehiaa  some  indamiatiaai/^y'which,  iasfwever,  his 
dpinion  would  net  be  biaaaad. 

Held,  also,  that  there  mu  no  waiver  of  this.im- 
gulacity^  though  one  ^of  the  appoaite  party  had  aoct* 
dbatally  haeai  made  awaae  ef  the  maetin^  .'upon  the 
day  on  which  xttook  plaice^  and:  thfe  aabsiaaUMr^ad, 
notwithm  and  ing,  been  allowed  to  make' the  awnrda 
(Which  were  pad>UBhed.£ewrdayaaftarwaida)to  with- 
out being  eaUed  upoa  for  an  esplanationi  aait 
appeared  that  at  the  time>  the>paity  hadbeeanie 
aware  of  tbe  meeting,  asd  whUe  it  waahain^  holdcn, 
he  had  requested  the  arbitrator  to  allow  bim  to»he 
present^  woach  he  had  raftiaed  to^dou . 

It  appeared  from  the  siBdavita  that  the-apeeaal 
pleader  hadatated  that^dbd  notattend  tfaatmcBtiag 
ptefeasioiUlly :-— field,  •  that  .^tiioug^h  the  Conrt 
wduld  not  re^ttire  4h&  ailiitntor  or  adveoatea  to 
make  an  affidavit,  it  would  not  have  been  iaapeoper 
for  the  special  pleader  to  have  made  one«  nndar  the 
above  circnmataaoea.  Dobamt  v«-0raest,  and  Ji^nm 
V.  Dohsam,  14  Law  J.  Eep^  (h.8»)  QJB.  17. 

The  Contt  will  set  aaide  an  awatd,  thengh  good 
on  the  face  of  it,  upon  distinet  endenae  that  tbe 
arbitrators  have  made  a  graas  mistake,  eontnry  to 
their  judgment  and  intentaom 

On  refcrence  to  Ihiee  aihitratOEB,  A  admitted 
owing  B  148i.  B  claimed  a  larger  earn  aadae  to 
him.  The  arbitrators  found  76^  more  was  doe,  hat 
instead  of  adding  the  two  sums  together,  deducted 


A&BlTaATIONw.(AiWABl^. 


37 


7«tfiaD  I4«j^  attdk-^ftttr  awteid  t^irBetedftlo 
fiiyidM  l»luriB»#f  fiSIl:  to  A^  OtomfiidftTitoC  4hflt0 
teks  iq^'tito  «f;.tbr  'wbitfamn^'ftlM  anitftnLw«8>  Mt 
flkiie.  .  /a-neZ/o^lOijav Ju  E€p.'(v.8.> CPi  2iar, 
2  M.«  G.  847 1  8  8o.<ii*s.)  SM.  -^  . 
>  [«An4aefl  AjumauavftB^ J«riidiction  «f  Cchirt  oror 
-4-*Feni«,Jiar9:aB«i>pageSfir.]    '  

:>  The Oowrt dtockraA  the  nde.imiMeiiBtive^  thU  no 
.qaiitioo'df  an>snBd  MuM  beheard  oiblhe  bst^af 

'.  An  tfppUatioa  t*  ii&aliiivcd  to- more  4o  soiavik} 
an  awatd  oil'  Ule  kit  .da|t  of  tenii,  made  thr  dtf 
befoM^  a»  tfe  gromid  of  fiba  Uutraotiona  natAhen 
Wngr  eanyletei  rafinod.  is  rt  Mmuu  mid  Hiimelt, 
4  M.  fr  O.  767  (  5  So.  (ka)  240. 

[And  see  JKavrTj«Moii>aa#%  page  3(f.)    >. 

Whera  nponf  a  lefeaeiiea  aim  aanar  and  ail.mattan 
an  difibieiice^  4h&  pJnimaff  ivaa.in&miad*  hb  4he  laet 
da^  of  Baatar  ie»m,  that  the  aebitnioE  liad  awankd 
4kat  a^aatn  ofaMooxvaadna  Aponfatrntotbedafan- 
dant^-^-an  applioation,  aada  otitba  lattday  bat  one 
of  Michaelmaa  taf m,  to  aet  aaide  the  awaf  d«  on  the 
gvottBd  diat  tha  plaintiff  bad  reaei?ed  no  aadce  of 
»  meeting  before  'die  arbitrator,  at  whiab  it  waa  ar- 
zangod  diat  tbo  plaintiff  sbodld  tejAj  on  the  de&M- 
dant'e  case,  waa  hddtoO  lata.  Hemnmnik  Y,  BrtftOi, 
14L««'  J.  Rep.  (ha)  CJP.  Mi  1  C*  fi.  ISl }  8  Sc 
(H^.)842. 

Wbens  tho  defendant -omitted  to  apply  to  aat 
aside  an  awacd  in  tbe  next  tenn  after  it  waa  mad^, 
and  tbe  pkhitiff  bad  aftaarwarda  sigtnd  jndgmeot, 
•<-^Held,  tbat  tbe  defendant  waa  at  liberty  to  nave 
to  aet  aaide  tbe  jtidgitiaaiin  tbe  iMxt  term  after  it 
bad  bean  atgned^  &mki  v.  Pmrmmii  li  Law  J.  Aap. 
inju)  Q.B.  60. 

The  Court  will  not  aet  atside  am  awajd  on  the 
gronnd  dnft  itoodtala  deoide  oa  cestain  aeattera  in 
difference,  unless  it  plainly  appears  from  tbe  aifi> 
dvrita  that  tiioav  naatters  were  diMinetly  brdOght 
imder  Que  arfaitivtai^  attontiont  and  diat  he  was 
expaesaly  required  to  adjudicate.  «poB  tbtai.  £mf' 
flMMT.  Chmm,  la  Law  J.  Jiep.  (k.8.)  0;P;  95. 

in  a  rule  nim  to  aet  aaide  anawaid^  tfaeatatement, 
aa  a  gionnd  in  tbe  moliBn,.<'tfaattbe  arbitiater  baa 
eace^ied  ids  antherity/*  ia  iyisufficiant,  nnksa  tbe 
adidavit  point  o«taame  speeific  objeotiona  inibat 
reapect.    Siafln^w,  ffoy,  18  LarW  J.  Bepu  (9.8.)  €LB, 

tfa 

In  a  rule  nm  for  setting  aside  am  award,  an  ob- 
jection ^  that  tbe  arbhratof  baa  not  awarded  on  a 
nutter  in  didensace  anbniitted  to  htm,"  is  auffloi- 
enily  npixids.  Dmm  t.  Wurliert^  11  Law  J.  Rep. 
(9.0.)  Ezch.  188 ;  9  IC  &  W.  28$ ;  1  DowL  P.C. 
(9.8.)  828. 

Where  itk  aoughtto  set  aaide  and  not  to  ctafiDarce 
«n  awaird,  it  is  not  neeesaary  Her  die  party  applying 
to  make  the  enlargement  oi  the  time  for  making  the 
award  part  of  tbe  role  of  court  is  r$  Welth,  1 
D<iwLP.C.(ir.a)88L 

Ona  nde  to  aet  aaide  an  award,  it  is  not  neoaa- 
aary  to  take  an  office  copy  of  tbe  awaid.  Hmokfm-d 
T.  OrwmMood,  14  Law  J.  Rep.  (v.a.)  O-B.  238. 

The  rale  to  aet  aside  an  award  waa  drawn  np  on 
reading  the  aAdavit  of  the  defendant's  attorney, 
and  tJie  pnpo  writing  tlKieto :  annexed ;  and  the 


affidjvrit  stated  t^t  tbe  paper  wj^ting  was  d«Iiyerc>d 
by  the  arbitrator  peraonally  4nt(»  tbe  hands  of  the 
-depolMn^asa  «opy^  dte^awMfd^n-HeU^  that  this 
andbiently  ehowad  tbe'ipftper  to<be  aeopy  of  the 
sawaad.  Jkmd  v„Hm4*^  12 Law  J. R«!Pw<na).^B. 
JO^.f  «.o.iUiif4v'£r«d^od>J«Pp«l.&L.:p.C«288. 
.^  [And  see  ArbitVAtQii9<  Peinor  and  I>aty.o5— ia 
ptiSkmtplewaafti^^iUe,  XOw  P«8P  ^3 ; .  J^a^^i^v.  ifiiyor, 
4*0.  «!f  London,  ante,  page  26;  JUen  v.  Leia^  dale, 
•piagt,^]"     '.   •  - 1- (^  •.  '-'f  ." 

•     '    '  tt)^^<^   •  ■*■"■      '   ' 

..a)0«Mro%*,'. 

• '  The  Court  will  not,  on<disposing  of  ^a  mle  for 
aatting  adda  an  awiard  on-  tbe  grvbud  that  tbe  arbi- 
trator bad  proceeekl  tmparU;  dieido  the qaestion 
wbetberthb  paity  againatiriwm  dieitsnrd  la  made 
aball  pay  tbe  coata  wrising'  fionL  his  delay  ^  <  bett  a 
aepaiace  motiea'  for  that  pufpose-  moat^  be  made. 
•<SAidisia  ▼:  Cltffee^  9  Dawk  P.C.  560. 
■  An  awaad  diseoted  thai^AaadiB  8bonld:eaeb 
pay  a  mosetyof  tlie  ooata;  o£;Ale  lafaamcB  and  of 
ibb  atnird.  A  took  up  die  <  award;  and  paid  the 
whole  of  tbe  ooeta<  The  Oomt^'in  aetdnf  aaide  the 
9watd,  revised  to  make  any  oidex,  aa  to  tbe  repay- 
ment of  any  part  of  the  costs  to  A.  *  In  r&  Htil^ 
10  Law  J.  kapi  (vu^)  CP.  216 }  2  Mt  d;  O.  847 ; 
8  8&  (H.8.)  26a 

-  A  «auae,  and  all  mattara  in  di&renoe,  having 
bean  refoned  to  aa  arbitratar,  tbe  coats  in  the 
oauae  to  abide  tbe  event,  and  the  ooats  of  tbe  t6- 
inranee  and  award  to  be  in  tbe  diaeretion  of  the 
arUthitat,  the  axbiniator  foubd  all  tlie  isaues  in 
AfvouK  of  the  plaintiff  I  be 'also  found.  thnt>  there 
were:  no  other  taattefea  in  diffeceaoe  than  tbose  in- 
to]  vied  in  the  canse,  and  dineeted  thecaatsrof  the  rs- 
.forenee  to  bo  faomf  by  eaeb  party  in  equal  moieties : 
Held,  that  tbe  plaintiff  was  not  i  entitled  to  dll  tbe 
ooate  of  oonnscl,  attomiea,  and^witneasOs  attending 
bafom  the  arUtntor,  thn  aune:lieiag  oeatvof  the 
'reforenoe  and  not  in  tbcr  amsed  -  Tbe  costs*  in-  tbe 
oanae  aretiioae  wbiA  are  innunnduprto  tbe  tsne  of 
the  redinenoe.  tfirmonv*  ;Ardboii,>J4  Law  J.  Rop. 
(9.8.)  Ssefau  82;  IB.Ml  &  W.  3^7 ;  2  DowL  &  L. 
*-C.  *06.  '  A 

(2)  Certificate  qf  ArbiCriatorfoTf 

By  content  oi  ptrtiett  an  arbttraton  baa  power  in 
an  action  of  trespats,  or  trespaas  on  the- case,  to 
eerttfy,  under  8  &  4  Viet4«.  24. «.  2^  tbnt  die  notion 
waa  really  brought  to  M^  a  light  lie  mnst  exer- 
cise hia  power^  8s  nearly  as  the. case  will  a^it, 
like  a  Judge  at  Nisi  Prius.  Spam  v.  C^uidtU,  10  Law 
J.  Rep.(9.B.)fixcb^8I8)8M.^W.  128)  9Dowl. 
P-Cv  746.  ^ 

Ad  action  having  been  brought  to  tiy  a  right, 
waa  referred  by- an  order  of  reference,  wbicb  con- 
tained It  ckute  that  tbp  arbiirator  was  to  have  all 
tbe  powiei M  to  eertify  that  a  Judge  would  bare  bad, 
and  alaOf  that  the  Court  might,  if  they  tliougbt 
£l,  aend  the  award  baek  to  be  amended.  Tbe  ar- 
bitrator having  found  for  tbe  plaintiff,  with  one 
farthing  damages*  bat  having  refused  to  certify, 
under  3  &  4  Vict  c  24.  a.  2»  that  tbe  action  was 
really  brought  to  try  a  right,  this  Court  refused  to 
send  back  the  award  to  be  amended.  Perry  v.  />Mfm, 
12  Law  J.  Rep.  (n.8.)  Q.B.  361 ;  8.0.  Bwif  v.  Ihmn, 
I  Dowl.  &  L.  P.C.  141. 


38 


ARBITRATION-ARREST. 


(3)  Ttuathn  of. 

Where  a  party  was  entitled  to  costs  under  sn 
award : — Held,  that  bevaseatitledtokave  them  taxed 
immediately,  althongb  the  time  had  not  passed  for 
moving  to  set  aside  the  award.  lAttlg  v.  Newton^ 
1 M.  &  O.  976 ;  2  Se.  {ha,)  1^9. 

Where  the  Master  has  taxed  costs  as  between 
attorney  and  elient,  pursuant  to  the  -directions  of 
an  award,  wiiich  directions,  it  is  suggested,  are  an 
excess  of  authority  on  the  part  of  an  arbitrator,  the 
Court  will  not  direct  the  taxation  to  be  reviewed, 
the  proper  preliminary  step  being  to  move  to  set 
aside  the  award.  Bar  tie  v.  Mutgr^ve,  I  Dowl  P.C. 
(ha)  325. 

Three  actions  by  the  same  plvntHI  were  referred, 
the  cosu  of  the  reference  to  be  in  the  discretion  of 
the  arbitrator.  The  arbitrator  awarded  that  each 
parQr  should  pay  half  the  costs  of  the  reference. 
One  attorney  attended  for  all  the  defendants,  and 
the  Master  allowed  hid*  one  third  of  his  travelling 
cxpeosea: — Held,  that  the  taxation  was  wrong,  and 
that  the  Master  should  have  cakidated  the  cosu  on 
both  sides,  and  then  have  divided  them.  Daff  t. 
Kvrrh,  1  Dowl.  P.C.  (ii.a.)  353. 

Whm  an  arbitrator  found  two  pleas,  which  went 
to  the  whole  cause  of  action,  for  tne  defendant,  but 
found  ether  pleaK  for  the  plaintiff  and  gave  the 
plsiotiirTj;.  damages:— Held,  that  the  Master  was 
light  in  giving  the  defendant  the  general  costs  of 
tbe  cause. 

SembU—ThMt  the  award  was  not  bad  for  giving 
the  plaintifT  the  ^1$.  damages,"  but  that  those 
wonls  might  be  rnected  as  surplusage.  Rjoa  y. 
Oifim^  if  Law  J.  Bep.  (n.s.)  aB.  265 ;  2  DowL 
P.C.  (tf.a.)  983. 

Uliefe  to  one  count  in  a  declaration*  there  were 
ire  pleas,  each  of  which,  if  true,  was  a  complete 
aasver  to  the  count,  and  the  cause  was  referred  to 
ajbitjatum,  the  costs  of  the  action  and  of  the  award 
lo  abide  the  event  of  the  award;  and  the  arbitrator 
fiwiid  that  the  plaintiff  had  a  good  cause  of  action 
oo  that  count,  a  rule  was  made  absolute,  ordering 
the  Master  to  tax  the  plaintiff  his  costs  on  all  the 
issue*  ariMng  upon  that  count;  and, fikrrtf,  whether 
fcuch  a  finding  does  not,  in  fact,  amount  to  a  distinct 
C riding  upon  each  of  the  issues.  Williamson  v. 
Lock,  l4LawJ.Rep.(K.B.)  aB.98;  20owl.  &  L. 
P.C.  782. 

A  cause  and  all  matters  in  difference  having 
been  referred  to  arbitration,  an  award  was  made, 
dlreeting  the  payment  of  a  certain  sum  by  the  de- 
ISmdant,  together  with  the  costs  of  the  cause  and 
of  the  award ;  at  the  taxation  of  costs,  the  allocatur 
was  made  by  the  Master,  without  objection  by  the 
idendant,  for  the  aggregate  amount  of  both  classes 
of  eoats,  for  which  sum,  on  the  same  day  (4th  of 
^nne),  jo^^ment  was  entered  up.  The  plaintiff 
having  di^on  the  18th  of  November,  a  scire  facias 
was  sued  out  on  the  12th  of  January  following,  to 
which  the  defendant  pleaded  on  the  19th.  On  an 
application  made  on  the  24th,  to  set  aside  the  judg- 
ment, OB  the  ground  of  iu  falsity,  by  reason  of  its 
including  the  co*ts  of  the  award,  which  were  not 
properly  recoverable  in  the  cause, — Held,  that  the 
objection  resolved  itself  into  a  point  of  irregularity 
afMMB  the  allocatur,  which  was  answered,  first,  by 
rue  consent  of  the  defendant  to  the  Master's  Uxa- 


tion;  and  secondly,  by  the  waiver  arising  upon  the 
lapse  of  time  permitted  to  intervene  between  the 
period  of  the  allocatur  being  made  and  the  appB- 
eation.  Bignall  v.  (?a/e,  2  M.  fr  O.  364 ;  1  Dowl 
P.C.  (».8.)  497. 

{it)  AttatBiumtUfmrmsm-p<nfwuntrf. 

Where  on  a  reference  the  costs  of  the  cause  "^ere 
to  abide  the  event,  and  of  ihe  reference  and  aWaid 
to  be  hi  the  discretioti  of  tile  arbitrator,  and  he  fotfnd 
ihe  defendant  entitled  to  the  verdict,  and  dit^ted 
the  costs  of  the  refetence  to  be  paid  by  tiie  ]k1aintit( 
-^Held,  that  the  defendant  was  hot  entitled  lo  sn 
attachment,  in  the  first  instanbe,  for  non-paymeift 
Of  the  costs.  DaidiU  v.  Btadte^  t  M.  &  G.  960^ 
2  Sc.  (Ji.s.)  155. 

(r)  Makhtg  Award  au  Order  rfOmrC         / 

A  motion  to  make  an  award  an  brder  of  court 
must  be  made  upon  notice;  and  the  party  intending 
fo  impeach  the  award  must  then  give  nottee  of  * 
cross  motion  for  that  purpose.  The  awaVd,'  w'h^ 
once  made  an  order  of  court,  is  conclusive.  WiUtim- 
son  V.  Pa^e,  1 1  Law  Z,  Rep.  (K.8.)  Ch,  198 ;  I  Hare, 
276. 


ARMY  AND  NAVY. 

[See  MtJtiirY.] 

Doubts  as  to  the  power  of  appointing,  convening; 
and  confirming  the  sentences  of,  courts-martial  ?n 
the  East  Indies,  removed  by  7  Vict  c.  18  ;  22  Law 
J.  Stat.  54. 

Naval  instructors  and  mates  in  the  Koyal'Navy 
empowered  to  draw  bills  of  exchange  upon  the 
Accountant  General  of  the  Navy,  for  their  personal 
pay,  5  Vict  c.  3 ;  1 9  Law  J.  Stat.  124. 


ARREST. 


[See  BaiL'— False  iMPBisoiJMfiNi* — Majucmos 
AND  Vexatious  Ajluest — Paactice,  Process '  > 

PillSONEK.] 

(A)  Undes  1  &  2  Vict.  c.  110.  s.  a. 

(a)  Affidavit. 

(b)  Order  to  hold  to  Bail 

(B)  Privilege  trom  A&best. 

(C)  Protection    from,  on  Final   Process, 

under  7  &  8  Vict.  c.  96.  s.  67. 

(D)  Detainer  and  Second  Arrest. 

(E)  Discharge  from    Arrest.     [See   Pri- 

soner.] 


Arrest  upon  final  process  in  actions  for  deiit,  not 
exceeding  20t  exclusive  of  costs,  abolished  by  7  ft 
8  Vict  c  96.  s.  57 ;  22  Law  J.  SUt.  App.  iu 

(A)  Under  1  &  2  Vict.  c.  110.  s.  S. 

(a)  Afidami. 

The  affidavit,  in  support  of  an  application  for  a 
capias  under  1  &  2  Vict  c.  110.  s.S,  need  not  state 
that  deponent  has  probable  cause  for  believing  that 
the  defendant  is  about  to  ouit  England.  It  Is 
enough  that  the  affidavit  enables  the  Judge  to  Ibrm 
that  belief.  ffiUU  v.  S*ooky  10  Law  J.  Rep.  (h.s.) 
Exch.266;  8M.&W.147. 


AEREW. 


39 


Where  a  Judge**  order^  aiider  I8t  2  Vict  c.  110. 
ft.  3,  foz  acreating  a  partj,  and  a  cajmu  thereon 
iMued  on  an  affidavit  which  vas  sworn  before,  hut 
the  jurat  waa  not  signed  by  the  Judge  until  after  the 
execution  of  the  eapia*,  the  Court  set  aside  the 
capkut  and  all  subsequent  proceedings,  for  irregu- 
larity, with  isMtai  BUI  w^  Bimtmtf  Ifl  Law  J.  Rep. 
(n^)  Exch.  302 ;  8M.&W.317. 

An  aflldavity  in  support  of  an  ap]^tication  for  an 
order  to  hold  to  bail  under  1  &  2  Vict.  c.  110.  s.  Z, 
•tAted  that  tlie  said  defendant  waa  ''justly  and  truly 
indebted  ta  this  deponeqt  in  tlte  sum  of  22^  and 
upwards* .  upon  the  balance  of  acoount  for  goods 
sold  and  deUvered  unto  the  said  defendant,  at  his 
raquest**  it— Held,  sufficient  without  stating  that  it 
was  an  account  stated  between  the  parties.,  K$nr 
rick  y.  Daviett  1 1  Law  J.  Rep.  (N.a.)  Exch.  57 ;  9  ht, 
&  W.  2i^i\DowLP.CL«(v.«.)  &47. 

Where  an  arrest  is  made  under  1  &  2  Vict  c.  1 10. 
8,  3,  the  affidavit  may  state  hearsay  evidence,  but  it 
must  name  the  informant  Gibbon  v.  Spalding,  12 
Law  J,  Bep.  (».a)  ExcK  180  ;  11  M.  &  W.  174; 
2  Dowl.  P.C.  (N.s.)BU. 

AJtudga's  order  to  hold  to  bail  was  obtained 
under  1  &  2  Vict  c.  110.  s.  3,  upon  tn  affidavit* 
which  stated, — **  the  defendant  is  a  lieutenant  in 
Her  Migeaty's  78th  Highlanders,  which  said  regi- 
luent  is  under  orders  ta  •mftafk  Sot  India;  and 
deponent  believes  apdbas  AO  doubt  that  the  defen- 
dant intends  to  embark  with  his  regiment,  and 
ijuit  England.'*  Aflerwards*  the  defendant's  attor- 
ney  made  an  affidavit,  stating  that,  upon  inquijy  at 
an  army  agenCs,  it  appeared,  that  the  78th  High- 
landers were  not  under  orders  for  India,  and  that 
deponent  had  been  informed  and  believed  that  the 
said  regiment  was  then  in  India;  but  the  defendant 
did  not  deny  that  he  was  going  abroad.  Upon  mo- 
tion to  set  aside  the  order: — Held,  that  ihe  affidavit 
was  primd  facie  sufficient  tn  support  the  order,  and 
that  no  sufficient  ground  was  shewn  for  rescinding 
it.  Arkemheim  v.  (hlegtnWf  14  Law  J.  Rep.  (N.84) 
Bach.  113;  13  M.  ft;  W.  620 ;  2  DowL  ^Ih  P.C. 

(6)  Order  to  hold  to  Bail 

The  order  for  arrest,  under  1  &  2  Vict  c  110.  ft.  3, 
can  only  be  made  by  a  Judge  at  chambers,  and  not 
by  the  Court  BwrMt  v.  Crow,  1  DowU  P.C.(ir.8.) 
774. 

A  capiat,  may  be  issued,  under  1  &  2  Vict 
c  110.  S.8,  into  a  county  palatine,  to  be  executed 
In  that  county,  although  it  be  indorsed  for  a  less 
aum  than  60/.  Brown  v.  STMiUant  10  Law  J.  Rep. 
(N  8.) Exch.  147 ;  7  M.  & W.  196;  8  Dowl. P.C. 8^2. 

Under  1  &  2  Vict  c.  110.  s.  3,  a  Judge  has  dis- 
CMtasB'Ao-  maks  or  not  to  inakis  an  otdex  to  hold 
m  defftiidaat  to  bail^on  la  plasntiff  shewing  that  he 
18  about  to  iM^e  fiagkad. 

And  where  such  order  has  been  made,  the  bail- 
bond  mky  be  cancelled,  if  it  shall  appear  on  the 
defieodant's  shewing,  tfaai  the  intended  absence  was 
only  temporary,  or  that  the  order  ought  not  in  dis- 
cretion to  have  been  made. 

Under  the  provisions  of  section  6,  the, Court  has 
power  to  aet  aside  any  order  made  by  any  Judge 
under  section  3.  Hitchcock  v.  Hunter ^  10  Law  J. 
R«p.  (ir.s.)  a.B.  87. 

A  person  may  be  held  to  bail  under  1  &  2  Vict. 


c.  110.  s.  3,  though  not  domiciled  in  England. 
Lawumdy.Eife,  12  Law  J.  Rep.  (n.s.)  aB.  12;  3 
Q.B.910:  3a.&D.356. 

(B)   pRTVlLEOfc  FROM  AftHftST. 

A  Queen's  chapUiQ  in  ordin{^ry  is  privileged 
from  arrest  on  (inat  process.  Winter  v.  Dibdin,  13 
Law  J.  Bep.  (n.s.)  ExcIl  263;  13  M.  &  W.  25 ; 
2t)owl&L.P.C.  211. 

A  barrister  is  not  privileged  from  arrest,  at  com- 
mon lawv  eu^do  et  redewido  to  and  from  a  court  of 
petty  sessions. 

SembU — That  the  privilege  does  not  extend  beyond 
the  case  of  barristers  attending  in  die  superior 
courts  and  courts  of  Nisi  Prius. 

If,  in  conseqtuence  of  the  Prisoners'  Counsel  Act, 
7  &  8  Will.  4.  c  114.  s.  2,  barristers  are  privileged 
in  any  case  when  attending  the  courts  of  magis- 
trate^ such  privilege  does  not,  at  all  events,  extend 
to  the  case  of  a  barrister  going  to  or  returning  from 
such  a  court,  without  a  previous  retainer  to  conduct 
business  there^  Newton  v.  Constable,  10  Law  J.  Rep. 
Cn.s.)  aB.  349;  2aB.  157;  1  6.  &  D.  408;  9 
JDowl.  P.O.  933. 

A  solicitor  wTio  is  proceeding  to  court  to  attend 
his  professional  business  there  pending,  is  privileged 
from  arrest. 

A  solicitor,  on  an  application  for  his  discharge, 
swor^ef  that  at  the  time  of  the  caption  he  was  pro- 
ceeding direct  from  his  dwelling-house  for  the  pur- 
pose of  attending  the  hearing  of  two  petitions  at 
Westminster.  On  the  other  hand,  two  witnesses 
deposed,  that  the  direction  in  which  he  was  walking 
was  not  the  direc^on  they  would  hav^  proceeded  in  as 
the  nearest  and  most  direct  way  to  Westminster: — 
Held,  that  this  was  not  a  sufficient  proof  of  de- 
via^on,  so  as  to  disentitle  the  solicitor  to  his  dis- 
charge. TJie  Attorney  General  v.  the  LeatherseUert* 
Company^  7  Bea.  157. 

The  bankrupt's  privilege  from  arrest  extends  to 
a  committal  under  the  Act  for  the  Relief  of  Insol- 
vent Debtors  for  non-pa}nnent  of  a  balance  due 
from  the  bankrupt  as  assignee  under  that  act  Ex 
parte  Bury  re  Snrv,  3  M.  D.  &  D.  809. 

Where  a  party  had  been  summoned  to  attend  the 
registrar  on  a  matter  which  had  been  referred  to 
him  by  the  Court,  and  after  being  examined  was 
arrested  near  the  outer  door  of  the  registrar's  office, 
he  was  ordered  to  be  discharged,  but  without  costs 
against  the  officer,  as  he  would  not  undertake  to 
bring  no  action  for  false  imprisonment  Ex  parte 
Burt,  2  M.  D.  8c  D.  666, 

An  attorney  going  abroad  is  not  privileged  from 
arrest  upon  mesne  process. 

A  party  who  applies  to  a  Judge  at  chambers  to 
be  discharged  on  one  ground  of  privilege  cannot, 
upon  a  subsequent  application  to  the  Court,  avail 
himself  of  another  ground  of  privilege,  on  which  he 
could  have  originally  insisted.  Flight  v.  Cook,  13 
Law  J,  Rep.  (N.S.)  Q-B.  78;  1  Dowl.  &  L.  P.C.  714. 

A  party  privileged  from  arrest,  who  remains  in 
custody  twenty-three  days,  may  still  apply  for  his 
discharge,  if  the  situation  of  the  other  party  has 
not  been  changed. 

QjtuBre — Whether  he  might  not  have  applied,  even 
though  the  situation  of  the  other  parties  had  been 
changed.  Webb  v.  Taylor,  13  Law  J.  Rep.  (n.s.) 
Q.B.  24;  1  Dowl.  &  L.  P.C.  676. 


40 


ARREST. 


[And  nee  Arbitration,  Witneitet— ArroRirETy 
Privilege — Bwt  v.  Magnay,  title  Malicious  Ar- 
rest.] 

(C)  Protsctiok  from,  on  Final  Pkoccss,  undbr 
7  &  8  Vict.  c.  96.  s.  57. 

The  statute  3  &  4  Will.  4.  c.  15,  s.  2.  provides, 
'*  that  any  person  representing  a  dramatic  piece  or 
production  without  the  consent  of  the  author,  shall 
he  liable  for  each  and  every  such  representation  to 
the  payment  of  405.  or  the  full  amount  of  the  benefit 
arising  from  such  representation,  or  the  injury  or 
loss  sustained  by  the  plaintiff  therefrom,  whichever 
shall  he  the  greater  damage."  Judgment  by  default 
having  been  signed  in  an  action  tor  an  aggregate 
number  of  penalties  under  20^ : — Held,  that  the 
defendant  was  protected  from  arrest  by  7  &  8  Vict, 
c.  96.  s.  57.  FUzhaU  v.  Brooke,  14  Law  J.  Rep. 
(n.s.)  aB.  193  }  2  DowL  &  L.  P.C.  477. 

Wherea  plaintiffhavingobtainedjudgmentfor  i5L 
brought  a  subsequent  action  for  that  debt  and  costs, 
amounting  togetlierto22/.,with  the  view  apparently 
of  taking  the  defendant  in  execution,  notwithstand- 
ing the  statute  7  &  8  Vict  c.  96.  s.  57,— the  Court 
refused  to  stay  the  proceedings.  Jotepk  v.  SuxUm, 
14  Law  J.  Rep.  (n.s.)  C.P.  148 ;  1  C.  B.  221 ;  2 
Dowl.  &  L.  P.C.  835. 

The  defendant,  having  been  sued,  in  May  1844, 
for  a  debt  amounting  to  152.,  consented  to  a 
Judge's  order  for  the  payment  of  the  debt  and  costs 
by  instalments.  The  sum  of  29A  St.  4dL  having  be- 
come due  in  September,  the  plaintiff  signed  judg- 
ment for  that  sum,  and  brought  an  action  on  the 
judgment,  with  the  view  apparently  of  taking  tho 
defendant  in  execution,  notwithstanding  the  statute 
7  &  8  Vict  c  96.  s.  57.  The  Court  refused  to  stay 
the  action,  and  intimated  that  there  were  no  words 
in  the  act  to  prevent  a  defendant  under  such  cir- 
cumstances from  being  taken  in  execution  in  such 
action  on  the  judgment  Uopkim  v.  Freeman^  14 
Law  J.  Rep.  (n.s.)  Exch.  21 ;  13  M.  &  W.  872; 
2  DowL  &  L.  P.C.  447. 

(D)  Detaikbr  and  Second  Arrest. 

Where  a  defendant  has  been  regularly  arrested 
on  an  attachment  out  of  Chancery,  the  fact  of  an 
irregular  writ  of  ca.  ml  issuing  out  of  the  Com- 
mon Pleas  against  the  defendant,  after  the  arrest, 
does  not  interfere  with  the  right  of  another  plaintiff 
to  detain  the  defendant,  by  virtue  of  a  subsequent 
CO.  ta.  Wright  v  Starfmrd,  1  Dowl.  P.C.  (n.s.)  272. 

Qtutrt — Whether  a  party  who  has  been  taken  in 
execution,  and  discharged  out  of  custody,  on  the 
ground  of  privilege  at  the  time  of  the  arrest,  can  be 
again  taken  in  execution  upon  the  same  judgment. 
Towert  v.  Newton,  10  Law  J.  Rep.  (N.s.)  CI.B.  106; 
1  aB.  819;  9  Dowl.  P.C.  576. 

Where  a  defendant  is  arrested,  and  discharged 
on  account  of  his  privilege  as  a  barrister,  he  may 
be  again  arrested  on  the  same  writ 

An  arrest,  though  made  on  a  warrant  founded 
on  a  particular  wnt,  is  virtually  made  on  all  the 
writs  then  in  the  sheriff's  possession  against  the 
defendant ;  and  consequently,  although  the  defen- 
dant be  entitled  to  his  discharge  on  the  particular 
writ,  on  the  ground  of  irregularity,  he  is  not  entitled 
to  his  discharge  on  the  others.  Secus,  if  the  arrest 
was  illegal  by  reason  of  the  wrongful  act  of  the 
■herifil 


VThere,  therefbre,  tho  vrit  on  which  the  warrant 
was  founded,  was  issued  on  a  judgment  which  had 
not  been  duly  revived  by  «e<./a.,  there  being  several 
other  writs  against  the  prisoner,  he  was  held  not  to 
be  entitled  to  his  discharge  from  custody  under 
these.  Barrack  v.  Newton,  Bieknall  v.  Newton,  and 
mtlutmtw.  Namtm,  iO  Law  J.  Rep.  («a) aB.  182 ; 
1  as.  515. 

Where  adefeodant,who  had  been  arrested  and  taken 
to  the  aueen's  Bench  prison  on  a  writ  of  co.  jo.  «at 
of  the  Palace  Court,  had  been  discharged  out  of 
custody  on  the  ground  of  privilege  as  a  barrister 
and  as  a  witness: — Held,  that  he  might  be  sab.* 
sequently  arrested  on  the  same  judgment 

The  order  for  the  defendant's  discharge  oodflr 
the  first  writ  contained  the  terms—"  the  delendant 
undertaking  to  bring  no  action"  :~^Held,  that  the 
plaintiff  had  not  waived  his  right  to  arrest  the  de- 
fendant a  second  time  by  imposing  these  terms. 

The  first  arrest  was  on  the  4th  of  April,  and  the 
writ  of  ca.  ta.  was  duly  returned  within  a  week  (in 
accordance  with  a  rule  of  the  Palace  Court) ;  the 
second  arrest  was  on  the  26th  of  May,  and  was  upon 
an  fUiat  writ : — Held,  that  the  issuing  of  an  aUae 
writ  was  proper. 

The  first  writ  had  been  returned  with  two  indorse* 
ments  upon  it,  made  by  the  marshal  of  the  Oueen's 
Bench :  the  firBt,  "  in  custody,"  the  second,  "  dis- 
charged by  the  order  of  Pattesoo,  J." :— Held,  that 
the  return  of  the  writ  so  indorsed  did  not  amount 
to  a  satisfaction  of  the  debt,  so  as  to  prevent  an 
aUat  writ  from  issuing. 

The  marshal  of  the  aueen's  Bench  may  detain  a 
prisoner  on  a  writ  of  co.  m.  iasued  out  of  Uie  Palaee 
Court  PkilUpt  V.  Price,  12  Law  J.  Rep.  (sijl.) 
as.  348 ;  1  Dowl.  &  L.  P.C.  110. 

Where  a  sheriff's  officer  permitted  a  voluntary 
escape  upon  a  writ  of  ca,  jo.,  and  the  sheriff  paid 
the  plaintiff  the  amount  for  which  the  arrest  was 
made,  and  the  plaintiff  thereupon  permitted  the 
sheriff  to  use  his  name  in  suing  out  a  second  writ  9 
— on  motion  to  set  aside  this  writ, — Held,  that  it  was 
improperly  issued,  and  that  the  rule  to  set  it  aaide 
being  a  matter  of  right,  the  Court  could  not  impose 
terms  upon  the  defendant  Gillett  v.  Atttm,  12 
Law  J.  Rep.  (N.8.)  aB.  5;  2  DowL  P.C.  (s.8.) 
413. 

A  CO.  «a.liaving  issued  and  been  delivered  te  the 
sheriff,  who,  by  the  direction  of  the  plaintiff's 
attomies,  issued  a  warrant  to  M,  his  officer,  notice 
was  afterwards  given  to  M  by  the  plainCiff'B 
attomies,  not  to  execute  the  writ,  hut  it  remained 
in  the  sheriff's  hands.  The  defendant  having  been 
arrested  by  the  same  officer  subsequently,  at  the 
suit  of  a  third  person : — Held,  that  the  defendant 
could  not  insist,  under  these  circumstnnoes,  that 
he  had  ever  been  in  custody  under  the  first  writ 

QMere — Whether  notice  to  the  sheriff's  ofileer 
intrusted  with  a  warrant  not  to  execute  a  writ  of 
CO,  to.  is  notice  to  the  sheriff  Howard  v.  Cautf/,  13 
Law  J.  Bep.  (na)  aB.  294;  2  DowL  &  L.  P.C. 
115. 

After  an  arrest  of  a  qnestionable  natnre  in  a 
house,  the^  prisoner  surreptitioualy  got  out  of  the 
house,  and*  was  arrested  in  the  high  road : — Held, 
that  the  second  arrest  was  legaL  SnowbaU  v. 
Dixon,  10  Law  J.  Rep.  (n.s.)  Ex.  £q.  5€;  4  Y.  & 
C0IL5II. 


ARSON— ASSAULT. 


41 


f£)  DisciiAEaJe  ?itoii  A&rbst. 
...    ISef},PiusavBa.].     . 


tmatami^m,**. 


ARSO^^.. 
.  'Se«  RrtUBVCj^y  JLdmiiBiotti-^^iitiMiSTMBiiT.] 

The  law  as  to  buraioe  farm  biuldiogs  amended 
•y^  fit  8  Vict  b.  fSH ;  22  Law  J.  Stat  l29. 

If  A  counsel  and  encbtirage  B  to  set  fire  to  a 
malt^lioase,  and  B  attempt  to  set  it  on  lire,  both 
liiay  l>l*-|omtlr  indicted  aft  principals  for  the  mis- 
deiManoar  of  attempting^  to  set  the  malt-house  on 
file,  although  A  was  Aot  present  at  the  time  of  the 
oIlHite^.    Regina  v.  Clayton,  1  Car.  &  It.  128. 

Where  on  an  indictment  Ibr  settbg  ihre  to  a  stable, 
it*  appeared  to  have  been  long  since  disused  for 
tint  purpose,  and  the  mangers,  ftc.  had  all  been 
taken  away,  leaving  nothing  bnt  a  lumber  shed  : — 
Hc^U,  that  the  indictment  could  not  be  sustained. 
Rtmwa  v.  CoHey,  2  M.  ft  R.  475. 

Where  A  and  B  were  indicted,  under  the  7  &  8 
Geo.  4.  e.  3(K  a.  17,  for  setting  fire  to  a  ^ood ;  and  it 
afpeaied  that  they  had  set  nre  to  a  summer-house 
wmch  was  in  the  wood,  and  from  which  the  fire  was 
communicated  to  the  wood : — Held,  that  they  might 
b«  properly  eonvieted  on  that  indictment.  Hegina 
▼.  Alice,  9  Car.  ft  P.  729. 

-When  the  prisoner  lighted  a  fiiffgoton  a  boarded 
fltfor,  wludh  was  scorched  and  blackened  but  not 
bwut  in  «Dy  part; — HeM,  not  sufflcfent  to  support 
the  charge  of  burning,  Regina  ▼.  RusseS,  Car.  ft  M. 
541. 

A  4»ai)ding  ejected  not  for  habitation,  but  for 
w«iiEiiien  to  take  their  meals  and  dry  their  clothes 
in,  which  has  four  walls,  a  roof,  a  door,  but  no  win- 
dow, and  in  wtiieh  a  person  slept  with  the  know- 
ledge,  but  without  the  permission,  of  the  owner,  is 
not  a  '^honse,'*  d)^  setting  fire  to  which  is  felony 
Wilkin  the  1  Vibt.  c.  89.  s.  3.  Reghta  v.  England, 
lOsr.ft^K.  683. 

VfOA  an  indlctmttil  for  settSng  fire  to  an  out- 
Immbv,  it  appeared  that  the  building  set  on  fire  was 
apig'^,  situ«ts>fn  a  yaitl  in  the  possession  of  the 
prMecutor,  into  Whictt  the  hack  door  of  the  prose- 
ctttorM  'house  Opened,  and  whteh  was  bounded  by 
fences  and  by  other  buildings  of  the  prosecutor,  and 
by  » t<Ctage  Md  ham,  whieh  were  let  by  the  proae- 
cntor  t»  a  tenant,  but  wUeh  did  not  open  into  this 
yatd:*-*-He>d,  that  ttis  pig^sty  was  an  out-house 
wiAiii  the  stat  1  Vict.  c.  89.  s.  8.  Reghta  v.  Janes, 
2  M.C.a  S08;  1  Car.  ft  K.  ms. 

Where  an  indictment  was  framed  on  sect  2.  of 
7  Wfll.  4i  ft  1  Viet.  e.  89^  and  the  prosecutor  fkiled 
in  the  pioof  of  persons  being  in  the  dwelling-house : 
— field,  Aat  the  priwmer  could  not  be  convicted  on 
the  3rd  section,  in  which  it  is  essential  to  allege  an 
intent  to  defnnd  or  injure.  Riegina  v.  Paice,  1  Car. 
&IL7& 


ART-UNION. 

Perfons  «oaneeted  with  art-unions,  and  others, 
indedmilieA  against  certain  penalties,  by  7  &  8  Vict 
c  100 ;  22  Law  J.  Sut  844. 

Tk€  iadsimiSty  of  members  of  art-unions  against 
certain  penalties  extended  by  8  &  9  Vict.  c.  57; 
28  Law  J.  Stat.  233. 

DiOBST,  1840—1845. 


ARTICLES  OF  THE  PEACE. 

[See  SB88ION8.] 

Wher^  articles  of  the  peace  were  returned  into 
court  by  ceriiorairi,  with  two  afil davits  annexed 
te  them,  on  the  same  parchment,  and  a  statement 
St  the  bottom  that  the  matters  contained  therein 
were  sworn  by  tiie  several  parties  above  named  :— 
Held,  that  it  suffietently  appeared  that  the  articles 
wtre  exhibited  upon  oath.  In  re  Dunn,  10  Law  J. 
Rep.(N.s.)M.C.20$  12Ad.ft £1.599;  3P.&D.415. 

Where  a  person  had  been  imprisoned,  in  defiiult  of 
sureties  on  articles  of  the  peace  exhibited  against 
him,  amd  discharged  bV  habeas  corpus  on  account  of 
adefect  in  the  warrant: — Held,  that  in  articles  of 
the  peace  subsequently  exhibited  against  him  by 
the  iams  person,  the  acfts  for  which  the  surety  had 
originally  be^n  granted  might  be  coupled  with 
other  acts  committed  since  his  discharge,  so  as  to 
gjre  a  character  to  the  whole ;  and  that  the  Court 
of  Cilnarter  Sessions,  to  which  they  were  exhibited, 
was  justified  in  taking  the  whole  into  its  considera- 
tion.   Ibid, 

When  a  prisoner  has  been  imprisoned  in  default 
of  recognisances  to  keep  the  peace,  and  has  obtained 
a  habeas  corpus,  to  which  the  warrant  of  commit- 
mMt  is  returned,  the  ord«r  itself,  together  with  the 
articles  of  the  peace,  may  be  brought  before  the 
Court  hycirthrati;  end  if,  in  the  opinion  of  the 
Court,  the  articles  do  not  diew  any  threat  or  evi- 
dence  warranting  the  Justice  or  Quarter  Sessions 
in  making  the  ord^r,  the  Court  will  order  the  pri- 
soner to  he  discharged.    Ibid, 

It  must  Araear  distinctly,  or  by  fair  inference, 
that  the  exmbitant  was  threatened,  either  in  lan- 
guage or  conduct  And  this  inference  must  be 
drawn  by  tiie  exbibitant,  and  sworn  to  as  his  belief, 
and  not  left  to  the  Court  to  diftw.  Where,  there- 
fore, the  articles  disclosed  a  long  course  of  persecu- 
tion and  annoyance  of  a  lady  by  a  professed  suitor, 
and  some  lang^ge  used  in  a  letter  of  ambiguous 
purport,  and  of  which  an  extract  only  was  given, 
and  were  accompanied  by  affidavits  of  other  persons 
corroborating  the  circun^tanoes  there  detailed,  and 
shewing  violent  and  unreasonable  conduct  on  his 
part:— -Held,  that  these  were  insufficient  to  warrant 
the  Court  in  requiring  surety.    Ibid* 


ASSAULT. 

[See  Indictmskt — False  Imprisonmbht— - 

Trespass.] 

Where  M  was  delivered  of  a  child  at  the  house  at 
which  A  and  B  resided,  and  they,  telling  her  that  the 
child  was  to  be  taken  to  an  institution  to  be  nursed, 
took  the  child  from  the  house,  and  put  it  into  a 
bag,  and  hung  the  bag  with  the  child  in  it  on  some 
park  railings,  at  the  side  of  a  footpath,  and  there 
leit  it: — Held,  that  this  was  an  assault  upon  the 
child.     lUgina  v.  March,  1  Car.  &  K.  496. 

An  indictment  for  assaulting  a  gamekeeper  with 
a  weapon,  under  the  stat  9  Geo.  4.  c.  64.  s.  2,  stated 
that  the  defendants  were  in  certain  land  of  J  R, 
Earl  of  B,  by  night,  armed  with  guns,  for  the  pur- 
pose of  destroying  game,  and  that  they  were  **  then 
and  there  in  the  said  land  by  night,  as  aforesaid, 
by  one  W  R,  the  servant  of  the  said  J  R,  Earl  of  B, 


42 


ASSAULT— ASSIGNMENT. 


then  and  there  haying  lawful  authority  to  seize  and 
apprehend  the  said  [defendants],  found,"  and  that 
the  defendants,  with  the  guns,  assaulted  and  offered 
violence  to  W  R : — Held,  that  the  indictment  was 
bad,  as  it  did  not  sufficiently  shew  that  the  defen- 
dants, when  found  by  W  R,  were  committing,  any 
offence  against  the  stat  9  Geo.  4.  c  64.  Beguia  v. 
Cumock,  9  Car.  &  P.  730. 


ASSIGNMENT. 

Semble — ^That  the  profits  of  a  public  office  cannot 
be  assigned  for  the  benefit  of  creditors.  HiU  ▼.  PaaUp 
8  C.  &  F.  295. 

A  testator  in  Scotland  gave  all  his  property  to 
trustees :  first,  to  pay  his  debts ;  secondly,  to  pay 
Mrs.  R.  (a  married  woman)  so  much  of  the  annual 
proceeds  as  they  might  deem  necessary  for  the  sup- 
port of  herself  andfamily  daring  her  life,  declaringtne 
same  to  be  alimentary  and  exclusive  of  her  husband, 
and  not  to  be  attachable,  nor  assignable,  nor  subject 
to  any  deeds  or  debts  of  her  or  her  husband.  The 
acting  trustee,  with  consent  of  Mrs.  R.,  assigned  to 
her  alimentary  creditor  the  rents  of  the  trust  pro- 
perty :  first,  to  pay  debts  affecting  it ;  secondly,  to 
pay  part  of  the  rents  to  Mrs.  R.  for  aliment ;  thirdly, 
to  apply  the  residue  in  payment  of  the  debts  due  to 
the  assignee : — Held,  that  the  assignment  was  void 
on  three  grounds — viz., 

1st,  It  was  not  competent  to  the  trustee  to  sub- 
stitute another  person  for  himself  in  the  trust — 
which  was  the  effect  of  the  assignment 

2nd,  The  rule  of  law  in  Scotland  requiring  the 
concurrence  of  the  husband  in  his  wife^s  deed  could 
not  be  dispensed  with  by  his  absence  abroad  at  the 
time  for  a  temporary  purpose  only. 

Sid,  The  assignment  was  void,  as  it  violated  the 
express  prohibition  against  alienation :  and  in  this 
respect  the  law  in  Scotland  is  the  same  as  in  Eng- 
hind.     RetmU  v.  Ritchie,  12  C.  &  F.  204. 

The  assignees  of  a  chose  in  action,  the  assign- 
ment of  which  is  available  only  in  equity,  takes 
subject  to  all  the  equities  which  subsist  against  the 
assignor.     Ord\.  White,Z  Bea.  357. 

A  solicitor  who  prepared  a  deed  of  charge  on 
behalf  of  the  mortgagor  and  mortgagee,  held  to 
have  notice  of  that  incumbrance  on  the  occasion  of 
taking  a  subsequent  mortgage  of  the  same  property 
to  himself.  Perkins  v.  Bradley,  1  Hare,  219. 

A,  a  feme  sole,  held  a  bond  of  M  &  Co.  for  8,000/. 
and  interest  Upon  her  marriage  with  H  J,  this 
bond,  with  other  persona)  property,  was  assigned 
to  trustees  for  the  separate  use  of  A,  &c.,  and  one 
of  the  co-obligors  had  notice  of  that  settlement. 
By  a  separate  deed,  not  referring  to  the  other,  the 
real  property  of  A  was  settled  upon  similar  trusts. 
H  J,  having  got  possession  of  the  bond,  treated  with 
B  for  a  loan  of  money,  and  proposed  to  deposit  the 
bond  as  a  security,  representing  that  it  belonged  to 
him  ^'uremort/t,  and  producing  the  settlement  of  the 
realty,  which  he  stated  to  B  to  be  the  only  settle- 
ment. B,  without  previous  inquiry  of  the  obligor 
or  the  wife,  advanced  his  money  upon  the  accept- 
ance of  H  J  and  the  deposit  of  the  bond,  with  an 
undertaking  by  H  J  to  assign  the  bond  when  re- 
quired. The  acceptance  being  dishonoured,  a  year 
afterwards  B  gave  notice  to  M  &  Co.  of  his  claim. 


The  trustees  also  cUuming  the  bond,  M  £1  Ca  fled 
their  bill  of  interpleader :— Held,  that  the  tmatees 
had  the  better  equity  ;  for  that  previous  notice  of 
the  first  assignment  to  one  of  several  co-obUgors, 
who  was  alive  at  the  date  of  the  second  astignment, 
was  sufficient  to  protect  the  trustees  from  the  claim 
of  the  subsequent  incumbnnoery  with  notice  to  all, 
and  this  though  the  bond  were  joint  and  sevenL 

It  is  not  necessary  that  the  notice  sbould  be  given 
for  the  particular  purpose. 

The  question  is  one  of  priority  of  notice.  Whe- 
ther the  second  incumbrancer  made  previous  in- 
quiries or  not  ia  immaterial,  if  at  the  time  there  was 
no  subsisting  notice  of  a  prior  incumbraace: 

Smith  V.  Smith,  2  Cr.  &  M.  231,  may  be  reeon- 
ciled  with  Timton  v.  Ramibottofon,  2  Keen,  35,  on  the 
ground  that,  in  the  latter  case,  there  was  no  sub- 
sisting notice  at  the  time  of  the  second  incum- 
brancer giving  notice.  Meux  ▼.  Bell,  11  Law  J. 
Rep.  (n.8.)  Ch.  77  ;  1  Hare,  73. 

An  assignment  by  deed  of  a  meze  expectancy 
without  consideration,  and  without  notioe  to  the 
trustees  in  whose  names  the  stock  stands,  will  not  be 
enforced  in  equity  against  the  assignor. 

K,  who,  in  the  event  of  M  dying  without  issue, 
would  be  entitled  to  a  sum  of  stock  standing  in  the 
names  of  trustees,  in  trust  for  M  for  life,  assigned 
her  expectant  interest  in  the  trust  fund.  Upon  the 
death  of  M  without  issue,  the  assignee  filed  a  bill 
against  K  and  the  trustees  to  have  the  tcust  fund 
paid  to  him : — Held,  that  the  subject-matter  of  the 
assignment  being  a  mere  expectancy,  and  there 
being  no  formal  declaration  of  trust,  and  no  consi- 
deration, nor  any  notice  to  the  trustees,  the  Court 
would  not  enforce  the  deed  against  the  aaaignoi. 
Meeke  v.  KettkweU,  13  Law  J.  Rep.  (N.fl.)  Ch.  28; 
1  Ph.  34;2;  affirming  s.  c  1 1  Law  J.  Rep.  (M.a.)  Ch. 
293;  1  Haxe,464. 

By  the  marriage  settlement  of  A  &  B,  a  sum  of 
stock  was  settled  on  B,  the  intended  wife,  for  li&, 
with  remainder  to  the  children  of  the  marriage  in 
the  usual  way  ;  and  the  trustees  were  thereby 
authorized,  at  any  time  during  the  lives  of  A  and 
B  and  the  survivors  of  them,  in  case  they,  he,  or 
she  should  so  direct,  to  advauce  a  portion  of  the 
trust- fund  for  the  benefit  of  the  children  of  the 
marriage.  There  were  several  children  of  the  mar- 
riage. A  died.  B  married  C.  C  assigned  the  life 
interest  of  B  in  the  fund  to  D,  for  valuable  consi- 
deration. Whether,  by  virtue  of  a  direction  from 
B  to  the  trustees,  specifying  the  sums  to  be  raised 
by  way  of  advancement,  and  proper  objects  for  such, 
advances,  the  trustees  would  be  authorized  to  raise 
and  apply  such  sums  accordingly — qnare. 

In  this  case,  whether  the  dividends  during  the 
joint  lives  of  C  &  B,  or  during  the  life  of  the  wife, 
passed  to  D — quare.  fVhitmarsh  v.  Bobertsom,  11 
Law  J.  Rep.  (n.s.)  Ch.404 ;   1  Y.  &  Coll.  C.C.715. 

In  July  1826,  W  executed  a  voluntary  settlement 
by  which  he  assigned  his  household  goods,  and  all 
monies  owing  to  him,  and  all  policies  of  assurance 
and  other  securities  for  the  same,  and  all  other  his 
personal  estate  to  J  W,  in  trust,  for  the  grantor  for 
his  life,  and  after  his  death  for  W,  T  W,  and  M  his 
wife,  and  M  H,  the  two  nieces  of  W,  or  their  child- 
ren, in  manner  therein  mentioned.  By  the  same 
instrument,  W  granted  and  assigned  the  lands  in 
mortgage  to  him  to  J  W,  and  covenanted  with  him 


ASSIGNMENT— ASSUMPSlt. 


4d 


to  make  and  execute  all  other  lawftil  acts  and  deeds 
fortbe  further  and  better  transferring  and  a88ig:ning 
the  estate  thereby  assigned.    After  execution,  the 
deed  was  deHvered  to  J  W,  and  W  continued  in 
possessioB  of  the  furniture,  and  in  receipt  of  the 
income  arising  frem  the  mortgage  security,  and  no 
notiee  of  the  assignment  was  giren  either  to  the 
mortgagor  or  to  the  grantor  of  the  policy  of  assur- 
ance which  W  had  effected.    M  H  died,  leaving 
W  W  H  and  D  A  H,  her  children,  surviving  her: 
and  in  1833,  W,  by  his  will,  gave  to  A  and  M,  as 
tmstees,  the  lands  therein  mentioned,  and  the  monies 
seemed  by  way  of  mortgage,  and  all  his  right,  &c. 
in  the  policy  of  assurance,  and  bis  household  eflects, 
and  the  residue  of  his  estate  in  favour  of  W  W  H 
and  D  A  H,  and  appointed  A  and  M  his  executors. 
The  will  was  duly  proved  by  A  alone,  who,  as  well 
•a  W  W  H  and  D  A  H,  insisted  that  the  deed  of 
settlement  was  invalid,  whereupon  J  W  filed  his  bill 
against  the  executors  of  the  testator's  will,  the  re- 
siduary legatees,  and  the  surviving  cestui  que  truH 
tinder  the  settlement,  and  her  husband,  praying  an 
account  of  the  household  fiimiture,  monies,  and  se- 
curities for  money,  policies  of  assurance,  ftc,  pos- 
sesaed  by  W  at  the  date  of  the  indenture  of  settle- 
tnent,  and  that  it  might  be  ascertained  what  estste  and 
interest  therein  were  assigned  to  the  plaintiff  under  the 
indenture  of  settlement,  and  that  the  trusts  thereof 
might  be  executed,  and  that  an  account  might  be 
talien  of  W's  personal  estate  possessed  by  his  exe- 
cutors, and  of  hia  debts,  and  that  his  personal  estate, 
aoquiied  subsequently  to  the  date  of  the  indenture 
of  settlement,  might  be  declared  first  liable  to  the 
payment  of  his  debts,  and  that  the  property  assigned, 
or  the  value  thereof,  might  be  made  good  out  of  the 
personal  estate,  and  that  the  defendants,  the  trustees, 
noight  be  decreed  to  join  in  conveying  and  surren- 
dering the  legal  estate  in  the  mortgaged  lands  to 
the  plaintiff  as  trustee  of  the  surrender: — Held,  that 
there  was  no  complete  or  effectual  assignment  of  the 
mortgage  debt,  or  policy  of  assurance,  by  the  inden- 
tare  of  settlement,  to  be  acted  on  or  enforced  by  the 
jHMignee,  without  a  further  act  to  be  done  by  the 
flwsignor,or  those  representing  him ;  and  that  as  to 
the  household  furniture,  the  plaintiff  ought  to  have 
proceeded  at  law  to  recover  it,  the  bill  claiming  the 
f^sl  right  therein  for  the  plaintiff.     Ward  v.  And' 
iamd,  14  Law  J.  Rep.  (n.s.)  Cb.  145. 


ASSUMPSIT. 

[See  Account  Stated — Bills  of  Exchanob 
ASiT}  Promissory  Notes — Goods  sold  and  de- 
I.IVERXD — Indebitatus  Assumpsit — Judgment, 
Arrest  of — Money  Counts — Warrant  of  At- 
TOUSEY — Work  and  Labour,] 

(A)  When  maintainable. 

(B)  CoirsiDERATION. 

(C)  Pleas. 


(A)  When  maintainable. 

Where  the  defendant,  on  opening  an  account 
with  a  joint-stock  banking  company,  gave  a  bond 
oonditioned  for  the  payment,  at  the  expiration  of 
three  months  after  notice,  of  all  sums  due  (not  ex- 
eMding  a  stated  amount)  for  advances  made  or  to 


be  made : — Held,  that  such  bond  did  not  preclude 
the  company  fVom  maintaining  assumpsit,  the  bond 
being  clearly  intended  as  a  collateral  security  only, 
and  for  a  limited  amount  Holmes  v.  Bell,  3  Sc. 
(H.s.)  479. 

Where  the  plaintiff  and  defendant  entered  into  h 
deed  of  agreement  for  the  performance  of  certain 
chemical  services,  containing  a  power  to  determine 
it  by  notice  in  case  of  the  experiments  not  succeed- 
ing before  a  certain  date,  and  afterwards,  another 
agreement  not  under  seal,  referring  to  the  former 
deed,  and  amounting  simply  to  an  extension  of  the 
time,  was  entered  into : — Held,  that  the  deed  not 
having  been  determined,  the  action  of  assumpsit 
for  the  latter  agreement  was  not  maintainable. 
Gwyrme  v.  Davy,  2  Sc.  (n.b.)  29  ;  9  Dowl.  P.O.  1. 

[And  see  Russell  v.  Smyth,  title  Action,  ante, 
p.  7.] 

(B)  Consideration. 

A  deed  of  separation  between  a  husband  and  hia 
wife  having  been  drawn  up,  but  not  executed  by  the 
husband : — Held,  that  his  executing  such  deed  waft 
a  legal  consideration  for  a  promise  by  a  third  person 
to  pay  a  sum  of  money  to  the  husband  towards  the 
discharge  of  certain  debts  and  expenses,  for  which 
the  husband  was  solely  liable.  Jones  r.  Watte,  9  C. 
&  F.  101 ;  affirming  s.  c.  4  Law  J.  Dig.  88. 

Where  a  declaration  stated  that,  in  consideration 
that  the  plaintiff,  at  the  request  of  the  defendant, 
had  bought  of  the  defendant  a  horse  for  ZOl,  the 
defendant  promised  that  the  horse  was  sound,  and 
free  from  vice, — the  declaration  was  held  bad  in 
Arrest  of  judgment,  on  the  general  principle  that 
a  consideration  past  and  executed  will  support  no 
other  promise  than  that  which  the  law  implies. 
Hoseorlaf,  Thonuu,M  Law  J.  Rep.  (n.s.)  Q.B.  214; 
8  Q.B.  234;  2  G.  &  D.  508. 

The  plaintiff,  who  was  a  cook  on  board  a  merchant 
ship,  was  engaged  by  the  defendant  to  serve  in  that 
capacity  on  board  a  man-of-war,  of  which  the  de- 
fendant was  captain,  and  extra  wages,  in  addition  to 
the  ordinary  pay,  were  promised  him.  The  plaintiff 
went  on  board  the  defendant's  ship,  and  was  rated 
in  the  usual  way,  and  acted  as  cook,  receiving  pay 
as  a  seaman : — Held,  that  there  was  a  good  consi- 
deration for  the  promise  of  the  defendant  to  pay  the 
extra  wages,  and  that  an  action  might  be  maintained 
by  him,  against  the  defendant,  in  respect  of  them. 

Quare — Whether  such  a  contract  shbuld  not  have 
been  specially  declared  on.  Clutterbuck  v.  Cqffln,  1 1 
Law  J.  Rep.  (n.s.)  C.P.  65 ;  8  M.  &  G.  842;  4  Sc. 
(H.s.)  609;  1  Dowl.  P.C.  (N.8.)  479 ;  Car.&M.272. 

Where  the  reputed  father  of  an  illegitimate  child 
wrote  to  the  mother  as  follows : — "  As  long  as  your 
future  conduct  is  correct,  and  the  situation  you  are 
placed  in  remains  a  secret,  my  allowance  to  yoti  of 
60/.  a  year  will  be  paid  with  punctuality ;  but  I 
must  remind  you,  were  it  to  become  known,  the 
allowance  of  a  magistrate  would  be  4«.  or  6s.  a 
week  :•• — Held,  thatthe  charge  and  maintenance  of 
the  child  was  a  good  consideration  to  support  an 
assumpsit ;  and  that  such  consideration  was  suffici- 
ently apparent  Jennings  v.  Brown,  12  Law  J.  Rep. 
(N.s.)  Exch.  86 ;  9  M.  &  W.  496. 

A  declaration  stated,  that  disputes  and  contro' 
versies  were  pending  between  the  plaintiff  and  de- 
fendant, as  to  whether  or  not  the  defendant  was 


44 


ASSUMPSIT— ATTACHAISMT. 


indebted  to  the  plaintiff  in,  to  wit,  tiie  turn  of  l78iL 
2».  S4.,  for  money  lent,  p&id,  &c.  for  the  defendant 
by  the  plaintiff;  and  therenpon,  in  oonaideration 
that  the  plaintiff  would  then  promiae  the  defendant 
not  to  aue  the  defendant  at  any  time  for  the  reco- 
Tery  of  the  said  sum  so  in  dispute  between  them, 
nnd  would  accept  from  the  defendant  the  sum  of 
lOOi.  in  full  satiafacUon  and  discharge  of  the  same, 
the  defendant  promised  the  plaintiff  to  pay  him  the 
sum  of  lOOi : — Held,  that  the  mere  existence  of  dis- 
putes and  controversies  was  not  a  consideration  for 
the  defendant's  promise  to  pay,  no  debt  being 
allied  to  be  due,  and  no  action  having  been  com* 
menced.  Edwardi  r,  Baugh,  12  Law  J.  Rep.  (ha) 
£xch.  426 ;  1 1  M.  &  W.  641. 

(C)  Pleas. 

The  plea  of  non  assumpsit  is  admissible  in  an 
action  against  an  executor  on  a  banker's  cheque 
drawn  by  his  testator.  Rollestan  v.  DUeon,  14  Law 
J.  Rep.  (n.8.)  Exch.  304. 

By  an  agreement  for  letting  a  farm,  the  plain- 
tiff was  to  keep  the  buildings  upon  the  premises 
insured  in  the  sum  of  600/.,  and  to  rebuild  in  case 
of  fire ;  and  to  repair  the  premises  within  twelve 
monthst  after  which  the  defendant  was  to  keep  them 
in  repair.  In  an  action  at  the  end  of  the  term,  for 
not  keeping  in  repair,  the  declaration  set  out  the 
agreement  by  the  plaintiff  to  repair  within  twelve 
months,  and  the  defendant's  promise  to  keep  in 
repair  subsequently,  and  contained  an  averment 
that  the  plaintiff  did  all  necessary  repairs  within 
twelve  months,  and  that  the  defendant  held  and 
occupied  the  farm,  &c. ;  but  omitted  all  mention  of 
the  insurance  by  the  plaintiff  The  defendant 
pleaded  non  assumpsit ;  and  that  he  did  not  become 
tenant  upon  the  terma  in  the  declaration  stated. 
The  plaintiff  having  been  nonsuited  at  the  trial,  for 
the  insufficiency  of  the  declaration: — Held,  that 
the  consideration,  as  well  as  the  promise,  was  put 
in  issue  by  the  plea  of  non  assumpsit,  and  that  the 
nonsuit  was  right  Beech  v.  White,  10  Law  J.  Rep. 
(]i.s.)  Q.B.  4;  12  Ad.  &  E.  668 ;  4  P.  &  D.  S99. 

To  an  action  of  assumpsit,  the  defendants  pleaded 
that  the  promises  were  made  by  them  jointly  with 
one  T  M,  and  that  before  action  brought,  the  plain- 
tiff, on  account  of  the  sum  due,  and  the  promises,  &c 
drew  his  bill  of  exchange  on  T  M,  which  he  ac- 
cepted, and  delivered  the  same  to  the  plainti£^  who 
received  it  for  and  on  account  of  the  sum  due : — 
Held,  that  the  pluntiff  having  taken  a  security, 
which  was  assignable  to  a  third  party,  the  plea  was, 
primd  facie,  an  answer  to  the  action,  and  was  a  good 
plea,  without  shewing  either  that  the  bill  had  been 
paid  or  indorsed  to  a  third  party.  Mercer  v.  C^ete, 
12  Law  J.  Rep.  (n.s.)  C.P.  56;  4  M.  &  O.  604) 
6  Sc.  (n.8.)  664;   2  Dowl.  P.C.  (n.8.)  619. 


ATTACHMENT. 

[See  Abbitration — Attorney  and  Solicitor 
— Costs — Sherifp— Witness.] 

(A)  When  it  lies. 

(B)  Rule  for. 


(A)  When  it  lies. 

An  attachmcBt  will  lie  against  an  overseer  of  a 
parish,  and  also  against  the  solicitor  of  the  parish, 
for  refusing  to  produce  the  rate-books  of  such  parish 
at  petty  sessions,  in  obedience  to  a  Crown  Office 
subpcena,  in  an  inquiry  touching  the  settlement  of 
a  pauper.  Regiaui  v.  Greetunoa^t  Megi$ta  v.  Cbvy, 
14  Law  J.  Rep.  (k.s.)  M.C.  190. 

Where  an  order  was  made  by  a  Judge  upon  the 
plaintiff's  attorney,  under  2  Will  4.  c.  89.  s.  17, 
to  declare  '*  the  place  of  abode  of  the  plaintiff  on 
pain  of  being  guilty  of  a  contempt,"  and  the  plain- 
tiff caused  his  attorney  to  deliver  a  false  account 
of  the  same,  the  Court,  under  the  circumstances, 
discharged  a  rule  for  an  attachment  against  the 
plaintiff  on  payment  of  costs  by  him,  but  intimated 
their  opinion  that  his  conduct  amounted  to  a  con- 
tempt of  court.  Smith  v.  Bond,  14  Law  J.  Rra. 
(n.8.)  Exch.  114;  IS  M.  &  W.  504;  2  Dowl.  &  L. 
P.C.  460. 

By  an  order  of  Nisi  Prins,  made  by  consent,  it 
was  ordered  that  a  juror  should  be  withdrawn  in  the 
action,  and  a  suit  in  equity  between  the  same  par- 
ties dismissed;  that  the  defendant  and  one  W  J 
should  abandon  all  claim  to  certain  patents,  and 
that  the  patents  and  the  assignment  thereof  to  the 
defendant  be  given  up,  and  that  the  defendant  should 
execute  an  assignment  thereof  to  the  plaintiff  on 
demand.  It  was  also  ordered,  that  the  plaintiffs 
should  psy  to  the  said  W  J  750L  in  full  of  all 
claims ;  that  the  plaintiffs  should  pay  the  defen- 
dant 100/.  for  expenses ;  that  the  said  W  J  should 
be  allowed  to  execute  orders  to  the  extent  of  10,000 
spindles,  without  paying  patent  right,  and  10,000 
more  on  payment  of  4d.  a  spindle ;  and  that  the 
defendant  should  pay  to  the  said  W  J  750/.  and 
4J.  a  spindle,  patent  right,  upon  10,000  spindles, 
and  that  the  said  W  J,  at  the  expense  of  the  de- 
fendant, should  release  all  claims  against  the 
defendant : — Held,  that  the  payment  of  the  IQOL 
by  the  plaintiffs  to  the  defendant  was  ordered  abso- 
lutely, and  did  not  depend  upon  the  performance 
of  the  other  parts  of  the  order  by  the  defendant  as 
conditions  precedent ;  and  the  order  having  been 
made  a  rule  of  court  an  attachment  issued.  Bow- 
her  V.  TebbtUt,  14  Law  J.  Rep.  (n.s.)  Q.B.  114;  2 
DowL  &  L.  P.C.  787. 

(B)  RULB  FOR. 

Personal  service  of  a  rule  niei  for  an  attachment 
will  not  be  dispensed  with  in  any  case,  even  though 
it  is  shewn  that  the  party  has  systematically  evaded 
service,  and  the  applicant  has  no  other  remedy,  and 
though  the  party  is  an  attorney.  In  re  Pyne,  13  Law 
J.  Rep.  (n.8.)  aB.  37 ;  1  Dowl.  &  L.  P.C.  703. 

[See  Jaceh  v.  Magnay,  pott.  Attorney  and  So- 
licitor, (H)(c).] 

The  rule  for  an  attachment  against  a  married 
woman,  for  non-payment  of  costs,  pursuant  to  the 
Master's  allocatur,  is  absolute  in  the  first  instance. 
Regina  v.  Johneonj  13  Law  J.  Rep.  (n.s.)  Q.B.  32 ; 
5a.B.335;  1  D.  &M.  231. 

Where  a  rule  niei  for  an  attachment  for  non-pay- 
ment of  costs,  pursuant  to  an  award,  has  been  ob- 
tained in  one  term  and  dropped  in  consequence  of 
negotiations  between  the  parties,  and  part  of  the 
costs  are  paid,  if  it  is  sought  to  obtain  an  attach- 


ATTACHMEOTV-ATTORNET  AND  SOLICITOR. 


45 


ment  finr  the  non-payment  of  tlie  rendnO)  the  rule 
for  that  pnrpoae  cannot  be  drawn  np  on  merely 
vending  the  dropped  rale,  and  an  affidarit  of  fresh 
danand. 

The  Court  will  dieeharge  a  rnle  obtained  on  tnch 
materiala,  with  coota,  if  an  action  for  the  leeovery 
of  the  com  in  dispate  waa  pending  at  the  time  of 
Um  demand  made.  Bmktr  v.  WtUs,  9  Dowl.  P.C. 
323. 


ATTORNEY  AND  SOLICITOR. 

[See  Eyibsvcb,  Prinleged  Communication — Iw- 
tehpleadbb — Scbiybnbb.] 

(A^  Abticlbb  ot  Clebbsbip. 
(a\  Inrolmeni  rf, 
(b)  Ditekarge  and  AulgnamU  rfi 
(e)  Sermee  wndtr. 

(B)  EZAMIBATIOK. 

(C)  Admisbiob. 

(D)  AMBmicBBT  or  tsb  Roli.. 

(£)  AnvuAL  Cbbtipicatb.    [See  Rb-admis- 

BIOV.] 

(F)  Rb-admisbion. 

{a)  N^Het^dtppMeatiemfor. 
ih)  Qemrml  OlffteHmu  to, 
{e)  After  Ntgket  to  pnatre  Antmai  Cert^ 
eats, 

(6)  Pbiyilbobs. 

(a)  To  be  ned  in  kU  own  Court, 

(b)  Arrest, 

(H)  Duties  and  Liabilities. 

id)  Generally, 
b)  Negligence, 

(c)  AUachment. 

(d)  Summary  Jurisdiction,  generally. 

(e)  Striking  off  the  SolL 

(1)  At  his  own  Request, 

(2)  For  Misconduct, 

(I)  Rbtaimbb. 
K)  Chamoino  Attobbbt. 
(LS  Dealings  with  Client. 
(M)  Pabtnbbship. 

(N)   AOBBEMBNT  NOT  TO  PBACTiSB. 

(O)  Bill  of  Costs. 
(a)  Delivery  vf, 
\b)  TaxaOonqf, 

(1)  Generally,  how,  when,  upon  whose  applk- 
cation,  and  by  whom  to  be  taxed, 

(2)  Order  rf  course  Jor^  under  64-7  Viet, 
c.  73.  s,  87. 

(3)  Upon  Terms,  where  BiU  delivered  more 
thanaMonth,  under  6  &  7  Viet,  e,  73. 
«.37. 

(4)  Upon  Special  Circumstanees,  rfter  Ver^ 
diet,  Writ  rf  Inquiry,  or  the  Expiration 
of  a  Year,  under  6  &  7  Vict,  c  73. «.  37. 

(5)  Upon  Special  Circumstances,  tfier  Pay- 
ment  if  BiU,  under  6  &  7  FieL  e.  73. 
«.41. 

(6)  CosU  qf  Taxation. 
(c)  Remedies. 

(1)  By  Action, 

(2)  Execution  under  1  ^  2  FicL  c  110. «.  18. 
(P)  LiBN  FOB  Costs. 


i 


ReHef  and  indennity  of  ekiks  to  aMamiet  and 
Mdieiton  in  oertain  caaea  pronded  for,  hj  6  Viet 
c.  10;  20  Law  J.  Stat  U. 

The  laws  relating  to  attomies  and  soUeiton  oob- 
aolidated  and  amended  by  6  &  7  Viet  o.  83|  %l 
Law  J.  Stat  134. 

Indemnity  granted  to  clerks  to  attornisa  and  so- 
Heitors  who  Iuto  omitted  to  inrol  their  contracts ; 
and  the  law  relating  to  the  inrohnent  of  snch  con- 
tracts,  and  to  the  disahilitiea  of  such  clerks, 
amended  in  oertain  caaea  by  7  &  8  Vict  c.  86 ;  22 
Law  J.  Stat  App.  1. 

The  6  Vict  c  9,  for  the  relief  of  clerks  to  attor* 
nies  and  solieilmrs  in  oertain  cases,  contains  the 
same  clauses  as  are  to  be  found  in  6  WHL  4.  c.  7 ; 
14  Law  J.  Stet  20;  and  7  WilL  4.  c  12;  13  Law 
J.  Stat  10. 

Solieitors  and  paitiea  aoting  in  person  enabled 
to  perform  the  dutiea  heretofore  perfoimed  by  the 
swam  and  waiting  derka  aa  attomies,  &&,  for  the 
parties.  Orders  of  the  26lh  of  October  1842,  xvl., 
12LawJ.Rep.(M.a.)Ch.3$  3Bea.lvii;  lPh.zzyii. 

Solicitors  are  to  state  their  names  and  places  of 
hoainess,  and  **  address  for  senrice,"  and,  when 
acting  as  agent  in  addition  thereto,  the  address  of 
the  principal  solicitor  on  all  pleadings  and  pro- 
ceedings.   Ibid.  Order  zrii 

Solicitors  signing  a  petition  of  rehearing  on  ap- 
peal, or  any  consent  to  a  petition,  or  notice  of 
motion,  or  any  proceeding  or  application  by  a 
pauper,  to  be  aubjeet  to  the  same  liaoilitiea  as  those 
to  which  the  sworn  clerics  were  subject  IMd. 
Order  xxT. 

After  the  expiration  of  one  calendar  month 
frmn  the  12th  of  January  1832,  no  attorney  or 
solicitor  allowed  to  practise  in  any  district  eowt 
of  bankruptcy  until  he  shall  hare  been  admitted 
and  inrolled  aa  an  attorney  or  solicitor  of  the  Court 
of  Bankruptcy  in  manner  prescribed  by  the  General 
Rules  and  Orders  for  regulating  the  practice  of 
the  said  court  Orders  in  Bankruptcy,  12th  No- 
vember 1842, 12  Law  J.  Rep.  (n.8.)  Bankr.  10. 

The  examination  of  persons  applying  to  act  as 
st^dtois  in  Chancery  required  and  provided  for 
by  Order  of  13th  January  1844^  13  Law  J.  Rep. 
(N.s.)Ch.803;  3Bea.xiiL 

Regnlationa  for  the  examination  of  candidaten, 
and  queations  aa  to  aervice.  Ibid.,  18  Law  J.  Rep. 
(B.8.)Ch.306;  5Bea.XTii 

Examiners  appointed  by  Order  of  13th  January 
1844,  13  Law  J.  Rep.<N.8.)  Ch.  308;  3  Bea.  xxiii. 

(A)  Abticlbs  of  Clbbkshif. 

(a)  Inrobnent  rf. 

Where  the  original  articles  had  been  destroyed 
by  fire,  leave  was  given  to  inrol  a  verified  copy  of 
them.    Ex  parte  Briggs,  1  Dowl.  &  L.  P.C.  94^ 

A  copy  of  articles  executed  fifteen  years  ago, 
were  allowed  to  be  inrolled  upon  afildavita  shewing 
that  the  articles  had  been  stolen,  with  other  articles, 
from  the  party  who  had  the  custody  of  them,  and 
could  not  be  produced.  Ex  parte  Nash,  3  M.  &  O. 
696;  6Sc.(m.8.)693. 

(6)  Discharge  and  Assignment  rf. 

If  an  attorney  become  insane,  the  Court  will 
discharge  his  articled  clerk  from  hia  articles,  and 
allow  him,  without  any  assignment,  to  enter  into 


46 


ATTORJIET  AND  SOLICITOR. 


fkwli  artielM  for  fhc  retnalnder  of  his  term  of  ler- 
Tic«;  b«t  it  will  not  allow  the  period  daring  which 
the  master  has  been  insane,  and  before  Uie  new 
articles  are  entered  into,  to  be  reckoned  as  part  of 
his  requisite  five  years'  seryice.  E*p0rU  TutiMf, 
10  Law  J.  Rep.  (n.s.)  Q.B.  856. 

Where  a  cuerk  was  artided  to  an  attorney  Who, 
daring  the  continuance  of  the  ardcles,  absconded, 
the  Court  granted  a  rule  to  discharge  the  clerk 
from  his  articles,  and  permitted  it  to  be  serred  at  his 
last  place  of  abode,  in  Queen's  Bench  Office,  and 
on  his  agent,  if  he  had  one.  Em  parte  WiOdmon, 
9Dowl.P.C.820. 

Where  an  attorney  has  absconded,  hie  derk  may 
obtain  a  discharge  from  his  articles  of  clerkship, 
and  any  fiirther  articles  may  be  in  rolled  without 
an  assignment  of  the  original  articles.  Ex  ptarU 
CartUp,  12  Law  J.  Rep.  (n.s.)  Q.B.  98;  s.  o.  Ex 
parte  Camkyt  2  Dowl.  P.C.  (n.S.)  945. 

Where  an  articled  clerk  has  served  a  portion  of 
his  time  with  a  particular  master,  who  has  gone 
Abroad,  and  who  cannot  execute  an  assignment  of 
the  articles,  the  Court  will  allow  him  to  serve  the 
remainder  of  his  time  with  another  master,  without 
an  assignment  of  the  articles;  even  where  the 
assignee  of  the  articles  is  not  named  at  the  time  of 
the  application.  Ex  parte  Haneock^  2  Dowl.  P.O. 
(M.S.)  54. 

(c)  Service  under. 

Where  a  clerk  has  been  articled  to  otie  of  the 
members  of  a  firm,  and  he  covenants  to  serve  him, 
a  service  with  a  partner  after  the  decease  of  tibe 
master  is  not  service  under  the  articles,  although 
the  partner  was  a  party  to  the  articles.  Ex  parte 
DaUon,  9  Dowl.  P.C.  1 10. 

Where  a  clerk  is  discharged  from  his  article*,  on 
the  ground  of  his  master's  insanity,  he  must  be 
articled  to  another  attorney^  fbr  the  residae  of  the 
term  of  five  years  unelapsed  at  the  time  of  the 
insanity  commencing,  and  a  portion  of  the  time 
served  after  that  event,  with  other  attomiee  carrying 
on  the  master's  business,  cannot  be  reckoned.  Ex 
parte  Broum,  9  Dowl.  P.C.  526.  [And  see  Ex  parte 
Tttmer^  atUe^  {b),  page  46.] 

Where  the  attorney,  to  whom  an  articled  clerk 
had  been  assigned,  died  intestate,  and  no  adminis- 
tration was  likely  to  be  taken  out,  the  Court  granted 
a  rule,  calling  on  the  widow  of  the  deceased  master 
to  shew  cause  why  the  clerk  should  not  be  at  liberty 
to  re-article  himself  during  the  remainder  of  the 
term  he  ought  to  serve.  Ex  parte  LewU^  13  Law  J. 
Rep.  (H.8.)  aB.  261 ;  2  Dowl.  &  L.  P.C.  130. 

A  person,  admitted  as  an  attorney  of  the  Court  of 
Grea,t  Sessions  in  Wales,  prior  to  the  passing  of  the 
statute  abolishing  the  separate  jurisdiction  of  the 
principality  of  Wales  (11  Geo.  4.  &  1  Will.  4.  c.  70), 
and  who  has  had  his  name  entered  on  the  roll  in 
one  of  the  superior  courts  of  Westminster^  under 
section  16.  of  that  act,  is  entitled  to  take  a  derk 
under  section  3.  of  6  &  7  Viet.  c.  78,  and  may  make 
the  affidavit  required  by  section  %.  of  the  latter 
statute.  Ex  parU  Davie*,  13  Law  J.  Rep.  (N.fi.)  Q.B. 
146;  1  Dowl.  &L.  P.C.  892. 

Service  by  a  barrister,  as  clerk  under  articles  to 
an  attorney,  is  not  available  for  the  purpose  of  his 
being  admitted  an  attorney,  although  he  never, 
during  the  service,  practised  aa  a  barrister,  and 


although  it  was  wholly  tirom  inadrertenee  thM  hb 
omitted  to  petition  to  be  dfsbarred  prior  to  entering 
in  to  the  aitides  of  clerkship.  In  re  Baltemak^  14  Law 
J.  Rep.  (n.s.)  Q.B.  89;  2  Dowl.  &  L.  P.C.  725. 

(B)  Examination. 

Where  it  is  doubtfiil  whether  a  service  wider 
iirticlet  has  beeli  a  suffident  service,  the  examinei% 
ought  to  examine  the  applicant,  and  leave  the  fkcte 
for  the  judgment  of  the  Court  of  Queen's  Bench. 
Ex  parte  Llewellyn^  1 2  Law  J.  Rep.  (n.s.)  Q.B.  138 ; 
2Dowl.P.C.(N.8.)701. 

The  Court,  under  special  drcumstances,  wOl 
allow  an  articled  clerk  to  be  examined  for  admia- 
sion  as  an  attorney,  before  he  is  of  age.  Ex  parte 
Bamfield,  10 Law  J.  Rep.  (n^b.)  Q.B.  361;  9  Dowl. 
P.C,  1 16. 

Where  an  articled  cleik  has  served  hie  whole 
period  of  five  years,  but  has  not  attained  tbe  age  of 
twenty- one  years,  if  he  will  shortiy  attaita  that  age, 
the  Court  will,  under  certain  circumstances,  allow 
him  to  be  examined  though  still  an  infant.  Ex  parte 
Tehhe,  9  DowL  P.O.  151. 

Where  an  attorney,  to  whom  an  articled  clerk 
has  served  part  of  his  time^  has  absconded,  the 
Court  will  allow  him  to  be  examined  without  pro- 
ducing the  usual  testimonials  ftom  him  as  to  ser- 
vice, See.    Ex  parte  Carr,  1  Dowl.  PtC .  (  n  .8.)  565. 

An  articled  clerk  who  had  been  absent  from 
England,  during  his  clerkshipi  rather  more  than  a 
twelvemonth^  on  account  of  ill  health,  was  allowed 
to  be  examined  for  admission  as  an  attorney,  at  the 
expiration  of  his  clerkship.  Ex  parte  Croes,  12  Law 
J.  Rep.  (n.8.)  a.B.  138;  2  Dowl.  P.C.  (n.s.)  692. 

It  is  no  bar  to  the  examination  of  a  person,  in 
order  to  his  admission  as  an  attorney,  that  he  has 
been  fourteen  years  in  business  as  a  grocer,  since 
he  served  his  time  as  an  articled  clerk,  and  has  not 
previously  applied  to  be  admitted.  Ex  parte  fFarimg, 
12  Law  J.  Rep.  (n.s.)  Q.B.  280. 

Where  the  applicant  had  been  rejected  by  the 
examiners  on  the  ground  of  insufficient  service,  the 
Court  refused  to  refer  the  exainination  to  a  single 
Judge,  appeals  of  this  kind  being  by  Reg.  Gen. 
Hil.  6  Will.  4,  vested  in  all  the  Judges ;  but  the 
first  attorney  to  whom  the  applicant  had  been  ar- 
ticled being  dead,  ordered,  on  an  ex  parte  motion, 
that  he  should  be  articled  for  the  residue  of  the 
term  to  another  without  assignment.  Ex  pewte 
Carr,  9  Q.B.  447. 

(C)  AoMisaioif* 

Where  the  original  deed  of  assignment  of  the 
articles  of  clerkship  of  an  applicant  to  be  admitted 
an  attorney  had  been,  in  mistake,  annexed  to,  and 
filed  with  the  affidavit  of  such  assignment,  the  Court 
of  Queen's  Bench  permitted  the  examiners  to  re- 
ceive an  office  copy  of  the  aft^igninent,  and  to  pro- 
ceed to  the  examination  of  the  applicant,  as  if  the 
original  was  produced  to  them,  and  directed  also 
that  the  certificate  of  a  Master  of  the  Court,  that 
the  original  assignment  was  so  filed,  should  be 
deemed  sufficient,  on  granting  the  Judge's  fiat  for 
the  admission  of  the  applicant  as  an  attorney.  Ex 
parte  Buckle,  2  Dowl.  P.C.  (N.8.)  676. 

Where  a  clerk  had  regularly  served  under  his 
articles,  but,  in  consequence  of  his  master  abscond- 
ing, he  was  unable  to  procure  the  articles  of  clerk- 


ATTORNEY  AND  SOUCITOR. 


47 


^p  which  he  had  kft  with  him,  Uw  Coiurt  aUowtd 
hiiD  to  be  admitted  without  producing  the  articles* 
a  certificate  of  inrolmept  being  produced.  ExparU 
NichoUs,  1  DowL  P.C.  (k.s.)  263. 

The  Court  will,  under  special  circumstances, 
allow  an  articled  clerk  to  put  up  his  notices,  after  the 
commencement  of  £aster  term,  for  the  purpose  of 
admission  on  the  last  day  of  Trinity  term.  Sx  parte 
Chaadlgr,  i  Dowl.  P.C.  (n.8.)  814. 

Where  a  party  gave  notice  of  intention  to  apply 
in  Trinity  term  for  admission  as  an  attorney,  and 
did  not  apply  until  Michaelmas  term: — Held,  tbat 
he  must  give  fresh  notice*  £js  parte  BUuUf  12  Law 
J.  Rep.  (n.8.)  as.  97. 

Where  a  party,  who  had  obtained  a  certificate 
from  the  examiners  in  Trinity  term,  1841,  omitted 
to  renew  it,  as  ordered  by  Reg.  Gen.  Hil,  tenOy 
6  Will.  4: — Held,  that  he  must  obtain  a  fresh  cer- 
tificate before  he  could  be  admitted  as  an  attorney* 
Ex  parU  Bromley,  12  Law  J.  Rep.  (n.8.}U.B.98{ 
2Dow1.F.C.(n.s.)388. 

An  attorney  who  has  been  admitted  in  one  of  the 
other  superior  courts  at  Westminster,  may  be  ad- 
mitted in  the  Queen*s  Bench  upon  production  of 
the  certificate  of  his  admission,  to  the  Master, 
without  motion.  Ex  parte  Roberts,  13  Law  J.  Rep. 
(v.s.)  an.  151 ;  1  Dowl.  &  L.  P.C.  829. 

An  application  to  admit  and  inrol  an  attorney 
of  the  courts  of  the  county  palatine  of  Durham, 
under  6  &  7  VicL  c.  73.  s.  45,  as  an  attorney  of  the 
superior  courts  at  Westminster,  may  be  made  in 
court. 

And  this  may  be  done  upon  an  affidavit  that 
the  party  had  been  admitted  an  attorney  of  the 
courts  of  the  county  palatine,  without  producing  a 
copy  of  the  rolL 

SeaMe — That  ''such  duty  as  by  law  required" 
in  that  statute,  means  the  fees  only.  Ex  parte 
Pa<rtdt,13LawJ.Rep.(N.8.)aB.90;  lDowl.&L. 
P.C.  696. 

(D)  Amendment  of  the  Roll. 

An  attorney  having,  by  letters  of  licence,  changed 
his  name,  his  description  on  the  roll  was  allowed 
to  be  amended.  Ex  parte  BetUhaU,  6  M.  &  G.  722; 
7Sc(N.s.)407;  1  Dowl.  &  L.  P.C.  747. 

(E)   Anntal  Certificate. 
[See  Re-admission.] 

(F)  Rb-admission. 

(a)  Notice  rf  ApptictUion  for. 

The  Court  refused  to  dispense  with  the  requisite 
notice  in  the  office  of  the  Chief  Justice,  previous 
to  an  application  for  re-admission.  So,  where  it 
had  only  been  stuck  up  five  days  before  the  term, 
on  the  first  day  of  which  the  motion  was  made^ 
Ex  parte  Tucker^  9  Dowl.  P.C.  661. 

(6)  General  Objectiont  to, 

A  c4iaviction  of  a  conspiracy  to  extort  money  by 
means  of  libels  is  a  sufficient  ground  for  not  per- 
mitting  an  attorney  to  be  re-admitted.  In  re  Havh 
done,  9  Dowl  P.C.  970. 

The  Court  will  not  re-admit  an  attorney  who  has 
discontinued  practice  for  forty  years.  Ex  parte 
Badge,  12  Law  J.  Rep.  (m.s.)  aS.  186;  2  Dowl. 
P.C.  (K.S.)  682. 


The  Gcnrt  will  iMtr»»adiiiit  an  attoiney  who  baa 
Qeaaed  to  practise  as  such  for  thirty-nine  yeait, 
without  requiring  him  to  be  examined,  although, 
during  the  last  seventeen  years,  he  has  been  acting 
as  a  nuigistrate  and  Commissioner  of  Taxes.  jBc 
parte  Robineon^  13  Law  J.  Rep.  (n.8.)  Q.B.  240 ;  2 
Dowl.  &  L.  P.C.  9. 

(e)  4fter  Neglect  to  procure  Annual  Cert\fieaU, 

A  party  ceasing  to  take  out  his  certificate  in  1832, 
in  consequence  of  becoming  a  farmer  and  graaier, 
not  re-admitted,  in  1844,  without  an  examination. 
Ex  parte  Bray^  13  Law  J.  Rep.  (n.s.)  aB.  240. 

Under  6  &  7  Viot  c  73.  a.  25,  the  Court 
may  authorise  the  registrar  to  issue  acertifieate^ 
omitted  to  be  taken  out  through  the  negligence 
of  the  agent,  on  payment  of  arrears,  without  the 
notice  and  re-admission  necessary  before  that  act; 
Ex  parte  Gmde^  1  DowL  &  L.  P.C.  675. 

Where  an  attorney  had,  by  mistake,  omitted  to 
take  out  his  annual  certificate  in  due  time,  and  a 
year  had  elapsed,  from  the  expiration  of  his  last 
certificate,  he  having  discovered,  on  the  16th  of 
November,  immediately  after  the  expiration,  tlie 
omission  made,  the  Court  allowed  him,  on  the  19th, 
to  be  admitted,  without  the  usual  notices,  on  pay- 
ment of  a  fine  of  20t,  and  the  arrears  of  duty.  Ex 
parU  Wybrow,  9  Dowl.  P.C.  197. 

In  support  of  a  motion  for  the  re- admission  of 
an  attorney,  without  giving  the  usual  notices,  it 
was  sworn  that  he  had  practised  up  to  the  month  of 
June  1840,  supposing  his  certificate  to  have  been 
regularly  taken  out;  but  tbat  on  the  10th  of  that 
month,  the  last  day  but  two  of  Trinity  Term,  an 
affidavit  had  been  filed,  in  a  cause  in  which  the  ap- 
plicant acted  as  attorney,  stating  that  his  certificate 
bad  not  been  obtained  for  the  years  1832, 1834, 1836 ; 
that  being  resident  in  the  country,  he  had  regularly 
transmitted  to  hiR  son,  who  had  acted  as  his  Lon- 
don agent,  and  who  was  since  dead,  the  necessary 
funds  for  procuring  his  certificate,  and  that  he  had 
first  learned  the  fact  of  his  having  omitted  to  do  so 
on  his  reading  the  affidavit  before  named :— The 
Court,  in  the  following  Michaelmas  Term,  under 
such  circumstances,  there  being  no  opposition 
offered,  allowed  the  applicant  to  be  re^admitted  at 
once,  on  payment  of  the  arrears  of  duty  and  a  nominal 
fine.     Ex  parte  Legh,  1  DowL  P.C.  (n.8.)  188. 

Where  an  attorney -had  omitted  to  take  out  his 
certificate  for  a  year  after  the  expiration  of  his  last 
certificate,  and  the  last  day  of  that  year  (15th  of 
November)  wasa  Sunday, — he  having  applied  at  the 
Stamp  Office  to  renew  his  certificate  on  tlie  16tb, 
and  been  refused,  the  Court  allowed  him  to  be  re- 
admitted without  the  uanal  notices,  and  without 
payment  of  fine  or  arrears  of  duty,  be  not  having 
practised  during  the  period  of  his  being  off  the 
roll,  and  his  application  to  be  re-admitted  being 
made  on  the  17th  of  November.  Ex  parte  Kmpe^ 
9  DowL  P.C.  108. 

(O)  Privileges. 

(a)  To  be  sued  in  his  oum  Court. 

A  defendant,  who  is  an  attorney  in  two  of  the 
superior  courts,  maybe  sued  in  either,  at  the  option 
of  the  plainliffi  Walford  v.  Fleetwood^  14  Law  J. 
Rep.  (N.8.)  £xcb.271 ;  14  M.  &  W.  449. 

An  attorney  loses  his  privilege  of  being  sued  in 


48 


ATTORNEY  AND  S0LICIT0B^(Pir«is8  Am  Liabiuths). 


I 


hU  own  court  whim  sued  in  another  oourt  jointly 
with  an  unprivileged  person.  Bastrick  v.  Beckwith, 
14  Law  J.  Rep.  (n.s.)  C.P.  1 ;  7  M.  &  G.  905 ; 
8  Sc  (n.8.)  716 ;  2  Dowl.  &  L.  P.C.  624. 

To  an  action  in  this  eourt  against  an  attorney^ 
a  plea  that  he  is  an  attorney  of  the  Court  of  Queen's 
Bench,  and  not  of  the  Court  of  Common  Pleas, 
must  be  pleaded  by  attorney  and  not  in  person. 
Groom  v.  Wortham^  12  Law  J.  Rep.  (k^)  C  J*.  88 ;  5 
Sc.(n.b.)  799;  2  DowL  PC.  (n.b.)  6S7. 

To  an  action  on  the  case  in  this  court  against  an 
attorney,  the  defendant  pleaded  that  he  is  an  attor- 
ney of  the  Court  of  Queen's  Bench,  and  was  not, 
at  the  commencement  of  the  suit,  nor  eyer  hath 
been  an  attorney  of  the  Court  of  Common  Pleas : 
— Held,  on  special  demurrer,  that  the  plea  was  a 
good  plea  of  privilege,  and  could  not  be  considered 
as  a  plea  to  the  jurisdiction. 

Held,  also,  that  it  was  properly  pleaded  by  attor- 
ney, and  that  it  need  not  be  pleaded  iu  person. 
Hunter  v.  Neck^  10  Law  J.  Rep.  (n.s.)  C.P.  297  ; 
S  M.  &  G.  181 ;  3  Sc.  (k.s.)  448. 

(li)  Arrett. 

An  attorney,  party  in  a  cause  in  which  a  motion 
was  about  to  be  made  in  the  court,  left  his  private 
residence,  with  the  intention  of  calling  at  his  office 
for  some  papers  material  in  the  cause,  and  proceed- 
ing with  them  to  the  court.  On  his  way  to  his 
office  he  was  arrested  under  a  ca,  sa.,  and  forced  to 
ay  a  sum  to  procure  his  discharge : — Held,  that 
e  was  entitled  to  have  the  money  refunded,  being 
privileged  from  arrest,  both  as  attorney  and  party 
in  the  cause. 

Held,  also,  that  he  was  not  bound  to  state  affirma- 
tively in  his  affidavit,  that  he  was  a  practising  cer- 
tificated attorney.  mUiamt  v.  Webb,  12  Law  J. 
Rep.  (n.8.)  C.P.  89;  5  Sc.  (n.r.)  898 ;  2  Dowl.  P.C. 
(N.s.)  660. 

If  an  attorney  is  shewn  to  be  about  to  quit  Eng- 
land, he  may  be  arrested  pursuant  to  1  &  2  Ylct. 
c.  1 10.  s.  8,  notwithstanding  his  being  an  officer  of 
the  court  Thomson  v.  Moore,  1  Dowl.  P.C.  (n.s.) 
28S. 

[And  see  title  AaassT,  Privilege  from  Arrest, 
ante,  page  39.] 

(H)  Duties  and  Liabilities. 

(a)  OeneraUy, 

It  is  a  duty  of  solicitors  to  their  clients,  and  to 
their  own  characters,  to  prevent  litigation  which 
eannot  be  beneficial  to  any  parties  in  the  result 
(HUey  V.  6t%,  14  Law  J.  Rep.  (n.s.)  Ch.  178. 

Where  an  attorney  undertook  to  pay  the  sum 
which  should  be  awarded  to  be  paid  by  his  client  in 
a  particular  reference,  the  arbitrator  being  to  make 
his  award  by  a  particular  day,  but  did  not  do  so, 
and  a  Judge's  order  for  enlarging  the  time  was 
made  by  consent,  the  attorney  acting  on  that  occa- 
sion for  his  client, — the  Court  held  him  discharged 
from  his  undertaking,  he  not  having  recognized  it 
after  the  original  time  for  making  the  award  had 
expired.    SUnU  v.  Haddon,  9  Dowl.  P.C.  995. 

A  sheriff's  officer  may  recover  caption  fees  and 
conduct  money,  by  an  action  against  the  attorney 
of  the  party  to  the  original  suit,  upon  proving  an 
emplojrment  by  the  attorney,  and  that  it  is  cus- 
tomary for  him  to  be  charged  with,  and  to  pay  them. 


In  sack  an  action  evidence  of  the  usage  of  bnriness 
is  admissible  to  establish  the  liability  of  the  attor- 
ney. Newton  v.  Chambers^  13  Law  J.  Rep.  (na) 
aB.  141 ;  1  DowL  &  L.  P.C.  689. 

An  attorney,  who  was  the  ordinary  attorney  for 
a  borrower,  also  acted  in  the  matter  of  a  particular 
loan  for  the  lender,  but  did  not  make  any  charge 
against  the  lender  for  his  services.  The  security 
he  took  was  not  sufficient:— Held,  that  he  was  pro- 
perly charged  as  an  attorney  acting  on  the  retainer 
and  employment  of  the  lender,  and  was  in  that 
character  Uable  to  an  action  for  damages  for  the 
loss  suffered  through  the  insufficiency  of  the  se- 
curity. 

After  the  death  of  the  lender,  two  of  his  sister^ 
by  an  arrangement  with  the  rest  of  the  family,  who 
were  the  legatees  of  the  lender,  became  possessed 
of  the  security,  and  applied  to  the  attorney  to  do 
what  was  necessary.  The  means  taken  to  secure 
the  repayment  of  the  loan,  on  this  continuation  of 
it,  were  insufficient: — Held,  that  as  represendng 
the  interest  of  the  deceased,  and  on  their  own  ac- 
count, the  sisters  were  entitled  to  compensation  from 
the  attorney.   Donaldson  v.  Haldane,!  C.  &  F.  762. 

Where  a  solicitor  makes  use  of  the  name  of  a 
person  as  the  next  friend  of  an  infant  co>plaintifif^ 
without  authority  expressed  or  implied,  and  no 
acquiescence  is  shewn,  on  the  part  of  the  next 
friend,  in  the  use  of  his  name,  the  solicitor  will  be 
ordered  to  pay  to  the  next  friend  the  costs  of  the  suit, 
including  the  costs  of  the  motion  to  strike  out  the 
name  of  the  next  friend  from  the  bill,  and  to  pay 
also  to  the  several  defendants  their  costs  of  the  ap- 
plication. Ward  V.  Ward^  12  Law  J.  Rep.  (n.8.) 
Gh.  832;  6Bea.2fiL 

Plaintifi  were  assignees  of  a  mortgage  granted 
by  W  W  and  J  K  W  for  2,0002.;  and  had  procured 
an  advance  for  them  firom  a  client,  on  the  same 
security,  of  825^;  and  were  creditors  of  W  W  and 
J  K  W  for  a  further  sum  of  164/.  They  had  com- 
menced actions  for  the  first  two  sums,  and  obtained 
a  verdict  in  an  action  for  the  last  Under  these 
drcumstances,  the  defendant,  an  attorney,  but  not 
employed  as  such  in  the  business,  induced  the 
plaintiff  to  stay  proceedings  for  two  months  in  the 
last  action,  and  to  allow  judgment  to  be  suffered  by 
default  in  the  other  two,  on  which  no  execution  waa 
to  issue  for  two  months  from  the  1st  of  August 
1841.  The  consideration  for  this  stay  of  proceed- 
ings was  set  out  in  a  correspondence,  from  which 
it  appeared,  that  the  defendant  undertook  that  the 
money  should  be  paid,  whenever  the  necessary  se- 
curities should  be  completed ;  stating  at  the  same 
time  the  name  of  another  party  through  whom  the 
money  was  to  be  procured,  and  to  whom  the  mort- 
gages were  to  be  transferreidi^  Ultimately,  the  third 
party  in  question  refused  to  execute : — Held,  on  the 
effect  of  the  whole  circumstances  and  correspond- 
ence, that  the  defendant  had  rendered  himself  per- 
sonally liable  in  respect  of  all  these  sums. 

Held  also,  that  interest  on  these  sums,  from  the 
1st  of  October  1841,  oould  not  properly  be  allowed 
by  a  jury  on  the  trial  of  the  issue,  under  3  &  4 
Will.  4.  c.  42.  s.  28,  as  the  sums  were  not  payable 
by  virtue  of  any  written  instrument  at  a  certain 
time,  nor  had  any  demand  of  payment  in  writing, 
within  the  meaning  of  the  act,  been  made;  but  that, 
as  to  the  former  two  sums,  such  jury  should  have 


ATTORNEY  AND  SOLICITOR— (Ditties  ai^d  Liabilities.) 


49 


been  recommended  to  add  tlie  interest  on  them  to 
the  damagcB,  independently  of  the  statute.  Harper 
T.  miUams,  12  Law  J.  Rep.  (n.s.)  Q.B.  227. 

The  rule  of  the  Court  is,  that  a  solicitor  should 
obtain  an  authority  in  writing  fVom  his  client  before 
he  flle«  a  bill ;  and  if  circumstances  will  not  permit 
of  such  authority  being  obtained  before  filing  the 
Hll,  the  solicitor  ought  to  seek  the  sanction  of  his 
cHent  at  the  earliest  opportunity  afterwards  for  the 
step  he  has  taken. 

where  the  evidence  as  to  the  qnestiou,  whether 
authority  was  given  to  file  a  bill  or  not,  is  so  con- 
ffieting,  that  it  is  impossible  for  the  Court  to  decide 
where  the  truth  lies,  the  Court  is  under  the  neces- 
sity of  saying  that  the  solicitor  filing  the  bill  has 
not  made  out  Ms  case,  and  must  pay  the  costs  of 
the  application  against  him,  for  leave  to  strike  the 
plaintiff's  name  from  the  record.  Pinner  r.  Knights, 
12  Law  J.  Rep.  (n.s.)  Ch.  230 ;  6  Bea.  174. 

If  a  solicitor  acts  for  a  party  in  obtaining  the 
payment  out  of  court  of  a  sum  of  money,  upon 
which  other  parties  have  a  Hen,  the  solicitor,  if  he 
has  a  knowledge  of  the  existence  of  the  lien,  or  of 
circumstances  which  rendered  it  proper  for  him  to 
make  such  further  inquiries,  as  would  probably 
have  brought  to  his  knowledge  the  existence  of  that 
lien,  will  be  ordered,  as  well  as  the  party  who  ac- 
tually received  the  money,  to  make  it  good  to  the 
person  who  has  the  lien. 

A  petition,  praying  that  a  solicitor  might  make 
good  a  sum  of  money,  which  had  been  improperly 
paid  out  of  court  through  his  means,  but  without 
hia  having  any  knowledge  of  the  circumstances 
which  rendered  the  payment  of  it  improper,  was 
dismissed,  without  costs.  Ezart  v.  Lister,  12  Law 
J.  Rep.  (ir.s.)  Ch.  11 ;  5  Bea.  585. 

(b)  NegUgence, 

An  attorney  or  law  agent  is  only  responsible  in 
damages  to  his  client  for  gross  ignorance  or  btom 
negligence  in  the  performance  of  his  professional 
services. 

A  declaration,  or  a  summons  against  an  attorney 
or  a  law  agent,  to  recover  damages  for  loss  occa- 
sioned by  £^8  management  of  a  cause,  must  charge 
gross  ignorance  or  gpross  negligence,  or  must,  at 
least,  contain  allegations  of  facts,  i¥om  which  the 
inference  is  inevitable  that  the  defendant  has  been 
guilty  of  one  or  the  other. 

The  law  as  to  both  these  matters  is  the  same  in 
Biigland  and  in  Scotland.  Purves  v.  Landell,  12 
C.  &  F.  91. 

If  an  attorney  makes  a  mistake  upon  a  point,  on 
which  persons  of  reasonable  skill  may  foirly  enter- 
tain a  doubt,  and,  in  consequence  of  such  mistake, 
his  client  derive  no  benefit  from  his  services,  this 
is  not  such  negligence  as  will  deprive  him  of  his 
right  to  recover  the  amount  of  his  bill. 

By  a  standing  order  of  the  House  of  Lords, 
certain  specific  notices  must  be  given  previous  to 
applying  for  any  "  bill  by  which  any  lands  or  houses 
are  intended  to  be  taken."  A  was  employed  by  B 
as  Mr  agent,  to  apply  for  and  conduct  through  par- 
liament a  bill  for  improving  the  city  of  N.  The 
hill  contained  clauses  to  authorize  the  commis- 
sieners  therein  named  to  take  any  lands  in  the  city 
they  should  think  proper  for  the  purposes  of  the 
act ;  but  it  did  not  appear  that  it  was  intended  to 

Digest,  1840—1845. 


take  any  particular  lands,  or  that  any  would  ever 
be  required.  A  omitted  to  give  the  specific  notice, 
and  the  bill  was  consequently  lost,  for  non-com- 
pliance with  the  standing  order.  In  an  action  by 
A,  for  the  amount  of  his  bill, — Held,  that  it  being  at 
least  doubtful  whether  the  standing  order  applied  to 
such  a  bill,  A  was  not  guilty  of  negligence  in  not 
so  applying  it  Bulmer  v.  Gilman,  1 1  Law  J.  Rep. 
(».».)  C.P.  174 ;  4  M.  &  G.  108;  4  Sc.  (n.b.)  781. 

The  plaintiff*,  an  attorney,  having  been  instructed 
by  his  client  to  prepare  a  warrant  ofattomey,  omitted 
to  state  in  terms  in  the  attestation  that  the  sub- 
scribing attorney  thereby  declared  himself  to  be  the 
attorney  for  the  party  giving  the  instrument,  pur- 
suant to  1  &  2  Vict  c.  110.  s.  9.  The  warrant  of 
attorney  was  afterwards  set  aside  by  a  Judge  on 
account  of  this  omission,  whereby  the  client  lost  his 
debt:— Held, by  Alderson,  B.,  (dubitante  Parke,  B.) 
that  such  statement  ought  to  be  made  in  the  attes- 
tation ;  but  by  all  the  Court,  that  the  omission  to 
make  it  was  not  such  erassa  negUgentia  as  disentitled 
the  attorney  to  recover  against  his  client  the  charges 
of  preparing  the  warrant  of  attorney.  Elkington 
V.  Holland,  II  Law  J.  Rep.  (n.s.)  Exch.  273;  9 
M.  &  W,  659 ;  1  Dowl.  P.C.  (n.s.)  643. 

Where  defendant's  attorney,  on  the  2nd  of  No- 
vember, had  notice  of  trial  for  the  10th,  the  sittings  in 
term ;  and  on  the  1 1th,  the  case  was  tried  as  an  unde- 
fended cause: — the  Court  refused  a  newtrial,upon  an 
afl3davitby  the  defendant's  attorney  that  he  had  mis- 
read the  notice  as  a  notice  for  the  sittings  after  term, 
being  of  opinion  that  he  had  been  gnilty  of  gross 
negligence,  and  there  being  no  affidavit  by  thd 
defendant  himself.  Nash  v.  Swinburne,  1 1  Law  J. 
Rep.  (n.s.)  C.P.  5B;  8  M.  &  G.  680;  4  Sc.  (n.b.) 
826;  1  Dowl.  P.C.  (n.s.)  190. 

Where  an  attorney  has  brought  an  action,  or 
issued  execution,  against  a  wrong  party  purely 
through  mistake,  and  without  being  actuated  by  any 
improper  motive,  thoiigh  substantial  injury  may 
have  resulted,  it  is  damnum  absque  infurid,  and  no 
action  will  lie.  Davies  v.  Jenkins,  12  Law  J.  Rep. 
(N.8.)  Exch.  386 ;  11  M.  &  W.  745 ;  1  Dowl.  &  L. 
P.C.  321. 

Where  a  plaintifiTin  an  action  against  an  attorney, 
for  negligence  in  the  conduct  of  a  suit,  idleges  that 
he  was  "  forced  to  pay"  certain  aums  in  consequence 
of  the  defendant's  negligence,  he  can  only  recover 
the  amount  actually  paid  by  him,  although  a  liabi- 
lity to  a  greater  amount  on  the  part  of  the  plaintiff 
has  been  incurred,  in  consequence  of  the  alleged 
negligence.    Jones  v.  Lewis,  9  Dowl.  P.C.  148. 

(c)  Attaehnent. 

Where  a  plaintifTmoved  for  an  attachment  against 
an  attorney  for  not  entering  an  appearance,  pursuant 
to  his  undertaking ;  and  it  appeared  that  he  had 
not,  previous  to  moving  the  rule,  requested  the 
attorney  to  enter  the  appearance,  the  Court  dis- 
charged the  rule. 

Quare — Whether  in  cases  of  attachment,  the 
service  of  therulemust  be  personal.  Jacob  v.  Magnay, 
12  Law  J.  Rep.  (n.s.)  CI.B.  93. 

[But  see  In  re  Pyne,  ante,  Attachment,  Rule 
for,  p.  44.] 

Where  money  was  wrongfVilly  detained  by  an  at- 
torney from  his  client,  and  a  rule  requiring  him  to 
pay  it  overbad  been  made  absolute  against  him,  and 

II 


50 


ATTORNEY  AND  SOLICITOR— (DmiSB  ahd  Liabimtob). 


it  was  clearly  shewn  he  was  aware  of  what  the  mle 
required  him  to  do,  and  that  he  had  not  complied 
with  it, — the  Court  granted  a  mle  for  an  attachment 
absolute  in  the  first  instance.  Ex  forte  Burgim,  1 
DowL  P.C.  (N.B.)  292. 

(d)  Summary  Jurisdiction^  generally.. 

Where  an  attorney  being  oflf  the  roll,  in  oonae» 
quence  of  his  not  taking  out  his  certificate,  em- 
ployed his  agent  to  sue  out  process^  and  costs  were 
paid  in  the  action  to  the  agent,  the  Court  would  not 
compel  either  the  attorney  or  his  agent  to  refund 
those  costs.    Natk  v.  Qoode,  9  DowL  P.C.  929. 

The  Court  will  not  compel  an  attorney  to  answer 
the  matters  in  the  affidavit  where,  if  the  facts  sug* 
gested  in  the  affidayit  exist,  they  might  be  the  foun- 
dation of  an  indictment  Robertson  v,MiUs,  1  Dowl. 
P.C.  (n.8.)  727.  [And  see  Stephens  y.  Bill,  post,  (e) 
(2),  p.  61.] 

If  an  attorney  receiTes  in  the  charaeter  of  steward 
money  from  his  client,  which  h  is  suggested  was 
improperly  so  received,  the  Court  will  not  compel 
him  summarily  to  reAind  it  Ex  parte  Faith,  9 
Dowl.  P.C.  978. 

The  Court  will  compel  an  attorney  to  perform  an 
undertaking  entered  into  by  him,  even  though  it 
be  void  as  a  contract,  in  consequence  of  non-com- 
pliance with  the  SUtute  of  Frauds.  In  re  HiUiard, 
14  Law  J.  Rep.  (n.8.)  Q.B.  225 ;  2  Dowl.  &  L.  P.C. 
919. 

Where  an  attorney  has  commenced  an  action 
affainst  the  defendant,  without  the  authority  of  the 
plaiutifi^,  either  party  may  apply  to  the  Court  to 
stay  the  proceedings,  and  make  the  attoniey  pay 
his  costs.  Hubbart  v.  PhiUppOf  14  Law  J.  Rep.  (n.8.) 
Exch.  103;  13  M.&  W.  702;  2  Dowl.  &  L.  P.C. 
707. 

Where  an  attorney  was  intrusted  by  executors 
with  a  sum  of  money,  for  the  purpose  of  paying 
legacy  duty,  and  failed  so  to  apply  it,  the  Court 
refused  to  interfere  summarily  to  compel  him  to 
refund  the  money,  as  it  did  not  appear  that  this 
employment  was  neoeswiry  in  his  prcrfessional  cha- 
racter, or  that  he  had  on  other  occasions  ever  acted 
as  attorney  for  the  parties.  In  re  Wehb,  14  Law  J. 
Rep.  (N.B.)  aB.  244;  2  Dowl.  &  L.  P.C.  932. 

The  Court  refused  to  grant  a  rule,  calling  upon 
an  attorney  to  deliver  up  papers,  when  it  appeared 
that  the  documents  had  come  into  his  possession  as 
executor  to  his  father,  who  had  been  an  attorney  to 
the  applicant,  but  the  applicant  did  not  adopt  the 
son  as  his  professional  agent  E*  parte  NiehoUs, 
12  Law  J.  Rep.  (n.s.)  Q.B.  103 ;  2  DowL  P.C.  (n.8.) 
423. 

Where  a  party  had  employed  an  attorney  who 
had  died,  and  whose  son,  also  an  attorney,  had  got 
possession  of  documents,  as  executor  to  his  father, 
and  claimed  to  act,  but  had  never  acted,  as  the 
party's  attorney : — Held,  that  he  could  not  be  called 
upon  summarily  to  deliver  up  the  documents.  In 
re  Nicholls,  12  Law  J.  Rep.  (n.8.)  Q.B.  103 ;  2 
Dowl.  P.C.  (n.8.)  423. 

Where  a  person  during  his  imprisonment 
employed  an  attorney  to  conduct  an  application  for 
his  discharge  by  the  Insolvent  Court,  and  the  attor- 
ney refused  to  proceed  until  he  had  signed  a  pro- 
missory note,  which  be  did,  under  protest ;  and  after 
the  discharge  of  the  prisoner  an  action  was  brought 


tqKm  the  note  in  the  name  of  the  eMc  of  the  attor- 
ney, who,  it  waa  sworn,  was  believed  not  t»  Iw  inter, 
ested  in  it,  the  Court  refused  to  grant  a  itile,  e$llii^ 
upon  the  attorney  to  give  up  dse  note,  upon  the 
ground  of  its  having  been  obtained  by  dureaa  and 
fraud.     WidtsY.  Blaney,  1  DowL  &  L.  P.C*  203. 

A  solicitor  having  inserted  acandalwis  oaatter  in 
an  answer,  and  put  counsel's  name  thereto  withent 
authority,  waa  committed,  and  ordered  to  pay  costs. 
WHHams  v.  Douglas,  6  Bea.  83. 

Where  a  party  to  a  suit,  whowaaalaoa  solioitorand 
had  the  conduct  of  a  sale  decreed  by  the  Cotit, 
pnrohased  at  the  sale  undar  a  feigned  nAOie,-^Xhe 
Court,  after  the  purchase  had  been  eonfirmedy  or> 
dered  the  estate  to  be  again  offisred  for  sale  at  the 
priee  at  which  the  party  had  pnrchaaed  U,  and  if 
there  should  be  no  higher  bidder,  the  party  to  he 
held  to  hia  purchase.  Mdneyr.  Ranger,  12  Ska. 
119. 

A  bill  filed  without  the  authority  of  the  plaintiff 
was  dismissed  widi  costs^  and  ^e  pfalntifir  waa  taken 
under  an  attachment  for  noor^paynMiit  of  costs.  The 
Court,  on  motion,  ordered  the  solicitor  to  isderanify 
the  plaintiff  but  refused  to  release  him,  aa  against 
the  claim  of  the  defendants.  Held,  also,  that  the 
plaintiff  was  not,  on  such  an  application,  to  be  de- 
prived of  hia  right  against  the  solicitor  to  danaAes 
for  his  imprisonment    Hood  v.  PMUips,  6  Bea.  176L 

The  Court  has  no  authoitty,  upon  a  pei^an  by 
a  client  against  bis  solicitor,  to  give  relief  founded 
on  a  special  agreement.  AkMomdar  v.  Auderdtn^.S 
Bea.  405. 

A  retainer  in  a  eause  given  to  a  firm  of  eolicitom 
is  discharged  by  the  voluntary  retixvmentof  oneef 
the  finn ;  and  the  client,  hanag  substituted  a  new 
solicitor,  is  entitled  to  have  the  papers  delivered 
over  to  such  new  solicitor,  for  the  purposes  of  the 
cause,  without  previous  payment  of  the  coata,  saving 
to  the  farmer  solioitors,  or  any  of  them,  their  lien 
on  the  papers  for  their  coats  fnourred.  ChifiUlwr, 
Qr^Uks,  12  Law  J.  Rep.  (n.b.)  Gh.  397 ;  2  Haie, 
687. 

(e)  Striking  qf  the  AoUL 

(I)  M  his  own  Request. 

Where  an  attorney  applies  to  be  struck  off  the 
roll  at  his  own  request,  the  affidavit  auppoiting 
the  application  must  be  stamped.  Ea  parte  Wat' 
kinst  9  DowL  P.C.  974. 

Where  an  attorney  applies  to  be  struck  off  the 
roll  at  bis  own  request,  he  must  not  only  swear  that 
no  proceedings  are  pending  againat  him,  but  also 
that  he  expecta  none.  Ea  parte  Oray^  9  DowL  P*C. 
336. 

(2)  For  Misconduct. 

A  solicitor  was  struck  off  the  rolls  for  fraudulently 
abusing  the  confidence  of  his  client 

1 1  is  the  duty  of  the  Courtto  protect  soUcitorain  the 
fair  discharge  of  their  difficult  and  delicate  dntiest 
but  when  a  solicitor  is  found  to  have  avuled  himself 
of  his  honourable  and  confidential  poaition  for  the 
purpose  of  taking  advantage  of  and  defrauding  his 
clients,  it  is  not  less  the  duty  of  the  Court  to  with- 
draw from  him  those  privileges  and  that  oertifieate 
of  character  which  are  afforded  by  hia  being  per- 
mitted to  remain  on  the  roll  of  solicitors.  In  re 
Martin,  6  Bea.  337. 


I 

J 


ATTORNEY  AND  SOLICITOR. 


51 


A  mlo  probiibitiiig  kn  attorney  from  pfsctiting  in 
tbe  ConmKkn  Picas  granted,  npoo  reading  a  rule  of 
tke  Queen's  Besob  for  the  like  purpose.  In  re 
WkftBhgad,  4  M.  It  Q.  768 ;  5  So.  (if.8.)  2M. 

The  Court  miXi  not  enteftain  a  motion  to  atrike 
an  attorney  off  the  rolls  on  the  application  of  a 
ptnty  who  haa  been  his  dient,  on  the  suggestion  of 
gwnbiiBg  frauds  oommitted  sinee  the  termination 
of  die  bdsineas  which  the  attorney  conducted  for 
him ;  there  being  also  proceedings  pending  in  equity 
in  reapect  of  the  same  frauds.  In  re  ,  one,  i^c, 
12  Law  J.  Rep.  (ha)  Q.B.  881. 

^ongb  an  attorney  may  be  liable  to  an  indict- 
ment for  miacondnct  in  a  cause,  the  Court  will, 
before  ooiiTietion,  entertain  a  rule  to  strike  bim 
otf  the  roll,  though  not  to  oompel  him  to  answer 
aAdavits. 

To  procure  the  absenee  of  an  immaterial  witness 
subpoenaed  by  the  opposite  party,  is  such  miscon- 
duct in  B  suit  as  will  mduce  the  Court  to  strike  an 
attorney  off  the  roll,  or  to  prohibit  him  from  prae- 
tistAg  in  the  court.  SUphene  ▼.  HUl,  1 1  Law  J.  JElep. 
(lU.)  fixcfa.  829;  10  M.  ft  W.  28 ;  1  Dowl.  P.C.- 
(1I.B.)  669. 

(I)  Rbtaiubr. 

{See  jtmoidr,  Majforef  Peok^'^^  Cobporatiom.] 
Hie  ptaintiff  was  partner,  as  an  attomej  and  so- 
Uoitor,  with  J,  town  olerk  to  the  defendants  (the 
cerporatioo  of  B).    The  defendants  made  an  order 
Aat  the  town  elerk  ahould  defend  and  proseente  an 
aUeged  right  of  the  corporation.    At  this  time,  by 
SB  aceidental  omission,  J  was  off  the  rolls  of  the 
oeuTt,  and  unable  to  pnctise ;  but  this  feet  was  not 
known  to  the  defendants  until  after  the  work  was 
done.    Certaia  parties  having  been  charged  at  the 
Sessions  for  the  borough  (which  was  a  county  in 
itself)  with  a  misdemeanour,  arising  out  of  the 
assertion  of  this  right,  the  pkintiff  conducted  their 
defmoe,  and  removed  the  bills  by  vertiormrif  and 
continued  to  conduct  it  until  judgment  was  passed. 
It  waa  not  found  in  the  case  in  which  these  facts 
were  stated  that  the  town  cleric  was  also  clerk  of  the 
peace : — Held,  in  an  action  by  the  plaintiff  against 
the  defendants,  for  work  done  as  attorney  and  soli- 
citor on  their  retainer,  that  from  these  facts  no  re- 
tainer of  the  plaintiff  could  be  implied,  although 
part  of  the  amount  charged  had  been  paid  by  the 
defendants  into  court.    Steaventon  t.  MaynTf  i^,  vf 
Berwhk,  10  Law  J.  Rep.  (ir.s.)  aB.  96;   1  aB. 
IM;  4P.  &D.  546. 

Id  an  action  on  an  attorney's  bill  against  two  de- 
fendants, »  plea  of  payment  of  money  into  court 
does  not  admit  a  retainer  by  both  defendants,  so 
as  to  charge  them  lor  anything  beyond  the  amount 
paid  in,  although  there  may  be  some  evidence,  as 
against  one  of  the  defendsnts,  to  a  further  amount 
It  is  no  ground  for  refusing  to  enter  a  nonsuit, 
&at  the  pMntiff'e  counsel  at  file  trial,  relying  on 
the  indication  of  the  Judge's  opinion  that  Siere 
wss  something  to  go  to  the  jury,  abstained  from 
calling  other  witnesses,  upon  which  the  defends nt 
caHed  witneases,  and  the  jury  found  for  the  plaintiff 
on  the  whole  of  the  evidence.  Jreher  v.  Engiiehf 
10  Law  J.  Rep.  (h.s.)  G.P.  15;  1  M.  &  O.  H73| 
3  Sc  (wa)  1&6, 

The  retainer  of  a  solicitor  need  not  be  in  writing ; 
but  if  he  neglects  taking  that  precaution,  and  Us 


retainer  being  afWrwards  questioned,  there  is  no- 
thing but  assertion  against  assertion,  he  must  bear 
the  costs  of  the  risk  he  undertakes.  Wiggins  v. 
JP«p^,  2Bea.403. 

The  fact  that  a  party  (knowing  that  his  name 
has,  without  authority,  been  introduced  as  plaintiff 
by^  the  solicitor  of  some  of  the  other  p)ainti£&  in  a 
suit)  does  not  take  any  active  steps  to  have  his 
name  expunged  as  plaintiff  from  the  record,  is  not, 
as  between  £at  party  and  the  solicitor,  equivalent 
to  a  retainer  or  an  adoption  of  the  latter  as  his  soli- 
dtor.     Hall  v.  Xooer,  1  Hare,  571. 

A  suit  instituted  by  a  solicitor  without  authority, 
dismissed  on  motion,  with  oosts  of  the  suit  and  of 
the  motion  as  between  solicitor  and  client.  Allen  v. 
Bone,  4  Bea.  498. 

[See  6r\giths  v.  Griffiths  (H)  {d),  tmU,  p.  50.] 

(K)  Changing  Attornbt. 

Solicitors  are  not  to  be  changed  without  an  order 
of  Court  Orders  of  26th  October,  1842,  xviii.,  12 
Law  J.  Rep.  (ii.s.)  Ch.  8 ;  8  Bea.  lix. ;  1  Ph.  xxviii. 

After  demurrer  allowed,  the  plaintiff's  solicitor 
refused  to  proceed  until  payment  of  his  bill: — Held, 
that  he  was  bound  to  deliver  over  the  papers  to  the 
new  solicitor  of  the  plaintiff,  on  the  usual  under- 
taking as  to  lien  and  re-delivery;  but  that  the  party 
ought,  under  the  ciroumstsnces,  to  undertake  to  pro- 
secute the  suit  with  due  diligence.  Cane  v.  Martin^ 
2  Bea.  584. 

[And  see  Griffiths  v.  Griffiths,  anle^  (d)  Summary 
Jurisdiction.] 

Where  on  a  change  of  the  attorney,  the  new  one 
undertook  to  hold  the  record  and  papers,  sub- 
ject to  the  Uen  of  the  former  :-^Held,  that  on  the 
successful  termination  of  the  suit,  the  former  might 
compel  the  latter  to  proceed  with  the  taxation, 
issue  execution,  and  satisfy  his  lien,  subject  only 
to  the  costs  incurred  in  such  taxation*  Newton  v. 
norland,  ^Sc.{v.s.)769, 

(L)  Dealings  with  Client. 

Carter  v.  Palmer,  4  Law  J.  Dig.  46 ;  8  C.  &  F. 
057. 

Signification  of  the  term  **  undue  influence"  as 
applied  to  transactions  between  solicitor  and  client. 
Cashome  v.  Barsham,  2  Bea.  76. 

A  security  taken  by  a  solicitor  for  future  costs  is 
not  valid.  Booth  v.  Creewicke,  13  Law  J.  Bicp.  (n.s.) 
Ch.217. 

A,  a  solicitor,  had  various  dealings,  professionally 
and  otherwise,  with  B.  After  the  death  of  A, 
charges  were  brought  against  B  of  a  sum  of  8,000^ 
for  money  lent  to  him  by  A,  and  another  sum  for 
professional  business  done  for  him.  Evidence  waa 
adduced  that  B  had  been  in  the  habit  of  paying 
sums  on  account  of  interest  to  A,  and  that  B  had 
soon  after  the  death  of  A  distinctly  admitted  that 
8,000/L  was  due  from  him  to  A.  A  verdict  at  law 
had  been  obtained  against  B  for  that  sum,  on  an 
account  stated  by  the  executrix  of  A,  but  further 
proceedings  had  been  stayed  by  injunction.  In 
a  bill  by  B  against  the  executrix  of  A,  to  open  all 
the  accounts  between  A  and  B : — Held,  that  the 
sum  of  3,000L  was  a  legitimate  item  against  B,  and 
not  to  be  disputed.  Abbey  v.  Fetch,  11  Law  J.  Rep. 
(N.8.)Ch.l24;  1  Y.  &  Coll.  C.C.  258. 

Considerable  costs  having  been  incurred  by  B; 


52 


ATTORNEY  AND  SOUCITOR. 


as  the  solicitor  of  A,  in  recovering  certain  property 
to  which  A  was  entitled,  and  B  pressing  for  pay- 
ment, A  executed  to  B  a  conveyance  of  two  farms 
(not  the  subject  of  the  litigation;,  the  consideration 
for  which  was  composed  partly  of  the  costs  due 
and  partly  of  money  paid.  On  a  bill  by  A  to 
set  aside  the  sale,  on  the  ground  that  it  was  a  pur- 
chase  by  a  solicitor  from  his  client  during  the 
existence  of  the  connexion  and  under  pressure : — 
Held,  that  B,  not  being  solicitor  t«  hdc  re,  was  only 
bound  to  shew  that  he  gave  the  fur  value,  and 
withheld  no  information  £rom  his  client  which  he 
himself  possessed;  and  on  proof  of  that  by  B,  the 
bill  was  dismissed,  without  costs. 

Though  the  onus  of  proof  in  such  transactions 
rests  on  the  solicitor,  the  nature  of  the  proof  re- 
quired will  vary  with  the  circumstances  of  each  case. 

A  solicitor,  purchasing  of  his  client,  is  not  bound 
to  communicate  to  him  contingent  advantages, 
which  are  mere  matters  of  speculation,  and  may 
equally  be  in  the  knowledge  of  either  party.  Ed- 
VKords  V.  Meyrick,  12  Law  J.  Rep,  (n.s.)  Ch.  49 ; 

2  Hare,  60. 

A  solici  tor  knowingly  procuring  trustees  to  commit 
a  breach  of  trust  for  his  benefit,  must  be  considered 
as  a  partaker  in  the  breach  of  trust     Tyler  v.  Tyl^rt 

3  Bea.  550. 

A  trustee,  who  was  not  authorized  to  lend  the 
trust  money  on  leasehold  security,  applied  to  his 
solicitors  to  procure  an  investment  for  some  trust 
money,  so  as  to  produce  a  larger  Income.  The 
solicitors  had  a  client  who  was  considerably  indebted 
to  them,  and  who  wanted  to  borrow  money  on 
leasehold  security,  and  they  proposed  it  to  the 
trustee.  The  truslee  personally  took  measures  to 
ascertain  the  value  and  validity  of  the  security, 
and  thereupon  advanced  the  money,  which  was  paid 
to  the  solicitors  and  carried  to  the  credit  of  their 
debtor*s  account.  The  solicitors  acted  on  behalf 
of  the  borrower,  and  to  some  extent  for  the  trustee, 
but  another  solicitor  also  acted  for  him  and  for  one 
of  the  cestui  que  irusl*  in  the  matter.  The  soli- 
citors had  notice  that  the  fund  was  trust  money,  in 
which  infants  were  interested,  but  had  no  know- 
ledge of  the  trusts,  or  of  the  limited  powers  of  the 
trustee.  The  security  turned  out  ample,  but  part 
of  the  trust  funds  were  afterwards  lost,  by  being 
transferred  to  a  umilar  security  of  the  same  party. 
The  lending  on  leaseholds  being  a  breach  of  trust, 
— Held,  that  the  solicitors  were  not  liable  to  the 
sesiui  que  trutlt  for  the  loss.    Ibid. 

(M)  Partnersbif. 

Quart — ^Whether  a  court  of  equity  will  enforce  the 
specific  performance  of  an  agreement,  that,  upon 
the  retirement  of  a  solicitor  from  a  co-partnership, 
the  remaining  partner  shall  carry  on  the  business 
in  the  name  of  tiie  retiring  partner.  Thombury  v. 
BevUl,  1  Y.  &  Coll.  C.C.  554. 

The  implied  authority  of  one  partner  to  bind  a 
firm  by  promissory  notes  or  bills  of  exchange, 
signed  by  him  in  the  name  of  the  partnership,  ex- 
ists only  in  partnerships  in  trade ;  and  consequently, 
not  in  a  firm  of  attornies  or  solicitors.  Hedley  v. 
Bainbridge,  1 1  Law  J.  Rep.  (n.s.)  aB.  203  ;  3  aB. 
316;  2G.&D.483. 

One  partner  has  no  power  to  bind  another  by 
using  the  name  of  the  firm  in  a  matter  which  is  not 


in  the  uausl  course  of  the  partq«i#uF  buupfas; 
and,  Uierefore,  where  one  of  twoattonue«,  partnfln» 
signed  the  partnership  name  to  an  undertaking  for 
the  payment  of  a  debt  and  costs  to  a  plaintiff  in 
an  action  against  a  client  of  tb<e  firm*  in  erder.to 
procure  his  discharge  from  custody  i-^-Held,  thgt 
such  undertaking  was  not  binding  oa  ibo  other 
partner.  JHatUbam  v.  Youwg^  13  Law  J.  Rep.  (v^ 
OB.  205 ;  5  Q.B.  833  {  1  D.  &  M.  700. 

(N)  AOREBWEKT  WOT  TO  FBACTUE- 

An  agreement  by  a  aolioitor  for  valuable  ocn- 
•ideraUon  not  to  practise  as  a  soUoitor  in  any  fait 
of  Great  Britain  for  twenty  yeasa^ — H«ld»  valid. 
Whitfahm-  v.  Hmm,  3  Boa.  33?. 

(O)  Bill  op  Costs. 
[See  Bills  of  fixcHAMas  ahd  Fjuoiussout  Notes 

— COBTt.] 

(a)  Delivery  of. 

A  bill  for  work  done  by  two  attornies  in  partner- 
ship was  delivered,  rigned  by  one  of  them,  in  these 
terms : — "  This  is  our  bill.  For  self  and  Robert 
Owen,  J.  H.  Dixon** : — Held,  that  this  was  a  suffi- 
cient signature,  within  the  statute  2  Geo.  2.  c.  23. 
s.  23.  Owen  v.  Seatee,  12  Law  J.  Rep.  (n.8.)  Exch. 
26 ;  10  M.  &  W.  657 ;  2  DowL  P.C.  (¥.9.)  304. 

Where  an  unsigned  bill  of  costs  was  sent  by  an 
attorney,  which  did  not  on  the  face  of  it  charge  any 
peraoUf  but  was  accompanied  by  a  letter»  signed  by 
the  attoniey,  referring  to  the  bill,  and  charging  the 
defendant  with  the  amount  of  it : — Held,  that  the 
letter  and  the  bill  must  be  read  together,  and  that 
this  was  a  sufficient  delivery  withiQ  6  Si  7  Vict 
c.  73.  s.  37.  Taylor  v.  Hadgam,  14  Law  J.  Rep. 
(if.8.)  Q.B.310  s  3  Dowl.  &  L.  P.C.  115. 

Under  2  Geo.  2.  c.  23.  the  name  of  the  Cooit  in 
which  the  business  has  been  done,  and  the  mom  of 
the  cause,  should  be  stated  in  an  attorney's  bill 
delivered  to  his  client  Lewie  v.  Primroee,  13  Law 
J.  Rep.  (N.S.)  aB.  269 ;  6  aB.  265. 

Where  on  a  stay  of  proceedings,  the  defendant 
undertook  to  pay  the  debt  and  costs  within  a  certain 
time,  which  were  afterwards  settled  by  the  plain<> 
tiff's  attorney  agreeing  to  take  a  certain  sum  in 
consideration  of  an  agreed  sum  to  be  paid  to  him  for 
costs,  no  bill  being  delivered : — a  rule  granted  for 
his  delivering  a  bill.  Tanner  v.  Lea,  4  M.  &  G.  6 1 7 ; 
6Sc.(n.s.)237. 

Proceedings  before  commissioners  in  a  oonntiy 
fiat  of  bankruptcy  are  not  proceedings  in  a  court 
of  law  or  equity  under  the  statute  I  &  2  WiU.  ^ 
c.  5Q. 

Therefore,  the  bill  of  costs  of  the  solicitor  to  tbe 
assignees  in  such  bankruptcy  (the  items  of  charge 
in  such  bill  appearing  to  relate  to  proceedings  be- 
fore the  country  commissioners  only)  is  not  a  bill 
which  must  be  delivered  one  month  before  action 
brought  for  the  amount  of  it  under  statute  2  Gee.  2. 
o.  23.  s.  23. 

The  inrolment  in  the  Court  of  Bankruptcy  (under 
2  &  3  WiU.  4.  c.  144.  ss.  5,  8.)  of  such  prooeedioga 
before  country  commissioners,  does  not  make  thenx 
proceedings  in  the  Court,  previous  to  such  inrol- 
ment 

If  a  creditor,  who  has  an  equitable  mortgage  «pon 
property  of  the  bankrupt,  sell  such  property,  with- 


ATTORNEY  AND  SOLICITOR— (Bill  of  Cobtb.) 


63 


out  aa  order  from  the  Court  of  ReVieiw,  he  cannot 
lecotertbe  expenses  of  the  sale  from  the  airsignees, 
thoagh  he  be  iilao  one  of  the  aolicitoni  to  the  astig- 
neee^  and  they  aathorised  the  sale.  Harper  v.  WiU 
Bam,  10  Law  J.  Rep.  (w.s.)  C.P.  189{  2  M.  &  O. 
815 ;  3  8c.  (N.S.)  97 ;  9  Dowl.  P.C.  618. 

In  Octoher  1842,  S  wrote  to  B,  requesting  to  be 
Hamished,  through  D  his  solicitor,  with  his  accounts 
«nd  bills  of  costs.  D  shortly  afrerwardt  wrote  to 
B,  requesting  that  the  hills  might  be  sent  for  him 
through  B's  London  agent,  Messrs.  H  &  Co.  In 
May  1 848,  the  bills  of  costs,  nnaagned  by  B,  Were 
sent  to  Messrs.  H  ft  Co.,  but  they  were  accompanied 
by  a  letter,  anbaoribed  by  B,  which  referred  to  the 
bilis ;  and  subsequently,  by  letter  of  D  to  B,  he  ( D) 
acknowledged  the  receipt  of  the  bflls  in  question. 
In  June  1844,  a  petition  was  presented,  seeking 
taxatwn  of  ihe  %iHs  of -costs,  which  was  dismtssed 
with  costs,  on  the  groand  that  there  waa  a  good  de- 
livery of  the  bills  more  than  twelre  months  before 
the  application  to  tax  them.  In  re  Bush,  14  Law  J. 
Bep.(vji.)€h.«. 

[And  aee  in  re  WkUeombe,  jNMf,  (ft)  (1).] 

(It)  Taxation  qf. 

(1)  GenertUlg,  hoWf  when,  upon  whose  appHeaiionf  and 
by  whom  to  be  iaxetL 

TogkUl  Y.  Grant,  4  Law  J.  Dig.  49 ;  2  Bea.  261. 

Where  an  action  is  brought  to  recover  the  amount 
of  an  attorney's  bill,  and  it  is  referred  to  taxation 
by  the  usual  order  obtained  at  the  instance  of  the 
defendant,  the  Master  has  power  to  determine 
whether  certain  items  were  necessary,  and  the  Court 
win  not  review  his  taxation  on  the  ground  that  such 
disallowance  is  an  excess  of  jurisdiction.  WiUiaans 
w.  Kiehokw,  1  Dowl.  P.C.  (if.s.)  840. 

In  taxing  a  bill  deliyered  by  two  attomies,  the 
Master  has  no  authority  to  disallow  charges,  on  the 
grounds  alleged  by  one  party  and  denied  by  the 
«ther,  that  one  of  the  attomies  had  not  a  certificate 
when  part  of  the  work  was  done,  and  that  the  work 
was  useless  to  the  client  through  the  negligence  of 
the  attomies.  MaUiheH  v.  Parkess  1 1  Law  J.  Rep. 
(HA)  Exch.  287;  9  M.  &  W.  767;  1  Dowl.  P.C. 
(M.8.)  924. 

Upon  the  trial  of  a  cause  in  the  country,  in 
aaaampsit,  before  a  Judge,  where  the  sum  is  under 
202.,  and  the  Judge  refuses  to  certify  that  it  was  a 
proper  cause  to  be  tried  before  him,  the  allowance 
to  the  attorney  is  to  be  according  to  schedule  8.  in 
tile  directions  to  taxing  officers  of  Hilary  Vac.  4 
Will.  4,  namely,  "  Attending  court  on  trial,  R  Is" 
The  scale  applies  to  a  country  as  well  as  to  a  town 
canse.  Gibbs  v.  Whatley^  18  Law  J.  Rep.  (ir.s.) 
Q.B.16;  6  aB.  396:  1  D.  &  M.  443. 

The  Court  of  Queen's  Bench  will  not  direct  the 
bill  of  an  attorney  for  business  done  in  Bankrapt- 
cy  to  be  taxed  by  its  own  officer.  In  re  Hawker, 
9  Dowl.  P.C.  188.  [And  see  Harper  v.  mmams, 
mute  (a),  p.  62.] 

Where  an  action  is  brought  against  an  attorney, 
and  he  pleads  a  set-off  of  his  bill  for  business  done 
in  equity  only,  the  Court  will  not  direct  his  bill  to 
be  taxed.     SiaUr  r.  Brookes,  9  DowL  P.C.  349. 

The  directions  to  taxing  officers,  authorizing 
them,  in  cases  to  which  the  rule  of  Trinity  term, 
1  Will.  4,  for  shortening  declarations,  applies,  to 
allow  !/.  18«.  tot  the  declaration,  do  not  extend  to 


cases  in  which  more  than  one  action  is  brought  on  the 
same  bill  or  note:  in  such  case,  the  taxing  officer  is 
to  allow  according  to  the  length  of  the  decla- 
ration. 

An  attorney  who  charges  in  his  bill  of  costs  more 
than,  according  to  the  established  practice  of  the 
courts,  he  is  entitied  to,  will  be  visited  with  the 
costs  of  obtaining  a  rnle  to  refund,  though  no  ob- 
jection has  been  made  to  the  overcharge.  Cripps 
V.  Field,  10  Law  J.  Rep.  (N.d.)  Exch.  422 ;  8  M. 
&  W.  669. 

Where  some  charges  in  an  attorney's  bill  were 
too  bi^h  and  others  too  low,  and  for  others  of  a 
discretionary  kind  blanks  were  left  where  the  sums 
ought  to  have  been,  the  Court  refused  to  order  the 
Master  to  review  his  taxation,  by  filling  up  the 
blanks,  although  it  was  not  sought  to  increase  the 
gross  amount  of  the  bill.  Eyre  v.  Sheilep,  10  Law 
J.  Rep.  (N.s.)  Exch.  296  ;  8  M.  &  W.  154. 

The  Coort  will  not  refer  to  taxation  an  attorney's 
bill  containing  taxable  items  where  an  action  is 
brought  upon  it  by  his  exeouter. 

To  give  the  Court  jurisdiction  to  refer  a  bill  to 
taxation,  the  action  must  be  brought  by  an  attorney 
on  his  bill,  and  the  bill  must  contain  taxable  itemt. 
WiUiams  r.  Gr^th,  11  Law  1.  Rep.  (if.s.)  Exch. 
341 ;  10  M.  &  W.  126  i  2  Dowl.  P.C.  (n.s.)  281. 

Where  a  security  has  been  given  during  litigation 
for  the  amount  of  a  bill  of  costs,  the  Court  will  not 
after  long  acquiescence,  open  the  bill  because  there 
are  items  which  would  not  be  allowed  on  taxation. 
Secus,  where  gross  errors  and  overcharges  are  pointed 
out.  In  this  case,  special  inquiries  were  directed. 
Edivards  v.  Meyrick,  12  Law  J.  Rep.  (n.s.)  Ch.  49 ; 
2  Hare,  60. 

The  bill  of  fees  and  charges  of  a  steward  of  a 
manor,  who  is  a  solicitor,  but  is  employed  only  for 
the  purpose  of  preparing  a  surrender,  admittance, 
ftc,  of  a  purchaser  to  lands  holden  of  the  manor,  in 
his  character  of  steward,  is  not  taxable  under  the 
6  &  7  Vict  c.  73. 

The  act  does  not  confer  the  right  to  tax  every 
bill  of  a  solicitor,  for  all  kinds  of  employment  in 
which  he  may  at  anytime  be  engaged. 

Although  a  bill  may  be  directed  to  be  taxed, 
where  no  part  of  the  business  was  transacted  in  any 
court  of  law  or  equity,  still  such  business  must  be 
connected  with  the  profession  of  an  attorney  or  soli- 
citor— ^business  in  which  the  attorney  or  solicitor 
was  employed  because  he  was  such,  or  in  which  he 
would  not  have  been  employed  if  he  had  not  been 
an  attorney  or  solicitor.  Allen  v.  Aldridge,  in  re 
Ward,  13  Law  J.  Rep.  (n.8.)  Ch.  165  ;  6  Bea.  401. 

The  procuring  a  quietus  on  a  bond  for  malt 
duties  to  be  registered  by  the  senior  Master  of  the 
Court  of  Common  Pleas,  is  not  business  done  in 
that  court,  so  as  to  preclude  the  Master  of  the  Rolls 
from  ordering  the  taxation  of  a  bill  containing  items 
for  such  business.  In  re  Gattskell^  14  Law  J.  Rep. 
(ir.s.)  Ch.  460. 

A  bill  for  agency  business  cannot  be  referred  to 
taxation,  under  6  &  7  Vict  c.  73.  In  re  Gedye^ 
and  Gedyey.  Etgie,  14  Law  J.  Rep.  (n.s.)  Q.B.  238 ; 
2  Dowl.  &  L.  P.C.  916. 

Where  the  attorney  for  a  party  in  a  cause  which 
had  been  referred  employed  another  attorney  to 
appear  for  him  before  the  arbitrator  as  the  advocate: 
^— Held,  that  the  bill  delivered  for  this  business  waa 


54 


ATTORNEY  AND  SOLICITOIU-(Biix  or  Cobts). 


not  taxable.  In  rt  Simoiu,  14  Law  J.  Rep.  (n.s.) 
Q.B.  41 ;  2  Dowl.  &  L.  P.C.  500. 

Where,  in  the  course  of  a  proaeontion  by  the 
Post-office  for  forgfery,  which  was  tried  in  the 
country,  the  attorney  to  the  Post-office  employed  a 
country  attorney  to  do  such  part  of  the  business 
as  could  not  be  performed  in  London : — Held,  that 
the  business  was  done  in  the  character  of  agent,  and 
that  the  bill  was  not  taxable,  notwithstanding  that 
it  charged  the  principal  attorney  not  with  a  propor. 
tion,  but  with  the  whole  amount  of  the  profits  arising 
from  the  business  which  was  so  done.  Simtnu  r. 
Peaeoekj  in  re  Simons,  14  Law  J.  Rep.  (n.8.)  Q.B. 
296;  3  DowL  &  L.  P.C.  166. 

A  bill  of  costs  waa  made  out  by  C,  a  oountry 
aoKcitor,  against  F  &  A,  also  solicitors,  living  in 
the  country.  A  part  of  the  businees  to  which  the 
bill  of  costs  related  had  been  transacted  by  C  at  the 
instance  of  B  &  B,  the  agents  in  town  of  F  ft  A, 
and  the  payment  of  the  biU  had  been  applied  for  by 
C  to  both  F  &  A  and  B  &  B  :~Held,  that  an  order 
obtained  ex  parte  by  B  ft  B  for  taxation  of  the  bill 
was  irregular  and  must  be  dismissed,  but,  under  the 
circumstances,  without  costs.  In  re  Carven,  14  Law 
J.  Rep.  (ir.8.)  Ch.  372. 

Certain  actions  of  ejectment  having  been  brought 
by  the  heirs-at-law  against  the  deviseea  for  the  re- 
covery of  devised  estates,  a  compromise  was  effected, 
by  which  it  was  agreed  that  the  devisees  should 
pay  10,000£i,  of  which  the  six  heirs  were  to  tid^e 
each  1,000^.,  and  their  solicitors  the  remaining 
4,0002.,  in  satisfaction  of  their  bills  of  costs,  charges, 
and  disbursements.  One  of  the  heirs  afterwards 
repudiated  the  agreement  as  regarded  the  costs,  and 
received  his  full  sixth  share  of  the  whole  10,000/., 
auhject  to  payment  by  him  of  his  share  of  the  soli- 
citors' bills  of  costs,  but  the  other  heirs  received 
each  1,0001,  and  accepted  a  receipt  in  full  of  all 
demands  from  their  solicitors,  in  respect  of  the 
bills  of  costs : — Held,  that  the  five  co-heirs  could 
not  sustain  a  petition  for  delivery  and  taxation  of 
the  bills  of  costs,  relating  to  the  proceedings  in  the 
action  and  suits  in  equity,  connected  with  theirclaims. 

Courts  of  equity  look  jealously  on  transactions 
like  the  above,  for  although  an  agreement  to  accept 
a  sum  of  money  in  satisfaction  of  all  costs  due  to  a 
solicitor  may  be  perfectiy  good,  still  one  party  may 
have  full  knowledge  of  the  subject,  but  the  other  not 

In  the  present  case  the  petition  was  rejfused, 
without  costs.  In  re  fFhiteombe,  14  Law  J.  Rep. 
(n.8.)  Ch.  20. 

One  of  two  executors,  although  beneficially  in- 
terested in  the  testator's  estate,  cannot  obtam  an 
order  for  taxation  of  a  hill  of  costs  delivered  to  the 
executors  jointiy.  In  re  Perkini,  14  Law  J.  Rep. 
(n.8.)  Ch.  168. 

Under  the  87th  section  of  the  act  6  ft  7  Vict 
c.  78,  a  bill  of  costs  which  has  been  delivered,  though 
not  signed  by  the  solicitor,  or  inclosed  in  a  letter 
signed  by  him  referring  to  it,  may  be  referred  by 
the  Court  for  taxation. 

Where  separate  and  distinct  bills  of  costs  hare 
been  delivered  by  a  solicitor  at  different  times  in 
respect  of  business  transacted  for  the  client  person- 
ally, and  also  for  business  transacted  for  a  party 
since  deceased,  whose  legal  personal  representative 
the  same  client  is,  two  several  orders  of  the  Court 
directing  the  taxation  must  be  applied  for. 


A  client  obtained  an  otder,  of  oooym,  to  tax  a 
Bolidtor's  bill  of  costs  that  had  been  delivered  to 
him,  and  therein  the  solicitor  was  directed  to  deli- 
ver up  all  papers,  ftc,  belonging  to  the  dient  on 
payment  of  the  amount  to  be  found  due :  the  soli- 
citor had  other  papers,  ftc.  besides  those  that  related 
to  the  bnaineMi  referred  to  in  the  hill  of  costs  in 
question)  and  in  vespeet  of  which  he  claimed  to 
have  a  lien  for  other  eoets,  but  the  Court,  under 
the  oireomstasces  adduced,  declined  to  diacfaarge 
the  order  for  irregularity.  In  re  Pender ,  14  Law  J. 
Rep.  (N.8.)  Ch.  277. 

An  act  of  parliament  authorised  a  railway  com- 
pany to  make  purchases  of  land,  for  the  purposes 
of  their  railway,  and  provided  for  the  payment  of 
the  costs,  charges,  and  expenses  incurred  in  the 
pnrohase  of  bads,  and  the  taxation  thereof;  after- 
wards, the  company  entered  into  articles  of  agese- 
ment  witii  the  owner  of  certain  lands,  requir^  by 
them  for  tiieir  railroad,  wheroby  it  was  stipulated 
that  the  vender's  expenses,  arising  out  of  the  eon-- 
tract  for  the  purohase,  and  for  eanying  the  same 
into  effeet,  as  well  as  the  expenses  of  tiie  pur- 
chasers, should  be  borne  and  defrayed  by  the  com- 
pany, pursuant  to  certain  provisions  of  a  particular 
act  of  parliament ;  I.  e,  by  arbitration  by  two  soli- 
citors, and  an  umpire  to  be  chosen  by  them.  Sub- 
sequentiy,  tiie  company  obtained  another  act,  by 
wluch  it  was  enacted,  that  all  costs  wfaioh  the  eom- 
pany  should  become  UaUe  to  pay  should  be  taxed 
by  tile  proper  officer  of  the  Court  of  Exchequer : 
after  the  Attomies  and  Solicitors  Act  had  pused, 
the  solicitor  of  the  vendor  delivered  his  bill  of  costs 
to  the  company,  which  contained  no  charges  for 
any  business  done  in  a  court  of  law,  and  then 
brought  his  action  at  law,  for  the  am4Muit,  against 
the  company;  whereupon  the  company  moved  to 
refer  the  bill  to  the  proper  officer,  for  taxation ; 
which  was  refused,  with  costs. 

The  Court  has  no  jurisdiction  on  an  application 
for  a  reference  for  taxation  of  a  bill  of  costs,  in  a 
summary  way,  to  adju(Hcate  on  an  agreement*  in 
writing,  entered  into  between  the  parties,  relative^ 
to  the  solicitor's  costs,  charges,  and  expenses;  but 
if  thero  be  circumstances  of  an  equitable  nature, 
as  well  as  of  a  legal  nature,  in  such  a  case  an  ap- 
plication to  stay  the  process  in  the  action  at  law, 
must  be  made  to  the  Court  upon  a  bill  filed,  seeking 
equitable  relieC  In  re  Rhodes,  14  Law  J.  Rep. 
(N.9.)  Ch.  97. 

A  declaration  on  a  promise  by  the  defendant  to 
pay  the  plaintiff,  an  attorney  of  the  Insolvent 
Court,  his  taxed  costs,  for  business  done  in  that 
court,  averred,  that  tiie  costs  were  taxed  by  the 
Court  for  the  Relief  of  Insolvent  Debtors  -.--Held, 
bad,  for  not  arerring  a  taxation  by  a  proper  au- 
thority. Morgmn  ▼.  Wett^  14  Law  J.  Rep.  (na) 
Bxch.  8;  18  M.  ft  W.  888  ;  2  Dowl.  ft  L.  P.C. 
891. 

(2)  Order  rf  course  for^  under  6^-7  Vict,  c,  78. 

*.37. 

An  order  of  coune,  obtained  by  a  client  for  tiie 
taxation  of  his  solicitor's  hill  of  costs  after  pay- 
ment thereof,  discharged.  Sayer  r.  Wagsttf,  12 
Law  J.  Rep.  (N.8.)  Ch.  406. 

An  order  was  obtained  upon  petition,  as  of  course^ 
to  tax  two  bills  of  costs,  one  of  which  was  in  respect 


ATTORNEY  AND  SOLICITOR-.{BiLt  of  CkWTS.) 


55 


ot  M  iiidietiii9iit  fhr  peijmy,  which  was  prosecuted 
ai  n  time  whea.«ome  of  the  petitioners  were  infants, 
\mt  the  petitionere  nubmitted  in  the  usual  way,  by 
their  pedtioa  (all  being  of  age),  to  pay  what  should 
he  found  due  to  the  solicitors  in  respect  of  the  said 
bUls  of  coals  :--^  Held,   that  the  petitioners  were 
beuad  by  their  submiasiou,  and  that  their  proper 
GooKse  WM|  before  the  proceeding  to  tax  was  com- 
pleted, to  have  come  to  the  Court  for  a  variation  of 
the  <wder  previously  obtained.     In  re  SpringaUf 
H  Law  J.  Rep.  (b^.)  Ch.  12. 

Under  the  common  order  directing  the  reference 
of  a  solicitor's  bill  of  costs  for  taxation,  the  taxing 
Master  has  jurisdiction  to  decide  on  a.  question  of 
retsiner  and  liability  as  to  any  of  the  charges  con* 
taiDed  in  the  bill,  ezoept  those  in  respect  <^  which 
the  petitioner  has  in  his  petition  admitted  the  ra-> 
taioer  of  the  respondent. 

A  <hfferent  practice  prevails  in  the  courts  of 
cemi9on  law,  arising  out  of  circumsta&oes  not  ap- 
plicable 10  an  order  of  reference  in  this  oourt.  In 
r<  JSreety,  14  Law  J.  Rep.  (n.b.)  Ch.  299. 

An  order  of  course,  directing  the  taxation  of  the 
bill  of  costs  of  a  mortgagee's  solicitor,  obtained  by 
the  mortgagor,  after  a  statement  to  his  solicitor  by 
the  mortgagee's  solicitor  that  the  amount  thereof 
had  been  received  by  him, — discharged,  but,  under 
the  drcumstanoes,  without  costs.  In  re  Carew,  14 
Lav  J.  Rep.  (n.8.)  Ch.  100. 

[And  see  In  re  Fender,  anUf  (1),  p.  54 ;  and  In 
re  Beeke^  ftoet  (5)>  p.  56.] 

(3)  UfOH  Terms,  where  Bill  delivered  more  than  a 

Htmth,  under  6  {■  7  VicL  c,  73.  «.  37. 

An  Older  for  the  taxation  of  a  solicitor's  hill  may 
be  made  ex  ^«rte  after  the  expiration  of  one  month 
from  the  delivery  of  it,  but  within  twelve  months. 
lure  GvUekeU,  14  Law  J.  Rep.  (n.8.)  Ch.  450. 

Where  a  reference  for  taxation  of  a  solicitor's 
hill  of  costs  is  applied  for,  after  the  expiration  of 
the  one  month  nentioned  in  the  37th  section  of 
6  &  7  Vict  eu  7«,  and  the  bUl  is  under  100^  in 
smonat,  the  order  will  be  made  for  a  reference, 
^xthont^xequiring  the  amount  of  the  bill  to  be  paid 
into  conit.  In  re  Bramlev^  18  Law  J.  Rep.  (ma) 
Ch.320. 

(4)  Upon  Special  Circumstance*,  after  Verdict,  Writ 
nilnqmry^ftrthe  Expiration  </a  Year,  under  6^7 
Flctc.78.«.  37. 

The  statute  6  &  7  Victe.  78,  applies  to  attor- 
niet*  IhUs  delivered  before  it  came  into  operation ; 
sad  the  Court,  under  aection  87,  has  power  to  refer 
them  Ibr  tsxation  after  the  lapse  of  twelve  months 
fien  the  time  of  their  d^very,  if  special  cireum- 
t^sBces  are  shewn. 
Vnder  section  41.  the  Court  cannot  refer  for  tax- 

t^  s  bill  which  has  been  paid  upwards  of  twelve 

moDtht,  though  the  bill  was  delivered  and  paid 

before  the  passing  of  the  act 
Upon  a  motion  to  tax  an  attorney's  bill,  the 

Court  will  not  take  notice  of  its  contents,  unless 

^  sn  verified  by  affidavit,  or  the  rule  has  been 

dnwn  up  on  reading  the  bill. 

Qeare^Whether  a  promissory  note,  payable  six 
noDthf  sfter  date,  having  been  given  by  the  client 
Ar  the  bslance  of  an  attorney's  bill,  payment  under 
lectitn  41.  is  to  be  considered  to  have  been  made  at 


the  time  of  the  giving  of  the  note,  or  the  time  when 
the  note  was  paid. 

Semble — ^The  Court  has  power,  under  special  cir- 
cumstances, to  refer  a  bill  for  taxation  within  the 
year,  even  when  the  payment  has  been  made  after 
action  brought 

Semble — The  mere  non-payment  of  fees  due  to  a 
barrister  or  special  pleader,  does  not  constitute  suf- 
ficient special  circumstances  to  warrant  an  order 
for  referring  to  taxation  a  hill  which  has  been  deli- 
vered more  than  twelve  months.  In  re  WiUon,  13 
Law  J.  Rep.  (m.s.)  Q.B.  17. 

An  attorney  had  for  several  years  been  employed 
in  various  transactions  for  a  client  prior  to  June 
1843.  In  1841,  he  delivered  a  bill  containing  items 
for  business  done  antecedent  to  and  in  the  year  1 839, 
but  which  did  not  contain  a  great  portion  of  his  de- 
mand. In  June  1842,  the  client  gave  him  two  pro- 
missory notes,  in  which  a  surely  joined,  one  psyable 
at  eight,  and  the  other  at  twelve  months,  for  his 
entire  demand.  These  were  paid  at  maturity ;  and 
in  June  1843,  after  the  payment  of  the  last  note, 
two  other  bills  were  delivered  many  of  the  items  of 
which  were  incurred  antecedently  to  1839.  On  the 
part  of  the  attorney,  it  was  sworn  that  the  notes  were 
received  as  cash : — Held,  that  the  whole  of  the  three 
hills,  in  fact,  formed  but  one  bill,  and  that  the  Court 
had  power  to  refer  the  whole  three  bills  to  taxation 
tlpon  a  rule  obtained  in  Kaster  term,  1844. 

Semble— l!h.e  receipt  of  a  promissory  note  or  bill 
of  exchange,  upon  which  the  client  remains  liable, 
cannot  be  considered  as  payment  within  s.  41.  of  ^ 
&  7  Vict  c  73,  so  as  to  preclude  the  Court  from  re- 
ferring a  bill  to  taxation  after  the  lapse  of  more  than 
a  year  from  such  receipt,  but  within  a  year  of  its 
becoming  due  and  being  paid.  In  re  Peachy  13  Law 
J.  Rep.  (N.S.)  as.  249 ;  2  DowL  &  L.  P.C.  S3. 

The  sUtute  6  &  7  Vict  c.  73.  applies  to  attornies' 
bills  delivered,  and  rules  nisi  obtained  for  their  taxa- 
tion, before  the  passing  of  that  act ;  and  therefore^ 
where  a  rule  Mm  had  been  obtained  in  Trinity  term, 
1843^— Held,  that  the  Court  must  be  guided  by  the 
rules  laid  down  by  that  statute,  in  disposing  of  it 

Under  section  41.  of  that  statute,  the  Court  can- 
not, even  under  special  drcumstanoes,  refer  a  hill 
for  taxation  which  has  been  paid  more  than  twelve 
months. 

Under  section  37,  the  Court  has  power,  at  any 
time,  under  special  circumatanees,  to  refer  for  taxa- 
tion a  bill  which  has  been  delivered,  but  not  paid, 
more  than  twelve  months. 

An  attorney's  bill  had  been  delivered  to  some 
ignorant  parties  in  June  1840,  and  in  November 
1842  a  summons  for  its  taxation  had  been  dismissed 
by  a  Judge  at  chambers,  on  the  ground  of  the  in- 
sufficiency of  the  materials  on  which  it  was  founded. 
It  appeared  that  a  sum  of  money  had  been  deposited 
in  1839,  in  Uie  joint  names  of  the  attorney  and  an- 
other party,  on  behalf  of  the  clients : — Held,  that 
there  being  a  dispute  respecting  the  sum,  the  Court 
would  refer  the  bill,  and  require  the  attorney  to 
account  on  a  rule  nisi  obtained  in  Trinity  term,  1843. 
Binns  v.  Hey,  1 3  Law  J.  Rep.  (m.s.)  Q.B.  28 ;  1  DowL 
&L.P.C.  66L 

Upon  an  application  to  tax  an  attorney's  bill  after 
verdict,  under  the  37th  section  of  6  &  7  Vict  c.  73, 
on  the  ground  of  "  special  ciroumstances,"  it  is  not 
sufBcient  to  shew  circumstances  known  to  thedefen- 


56 


ATTORNEY  AND  SO&ICITOIU^Bill  or  Costs). 


dsnt  before  aetion;  they  must  appmr  to  have  come 
to  (he  defendant's  knowledge  recently,  and  the  ap« 
plication  must  be  made  promptly.  In  rw  fVkkturf 
14  Law  J.  Rep.  (n.s.)  Ezch.  78 ;  1 3  M.  &  W.  549 1 
2  DowL  &  L.  P.C.  407. 

(5)   Upon  Special  Circumstances,  qfter  Paymeat  rf 
Bill,  under  6  «|-  7  Vict,  c.  73.  *.  41. 

[See  In  re  WiUon ;  In  re  Peaok ;  and  Bkm$  t. 
Hay,  ante.,  (4)  page  55.] 

Alter  payment  of  a  bill  of  costs,  an  order  for 
taxation  is  not  to  be  obtained  as  of  course,  even  by 
a  party  liable  to  pay  the  same. 

By  virtue  of  the  act  6  &  7  Vict.  c.  73,  any  party 
entiUed  to  an  order  to  tax  a  bill  of  coats  may  obtain 
it  as  of  coarse,  and  without  special  directions,  within 
one  month  after  its  delivery,  and  with  such  special 
directions  as  the  Court  may  impose,  after  the  ex- 
piration of  one  month  from  the  delivery,  hut  not 
after  verdict,  writ  of  inquiry,  or  payment.  In  such 
eases  a  special  order,  made  on  special  circumstances, 
proved  to  the  satisfaction  of  the  Court,  is  requisite. 
jPayroent  of  a  bill  of  costs  by  a  mere  volunteer  under 
no  previous  liability,  gives  no  right  to  him  to  obtain 
an  order  to  tax  the  bill.  In  re  Becke,  13  Law  J. 
Rep.  (N.S.)  Ch.  157 ;  5  Bea.  406. 

Order  for  taxation  of  a  solicitor's  bill  under  the 
circumstances,  after  a  settlement,  upon  the  common 
petition,  without  stating  the  objectionable  items. 
Jones  V.  Powys,  10  Law  J.  Rep.  (n.8.)  Ex.  £q.  49. 

An  attorney  having  delivered  his  bill  of  costs, 
dated  the  14th  of  August  1839,  received  at  the  same 
time  from  his  debtor  a  promissory  note  of  that  date, 
payable  at  two  months.  He  also  held  the  title- 
deeds  of  the  debtor  as  a  lien  for  the  costs,  and  did 
not  deliver  them  up  until  July  1843,  when  the  note 
was  paid.  A  Judge's  order  having  been  made  in 
February  1844,  under  6  &  7  Vict  c.  73.  s.  41,  for 
referring  to  taxation  such  bills  of  oosto  as  had  been 
paid  not  more  than  twelve  months  previously  :— 
Held,  that  the  bills  could  not  be  considered  as  paid 
at  the  time  of  their  date  within  the  meaning  of  the 
aotj  and  that  they  were,  therefore,  liable  to  taxation. 
In  re  Harries,  18  Law  J.  Rep.  (k.8.)  £xch.  259 ;  13 
M.  &  W.  3 ;  1  DowL  8c  L,  P.C.  1018. 

A  solicitor's  bill  of  costs  paid  underpressure,  and 
protested  against,  referred  for  taxation. 

Protest,  combined  with  other  circumstances,  may 
be  a  ground  of  reference  of  a  bill  of  costo  for 
taxation. 

Where  there  is  evidence  of  pressure,  the  Cooit 
will,  if  necessary,  direct  a  general  reference  for 
taxation,  although  in  the  petition  for  taxation  some 
only  of  the  items  of  the  bill  of  costs  may  be  objected 
to.   Ex  parte  Wilkinsm,  in  re  Alcoek,  2  CoU.  C.C.  92. 

On  an  application,  on  special  circumstances,  for 
a  reference  for  taxation  of  a  solicitor's  bill  of  costo 
after  payment  thereof,  under  protest,  within  the 
year,  the  proof  of  pressure  alone  is  not  sufficient  to 
render  the  bill  taxable  under  the  act  6  &  7  Vict 
c.  73,  but  some  objectionable  item  in  the  bill  must 
be  shewn,  either  alone  or  accompanied  with  some 
other  special  circumstances. 

If  no  dispute  exist  as  to  the  construction  of  a 
contract  or  agfreement  for  taxation  entered  into  be- 
tween the  parties,  the  Court  will  direct  a  reference 
for  taxation.  In  re  Thompson.  14  Law  J.  Rep.  (n.s.) 
Ch.  137. 


If  a  lol&eitor  has  refkised  to  allow  oertaiti  deeds  to 
be  executed  until  his  bill  of  eosta  is  paid,  and  the 
bill  is  paid  under  protest,  and  the  deeds  executed, 
this  may  constitute  snob  a  *'  special  cirteumstance** 
as  to  induce  the  Court  to  tax  the  bill  under  6  St  7 
Vict  c.  73. 

A  petition  for  the  taxation  of  a  bill  of  costs  set 
forth  special  ciremnstances  sufficient  in  themselves 
to  obtain  an  order  for  taxation,  but  the  affidavits  in 
support  of  it  mentioned  some  of  the  items  which 
were  objected  to,  all  of  which  were  explained  by  the 
solicitors  to  the  satisfaetion  of  the  Court  The  pe- 
tition was  dismissed  with  costs.  Ex  parte  Andrews, 
13  Law  J.  Bep.  (n.s.)  Ch.  222. 

A  mortgaged  to  B  an  estate,  with  power  of  sale 
in  default  of  payment  The  estate  was  sold  by  B 
under  the  power,  and  L  was  the  solicitor  employed 
by  B  in  completing  the  sale.  The  whole  of  the 
business  was  transacted,  and  L's  bill  of  costa  ac- 
tually paid  out  of  the  purchase-money,  befbre  the 
Stat  6  &  7  Viet  e.  73.  came  into  operation : — Held, 
on  the  application  of  A,  that  the  bill  of  eosta  was 
not  taxable. 

The  payment  of  a  taxable  bill  delivered  befbre 
the  act  6  &  7  Vict  c.  73.  came  into  operation,  will 
not  preclude  taxation  under  that  act,  upon  a  proper 
application  being  made  in  due  time.  In  re  Lees,  18 
Law  J.  Rep.  (N.a.)  Ch.  151 ;  5  Bea.  410. 

Where  a  party  interested  in  the  estate  out  of  whieh 
a  bill  of  costo  has  been  paid  by  a  trustee,  applies  for 
an  order  to  tax  the  same,  he  must  proceed  under  the 
41st  section  of  the  act  6  &  7  Vict  c  73;  but  where 
the  bill  has  not  been  paid,  he  must  proceed  under 
the  37th  section.  The  Court  cannot,  under  the  act 
6  &  7  Vict  c.  73,  direct  a  bill  to  be  taxed  against 
the  solicitor,  if  it  has  been  paid  more  than  twelve 
months ;  but  there  is  nothing  in  the  act  to  prevent 
the  Court  ordering  a  taxation  as  between  the  trustee 
and  eestms  que  trust,  of  a  bill  of  costo  containing  im- 
proper paymento,  where  the  trustee  has  neglected  to 
procure  in  due  time  a  taxation  thereof. 

The  expression  "such  bill  as  aforesaid,*'  in  the 
41st  section,  does  not  mean  "  such  bill  as  is  herein- 
before mentioned  to  have  been  faxed  and  settled," 
mentioned  in  the  section  immediately  preceding; 
nor  is  it  confined  to  such  bill  as,  under  the  provisions 
of  the  act,  is  sought  to  be  taxed  by  a  par^  directly 
chargeable  therewith. 

Semhle — Where  a  solicitor's  bill  has  been  paid  by 
a  trustee,  the  cestuis  que  trust  are  entitled  to  ask  for 
a  reference  for  taxation  of  the  bill  against  tiie  soli- 
citor at  any  time  within  twelve  months  after  pay- 
ment thereof,  but  not  afterwards,  although  the  ces- 
tuts  que  trust  had  no  knowledge  of  the  payment  until 
after  the  twelve  months  had  expired,  in  reDownes, 
13  Law  J.  Rep.  (K.s.)  Ch.  159;  5  Bea.  425. 

A  mortgagor  is  enUtled,  under  the  act  6  &  7  Vict 
c.  78,  on  shewing  special  circumstances,  to  the  order 
directing  the  taxation  of  a  mortgagee's  bill  of  costs, 
after  payment  thereof  by  the  mortgagee.  In  re 
Carew,  14  Law  J.  Rep.  (N.s.)  Ch.  100. 

A  transfer  of  a  mortgage  having  been  agreed  on, 
a  meeting  was  held  to  carry  the  same  into  execu- 
tion, when  the  clerk  of  the  mortgagee's  solicitor 
presented  his  bill  of  costa,  whieh  was  objected  to  in 
respect  of  certain  charges  therein  contained,  which 
were  alleged  by  the  mortgagor  (as  was  the  fact) 
to  be  unreasonable ;  the  clerk,  on  being  pressed  to 


r 


ATTORNEY  AND  SOLICITOIU-(Bill  of  Costs.) 


57 


allow  tlie  pi^fnent  of  the  bill  lo  stand  OTor  for  a 
dftj  oc  two,  m  ofder  thai  the  mortgagor  oaight  see 
the  aoUcitoc  on  die  aul^eet  of  the  diargea  objected 
tti^  lefiued,  and  zeqaired  immediate  payment,  and 
thexeapon  the  hill  was  paid : — Held,  that  the  con- 
daet  of  the  clerk  was  a  •pecial  circumatance  in 
sapport  of  the  ^>plication  to  tax  the  bill,  and  that 
tbe  derk'a  refUial  to  allow  the  payment  of  the  bill 
to  stand  over  for  a  day  or  two,  and  the  statement  by 
ths  petitioner  of  the  overcharges  to  the  clerk,  before 
payment  of  the  bill,  and  the  existence  of  those  over- 
cliaiges,  were  sufficient  gprounda  to  induce  the  Court 
to  Older  taxation  of  the  bill. 

It  is  no  objection  to  such  an  application,  that  in 
a  bill  made  out  against  a  mortgagee  some  of  the 
eb^iges  are  made  against  the  mortgagor.  In  re 
WdU,  14  Law  J.  Rep.  (n.8.)  Ch.  215. 

Within  twelve  months  after  payment  of  a  bill  of 
costs,  a  client  presented  a  petition  for  its  taxation, 
but  the  petition  having  specified  no  items  of  over- 
charge, no  order  could  be  nuide;  and  the  twelve 
months  having  then  expired,  the  Court  refused  to 
allow  the  petition  to  stand  over  for  the  purpose  of 
sa  amendment,  by  specifying  the  items.  Barweli  v. 
Brwks,  7  Bea.  345. 

CtMtms  que  trust,  in  presenting  a  petition  within 
the  year,  seeking  the  taxation  of  a  solicitor's  bill  of 
costs,  which  has  been  paid  by  their  trustees,  must 
state  particular  items  of  overcharge  contained  in 
the  bill,  or  other  special  circumstances.  In  re 
Btwut,  14  Law  J.  Rep.  (n.s.)  Ch.  403. 

A  bill  of  costs  settled  and  paid  after  examination, 
discussion,  and  an  abatement  made  by  the  solicitor, 
was  referred  for  taxation  under  the  circumstances, 
hat  on  the  terms  of  the  client  admitting  the  cash 
payments  contained  in  the  settled  account 

A  solicitor  delivered  his  bill  of  costs.  His  client 
hsdtime  to  examine  it,  and  obtained  professional 
advice  and  assistance  respecting  it  Objections 
were  made  to  the  itema,  and  a&r  discussion  the 
client  obtsined  a  considerable  deduction.  He  settled 
the  account,  admitted  the  balance,  obtained  the 
▼oudieo^  and  afterwards  paid  the  amount  admitted 
to  be  due.  The  relation  of  solicitor  and  client  con- 
tinued after  the  payment  The  Court  directed  a 
ttzatian  of  the  bill  notwithstanding  this  settlement, 
thiakisg  that  the  cHent  waa,  **  to  an  alarming  ex- 
t^y  in  the  power  of  the  solicitor ;  that  the  bill, 
*hidi  eontained  general  items  to  a  very  consider- 
able suQouat,  onder  the  terms  *'  numerous  attend- 
ttoes»"  and  "innumerable  attendances,"  was  not 
sufficiently  explanatory ;  that  the  solicitor  did  not 
do  all  which,  under  the  circumstances,  he  ought 
to  have  done  to  facilitate  to  the  client  the  exercise 
of  his  right  to  a  full  statement  of  the  particulars  of 
the  charge,  snd  to  the  proper  investigation  of  each 
puticalar  item;  and  that  the  parties  were  on  terms 
so  unequal  ss  to  make  it  difficult  to  make  any  bar- 
gain which  could  be  binding  upon  the  client  in  the 
absence  of  other  assistance. 

^ere  accounts  and  bills  of  costs  of  a  solicitor 
■'e  delivered  a  sufficient  time  before  the  settlement 
^  tUow  the  client  to  examine  them,  and  obtain 
advice  and  assistance  respecting  them,  and  the 
opportunity  is  taken  advantage  of,  and  the  bills 
°^  examined,  objections  are  taken,  upon  dis- 
<^iusioD  of  which  an  allowance  is  made,  a  settlement 
'^""'^  to,  and  the  balance  paid,  primd  facie,  a  taxa- 

DioBST,  1840—1846. 


tion  is  precluded :  but  if,  under  the  above  circum- 
atances,  the  client  is  in  the  power  or  at  the  mercy 
of  the  solicitor, — if  the  bills  delivered  be  not  suffi- 
ciently explanatory, — if  the  client,  though  having 
time  to  examine  the  bills,  has  not  been  able  to  obtain, 
or  has  not  been  allowed  to  employ,  the  most  effec- 
tive means  of  examination, — if  it  appears  that  the 
solicitor  in  whose  power  the  client  is  is  driving  a 
bargain  with  him  on  unequal  terms,  and  that  the 
relation  of  solicitor  and  client  and  the  power  of  the 
BoUcitor  continues,  then  all  the  circumstances  above 
referred  to,  aa  tending  to  establish  the  settlement, 
may  be  unavailing.  Nokes  v.  Warton,  5  Bea.  448. 

In  the  case  of  a  petition  presented  for  a  reference 
to  tax  a  solicitor's  bill  of  costs,  the  application  must 
be  considered  as  made,  at  the  latest,  at  the  time 
when  the  petition  is  answered  by  the  secretary,  and 
not  at  the  time  of  its  service  on  the  respondent. 
I^  by  neglect  of  the  officer,  the  petition  be  not 
answered  on  the  day  it  ought  to  have  been,  the 
application  may  be  considered  as  of  an  earlier 
date. 

If  a  promissory  note  be  given  by  a  debtor  to  his 
creditor,  the  debt  may  be  considered  as  actually 
paid,  if  the  creditor  at  the  time  of  receiving  the 
note  has  agreed  to  take  it  in  payment  of  the  debt, 
and  to  take  on  himself  the  risk  of  the  note  not 
being  paid,  or  if,  from  the  conduct  of  the  creditor, 
or  special  circumstances  of  the  case,  such  an  agree- 
ment is  legally  to  be  implied ;  but,  in  the  absence 
of  any  special  circumstances,  the  receipt  of  the 
note  by  the  creditor  is  nothing  more  than  the  giving 
to  the  creditor  extended  credit 

On  the  3rd  of  November  1842,  a  client  gave  hia 
promissory  note  to  his  solicitor,  in  payment  of  a 
bill  of  costs  previously  delivered ;  the  note  was 
honoured  and  paid  on  the  17th  of  the  same  month. 
On  the  15th  of  November  1843,  the  client  pre- 
sented his  petition,  praying  an  order  for  taxation 
of  the  bill.  The  petition  was  answered  on  the  16th 
of  November  for  the  next  petition-day,  the  24th, 
and  served  on  the  21st  of  that  month : — Held,  that 
the  bill  was  to  be  considered  as  paid  on  the  17th  of 
November  1842;  and  that  the  application  for  an 
order  for  taxation  was  to  be  deemed  to  have  been 
made  on  the  16th  of  November  1843,  and  that, 
therefore,  the  bill  was  taxable  under  the  41st  section 
of  the  statute  6  &  7  Vict  c.  73. 

The  sum  of  two  gpiineas  a  day  is  allowed  for  at- 
tending the  examination  of  witnesses  in  the  country, 
whether  the  solicitor  attends  personally  or  by  his 
clerk. 

The  continuance  of  the  relation  of  solicitor  and 
client  is  not  sufficient  in  itself,  in  the  absence  of 
any  fraud  or  pressure,  to  induce  the  Court  to  refer 
a  bill  of  costs  for  taxation  after  payment  by  the 
client.  Sayer  v.  Wagttaff,  14  Law  J.  Rep.  (n.8.) 
Ch.  116;  s.  c  13  Law  J.  Rep.  (n.s.)  Ch.  161 ;  5 
Bea.  415. 

(6)  Cottt  rf  Taxation, 

Where  the  administrators  of  an  attorney  send  in 
their  intestate's  bill,  and  a  Judge's  order  is  made  to 
tax  it,  and  more  than  one -sixth  is  taken  off*  by  the 
Master,  the  administrators  are  not  bound  to  pay  the 
costs  of  taxation,  although  they  consented  to  the 
Judge's  order  being  made.  PrieetUy  v.  Qmy,  9 
Dowl.  P.C.  154. 


88 


ATTORNEY  AND  80LIOITOIU-(Bill  of  Costs). 


An  attdmeys  bi|],  otl  tftxatkm,  W86  reduced  by 
more  than  one-sixth,  by  tlie  Master  striking  off  a 
class  of  charges  for  business  done  in  the  Court  of 
Common  Pleas,  the  attorney  not  being  an  attorney 
of  that  court,  though  he  was  an  attorney  of  the  other 
courts  (before  the  statute  7  Will.  4.  &  1  Vict. 
a.  66)i — Held,  that  the  attorney  must  pay  the  costs 
•6(  taxation.  Newton  v.  Harlandf  10  Law  J.  Rep. 
(N.s.)C.P.  227;  2M.&0.  886;  8  Sc  (n.8.)  230 ; 
» Dowl.  PC. 641. 

The  client  is  not  entitled  to  the  costs  incidental  to 
«  reference  for  the  taxation  of  his  solicitor's  bills  of 
costs,  although  considerably  more  than  one-sixth 
is  struck  off,  where  the  ap)>lieation  for  the  order 
directing  the  taxation  Is  not  applied  for  till  after 
an  action  at  law  was  commenced  for  the  recorery 
of  the  amount  claimed  to  be  due.  In  re  Boord^  12 
Law  J.  Rep.  (n.b.)  Ch.  461 ;  6  Bea.  848. 

In  an  action  brought  to  recover  the  amount  of  a 
bill  of  costs,  among  others  the  costs  of  an  appeal  to 
the  House  fi^  Lords,  in  which  the  plaintiff  had  been 
the  attorney  of  the  defendant,  the  bill  of  costs  had 
been,  by  theusual  Judge'sorder,  upon  the  application 
of  the  defendant's  attorney,  and  on  the  usual  under- 
taking to  pay  what  should  be  found  to  be  due,  referred 
tothe  Master  for  taxation.  Defondanthavingbecome 
insolvent,  the  Court  refused  to  compel  the  defen- 
dant's attorney,  upon  the  application  of  the  plaintiff, 
to  pay  the  fees  for  obtaining  the  certificate  of  the 
taxing  officer  of  the  House  of  Lords,  of  the  amount 
due  upon  that  portion  of  the  bill  which  had  been 
referred  to  him  for  taxation. 

Quart — 'Whether  if  such  application  had  been 
itiade  by  the  Master  or  other  officer,  the  Court 
would  have  interfered.  B^che  v.  Cattell^  1 1  Law  J. 
Rep.(N.8.)C.P.4d;  8M.&G.480;  4Sc.(n.8.)  246. 

A  bill  was  filed  by  the  executors  and  devisees  in 
trust  under  a  will,  to  have  the  trusts  of  the  will  esta- 
blished, and  the  usual  accounts  taken.  J  F  acted 
as  the  solicitor  of  the  plaintifis  as  well  as  of  the  de- 
fendants, and  conducted  the  proceedings  in  the  suit 
subsequently  to  the  decree,  until  the  conduct  of  it 
was  taken  from  him  by  the  plaintiffs,  and  a  new  soli- 
tor  appointed  by  them.  J  F  having  delivered  up 
the  documents  relating  to  the  suit  to  the  new  solicitor, 
«.  paper  writing  was  discovered  amongst  them,  pur- 
porting to  be  a  copy  of  a  charge  which  had  been 
carried  in  by  J  F  under  the  decree,  in  the  joint 
names  of  certain  persons,  of  whom  J  F  was  one,  as 
creditors  of  the  tesUtor ;  the  charge  thereby  made 
by  J  F  for  himself  amounted  to  the  sum  of  57/., 
alleged  to  be  the  balance  due  from  the  testator's 
eMate  for  business  done  by  J  F  for  the  testator  and 
his  son,  as  partners  in  business,  on  the  testator's 
retainer,  after  deducting  from  the  aggpregate  amount 
of  his  several  bills  of  costs  the  suras  received  by  him 
from  the  testator  on  account  of  such  business.  On 
the  copy  of  the  charge  found  amongst  the  documents 
so  delivered  up  by  J  F  was  indorsed  a  memoradum, 
in  the  handwriting  of  J  F's  town  agent,  to  the  effect 
that  the  charge  had  been  allowed,  subject  to  the 
approval  thereof  by  the  defendants'  solicitor:  the 
copy  also  bore  a  subsequent  indorsement,  in  the 
same  handwriting,  to  the  effect  that  the  charge  had 
been  afterwards  absolutely  allowed,  but  no  entry  to 
any  such  effect  was  to  be  found  in  the  Master's  books. 
The  Master  bavitig  reforzed  the  bills  of  cosU  to  be 


taxed,  J  F  withdrew  his  charge.  On  applioatioii 
to  the  Court  by  the  plaintiffii  by  petition,  the  bills 
of  costs  of  J  F  were  ordered  to  be  taxed,  and  an 
account  was  directed  to  be  taken  of  the  monies  re- 
ceived by  J  F  on  account  thereof,  and  more  than 
one  sixth  part  of  the  amount  of  the  bills  having  been 
taken  off  on  taxation,  J  F  was  ordered  to  pay  the 
costs  of  the  petitioners  occasioned  by  his  charge,  and 
also  the  costs  of  the  petitioners*  application  to  Uie 
Court  relative  to  the  charge  and  bills  of  costs,  and 
consequential  thereon.  AceyY,  SimptoUf  12  Law#. 
Rep.(N.8)Ch.  449. 

A  Judge's  order  directed  an  attorney's  bill  to  be 
taxed  upon  an  undertaking  beiug  given,  signed  by 
the  then  churchwardens.  The  undertaking  was 
signed  by  a  part  only  of  the  premout  churchwardens, 
but  the  attorney  having  made  no  objection,  the  costs 
were  taxed,  and  more  than  a  sixth  deducted.  An 
order  for  the  attorney  to  pay  the  costs  of  the  taxa- 
tion having  been  obtained, — Held,  that  the  attorney 
could  not  apply  to  set  it  aside  on  the  ground  that 
the  undertaking  was  not  signed  in  accordance  with 
the  Judge's  order.  Doe  d.  Goodland  v.  Frankkmd, 
1 2  Law  J.  Rep.  (w.s.)  Q.B.  249 ;  2  Dowl.  P.O.  (k.s.) 
976. 

An  attorney  having  bought  an  action  on  his  bill, 
the  defendant  obtained  an  order  to  tax  it,  and,  after 
taxation,  paid  money  into  court  The  plaintiff  took 
the  money  out  of  court,  and  taxed  his  costs  of  the 
cause: — Held,  that  the  Master  was  right  in  treating 
the  costs  of  taxing  the  bill  as  costs  in  the  cause. 
Thomas  Y.  the  Mayor  ofSwansea^  12  Law  J.  Rep.  (n.8.) 
Exch.  281 ;  1 1  M.  &  W.  83 ;  2  Dowl.  P.C.  (n  s.)  1003. 

If  an  attorney's  bill  be  referred  for  taxation,  and 
after  a  discussion  before  the  Master,  the  parties 
come  to  an  arrangement  as  to  the  amount,  and  the 
Master  makes  his  allocatur  upon  such  arrangement , 
for  more  than  five- sixths  of  the  original  amount  of 
the  bill,  the  attorney  is  not  entitled  to  the  costs  of 
taxation. 

On  an  application  by  an  attorney  for  the  costs  of 
taxation,  the  Court  will  admit  affidavits  to  explain 
the  circumstances  under  which  the  Master  made  his 
allocatur.  Laurie  v,  Bartlett,  13  Law  J.  Rep.  (n.8.) 
aB.  145 ;  1  Dowl.  &  L.  P.C.  730. 

An  executor  who  applies  to  tax  the  bill  of  his 
testator's  attorney,  is  liable  to  pay  the  costs  of 
taxation,  if  less  than  one-»xth  is  struck  off.  J^- 
freson  V.  Warrington,  10  Law  J.  Rep.  (n.s.)  Exch. 
79 ;  7  M.  &  W.  137 ;  8  Dowl.  P.C.  880. 

Where  an  unsigned  bill,  delivered  by  an  attorney, 
was,  with  his  consent,  referred  by  a  Judge''8  order 
to  taxation,  at  which  he  attended,  when  more  than 
a  sixth  was  struck  off,  the  Court,  under  its  general 
jurisdiction,  ordered  him  to  pay  the  costs  of  taxa- 
tion, although  the  order  contained  no  undertaking 
on  the  part  of  the  client  to  pay  the  amount  found 
to  be  due.  Peters  v.  Sheehan,  12  Law  J.  Rep.  (n.s.) 
Exch.  177 ;  10  M.  &  W.  213;  1  DowL  P.C.  (n.8.) 
948. 

Where  an  attorney's  bill  is  referred  to  taxation 
after  action  brought  upon  it,  the  attorney  is  liable, 
under  6  &  7  Vict  c.  73.  s.  37,  to  pay  the  costs  of 
taxation,  if  more  than  one-sixth  is  struck  o£El  Ex 
parte  WoolUtt,  13  Law  J.  Rep.  (n.8.)  Exch.  121 ; 
12  M.  &  W.  504 ;  1  DowL  &  L.  P.C.  693. 

The  stotnte  6  &  7  Vict  c.  73.  repeals  2  Geo.  2. 


ATTORNEY  AND  SOUCITOR. 


59 


c  2S,  **  csMCpt  so  far  at  reUtm  to  anything  done  at 
any  time  berore  tbe  paning  of  this  act" 

An  attomey'B  bill  having  been  taxed  under  2 
O«o.  2.  c  2S.  before  tbe  passing  of  6  &  7  Vict  c  78, 
— Held,  that  a  motion  might  be  made  respecting  the 
coats  of  that  bill  after  that  act  had  paitsed. 

Where  leta  than  one- sixth  has  been  taken  off  an 
attorney's  bill  upon  taxation,  but  the  biU  hss  been 
reduced  by  a  substantial  sum,  the  Court  will  not 
slUow  the  attorney  the  costs  of  taxation.  Hodge  t. 
S^d,  13  Law  J.  Rep.  (kb.)  CP.  87  ;  1  DowJ.  &  L. 
I*.C.  956. 

The  statute  6  &  7  Vict  c.  73.  s.  1.  repeals  all 
foimar  acts,  except  so  far  as  relates  to  any  matters 
ov  things  done  at  any  time  before  the  passing  of  the 
act  r-*-Held,  that  an  order  referring  a  bill  of  costs 
lor  taxation,  prior  to  the  passing  of  the  act,  was  a 
maltev  or  thing  done  to  which  the  former  act  re- 
lated ;  that  the  power  of  the  Court  to  order  the  pay- 
meoC  of  the  costs  of  taxation  by  the  client,  under 
the  former  act,  nearly  a  sixth  having  been  taxed 
ofl^  was  saved  from  the  operation  of  the  new  statute, 
■itiioiigh  the  taxation  was  not  completed  until  after 
tile  new  act  had  passed.  Doe  d.  PoUe  v.  JituUre, 
14  Lmw  J.  Rep.  (n.s.)  Q.B.  245. 

(c)  Remedies, 

(1)  By  Action, 

In  an  action  on  an  attorney's  bill,  plea,  nunquBm 
imdehiiaiust  it  is  competent  for  the  plaintiff  to  shew 
that  a  greater  amount  is  due  to  him  than  the  Mas- 
ter allowed  on  taxation,  pursuant  to  sn  order  for 
changing  the  attorney  in  the  course  of  the  cause  in 
which  the  costs  were  incurred.  Beck  v.  deaoer, 
9DowLP.C.ni. 

In  an  action  on  an  attorney's  bill,  the  day  on 
which  it  is  delivered  is  not  to  be  reckoned  as  one 
of  the  days  of  the  month  given  to  the  client  by  tbe 
atetute.    BiMfU  v.  Haelop,  9  Dowl.  P.C.  982. 

Where  the  defendant  was  an  attorney  at  the  com- 
mencement  of  the  suit,  but  not  when  the  cause  of 
action  accrued: — Held,  that  he  might  be  sued  by 
another  attorney  for  professional  services,  before 
the  expiration  of  a  month  from  the  delivery  of  a 
signed  bilL  Windtory,  Herbert^  10  Law  J.  Rep. 
(v.a.)  Exch.  132 ;  7  M.  &  W.  375;  9  Bowl.  P.C. 
237. 

The  contract  of  an  attorney  retained  to  conduct 
an  action  is  continuing,  and,  as  a  general  rule,  can 
be  determined  by  him  only  on  reasonable  notice. 

An  attorney  cannot,  therefore,  recover  his  bill  of 
coats,  in  an  action  which  has  not  been  terminated, 
■aless  he  shews  satisfactorily  why  he  has  abandoned 
it.  IfiekolU  V.  Wiietm,  12  Law  J.  Rep.  (k.8.)  Exch. 
266;  11M.&W.  106. 

In  assumpsit  on  an  attorney's  bill, — Held,  that 
the  failure  of  the  business  done  by  his  negligence 
in  the  conduct  of  the  suit,  was  a  good  defence  on 
Bon  assumpsit;  and  it  is  a  question  for  the  jury 
whether  such  failure  arose  from  the  plaintiff's 
fault.    Braeeff  v.  CarUr,  1 2  A  d.  &  £.  373. 

(2)  By  Execution  under  14-2  Fict,  c.  110.  «.  18. 

The  Court  will  grant  a  rule  directfhg  a  party 
to  pay  the  amount  of  his  attorney's  taxed  bill ; 
which,  under  1  &  2  Vict  c.  110.  s.  18,  will  have  the 
e&otof  a  judgment,  and  give  the  attotney  all  reme- 
dies which  by  that  statute  are  given  to  judgment 


creditors.    Ntale  v.  PoeHetkvfayte,  10  Law  J,  Rep. 
(ir.s.)  as.  134 ;  iaB.243. 

(P)  Lien  for  Costs. 

A  borrowed  of  B  a  sum  of  money  on  security  of 
a  mortgage  of  res!  property  i  the  expenses  of  re- 
conveying  which,  on  repayment,  was,  by  the  terms 
of  the  mortgage  deed,  to  be  paid  by  A.  B  put  the 
deeds  into  the  hands  of  thedetendants,  his  attornies. 
The  money  being  afterwards  paid  off,  A  employed 
his  own  attorney  to  prepare  a  reconveyance,  which 
was  sent  to  the  defendants.  This  having  been  ap- 
proved of,  and  settled  on  behalf  of  B,  and  executed, 
the  defendants  insisted  on  retaining  the  title-deeds, 
not  only  for  the  costs  of  tbe  reconveyanoe,  but  ft>r 
their  whole  bill  of  costs.  A  having  paid  the  moMy 
under  protest,  in  order  to  get  possession  of  his  deeds, 
— Held,  that  in  an  action  for  money  had  and  re- 
ceived^  he  was  entitled  to  recover  all  that  had  been 
ao  paid  by  him  beyond  the  expense  of  the  recon- 
veyance. W^k^fieid  V.  NeufboH,  13  Law  J*  Rep. 
(tf.s.)  Q.B.  258 ;  6  aB.  276. 

The  attorney  of  a  defendant  in  an  action  has  not 
such  an  interest  in  it  as  to  prevent  the  parties  com- 
promising it  without  his  conourrenoe.  Queeted  v. 
CaUU,  1 1  Law  J.  Rep.  (N.8.)£xch.  345;  10  M.  &  W. 
18;  1  Dowl.  P.C.  (N.8.)  888. 

Where  a  plaintiff  and  defendant  compromised  an 
action,  after  verdict  for  the  plainti£^  without  the 
knowledge  of  the  plaintiff'a  attorney,  who  after  no- 
tice of  Uie  compromise,  proceeded  to  sign  final 
judgment ;  the  Court  set  aside  the  judgment  (with- 
out coatsX  upon  affidavits  denymg  any  fraudulent 
conspiracy  to  deprive  the  attorney  of  his  costs. 
CUtrk  r.  Smith,  13  Law  J.  Rep.  (n.s.)  C.P.  97; 
6  M.  &  G.  1051 ;  1  Dowl.  &  L.  P.C.  960. 

The  employment  of  a  solicitor  in  business  relating 
to  a  trust  estate  by  the  authority  of  the  trustee,  or 
of  some  of  several  eeetui  que  trust*^  gives  the  soli- 
citor no  lien  or  charge  upon  the  trust  estate,  »x 
upon  the  shares  of  the  other  ceeim  que  iruate. 

The  lien  of  the  solicitor  upon  a  fund  recovered 
in  a  suit  which  he  has  conducted,  is  confined  to  the 
costs  of  that  particular  suit ;  and  therefore,  eembk, 
that  a  solicitor  who,  in  relation  to  the  same  estate,  in 
which  the  same  parties  are  interested,  has  brought 
an  ejectment  and  a  suit  in  equity,  haa  no  lien  upon 
the  fund  recovered  in  the  suit  for  his  costs  of  tbe 
ejectment.    Hail  v.  Lover,  1  Hare,  571. 

Circumstances  under  which  the  Court  refused  to 
allow  the  solicitor,  who  had  given  an  indemnity  to 
the  sheriff,  who  was  in  possession  of  some  of  the 
bankrupt's  effects,  to  retain  the  produce  of  those 
effects  until  he  was  re-indemnified  by  the  assignees. 
Ex  parte  WhiUre  Hallin,  1 1  Law  J.  Rep.  (n.s.)  Bankr. 
6;  2M.D.&D.687;  affirmed,  3  M.  D.  &  D.  7. 

The  solicitor  of  the  executrix  in  a  creditors'  suit 
had  paid  off  a  lien  upon  deeds,  and  the  executrix, 
in  passing  her  accounts,  which  were  prepared  by 
her  solicitor,  had  claimed  and  been  allowed  this 
sum  as  paid  by  herself: — Held,  that  this  must  be 
considered  as  a  payment  to  the  executrix  to  the  use 
of  the  solicitor,  and  that  the  production  of  the  deeds 
could  not  be  resisted  by  him  on  the  ground  of  lien. 
Ckrietian  v.  Chambere,  1 1  Law  J.  Rep.  (m.8.)  Ch.  97  ; 
2  Hare,  177. 

.A,  being  entitled  to  a  leasehold  -honae^iH.  mort- 
gage to  B,  with  whom  the  title-deeds  and  indenture 


60 


ATTORNEY  AND  SOLICITORr-AUCTION. 


of  Uwt  had  been  deposited  by  A,  induced  B  to 
intrust  him  with  the  possession  thereof,  on  pretence 
that  he  had  an  advantageous  opportunity  of  selling 
the  house,  and  that  he  wished  to  afford  the  proposed 
purchaser  an  opportunity  of  examining  the  deeds. 
A  delivered  the  deeds  to  his  solicitor  C,  and  desired 
him  to  proceed  to  complete  a  contract  for  the  sale 
of  the  bouse  to  D,  but  never  disclosed  to  C  the 
means  by  which  he  obtained  possession  of  the 
deeds : — Held,  that  C  was  entitled  to  claim  a  lien 
on  the  deeds  in  respect  of  his  costs,  relating  to  the 
sale  to  D.  YouTig  v.  EngUth,  13  Law  J.  Rep.  (n.b.) 
Ch.76;  7Bea.10. 

A  solicitor  who  had  used  the  names  of  certain 
parties  as  plaintiilk  in  a  cause  with  their  consent, 
was  held  not  to  be  endtled  to  any  lien  against  them 
on  the  fund  in  court  for  his  general  bill  of  costs, 
though  entitled,  under  the  circumstances,  to  be 
paid  out  of  the  f^nd  their  share  of  the  costs  pro- 
perly incurred.    Hall  r.  Lmer,  4  Y.  &  C.  216. 

A  solicitor's  lien  on  his  client's  papers  for  the 
amount  due  to  him  in  respect  of  professional  ser- 
vices, is  equivalent  to  a  contract ;  and  the  Court 
will  not  order  the  papers  to  be  delivered  np  to  the 
client,  merely  on  payment  into  court  of  the  amount 
due  to  the  solicitor. 

SetnbUf  howerer,  that  the  Court  would  take  care 
that  the  lien  of  a  solicitor  on  a  document  should  not 
be  productive  of  injury  to  or  loss  of  the  property  to 
which  the  document  related,  and  would  direct  it 
to  be  delivered  up,  if  such  a  step  were  necessary 
for  the  preservation  of  the  property,  but  without 
prejudice  to  the  solicitor's  lien  thereon ;  and,  in  the 
case  of  a  policy  of  assurance,  would  order  the  pro- 
ceeds arising  therefrom  to  be  paid  into  court,  sub- 
ject to  the  same  right  of  lien  thereon  as  previously 
existed  on  the  policy.  Richards  v.  Platel,  10  Law 
J.  Rep.  (n.8.)  Ch.  875 ;  1  Cr.  &  P.  79. 

Where  the  plaintifi;  having  discharged  the  soli- 
citor who  had  acted  for  him  in  a  cause,  served  on 
him  the  common  order,  that  he  should  deliver  his  bill 
within  a  month  from  the  service  of  the  order ;  and 
the  bill  was  not  delivered, — a  motion,  that  this 
solicitor  should  deliver  certain  papers  in  the  cause, 
without  prejudice  to  his  lien  on  them,  to  the  new 
solicitor  of  the  plaintiff,  was  granted.  Cooper  r, 
Hewson,  12  Law  J.  Rep.  (n.b.)  Ch.  446 ;  2  Y.  & 
Coll.  C.C.615. 

Where  a  solicitor  had  attached  his  client  for  non- 
payment of  costs,  and  had  registered  the  order  for 
payment  of  the  costs  under  1  &  2  Vict.  c.  110.  ss.  16, 
18 : — Held,  that  he  had  not  thereby  lost  his  lien  for 
costs  upon  the  fund  recovered  in  the  suit 

A  solicitor,  notwithstanding  the  death  of  his 
client,  retains  his  lien  for  costs  upon  the  fund  reco- 
vered, and  is  not  driven  to  come  in  as  a  general 
creditor  on  the  estate  of  his  client  Lloyd  v.  Mason^ 
14  Law  J.  Rep.  (n.s.)  Ch.  257 ;  4  Hare,  182. 

A  firm  of  solicitors  having  declined  to  act  for 
their  client  during  the  continuance  of  a  suit,  and 
reftised  to  give  up  the  deeds,  &c.  in  their  possession, 
alleging  that  they  had  a  lien  for  costs  incurred  to 
them,  and  also  to  their  predecessors  in  the  firm 
before  the  commencement  of  the  suit,  these  costs 
having  been  previously  taxed,  an  order  was  made 
upon  motion  for  the  deposit  of  the  deeds  in  the 
Master*  s  office.  Gregory  v.  Cresswell,  1 4  Law  J .  Rep. 
(w.8.)  Ch.  800. 


ATTORNEY  GENERAL. 

The  Attorney  General  may  appear  as  counsel  for 
defendants  to  an  information  filed  by  relators  in  hla 
name.     Shore  v.  Wileon,  9  C.  &  F.  856. 

The  Attorney  General,  when  moving  in  the  Ex- 
chequer in  behalf  of  Her  Majesty,  is  entitled  to 
precedence  over  the  Tubman  and  Postman.  Regfna 
T.  the  Bishop  of  Exeier,  10  Law  J.  Rep.  (w.s.)  Exch. 
92 ;  7  M.  &  W.  188 ;  9  Dowl.  P.C.  276. 

In  an  information  at  the  suit  of  the  Crown,  the 
Court  will  grant  a  rule  for  a  mandamus  to  examine 
witnesses  in  India,  upon  the  statement  of  Her  Ma- 
jesty's Attorney  General  that  the  writ  is  necessary, 
and  will  not  require  the  production  of  any  affidavit 
in  support  of  that  statement  Reghtd  ▼.  Douglas^  2 
Dowl.  P.C.  (w.8.)  416. 


AUCTION. 
[See  Goods  sold  aitd  ]»litsjud-— VstrDos 

AJTD   PUBGHASBK.] 

(A)  DuTT  Am)  Liability  of  Auctjoneeb. 

(B)  Sale. 

(a)  Avoidance  ef^  by  Vendor,     [See  Auction 

Duty.] 
(6)  Conditions  of. 
(c)  Parol  Far  lotion  qf  the  Contract  of  Sale. 

(C)  Auction  Duty. 


(A)  Duty  and  Liability  of  Auctioneer. 

An  auctioneer,  by  the  act  of  aale^  undertakes  to 
deliver  to  the  purchaser  the  thing  sold* 

But,  where  an  auctioneer  sells  hay  standing  upon 
the  premises  of  a  tenant,  which  has  been  distrained 
by  his  landlord  for  rent,  and  the  conditions  of  sale 
are  indorsed  with  the  written  consent  of  the  tenaat 
that  the  bay,  when  sold,  shall  remain  upon  the  pre- 
mises if  the  purchaser  wish  it,  for  three  months, 
all  which  is  publicly  read  at  the  time  of  the  sale ; 
the  auctioneer  will  not  be  liable  to  the  purchaser, 
though  the  tenant  afterwards,  within  the  three 
monUia,  refuses  to  allow  the  bay  to  be  remored. 
Salter  v.  WooUams,  10  Law  J.  Rep.  (n.s.)  C.P.  145  ; 
2  M.  &  G.  660;  3  So.  (n.s.)  59. 

{B)  Sale. 

(a)  Awndtmee  eft  by  Vendor, 

[See  Auction  Duty.] 

(ft)  Conditions  rf» 

Upon  a  sale  by  auction  of  certain  woollen  and 
mercery  goods,  the  catalogue  contained  485  lots, 
each  of  which  was  described  as  containing  a  certain 
number  of  yards.  The  lots  were  open  to  public 
view  two  days  before  the  sale.  By  the  printed  con- 
ditions of  sale,  the  biddings  were  by  the  yard;  the 
purchasers  were  to  pay  down  immediately  a  deposit 
of  251.  per  cent,  in  part  payment  for  each  lot ;  the 
lots  were  to  be  taken  away  with  all  faults,  impeifec- 
tions  and  errors  of  description,  on  the  SatvrdAy 
sfter  the  sate,  and  the  remainder  of  the  pnvdiase. 
mm^  was  to  be  paid  before  the  delivery.  All  the 
small  remnants  were  to  be  cleared  at  the  mesraare 


AUCTIO»-BAlL. 


ei 


itated  in  tbc  cstalogae: — Held,  that  the  law  would 
imply  no  condition,  on  such  a  Bale,  that  the  pur- 
cfaaaen  abonld  have  a  right,  before  paying  the 
balance  of  the  purchase-money,  to  inspect  or  mea- 
Bore  the  gooda,  for  the  purpose  of  asoertaining 
wbedker  they  oorreaponded  with  the  description  in 
the  catalogue. 

And  further,  that  these  oooditions  expressly  ne- 
gatrred  any  such  right  Pettily,  Mitchell,  12  Law  J. 
Rep.  (if .8.)  C.P.  9 ;  4  M.  &  6.  ai9;  5  8c  (n.b.)  721 ; 
Car.  Ac  M.  426. 

(c)  Parol  Variation  qf  the  Contract  cf  Sale. 

In  mi  action  by  an  auctioneer  for  the  priee  of  a 
dreasing^case  sold  by  auction  for  less  than  lOJL,  and 
deaeribed  in  the  piinted  catalogue  as  having  cdlver 
fittings,  whereas,  in  fact,  they  were  only  plated:-^ 
Held,  that  the  plaintiff  might  give  in  evidence  de- 
darationa  made  by  him  at  the  time  of  the  sale,  in 
the  hearing  of  the  defendant,  that  the  catalog^ue  was 
incorrect  in  describing  the  fittings  to  be  silver,  and 
that  the  dressing-ease  would  be  sold  as  having 
nlitcd  fittinga  only,  though  no  altciatioo  was  made 
m  the  catalogue;  there  being  no  contract  in  writing. 
Eden  ▼.  Blake,  14  Law  J.  Rep.  (U.S.)  ExcK  194 ; 
ISM.  &*!¥.  614. 

(C)  Auction  Duty. 

A  declaration  stated,  that  the  plaintiff  being  em- 
ployed by  the  defendants  to  sell  certain  land  by 
auction,  put  up  the  same  for  sale,  subject  to  the 
condition  that  the  highest  bidder  sfaotild  be  the  pur- 
chaser ;  that  H  was  tibe  highest  bidder,  and  declared 
by  the  plaintiff  to  be  the  purchaser,  whereby  auc"- 
tion  duty  to  the  amount  of  94^  18«.  9d,  became 
payable  by  the  plaintiff,  and  was  paid  by  hinu 
Breach,  non-pa3rment  of  that  sum  by  the  defen- 
danta.    Flea,  by  the  defendant  Carey,  that  it  was 
a  condition  of  nde,  that  the  purchaser  should,  after 
the  sale,  pay  the  aaction  duty;  that  upon  the  ex- 
pcaore  to  sale,  and  H  being  the  highest  oidder,  par- 
ment  of  the  du^  was  then  demanded  of  him  by  the 
plaintiff^  and  refused  by  him,  whereby  his  bidding 
became  null  and  void.     Plea,  by  defendant  Cun- 
Bington,  that  the  plaintiff  at  the  time  of  the  sale  de- 
manded payment  of  the  duty  from  H,  who  refused 
to  pay,  and  did  not  at  the  time  of  the  sale,  or  at 
any  time  since,  pay  the  same,  whereupon  the  defen- 
dants then  declared  the  said  bidding  and  sale  to  be 
null  and  void,  and  the  same  became  null  and  void. 
Replication,  that  before  H  became  a  bidder,  it  was 
collusively  ^freed  between  him  and  Cunnington, 
that  H  should  bid,  not  with  a  view  of  completing 
the  purchase,  but  merely  to  outbid  another  bidder, 
and  that  H  did  so  bid ;  that  the  plaintiff  at  the  time 
of  the  auction  had  no  notice  either  of  the  said  agree- 
ment, or  of  the  intent  of  H's  becoming  a  bidder ; 
fliat  the  plaintiff  at  the  said  auction,  and  whilst  H 
Vas  the  highest  bidder,  closed  the  biddings,  and  H 
then  became  the  highest  bidder,  and  was  declared 
to  be  die  purchaaer;  that  H  refused  to  pay  the 
auction  duty,  and  that  before  his  bidding  no  notice 
was  given  to  the  plaintiff  by  H,  and  by  the  defen- 
dsBts,  of  H's  being  appointed^  and  having  agreed, 
to  hid  at  the  sale,  for  the  use  and  behoof  of  the  de- 
faidaota: — Held,  first,  that   the  declaration  was 
-good,  and  that  tlM  refdication  was  net  a  departure 
OMI  it. 


Qiuere — Whether  the  replication  was  good  in 
other  respects. 

Secondly,  that  Carey's  plea  was  bad,  as  it  did  not 
shew  that  the  vendors  had  exercised  their  option  of 
declaring  the  bidding  to  be  null  and  void. 

Thirdly,  that  Cunnington' s  plea  was  bad,  as  it 
did  not  appear  that  the  vendors  had,  at  the  time  and 
place  of  auction,  exercised  their  option  of  declaring 
the  bidding  to  be  void  or  had  notified  the  same  to 
the  pluntiff. 

Fourthly,  thatthe  19  Geo.  3.  c.  36.  has  notrepealed 
the  7th  section  of  17  Geo.  3.  c.  £0. 

Where  defendants  plead  separately  pleas  which 
are  demurred  to,  each  defendant  is  not  entitled  to 
appear  by  separate  counsel  on  the  aigument  of  the 
demurrer.  WiUson  v.  Csrey,  12  Law  J.  Rep.  (K.S.) 
Exch.  17;  lOM.&W.  641. 

One  of  the  defendants,  who  were  the  owners  of 
oertain  land,  employed  the  plaintiff,  an  auctioneer, 
to  sell  it,  and  without  his  knowledge  engaged  H  to 
make  an  advance  of  100i.upon  a  bidding  of  3,0001, 
with  a  view  to  raise  the  price.  The  lot  was  knocked 
down  to  H.  The  auctioneer  then  sold  two  other  lots 
belongiug  to  different  persons,  and  shortlv  after  the 
end  of  the  entire  day's  sale  demanded  the  auction 
duty  of  H,  who  refused  to  pay  it.  It  was  one  of  the 
conditions  of  sale  that  the  duty  was  to  be  paid  by 
the  purchaser  immediately  after  the  sale ; — Held, 
that,  as  against  the  plaintiff,  H  was  to  be  considered 
the  highest  bidder  j  and  that  the  plaintiff  had  made 
a  valid  demand  of  the  auction  duty  upon  H,  and 
that  the  defendants  were  liable.  niUson  v.  Carey, 
12  Law  J.  Rep.  (n.s.)  £xch.  269;  1 1 M.  &  W.  366. 


AVOWRY. 
[See  Replevin.] 


AWARD. 
[See  Arbitration.] 


BAIL. 


[See  Arrest — Recognizance.] 

(A)  Affidavit  and  Order  to  hold  to  bail. 

[See  Arrest,  Under  1  &  2  Vict  a  1 10. 

8.8.] 

(B)  Bail-bond,  Procsedinos  on. 


(C) 
(D) 


Justifying  Bail. 
Excepting  to  Bail — Waiver. 
(£)  Discharge  of  Bail. 

(F)  Taking  Monet  out  of  Court. 

(G)  Bail  in  Error. 
(H)  In  Criminal  Cases. 


(A)  Affidavit  and  Order  to  hold  to  bail. 
[See  Arrest,  Under  1  &  2  Vict  c  110.  s.  3.] 

(B)  Bail-bond,  Proceedings  on. 

A  plaintiff  can  proceed  on  a  bail-bond,  given 
under  1  &  2  Vict  c.  1 10.  s.  4,  although  he  has  since 
taken  a  step  in  the  original  action.  Beit*  v.  Smith, 
10  Lew  J.  Rep.(N.8.)a.B.  305;  2  aB.  113 ;  1  O. 
&  D. 285. 


54 


ATTORNEY  AND  SOLICITOIU-(Bill  of  Costs). 


not  texable.  In  rt  SSmcm,  14  Law  J.  Rep.  (n.b.) 
Q.B.  41 ;  2  Dowl.  &  L.  P.C.  500. 

Where,  in  the  course  of  a  proseontioii  by  the 
Post-office  for  forgery,  which  was  tried  in  the 
country,  the  attorney  to  the  Post>office  employed  a 
country  attorney  to  do  such  part  of  the  busiueas 
as  could  not  be  performed  in  London : — Held,  diat 
the  business  was  done  in  the  character  of  agent,  and 
that  the  bill  was  not  taxable,  notwithstanding  that 
it  charged  the  principal  attorney  not  with  a  propor- 
tion, but  with  the  whole  amount  of  the  profits  arising 
from  the  business  which  was  so  done.  Simtmg  ▼. 
Peacock,  in  r«  StmonM,  14  Law  J.  Rep.  (n.8.)  Q.B. 
290 ;  8  DowL  &  L.  P.C.  166. 

A  bill  of  costs  was  made  out  by  C,  a  country 
aoKcitor,  against  F  &  A,  also  solicitors,  living  in 
the  country.  A  part  of  the  business  to  which  the 
bill  of  costs  related  had  been  transacted  by  C  at  the 
instance  of  B  &  B,  the  agents  in  town  of  F  H^  A, 
and  the  payment  of  the  bill  had  been  applied  for  by 
C  to  both  F  &  A  and  B  &'B :— Held,  that  an  order 
obtained  ex  parte  by  B  &  B  for  taxation  of  the  biU 
was  irregular  and  must  be  dismissed,  but,  under  the 
circumstances,  without  costs.  In  ft  Carven,  14  Law 
J.  Rep.  (ir.8.)  Ch.  872. 

Certain  actions  of  ejectment  having  been  brought 
by  the  heirs-at-law  against  the  devisees  for  the  re- 
coTerv  of  devised  estates,  a  compromise  was  effected, 
by  which  It  was  agreed  that  the  devisees  should 
pay  10,000/.,  of  which  the  six  heirs  were  to  take 
each  l,000il,  and  their  solicitors  the  remaining 
4,000/.,  in  satisfaction  of  their  bills  of  costs,  charges, 
and  disbursements.  One  of  the  heirs  i^rwarda 
repudiated  the  agreement  as  regarded  the  costs^  and 
received  his  full  sixth  share  of  the  whole  10,000/., 
subject  to  payment  by  him  of  his  share  of  the  soli- 
citors' bills  of  costs,  hot  the  other  heirs  received 
each  1,000/.,  and  accepted  a  receipt  in  full  of  all 
demands  from  their  solicitors,  in  respect  of  the 
bills  of  costs : — Held,  that  the  five  co-heirs  could 
not  sustain  a  petition  for  delivery  and  taxation  of 
the  bills  of  costs,  relating  to  the  proceedings  in  the 
action  and  suitsin  equity,  connected  with  theirclaims. 
^  Courts  of  equity  look  jealously  on  transactions 
like  the  above,  for  although  an  agreement  to  accept 
a  sum  of  money  in  satisfaction  of  all  costs  due  to  a 
solicitor  may  be  perfectly  good,  still  one  party  may 
have  full  knowledge  of  the  subject,  but  the  other  not 

In  the  present  case  the  petition  was  refused, 
without  costs.  In  re  fFhitcombe,  14  Law  J.  Rep. 
(N.a.)  Ch.  20. 

One  of  two  executors,  although  beneficially  in- 
terested in  the  testator's  estate,  cannot  obuJn  an 
order  for  taxation  of  a  Mil  of  costs  delivered  to  the 
executors  jointly.  In  re  Perltim,  14  Law  J.  Rep. 
(H.s.)  Ch.  168. 

Under  the  87th  section  of  the  act  6  &  7  Vict 
c  78,  a  bill  of  costs  which  has  been  delivered,  though 
not  signed  by  the  solicitor,  or  inclosed  in  a  letter 
signed  by  him  referring  to  it,  may  be  referred  by 
the  Court  for  taxation. 

Where  separate  and  distinct  bills  of  costs  have 
been  delivered  by  a  solicitor  at  different  times  in 
respect  of  business  transacted  for  the  client  person- 
ally, and  also  for  business  transacted  for  a  patty 
since  deceased,  whose  legal  personal  represenutive 
the  same  client  is,  two  several  orders  of  the  Court 
directing  the  Uxation  most  be  appUed  for. 


A  client  obtained  an  order,  of  course,  to  tax  a 
solicitor's  bill  of  costs  that  had  beeadelivvredto 
him,  and  therein  the  solicitor  was  directed  to  deli- 
ver up  all  papers,  &e.,  belonging  to  the  client  on 
payment  of  the  amount  to  be  found  due :  the  soli- 
citor had  other  papers,  &o.  besides  those  that  related 
to  the  business  referred  to  in  the  bill  of  oosCa  in 
question,  and  in  respect  of  winch  he  olaimed  t» 
have  a  lien  fbr  other  costs,  but  the  Court,  under 
the  cirenmstances  adduced,  declined  to  discharge 
the  order  fbr  irregularity.  In  re  Pender^  14  Law  J. 
Rep.  (if.8.)  Ch.  277. 

An  act  of  parliament  authorised  a  ndlwuy  com- 
pany to  make  purchases  of  land,  for  the  purposes 
of  tlieir  railway,  and  provided  for  the  payment  of 
the  costs,  charges,  and  expenses  incurred  in  the 
purchase  of  lands,  and  the  taxation  thereof;  after- 
wards, die  company  entered  into  attides  of  ei^ne^ 
ment  with  the  owner  of  certain  lands,  required  by 
them  for  their  railroad,  whereby  it  was  stipulatod 
that  the  vendor's  expenses,  arising  out  of  tlie  con- 
tract fbr  the  puroluwe,  and  for  carrying  the  aame 
into  eflfect,  as  well  as  the  expenses  of  the  pur- 
chasers, should  be  borne  and  defrayed  by  the  com- 
pany, pursuant  to  certain  provisions  of  a  particular 
act  of  parliament ;  /.  e,  by  arbitration  by  two  soli- 
citors, and  an  umpire  to  be  chosen  by  them.  Sub- 
sequently, the  company  obtained  another  act,  by 
which  it  was  enacted,  that  all  costs  which  the  eon- 
pany  should  become  lialde  to  pay  should  be  taxed 
by  the  proper  officer  of  the  Court  of  Bzcbequer: 
after  the  Attornies  and  Solicitors  Act  had  passed, 
the  solicitor  of  the  vendor  delivered  his  bill  of  costs 
to  the  company,  which  contained  no  charges  for 
any  business  done  in  a  court  of  law,  aad  then 
brought  his  action  at  law,  fbr  the  amount,  against 
the  company;  whereupon  the  company  moved  to 
refer  the  bill  to  the  proper  officer,  for  taxation ; 
which  was  refused,  with  costs. 

The  Court  has  no  jurisdiction  on  an  application 
for  a  reference  fbr  taxation-  of  a  bill  of  costs,  In  a 
summary  way,  to  adjudicate  on  an  agreement  in 
writing,  entered  into  between  the  parties,  refaciv* 
to  the  solicitor's  costs,  charges,  and  expenses;  but 
if  there  be  circumstances  of  an  equitable  nature, 
as  well  as  of  a  legal  nature,  in  such  a  case  an  ap- 
plication to  stay  the  process  in  the  action  at  law, 
must  be  made  to  the  Court  upon  a  bill  filed,  seeking 
equitable  reliefl  In  re  Rhodes,  14  Law  J.  Bop. 
(N.S.)  Ch.  97. 

A  declaration  on  a  promise  by  the  defendant  to 
pay  the  plaintiff,  an  attorney  of  the  Insolvent 
Court,  his  taxed  costs,  fbr  business  done  in  that 
court,  averred,  that  the  costs  were  taxed  bytiw 
Court  for  the  Relief  of  Insolvent  Debtors :— Udd, 
bad,  for  not  averring  a  taxation  by  a  proper  au- 
thority. Morgan  v.  Weti^  14  Law  J.  Rep.  <N.s.) 
Rxch.  8;  18  M.  &  W.  388 ;  2  Dowl.  &  L.  P.C. 
801. 

(2)  Order  rf  cottru  for,  under  6  A  7  FicL  e.  73. 

*.37. 

An  order  of  coune,  obtained  by  a  client  for  tko 
taxation  of  his  solicitor's  bill  of  costs  after  pay* 
ment  thereof,  dischaiged.  Soifer  v.  Wagttt^,  12 
Law  J.  Rep.  (n.8.)  Ch.  496. 

An  order  was  obtained  upon  petition,  as  of  course, 
to  tax  two  bills  of  costs,  one  of  which  was  in  respect 


ATTORNEY  AND  SOLICITOR— (Bill  o»  Cootb.) 


55 


of  an  indictnwnt  !kr  peijnry,  which  wm  prosecuted 
M  a  tiioe  when  tome  of  the  petitioners  were  infkDtt, 
hut  the  petitimaera  suhmitted  in  the  usual  way,  by 
their  petition  (all  hcang  of  age),  to  pay  what  should 
he  jTound  due  to  tha  solicitors  in  respect  of  the  said 
hills  of  costs: — Held,  that  the  petitioners  were 
h«ttBd  by  their  auhmissiou,  and  that  their  proper 
cpuae  WAS,  before  the  proceeding  to  tax  was  com- 
pleted,  to  have  come  to  the  Court  for  a  vaiiation  of 
the  order  previously  obtained,  /«  re  Springall, 
14  Law  J.  Rep.  (h^.)  Ch.  12L 

Under  the  common  order  directing  the  reference 
o£  a  solicitor's  bill  of  costs  for  taxation,  the  taxing 
Master  has  jurisdiction  to  decide  on  a  question  of 
rotainer  and  liability  as  to  any  of  the  charges  con- 
tjuned  in  the  bill,  except  those  in  respect  of  which 
the  petitioner  has  in  his  petition  adinitted  the  re- 
tainer of  the  respondent. 

A  different  practice  prevails  in  the  courts  of 
common  kw,  arising  out  of  oircumstanoeB  not  ap- 
placahle  to  an  order  of  reference  in  this  court.  In 
rm  BrMCtp,  H  Law  J.  Hep.  (n.il)  Ch.  299. 

An  order  of  course,  directing  the  taxation  of  the 
bill  of  costs  of  a  mortgagee's  solicitor,  obtained  by 
the  mortgagor,  after  a  statement  to  his  solicitor  by 
the  moitgagee's  solicitor  that  the  amount  thereof 
had  been  received  by  him, — discharged,  hut,  under 
the  circumstances,  without  costs.  In  re  CareWf  14 
I^w  J.  R^  (N.8.)  Ch.  100. 

[And  see  In  re  Pender,  mUe,  (1),  p.  54;  and  In 
re  Becke^  poet  (5),  p.  -56.] 

(3)  Ufon  Terms,  where  Bill  delivered  more  than  a 

Month, under  6^7  Ftci,  c.  73.  «. 37. 

An  order  for  the  taxation  of  a  solicitor's  hill  may 
be  made  ett  parte  after  the  expiration  of  one  montn 
from  the  delivery  of  it,  but  within  twelve  months. 
In  re  GmiekeU,  14  Law  J.  Rep.  (n.s.)  Ch«  450. 

Where  a  reference  for  taxation  of  a  solicitor's 
bill  of  costs  is  applied  for,  after  the  expiration  of 
the  one  month  nenticmed  in  the  37th  section  of 
6  &  7  Vict  e.  73,  and  the  bill  is  under  lOOi.  in 
anowity  the  order  will  be  made  for  a  reference, 
witkont.reqttiring  the  amount  of  the  bill  to  be  paid 
into  court*  In  re  Bromley^  18  Law  J.  Rep.  (na) 
Ch.3a0. 

(4)  Upon  Special  Circumstances,  after  Ferdiet,  Writ 
ofInqmry,orihe  Expiration  rf a  Year,  under  6  ^  7 
PlcL  e.TS.s.  37. 

The  statute  0  fr  7  VicL  «.  73,  applies  to  attor- 
nies'  hills  deliveied  before  it  came  into  operation ; 
aiul  the  Court,  under  section  37,  has  power  to  refer 
them  for  taxation  after  the  lapse  of  twelve  months 
from  the  time  of  their  delivery,  if  special  circum- 
stances are  shewn. 

Under  section  41.  the  Court  cannot  refer  for  tax- 
ation a  bin  which  has  been  paid  upwards  of  twelve 
months,  though  the  bill  was  delivered  and  paid 
before  the  passing  of  the  act 

Upon  a  motion  to  tax  an  attorney's  bill,  the 
Court  will  not  take  notice  of  its  contents,  unless 
they  are  Torified  by  affidavit,  or  the  rule  has  been 
drawn  up  on  reading  the  bill. 

QiuBre — ^Whether  a  promissory  note,  payable  six 
months  after  date,  having  been  given  by  the  client 
for  tho  balance  of  an  attorney's  bill,  payment  under 
section  41.  is  to  be  considered  to  have  been  made  at 


the  time  of  the  giving  of  the  note,  or  the  time  when 
the  note  was  paid. 

Semble-^The  Court  has  power,  under  special  cir- 
cumstances, to  refer  a  bill  for  taxation  within  the 
year,  even  when  the  payment  has  been  made  after 
action  brought. 

Semble — The  mere  non-payment  of  fees  due  to  a 
barrister  or  special  pleader,  does  not  constitute  suf- 
ficient special  circumstances  to  warrant  an  order 
for  referring  to  taxation  a  bill  which  has  been  deli- 
vered more  than  twelve  months.  In  re  Wilton,  13 
Law  J.  Rep.  (».s.)  U.B.  17. 

An  attorney  had  for  several  years  been  employed 
in  various  transactions  for  a  client  prior  to  June 
1843.  In  1841,  he  delivered  a  bill  containing  items 
for  business  done  antecedent  to  and  in  the  year  1839, 
but  which  did  not  contain  a  great  portion  of  his  de- 
mand. In  June  1842,  the  client  gave  him  two  pro- 
missory notes,  in  which  a  surety  joined,  one  payable 
at  eight,  and  the  other  at  twelve  months,  for  his 
entire  demand.  These  were  paid  at  maturity ;  and 
in  June  1843,  after  the  payment  of  the  last  note, 
two  other  bills  were  delivered  many  of  the  items  of 
which  were  incurred  antecedently  to  1839.  On  the 
part  of  the  attorney,  it  was  sworn  that  the  notes  were 
received  as  cash: — Held,  that  the  whole  of  the  three 
hills,  in  fact,  formed  but  one  bill,  and  that  the  Court 
had  power  to  refer  the  whole  three  bills  to  taxation 
Qpon  a  rule  obtained  in  Easter  term,  1844. 

Semhk—Ths  receipt  of  a  promissory  note  or  bill 
of  exchange,  upon  which  the  client  remains  liable, 
cannot  be  considered  as  payment  within  s.  41.  of  6 
&  7  Vict  c.  73,  so  as  to  preclude  the  Court  from  re- 
ferring a  bill  to  taxation  after  the  lapse  of  more  than 
a  year  ftom  such  receipt,  but  within  a  year  of  its 
becoming  due  and  being  paid.  In  re  Peachy  13  Law 
J.  Rep.  (N.S.)  Q.B.  249 ;  2  Dowl.  &  L.  P.C.  33. 

The  sUtute  6  &  7  Vict  c  73.  applies  to  attornies* 
bills  delivered,  and  rules  ni«i  obtained  for  their  taxa> 
tion,  before  the  passing  of  that  act ;  and  therefore, 
where  a  rule  nisi  had  been  obtained  in  Trinity  term, 
1843> — Held,  that  the  Court  must  be  guided  bj  tho 
rules  laid  down  by  that  statute,  in  disposing  of  it 

Under  section  41.  of  that  statute,  the  Court  can- 
not, even  under  special  circumstances,  refer  a  hill 
for  taxation  which  has  been  paid  more  than  twelve 
months. 

Under  section  37,  the  Court  has  power,  at  any 
time,  under  special  circumstsnces,  to  refer  for  taxa- 
tion a  bill  which  has  been  delivered,  but  not  paid, 
more  than  twelve  months. 

An  attorney's  bill  had  been  delivered  to  some 
ignorant  parties  in  June  1840,  and  in  November 
1842  a  summons  for  its  taxation  had  been  dismissed 
by  a  Judge  at  chambers,  on  the  ground  of  the  in- 
sufficiency of  the  materials  on  which  it  was  founded. 
It  appeared  that  a  sum  of  money  had  been  deposited 
in  1839,  in  the  joint  names  of  Uie  attorney  and  an- 
other party,  on  behalf  of  the  clients : — Held,  that 
there  being  a  dispute  respecting  the  sum,  the  Court 
would  refer  the  bill,  and  require  the  attorney  to 
account  on  a  rule  tiwt  obtained  in  Trinity  term,  1843. 
Binns  v.  Hey,  1 3  Law  J.  Rep.  (m.s.)  aB.  28 ;  1  Dowl. 
&L.  P.C.  661. 

Upon  an  application  to  tax  an  attorney's  bill  after 
verdict,  under  the  37th  section  of  6  &  7  Vict  c.  73, 
on  the  ground  of  "  special  circumstances,"  it  is  not 
sufficient  to  shew  circumstances  known  to  the  defen- 


56 


ATTORNEY  AND  SOLICITOR^ Bill  or  Costs). 


dmt  befone  aetion;  tliey  most  appear  to  have  come 
to  the  defeadant*s  knowledge  recently^  uid  tke  ap* 
pUcation  must  be  made  promptly.  In  re  IVkU/ker, 
14  Law  J.  Rep.  (n.8.)  Exeh.  78 ;  13  M.  &  W.  649; 
2  DowL  &  L.  P.C.  407. 

(5)   Upon  Special  Circumsiancet,  rfter  Payment  qf 
Bill,  under 6^7  VicU c. 73. «.  41. 

[See  In  re  WiUon ;  In  re  Peadk ;  and  Bimu  v. 
Hoy,  anU,  (4)  page  56,] 

After  payment  of  a  bill  of  costs,  an  order  for 
taxation  is  not  to  be  obtained  as  of  course,  even  by 
a  party  liable  to  pay  the  same. 

By  virtue  of  the  act  6  &  7  Vict  c.  73,  any  party 
entitled  to  an  order  to  tax  a  bill  of  costs  may  oWin 
it  as  of  coarse,  and  without  special  directions,  within 
one  month  after  its  delivery,  and  with  such  special 
directions  as  the  Court  may  impose,  after  the  ex- 
piration of  one  month  from  the  delivery,  but  not 
after  verdict,  writ  of  inquiry,  or  payment.  In  such 
eases  a  special  order,  made  on  special  circumstances, 
proved  to  the  satisfaction  of  the  Court,  is  requisite. 
Payment  of  a  bill  of  costs  by  a  mere  volunteer  under 
no  previoiu  liability,  gives  no  right  to  him  to  obtain 
an  order  to  tax  the  bill.  In  re  Becke,  13  Law  J. 
RejD.  (N.S.)  Ch.  157 ;  6  Bea.  406. 

Order  for  taxation  of  a  solicitor's  bill  under  the 
circumstances,  after  a  settlement,  upon  the  common 
petition,  without  stating  the  objectionable  items. 
Jones  V.  Powysy  10  Law  J.  Rep.  (n.s.)  Ex.  £q.  49. 

An  attorney  having  delivered  his  bill  of  costs, 
dated  the  1 4th  of  August  1339,  received  at  the  same 
time  fVom  his  debtor  a  promissory  note  of  tbst  date, 
payable  at  two  months.  He  also  held  the  title- 
deeds  of  the  debtor  as  a  lien  for  the  costo,  and  did 
not  deliver  them  up  until  July  1843,  when  the  note 
was  paid.  A  Judge's  order  having  been  made  in 
February  1844,  under  6  &  7  Vict  c.  73.  s.  41,  for 
referring  to  taxation  such  bills  of  costo  as  had  been 
paid  not  more  than  twelve  months  previously  :— 
If  eld,  that  the  bills  oould  not  be  considered  as  paid 
at  the  time  of  their  date  within  the  meaning  of  the 
aot«  and  that  they  were,  therefore,  liable  to  taxation. 
In  re  Barries,  13  Law  J.  Rep.  (n.8.)  Exch.  259 ;  13 
M.  &  W.  3 ;  1  DowL  &  L.  P.C.  1018. 

A  solicitor's  bill  of  costo  pud  underpressure,  and 
protested  against,  referred  for  taxation. 

Protest,  combined  with  other  circunoAtances,  may 
be  a  ground  of  reference  of  a  bill  of  costs  for 
taxation. 

Where  there  is  evidence  of  pressure,  the  Court 
will,  if  necessarv,  direct  a  general  reference  for 
taxation,  although  in  the  petition  for  taxation  some 
only  of  the  items  of  the  bill  of  oosto  may  be  objected 
to.   £«  parU  Wilkmaon,  in  re  Alcoek,  2  Co^  C.C.  92. 

On  an  application,  on  special  circumstances,  for 
a  reference  for  taxation  of  a  solicitor's  bill  of  costo 
after  payment  thereof,  under  protest,  within  the 
year,  tne  proof  of  pressure  alone  is  not  sufficient  to 
render  the  bill  taxable  under  the  act  6  &  7  Vict 
c.  73,  but  some  objectionable  item  in  the  bill  must 
be  shewn,  either  alone  or  aocompanied  with  some 
other  special  ciicumstanoes. 

If  no  dispute  exist  as  to  the  construction  of  a 
contract  or  agreement  for  taxation  entered  into  be- 
tween the  parties,  the  Court  will  direct  a  reference 
for  taxation.  In  re  Tkompton,  14  Law  J.  Rep.  (n.s.) 
Ch.  137. 


If  a  toKeitov  has  refliied  to  aHow  Mrtain  deeds  to 
be  execnted  until  his  bill  of  eosto  is  paid,  and  die 
bill  is  paid  under  protest,  and  the  deeds  executed, 
this  may  constitute  such  a  **  special  circumstance'* 
as  to  induce  the  Court  to  tax  the  bill  under  6  ft  7 
Vict  c.  78. 

A  petition  for  the  taxation  of  a  bill  of  costo  set 
forth  special  cireutmstances  sufficient  in  themselves 
to  obtain  an  order  for  taxation,  but  the  affidavite  in 
support  of  it  mentioned  some  of  the  items  whicti 
were  objected  to,  all  of  which  were  expluned  by  the 
solicitors  to  the  satisfaction  of  the  Court  The  pe* 
tition  was  dismissed  with  costs.  Ex  parte  Andrem, 
13  Law  J.  Rep.  (n.b.)  Ch.  222. 

A  mortgaged  to  B  an  estate,  with  power  of  sale 
in  default  of  payment  The  estato  was  9<4d  by  B 
under  the  power,  and  L  was  the  solicitor  employed 
by  B  in  completing  the  sale.  The  whole  of  the 
business  was  transacted,  and  L's  bill  of  costo  ac- 
tually paid  out  of  the  purchase-money,  before  the 
Stat  6  ft  7  Vict  c.  73.  came  into  operation : — Held, 
on  the  application  of  A,  that  the  bill  of  oosto  was 
not  taxable. 

The  payment  of  a  taxable  bill  delivered  before 
the  act  6  &  7  Vict  c.  73.  came  into  operation,  will 
not  preclude  taxation  under  tiiat  act,  upon  a  proper 
application  being  made  in  due  time.  In  re  Lees,  13 
Law  J.  Rep.  (ii.s.)  Ch.  151 ;  5  Bes.  410. 

Where  a  party  intorested  in  the  estato  out  of  which 
a  bill  of  costo  has  been  paid  by  a  trustee,  applies  for 
an  order  to  tax  the  same,  he  must  proceed  under  the 
41  St  section  of  the  act  6  &  7  Vict  c  73;  but  where 
the  bill  has  not  been  paid,  he  must  proceed  under 
the  37th  section.  The  Court  cannot,  under  the  act 
0  &  7  Vict  c.  73.  direct  a  bill  to  be  taxed  against 
the  solicitor,  if  it  has  been  paid  more  than  twelve 
months ;  but  there  is  nothing  in  the  act  to  prevent 
the  Court  ordering  a  taxation  as  between  the  trustee 
and  ceatmt  que  trust,  of  a  bill  of  costo  containing  im- 
proper payinento,  where  the  trustee  has  neglected  to 
procure  in  due  time  a  taxation  thereof. 

The  expression  "  such  bill  as  aforesaid,"  in  the 
41st  section,  does  not  mean  "  such  bill  as  is  herein- 
before mentioned  to  have  been  faxed  and  settled,*' 
mentioned  in  the  section  immediately  preceding; 
nor  is  it  confined  to  such  bill  as,  under  the  provniions 
of  the  act,  is  sought  to  be  taxed  by  a  par^  directly 
chargeable  therewith. 

Semhle — Where  a  solicitor's  bill  has  been  paid  by 
a  trustee,  the  eestuis  que  trust  are  entitled  to  ask  for 
a  reference  for  taxation  of  the  bill  against  the  soli- 
citor at  any  time  within  twelve  months  after  pay- 
ment thereof,  but  not  afterwards,  although  the  ces- 
tuit  que  trust  had  no  knowledge  of  the  payment  until 
after  the  twelve  months  had  expired.  In  reDownes, 
13  Law  J.  Rep.  (n.8.)  Ch.  159;  5  Bea.  425. 

A  mortgagor  is  entitled,  under  the  act  6  &  7  Vict 
c.  73,  on  shewing  special  circumstances,  to  the  order 
directing  the  taxation  of  a  mortgagee's  bill  of  costs, 
after  payment  thereof  by  the  mortgagee.  In  re 
Carew,  14  Law  J.  Rep.  (n.8.)  Ch.  100. 

A  transfer  of  a  mortgage  having  been  agreed  on, 
a  meeting  was  held  to  carry  the  same  into  execu- 
tion, when  the  clerk  of  the  mortgagee's  solicitor 
presented  his  bill  of  costo,  which  was  objected  to  in 
respect  of  certain  charges  therein  contained,  which 
were  alleged  by  the  mortgagor  (as  was  the  foct) 
to  be  unreasonable ;  the  clerk,  on  being  pressed  to 


ATTORNEY  AND  SOLICITOIU.(Bill  of  Cobtb.) 


57 


•How  the  iM^BDent  «f  tbe  bill  to  ftand  orer  for  a 
di^  oc  two,  m  order  th«t  the  mortgngor  might  see 
the  solicitor  on  the  subject  of  the  ehugee  objected 
to^  refused,  and  required  immediete  pftymeat,  and 
thereupon  the  bill  was  paid : — Held,  that  the  con» 
duet  of  the  clerk  was  a  special  circumstance  in 
support  of  the  application  to  tax  the  bill,  and  that 
the  clerk's  refhsaX  to  allow  the  payment  of  the  bill 
to  stand  over  for  a  day  or  two,  and  the  statement  by 
the  petitioner  of  the  overcharges  to  the  clerk,  before 
payment  of  the  bill,  and  the  existence  of  those  over- 
charges, were  sufficient  grounds  to  induce  the  Court 
to  cnier  taxation  of  the  bill. 

It  is  no  objection  to  such  ao  application,  that  in 
a  bill  made  oat  against  a  mortgagee  some  of  the 
chaigee  are  made  against  the  mortgagor.  /»  r« 
WtUt,  14  Law  J.  Bep.  (n.s.)  Ch.  216, 

Within  twelve  months  after  payment  of  a  bill  of 
costs,  a  client  presented  a  petition  for  its  taxation, 
but  the  petition  having  specified  no  items  of  over* 
charge,  no  order  could  be  made;  and  the  twelve 
months  having  then  expired,  the  Court  refused  to 
allow  the  petition  to  stand  over  for  the  purpose  of 
an  amendment,  by  specifying  the  items.  Barwell  v. 
Brooks,  7  Bea.  345. 

CestuU  que  tnat,  in  presenting  a  petition  within 
the  year,  seeking  the  taxation  of  a  solicitor's  bill  of 
costs,  which  has  been  paid  by  their  trustees,  must 
state  particular  items  of  overcharge  contained  in 
the  bill,  or  other  special  circumstances.  In  re 
Bemet,  14  Law  J.  Rep.  (n.s.)  Ch.  403. 

A  bill  of  costs  settled  and  paid  after  examination, 
discussion,  and  an  abatement  made  by  the  solicitor, 
was  referred  for  taxation  under  the  circumstances, 
but  on  the  terms  of  the  client  admitting  the  cash 
payments  contained  in  the  settled  account 

A  solicitor  delivered  his  bill  of  costs.  His  client 
had  time  to  examine  it,  and  obtained  professional 
advice  and  assistance  respecting  it  Objections 
were  made  to  the  items,  and  after  discussion  the 
client  obtained  a  considerable  deduction.  He  settled 
the  account,  admitted  the  balance,  obtained  the 
vouchers^  and  afterwards  paid  the  amount  admitted 
to  be  due.  The  relation  of  solicitor  and  client  con- 
tinued after  the  payment  The  Court  directed  a 
taxation  of  the  biu  notwithstanding  this  settlement, 
thinking  that  the  cHent  was,  "  to  an  alarming  ex- 
tent,'* in  the  power  of  the  solicitor ;  that  the  bill, 
winch  contained  general  items  to  a  very  consider- 
able amount;  under  the  terms  "  numerous  attend- 
ances,*' and  "innumerable  attendances,"  was  not 
sufficiently  explanatory ;  that  the  solicitor  did  not 
do  all  which,  under  the  circumstances,  he  ought 
to  have  done  to  facilitate  to  the  client  the  exercise 
of  bis  right  to  a  full  statement  of  the  particulars  of 
the  charge,  and  to  the  proper  investigation  of  each 
particular  item;  and  that  the  parties  were  on  terms 
so  unequal  as  to  make  it  difficult  to  make  any  bar- 
gain which  could  he  binding  upon  the  client  in  the 
absence  of  other  assistance. 

Where  accounts  and  bills  of  costs  of  a  solicitor 
sre  delivered  a  sufficient  time  before  the  settlement 
to  allow  the  client  to  examine  them,  and  obtain 
advice  and  assistance  respecting  them,  and  the 
opportunity  is  taken  advantage  of,  and  the  bills 
being  examined,  objections  are  t^en,  upon  dis- 
cussion of  which  an  allowance  is  made,  a  settlement 
eome  to,  and  the  balance  paid,  primd  facie,  a  taxa- 

DioBST,  1840—1845. 


tion  is  precluded ;  but  if,  under  the  above  circum- 
stances, the  client  is  in  the  power  or  at  the  mercy 
of  the  solicitor, — if  the  bills  delivered  be  not  suffi- 
ciently explanatory, — if  the  client,  though  having 
time  to  examine  the  bills,  has  not  been  able  to  obtain, 
or  has  not  been  allowed  to  employ,  the  most  effec- 
tive means  of  examination, — if  it  appears  that  the 
solicitor  in  whose  power  the  client  is  is  driving  a 
bargain  with  him  on  unequal  terms,  and  that  the 
relation  of  solicitor  and  client  and  the  power  of  the 
solicitor  oootinueB,  then  all  the  circumstances  above 
referred  to,  as  tending  to  establish  the  settlement, 
mav  be  unavailing.  Nokee  v.  fVarton,  5  Bea.  448. 

In  the  case  of  a  petition  presented  for  a  reference 
to  tax  a  solicitor's  bill  of  costs,  the  application  must 
be  considered  as  made,  at  the  latest,  at  the  time 
when  the  petition  is  answered  by  the  secretary,  and 
not  at  the  time  of  its  service  on  the  respondent 
If,  by  neglect  of  the  officer,  the  petition  be  not 
answered  on  the  day  it  ought  to  have  been,  the 
application  may  be  considered  as  of  an  earlier 
date. 

If  a  promissory  note  be  given  by  a  debtor  to  his 
creditor,  the  debt  may  be  considered  as  actually 
paid,  if  the  creditor  at  the  time  of  receiving  the 
note  has  agreed  to  take  it  in  payment  of  the  debt, 
and  to  take  on  himself  the  risk  of  the  note  not 
being  paid,  or  i^  from  the  conduct  of  the  creditor, 
or  special  circumstances  of  the  case,  such  an  agree- 
ment is  legally  to  be  implied ;  but,  in  the  absence 
of  any  special  circumstances,  the  receipt  of  the 
note  by  the  creditor  is  nothing  more  than  the  giving 
to  the  creditor  extended  credit 

On  the  3rd  of  November  1842,  a  client  gave  his 
promissory  note  to  his  solicitor,  in  payment  of  a 
bill  of  costs  previously  delivered ;  the  note  was 
honoured  and  paid  on  the  17th  of  the  same  month. 
On  the  15th  of  November  1849,  the  client  pre- 
sented his  petition,  praying  an  order  for  taxation 
of  the  bill.  The  petition  was  answered  on  the  16th 
of  November  for  the  next  petition-day,  the  24th, 
and  served  on  the  2l8t  of  .that  month: — Held,  that 
the  bill  was  to  be  considered  as  paid  on  the  17th  of 
November  1842;  and  that  the  application  for  an 
order  for  taxation  was  to  be  deemed  to  have  been 
made  on  the  16th  of  November  1843,  and  that, 
therefore,  the  bill  was  taxable  under  the  41st  section 
of  the  sUtute  6  &  7  Vict  c.  73. 

The  sum  of  two  guineas  a  day  is  allowed  for  at- 
tending the  examination  of  witnesses  in  the  country, 
whether  the  solicitor  attends  personally  or  by  bis 
clerk. 

The  continuance  of  the  relation  of  solicitor  and 
client  is  not  sufficient  in  itself,  in  the  absence  of 
any  fraud  or  pressure,  to  induce  the  Court  to  refer 
a  bill  of  costs  for  taxation  after  payment  bv  the 
client.  Sayer  v.  Wag§tt^,  14  Law  J.  Rep.  (n.s.) 
Ch.  116;  s.  c.  13  Law  J.  Rep.  (n.s.)  Ch.  161 ;  5 
Bea.  415. 

(6)  Costs  qf  TaxaHon. 

Where  the  administrators  of  an  attorney  send  in 
their  intestate's  bill,  and  a  Judge's  order  is  made  to 
tax  it,  and  more  than  one -sixth  is  taken  off  by  the 
Master,  the  administrators  are  not  bound  to  pay  the 
costs  of  taxation,  although  they  consented  to  the 
Judge's  order  being  made.  Priestley  v.  Gray,  9 
Dowl.  P.C.  154. 


58 


ATTORNBY  AND  SOLICHTORr^EiLLOF  Costs). 


An  attorneys  bUI,  «li  taxikkni,  wai  rednoed  by 
more  than  one-sixth,  by  the  Master  strikiiig  off  a 
class  of  charges  for  business  done  in  the  Court  of 
Common  Pleas,  the  attorney  not  being  an  attorney 
of  that  court,  though  be  waa  an  attorney  of  the  other 
coorU  (before  the  statute  7  Will.  4.  &  1  Vict. 
e.  56): — Held,  that  the  attorney  must  pay  the  costs 
^  taxation.  Ifewton  r.  Harland,  10  Law  J.  Rep. 
(ti.s.)C.P.  227;  2M.&G.  886;  SSc  (h.b.)  280; 
t^Dowl.  P.C.641. 

The  client  is  not  entitled  to  the  costs  incidental  to 
4  reference  for  the  taxation  of  his  solicitor's  bills  of 
coefs,  although  considerably  more  than  one>sixth 
is  stroek  off,  where  the  application  for  the  order 
directing  the  taxation  is  not  applied  for  till  alter 
an  action  at  law  was  commenced  for  the  recorery 
of  the  amount  claimed  to  be  due.  In  r€  Boord,  12 
Law  J.  Rep.  (ir.s.)  Ch.  481 ;  6  Bea.  948. 

In  an  action  brought  to  recover  the  amount  of  a 
bill  of  costs,  among  others  the  costs  of  an  appeal  to 
the  House  of  Lords,  in  which  the  plaintiff  had  been 
the  attorney  of  the  defendant,  the  bill  of  costs  had 
b^en,  by  the  usual  Judge'sorder,  upon  the  application 
of  the  defendant's  attorney,  and  on  the  usual  under- 
taking to  pay  what  shonld  be  found  to  be  due,  referred 
tothe  Master  fot  taxation.  Defend  ant  having  become 
insolvent,  the  Court  refused  to  compel  the  defen- 
dant's attorney,  upon  the  application  of  the  plaintiff 
to  pay  the  fees  for  obtaining  the  certificate  of  the 
taxing  officer  of  the  House  of  Lords,  of  the  amount 
due  upon  that  portion  of  the  bill  which  had  been 
referred  to  him  for  taxation. 

Quare — Whether  if  such  application  had  been 
made  by  the  Master  or  other  officer,  the  Court 
would  have  interfered.  Beeke  v.  CatteU,  1 1  Law  J. 
Rep.(N.8.)C.P.4d;  8M.&G.480;  4Sc.(n.8.)246. 

A  bill  was  filed  by  the  executors  and  devisees  in 
trostnnder  a  will,  to  have  the  trusts  of  the  will  esta- 
blished, and  the  usual  accounts  taken.  J  F  acted 
as  the  solicitor  of  the  plaintiffs  as  well  as  of  the  de- 
fendants, and  conducted  the  proceedings  in  the  suit 
itabsequently  to  the  decree,  until  the  conduct  of  it 
was  taken  from  him  by  the  plaintiffs,  and  a  new  soli- 
tor  appointed  by  them.  J  F  having  delivered  up 
the  documents  relating  to  the  suit  tothenew  solicitor, 
a  paper  writing  was  discovered  amongst  them,  pur- 
porting to  be  a  copy  of  a  charge  which  had  been 
carried  in  by  J  F  under  the  decree,  in  the  joint 
names  of  certain  persons,  of  whom  J  F  was  one,  as 
creditors  of  the  testator ;  the  charge  thereby  made 
by  J  F  for  himself  amounted  to  the  sum  of  57/., 
alleged  to  be  the  balance  due  from  the  testator's 
estate  for  business  done  by  J  F  for  the  testator  and 
his  son,  as  partners  in  business,  on  the  testator's 
retainer,  after  deducting  from  the  aggregate  amount 
of  his  several  bills  of  coats  the  suras  received  by  him 
from  the  testator  on  account  of  such  business.  On 
the  copy  of  the  charge  found  amongst  the  documents 
so  delivered  up  by  J  F  was  indorsed  a  memoradum, 
in  the  handwriting  of  J  F't  town  agent,  to  the  effect 
that  the  charge  had  been  allowed,  subject  to  the 
approval  thereof  by  the  defendants'  solicitor:  the 
copy  also  bore  a  subsequent  indorsementi  in  the 
same  handwriting,  to  the  effect  that  the  charge  had 
been  afterwards  absolutely  allowed,  but  no  entry  to 
any  such  effect  was  to  be  found  in  the  Master's  books. 
The  Master  having  referred  the  bills  of  costs  to  be 


taxed,  J  F  withdrew  his  ehaige.  On  applioMioii 
to  the  Court  by  the  plaintiffis  by  petition,  the  bills 
of  costs  of  J  F  were  ordered  to  be  tazed»  and  an 
account  was  directed  to  be  taken  of  the  monies  re- 
ceived by  J  F  on  account  thereof,  and  more  llian 
one  sixth  part  of  the  amount  of  the  bills  having  been 
taken  off  on  taxation,  J  F  was  ordered  to  pay  the 
costs  of  the  petitioners  occasioned  by  his  charge,  and 
also  the  costs  of  the  petitioners*  application  to  the 
Court  relative  to  the  charge  and  bills  of  costs,  and 
consequential  thereon.  Jcey  v.  Simptrn^  12  Law  J. 
Rep.  (N.8  )  Ch.  449. 

A  Judge's  order  directed  an  attorney's  bill  to  be 
taxed  upon  an  undertaking  being  given,  signed  by 
the  then  churchwardens-  The  undertaking  was 
signed  by  a  part  only  of  the  jirewna  chorchwardeBs, 
but  the  attorney  having  made  no  objection,  the  costs 
were  taxed,  and  more  than  a  sixth  deducted.  An 
order  for  the  attorney  to  pay  the  costs  of  the  taxa- 
tion having  been  obtained, — Held,  that  the  attorney 
could  not  apply  to  set  it  aside  on  the  ground  that 
the  undertaking  was  not  signed  in  accordance  with 
the  Judge's  order.  Doe  d.  Goodland  v.  Frankkmi^ 
1 2  Law  J.  Rep.  (if.8.)  aB.  249 ;  2  Dowl.  P.C.  (h.s.) 

975. 

An  attorney  having  bought  an  action  on  his  bill, 
the  defendant  obtained  an  order  to  tax  it,  and,  after 
taxation,  paid  money  into  court  The  plaintiff  took 
the  money  out  of  court,  and  taxed  his  costs  of  the 
cause:— Held,  that  the  Master  was  right  in  treating 
the  costs  of  taxing  the  bill  as  costs  in  the  cause. 
Th&nuu  V.  the  Mayer  cfSwamea,  12  Law  J.  Rep.  (n.8.) 
Exch. 281 ;  1 1  M.&  W.83 ;  2  Dowl.  P.C. (h.s.)  1008. 

If  an  attorney's  bill  be  referred  for  taxation,  and 
after  a  discussion  before  the  Master,  the  partlea 
come  to  an  arrangement  as  to  the  amount,  and  the 
Master  makes  his  allocatur  upon  such  arrangement, 
for  more  than  five- sixths  of  the  original  amount  of 
the  bill,  the  attorney  is  not  entitled  to  the  costs  of 
taxation. 

On  an  application  by  an  attorney  for  the  coats  of 
taxation,  the  Court  will  admit  affidavits  to  explain 
the  circumstances  under  which  the  Master  made  his 
allocatur.  Laurie  v.  Bartlett,  13  Law  J.  Rep.  (K.S.) 
aB.  145 ;  1  Dowl.  &  L.  P.C.  780. 

An  executor  who  applies  to  tax  the  bill  of  his 
testator's  attorney,  is  liable  to  pay  the  costs  of 
taxation,  if  less  &an  one-sixth  is  struck  offl  Jrf- 
freton  v,  Warrington^  10  Law  J.  Rep.  (n.8.)  Exch. 
79 ;  7  M.  &  W.  137 ;  8  Dowl.  P.C.  880. 

Where  an  unsigned  bill,  delivered  by  an  attorney, 
was,  with  his  consent,  referred  by  a  Judge^s  order 
to  taxation,  at  which  he  attended,  when  more  than 
a  sixth  was  struck  off,  the  Court,  under  its  general 
jurisdiction,  ordered  him  to  pay  the  costs  of  taxa- 
tion, although  the  order  contained  no  undertaking 
on  tile  part  of  the  client  to  pay  the  amount  found 
to  be  due.  Peters  v.  Sheehan,  12  Law  J.  Rep.  (n.«.) 
Exch.  177  ;  10  M.  &  W.  213;  1  DowL  P.C.  (N.8.) 
948. 

Where  an  attorney's  bill  is  refenred  to  taxation 
after  action  brought  upon  it,  the  attorney  is  liable, 
under  6  &  7  VicL  c.  73.  s.  37,  to  pay  the  costs  of 
taxation,  if  more  than  one-sixth  is  stmek  oi£  Ex 
parte  WooUett,  18  Law  J.  Rep.  (n.b.)  Exch.  121  ; 
12  M.  &  W.  504 ;  1  DowL  &  L.  P.C.  598. 

The  statute  6  &;  7  Vict  c.  78.  repeals  2  Geo.  3. 


ATTORNEY  AND  SOLICITOR. 


59 


c  23,  "  except  so  far  as  kUIm  to  anytliing  done  at 
any  time  before  the  passing  of  this  aet" 

An  attomey'B  bill  having  been  taxed  under  2 
Geo.  2.  c.  23.  before  the  passing  of  6  &  7  Vict  o.  78, 
«~Held,  that  a  motion  might  be  made  respecting  the 
eosts  of  that  bill  after  that  act  had  pasaed. 

Where  less  than  one-sixth  has  been  taken  off  an 
attorney's  bill  upon  taxation,  but  the  bill  has  been 
lednced  by  a  substantial  sum,  the  Court  will  not 
allow  the  attorney  the  costs  of  taxation.  Hodge  ▼. 
Bkrd,  13  Law  J.  Rep.  (rs.)  CP.  87  ;  1  Dowl.  &  L. 
P.C.  956. 

The  statute  6  &  7  Vict,  a  73.  s.  1.  repeals  all 
former  acta,  except  so  far  as  relates  to  any  matters 
•r  things  done  at  viy  time  before  the  passing  of  the 
act:^ — Held,  that  an  order  referring  a  bill  of  costs 
for  taxation,  prior  to  the  passing  of  the  act,  was  a 
matter  or  thing  done  to  which  the  former  act  re> 
kted ;  that  the  power  of  the  Court  to  order  the  pay- 
ment of  the  costs  of  taxation  bv  the  client,  under 
the  former  act,  nearly  a  sixth  having  been  taxed 
ofl(  was  saved  from  the  operation  of  the  new  statute, 
although  the  taxation  was  not  completed  until  after 
the  new  act  had  pasaed.  Doe  d.  PotU  v.  Jinders, 
14  Law  J.  Rep.  (n.s.)  Q.B.  245. 

(c)  RenudUs. 
(I)  By  Action. 

In  an  action  on  an  attorney's  bill,  plea,  titfii^tiem 
mdekitahUf  it  is  competent  for  the  plaintiff  to  shew 
that  a  greater  amount  is  due  to  bira  than  the  Mas> 
ter  allowed  on  taxation,  pursuant  to  an  order  for 
changing  the  attorney  in  the  course  of  the  cause  in 
which  the  costs  were  incurred.  Beck  v.  Cleimer, 
9Dowl.P.C.llL 

In  an  action  on  an  attorney's  bill,  the  day  on 
which  it  is  delivered  is  not  to  be  reckoned  as  one 
of  the  daya  of  the  month  given  to  the  client  by  the 
sUtute.     Biunt  v.  Haskp,  9  Dowl.  P.C.  932. 

Where  the  defendant  was  an  attorney  at  the  com- 
meneement  of  the  suit,  but  not  when  the  cause  of 
action  accrued : — Held,  that  he  might  be  sued  by 
another  attorney  for  professional  services,  before 
the  expiration  of  a  month  from  the  delivery  of  a 
signed  bilL  H^btdser  v.  Herbert,  10  Law  J.  Rep. 
(va)  Excfa.  132;  7  M.  &  W.  375;  9  Bowl.  P.C. 
237. 

The  contract  of  an  attorney  retained  to  conduct 
an  action  is  continuing,  and,  as  a  general  rule,  can 
be  determined  by  him  only  on  reasonable  notice. 

An  attorney  cannot,  therefore,  recover  his  bill  of 
costs,  in  an  action  which  has  not  been  terminated, 
uleas  he  shews  satisfactorily  why  he  has  abandoned 
it  MdudU  V.  Wileen,  12  Law  J.  Rep.  (n.8.)  Exch. 
266;  11M.&W.  106. 

In  assumpsit  on  an  attorney's  bill, — Held,  that 
the  failure  of  the  business  done  by  his  negligence 
in  the  conduct  of  the  suit,  was  a  good  defence  on 
non  assumpsit;  and  it  is  a  question  for  the  jury 
whether  such  failure  arose  from  the  plaintiff's 
fault.    Braeey  v.  Carter,  12  Ad.  &  £.  873. 

(2)  By  Execution  under  14-2  Fict.  c.  110.  s,  18. 

The  Court  will  grant  a  rule  directfiig  a  party 
to  pay  the  amount  of  his  attorney's  taxed  bill ; 
which,  under  1  &  2  Vict  c.  110.  s.  18,  will  have  the 
effsotof  a  judgment,  and  give  the  attotney  all  reme- 
dies which  by  that  statute  are  given  to  judgment 


creditors.    Nemk  v.  Podletkeoayie,  10  Law  J,  Rep. 
(ir.s.)  as.  134 ;  iaB.243. 

(P)  Lien  tor  Costs. 

A  borrowed  of  B  a  sum  of  money  on  security  of 
a  mortgage  of  real  property  (  the  expenaes  of  re- 
conveying  which,  on  repayment,  was,  by  the  feenns 
of  the  mortgage  deed,  to  be  paid  by  A.  B  put  the 
deeds  into  the  hands  of  the  defendants,  his  attoroies. 
The  money  being  afterwards  paid  off,  A  employed 
his  own  attorney  to  prepare  a,  reconveyance,  which 
was  sent  to  the  defendants.  This  having  been  ap- 
proved of,  and  settled  on  behalf  of  B,  and  executed, 
the  defendants  insisted  on  retaining  the  title-deeds, 
not  only  for  the  costs  of  the  reconveyance,  but  for 
their  whole  bill  of  costs.  A  having  paid  the  moMy 
under  protest,  in  order  to  get  possession  of  his  deeds, 
— Held,  that  in  an  action  for  money  had  and  v^ 
ceived«  he  was  entitled  to  recover  all  that  had  been 
so  paid  by  him  beyond  the  expense  of  the  recon- 
veyance. Wakefieid  v.  Sewbtm,  13  Law  J«  Rep. 
(v.8.)Q.B.  258;  6  Q.B.  276. 

The  attorney  of  a  defendant  in  an  action  has  not 
such  an  interest  in  it  as  to  prevent  the  parties  com- 
promising it  without  his  eonourrenoe,  Qmeted  v. 
CaUit,  11  Law  J.  Rep.  (K.8.)£xch.  345;  10  M.  &  W. 
18 1  1  Dowl.  P.C.  (N.8.)  888. 

Where  a  plaintiff  and  defendant  compromised  an 
action,  after  verdict  for  the  plaintifl^  without  the 
knowledge  of  the  plaintiff's  attorney,  who  after  no- 
tice of  tiie  compromise,  proceeded  to  sign  final 
judgment ;  the  Court  set  aside  the  judgment  (with- 
out costs),  upon  affidavita  denying  any  fraudulent 
conspiracy  to  deprive  the  attorney  of  his  costs. 
CUark  v.  Smith,  13  Law  J.  Rep.  (N.s.)  CP.  97 ; 
6  M.  &  G.  105 1 ;  1  Dowl.  &  L.  P.C.  960. 

The  employment  of  a  solicitor  in  business  relating 
to  a  trust  estate  by  the  authority  of  the  trustee,  or 
of  some  of  several  eeetmi  que  tru$t$y  gives  the  soli- 
citor no  lien  or  charge  upon  the  trust  estate,  ^r 
upon  the  shares  of  the  other  oeetui  que  irutU. 

The  lien  of  the  solicitor  upon  a  fund  recovered 
in  a  suit  which  he  has  conducted,  is  confined  to  the 
costs  of  that  particular  suit ;  and  therefore,  etmbk, 
that  a  solicitor  who,  in  relation  to  the  same  estate,  in 
which  the  same  parties  are  interested,  has  brought 
an  ejectment  and  a  suit  in  equity,  has  no  lien  upon 
the  fund  recovered  in  the  suit  for  his  costs  of  the 
ejectment.    Hall  v.  Lover,  1  Hare,  571. 

Circumstances  under  which  the  Court  refused  to 
allow  the  solicitor,  who  had  given  an  indemnity  to 
the  sheriff,  who  was  in  possession  of  some  of  the 
bankrupt's  effects,  to  retain  the  produce  of  those 
effects  until  he  was  re-indemnified  by  the  assignees. 
Ex  parte  fVhUere  Hallin,  1 1  Law  J.  Rep.  (N.a.)  Bankr. 
6;  2M.D.&D.637;  affirmed,  3  M.  D.  &  D.  7. 

The  solicitor  of  the  executrix  in  a  creditors'  suit 
had  paid  off  a  lien  upon  deeds,  and  the  executrix, 
in  passing  her  accounts,  which  were  prepared  by 
her  solicitor,  had  claimed  and  been  allowed  this 
sum  as  paid  by  herself: — Held,  that  this  must  be 
considered  as  a  payment  to  the  executrix  to  the  use 
of  the  solicitor,  and  that  the  production  of  the  deeds 
could  not  be  resisted  by  him  on  the  ground  of  lien. 
Christian  v.  Chambera,  1 1  Law  J.  Rep.  (M.8.)  Ch.  97  ; 
2  Hare,  177. 

A,  being  entitled  to  a.  leasebi^d  -house,  i&  mort- 
gage to  B,  with  whom  the  title-deeds  and  indenture 


S8 


ATTORNEY  AND  SOLICHTOR*-.(BtLL  of  Costs). 


'  An  attenie^s  bU),  o)i  tucatiou,  waA  rodvoed  lyy 
more  than  one-sixth,  by  the  Master  atrikiiig  off  a 
class  of  charges  for  business  done  in  the  Court  of 
Common  Pleas,  the  attorney  not  being  an  attorney 
of  that  court,  though  be  was  an  attorney  of  the  other 
courts  (before  the  statute  7  Will.  4.  &  1  Vict. 
c.  66): — Held,  that  the  attorney  must  pay  the  costs 
of  taxation.  Newt(m  r.  Harland,  10  Law  J.  Rep. 
(N.B.)  C.P.  227 ;  2  M.  &  G.  886  ;  8 Sc.  (n.s.)  280: 
«Dowl.P.C.641. 

The  client  is  not  entitled  to  the  costs  incidental  to 
t  reference  for  the  taxation  of  bis  solicitor's  bills  of 
costs,  although  considerably  more  than  one-sixth 
Is  struck  off,  where  the  ap))lieation  for  the  order 
directing  the  taxation  is  not  applied  for  till  after 
an  action  at  law  was  commenced  for  the  recorery 
of  the  amount  claimed  to  be  due.  In  re  Boord^  12 
Law  J.  Rep.  (ir.s.)  Ch.  481 ;  6  Bea.  848. 

In  an  action  brought  to  recover  the  amount  of  a 
bill  of  costs,  among  others  the  costs  of  an  appeal  to 
the  House  of  Lords,  in  which  the  plaintiff  had  been 
the  attorney  of  the  defendant,  the  bill  of  oosU  had 
b*ett,  by  the  usual  Judge'sorder,  upon  the  application 
of  the  defendant's  attorney,  and  on  the  usual  under- 
taking  to  pay  what  should  befoond  to  be  due,  referred 
tothe  Masterfor  taxation.  Defendant  having  become 
insolvent,  the  Court  refused  to  compel  the  defen- 
dant's attorney,  upon  the  application  of  the  plaintiflj 
to  pay  the  fees  for  obtaining  the  certificate  of  the 
taxing  officer  of  the  House  of  Lords,  of  the  amount 
due  upon  that  portion  of  the  bill  which  had  been 
referred  to  him  for  taxation. 

Qtt<rr#>~Whether  if  such  application  had  been 
made  by  the  Master  or  other  officer,  the  Court 
would  have  interfered.  Beeke  v.  Cattell,  11  Law  J. 
Rep.  (n.s.)  C.P.4d ;  8  M.&  G.  480;  4Sc.(k.8.)  246. 

A  bill  was  filed  by  the  executors  and  devisees  in 
trust  under  a  will,  to  have  the  trusts  of  the  will  esta- 
blished, and  the  usual  accounts  taken.  J  F  acted 
»s  the  solfeitor  of  the  plaintiflfe  as  well  as  of  the  de- 
fendants, and  conducted  the  proceedings  in  the  suit 
iubsequently  to  the  decree,  until  the  conduct  of  it 
Was  taken  from  him  by  the  plaintiffs,  and  a  new  soli- 
tor  appointed  by  them.  J  F  having  delivered  up 
the  documents  relating  to  the  suit  tothenew  solicitor, 
*  paper  writing  was  discovered  amongst  them,  pur- 
porting to  be  a  copy  of  a  charge  which  had  been 
carried  in  by  J  F  under  the  decree,  in  the  joint 
names  of  certain  persons,  of  whom  J  F  was  one,  as 
crediTors  of  the  tesUtor;  the  charge  thereby  made 
by  J  F  for  himself  amounted  to  the  sum  of  57L, 
alleged  to  be  the  balance  due  from  the  testator's 
estate  for  business  done  by  J  F  for  the  testator  and 
his  son,  as  partners  in  business,  on  the  testator's 
retainer,  after  deducting  from  the  aggregate  amount 
of  his  several  bills  of  costs  the  suras  received  by  him 
from  the  testator  on  account  of  such  business.  On 
the  copy  of  the  charge  found  amongst  the  documents 
so  delivered  up  by  J  F  was  indorsed  a  memoradum, 
in  the  handwriting  of  J  F's  town  agent,  to  the  effect 
that  the  charge  had  been  allowed,  subject  to  the 
approval  thereof  by  the  defendants*  solicitor:  the 
copy  also  bore  a  subsequent  indorsement,  in  the 
tame  handwriting,  to  theeflfect  that  the  charge  bad 
been  afterwards  absolutely  allowed,  but  no  entry  to 
any  such  effect  was  to  be  found  in  the  Master's  booka. 
The  Master  having  referred  the  bills  of  costo  to  be 


taxed,  J  F  withdrew  his  ebaige.  On  appliottion 
to  the  Court  by  the  plaxntiffs  by  petition,  the  bills 
of  costs  of  J  F  were  ordered  to  be  taxed,  and  an 
account  was  directed  to  be  taken  of  the  monies  re- 
ceived by  J  F  on  account  thereof*  and  more  than 
one  sixth  part  of  the  amount  of  the  bills  having  been 
taken  off  on  taxation,  J  F  was  ordered  to  pay  the 
costs  of  the  petitioners  occasioned  by  his  charge,  and 
also  the  costs  of  the  petitioners*  application  to  die 
Court  relative  to  the  charge  and  bills  of  costs,  and 
consequential  thereon.  Jceyv.  Simpwom,  12  Law  J. 
Rep.(N.8)Ch.  449. 

A  Judge's  order  directed  an  attorney's  bill  to  be 
taxed  upon  an  undertaking  beiug  given,  signed  by 
the  then  churchwardens.  The  undertaking  was 
signed  by  a  part  only  of  the  prenous  churchwardeBt, 
but  the  attorney  having  made  no  objection,  the  costs 
were  taxed,  and  more  than  a  sixth  deducted.  An 
order  for  the  attorney  to  pay  the  costs  of  the  taxa- 
tion having  been  obtained, — Held,  that  the  attorney 
could  not  apply  to  set  it  aside  on  the  ground  that 
the  undertaking  was  not  signed  in  accordance  with 
the  Judge's  order.  Doe  d.  GoodUtnd  v.  Frankland, 
1 2  Law  J.  Rep.  (h.s.)  Q.B.  249 ;  2  DowL  P.C.  (m.s.) 
975. 

An  attorney  having  bought  an  action  on  his  bill, 
the  defendant  obtained  an  order  to  tax  it,  and,  after 
taxation,  paid  money  into  court  The  plaintiff  took 
the  money  out  of  court,  and  taxed  his  costs  of  the 
cause : — Held,  that  the  Master  was  right  in  treating 
the  costs  of  taxing  the  bill  as  costs  in  the  cause. 
Thomas  v.  the  Mayor  ofSwansea^  12  Law  J.  Rep.  (n.s.) 
Exch.  281 ;  1 1  M.&  W. 83 ;  2  Dowl.  P.C.  (n.s.)  1008. 
If  an  attorney's  bill  be  referred  for  taxation,  and 
after  a  discussion  before  the  Master,  the  parties 
come  to  an  arrangement  as  to  the  amount,  and  the 
Master  makes  his  allocatur  upon  such  arrangement, 
for  more  than  five-sixths  of  the  original  amount  of 
the  bill,  the  attorney  is  not  entitled  to  the  costs  of 
taxation. 

On  an  application  by  an  attorney  for  the  costs  of 
taxation,  the  Court  will  admit  affidavits  to  explain 
the  circumstances  under  which  the  Msster  made  his 
allocatur.  Laurie  v,  Bartlett,  13  Law  J.  Rep.  (n.8.) 
aB.  145 ;  1  Dowl.  &  L.  P.C.  780. 

An  executor  who  applies  to  tax  the  bill  of  his 

testator's  attorney,  is  liable   to   pay  the   costs  of 

taxation,  if  less  tiian  one-sixth  is  struck  off.    Jrf^ 

freson  V.  Warrington^  10  Law  J,  Rep.  (n.«.)  Exch. 

79;  7M.&W.1S7;  8  Dowl.  P.C.  880. 

Where  an  unsifted  bill,  delivered  by  an  attorney, 
was,  with  his  consent,  referred  by  a  Judge*s  order 
to  taxation,  at  which  he  attended,  when  more  than 
a  sixth  was  struck  off,  the  Court,  under  its  general 
jurisdiction,  ordered  him  to  pay  the  costs  of  taxa- 
tion, although  the  order  contained  no  undertaking 
on  the  part  of  the  client  to  pay  the  amount  found 
to  be  due.  Peters  v.  Sheehan^  12  Law  J.  Rep.  (n.s.) 
Exch.  177 ;  10  M.  &  W.  213  j  1  DowL  P.C.  (n.s.) 
948. 

Where  an  attorney's  bill  is  referred  to  taxation 
after  action  brought  upon  it,  the  attorney  is  liable* 
under  6  &  7  Vict  c.  73.  s.  37,  to  pay  the  costs  of 
taxation,  if  more  than  one-sixth  is  struck  off.  Ex 
parte  WooUett,  18  Law  J.  Rep.  {va,)  Exch.  121  ; 
12  M.  &  W.  504  i  1  Dowl.  &  L.  P.C.  598. 
The  statute  6  &  7  Vict.  c.  78.  repeals  2  Geo.  2. 


AUCTIO»-BAlL. 


61 


stated  in  the  catalogne: — Held,  that  the  law  would 
imply  no  condition^  on  stich  a  sale,  that  the  pnr- 
chaaers  ahoald  have  a  right,  before  paying  the 
bstlanoe  of  the  purchase-money,  to  inspect  or  mea- 
sure the  goods,  for  the  purpose  of  asoertaining 
whether  they  corresponded  with  the  description  in 
the  catalogue. 

And  further,  that  these  conditions  expressly  ne- 
gatiTed  any  such  right  P^ttit  v.  MUeheU,  12  I^aw  J. 
Rep.  (H.8.)  C.P. 9 ;  4  M.  &  G.  »19;  5  8c.  (n.8.)  721 ; 
Car.&M.426. 

(e)  Parol  Variation  qfthe  Contract  qf  Sale. 

In  an  action  by  an  auctioneer  for  the  price  of  a 
^leadng-case  sold  by  auction  for  less  than  lOA,  and 
described  in  the  printed  catalogue  as  having  silver 
fittings,  whereas,  in  fact,  they  were  only  plated:*^ 
Held,  that  the  plaintiff  might  give  in  evidence  de- 
clarations made  by  him  at  the  time  of  the  sale,  in 
tiie  hearing  of  the  defendant,  that  the  catalogue  was 
incorrect  in  describing  the  fittings  to  be  silver,  and 
that  the  dressing-case  would  be  sold  as  having 
plMed  fittings  only,  though  no  ahemcioo  was  made 
m  the  catalogue*,  there  being  no  eootract  in  writing. 
Eden  v.  Blake,  14  Law  J.  Rep.  (n.s.)  Exch.  194 ; 
ISM.  &W.  614. 

(C)  AOCTIOH  Dpty. 

A  declaration  stated,  that  the  plaintiff  being  em- 
ployed by  the  defiendants  to  sell  certain  land  by 
auction,  put  up  the  same  for  sale,  subject  to  the 
eondition  that  the  highest  bidder  should  be  the  pur- 
chaser;  that  H  was  the  highest  bidder,  and  declared 
by  the  plaintiff  to  be  the  purchaser,  whereby  auc- 
tion duty  to  the  amount  of  94L  18«.  9d,  became 
XMyahle  by  the  plaintiff,  and  was  paid  by  him* 
Breach,  non-pa3rment  of  that  sum  by  the  defen- 
dants. Plea,  by  the  defendant  Carey,  that  it  was 
a  condition  of  sale,  that  the  purchaser  should,  after 
the  sale,  pay  the  auction  duty;  that  upon  the  ex- 
posure to  sale,  and  H  being  the  highest  bidder,  par- 
ment  of  the  du^  was  then  demanded  of  him  by  the 
plainti£E)  and  refused  by  him,  whereby  his  bidding 
became  null  and  void.  Plea,  by  defendant  Cun- 
nington,  that  the  plaintiff  at  the  time  of  the  sale  de* 
manded  payment  of  the  duty  from  H,  who  reAxsed 
to  pay,  and  did  not  at  the  time  of  the  sale,  or  at 
any  time  since,  pay  the  same,  whereupon  the  defen- 
dants then  declared  the  said  bidding  and  sale  to  be 
null  and  void,  and  the  same  became  null  and  void. 
Replication,  that  before  H  became  a  bidder,  it  was 
collusivelj  agreed  between  him  and  Cunnington, 
that  H  should  bid,  not  with  a  view  of  completing 
the  purchase,  but  merely  to  outbid  another  bidder, 
and  that  H  did  so  bid ;  that  the  plaintiff  at  the  time 
of  the  auction  had  no  notice  either  of  the  said  agree- 
ment, or  of  the  intent  of  H's  becoming  a  bidder; 
that  tl^e  plaintiff  at  the  said  auction,  and  whilst  H 
was  thb  highest  bidder,  closed  the  biddings,  and  H 
then  became  the  highest  bidder,  and  was  declared 
to  be  the  purchaser;  that  H  refused  to  pay  the 
auction  duty,  and  that  before  his  bidding  no  notice 
was  given  to  the  plaintiff  by  H,  and  by  the  defen- 
dants, of  H's  being  appointed,  and  having  agreed, 
to  bid  at  the  sale,  for  the  use  and  behoof  of  the  de- 
fendants:— Held,  first,  that  the  declaration  was 
■good^  and  that  the  rejdication  was  net  a  departure 
£rioin  tL 


Qnuere — Whether  the  replication  was  good  in 
other  respects. 

Secondly,  that  Carey's  plea  was  bad,  as  it  did  not 
shew  that  the  vendors  had  exercised  their  option  of 
declaring  the  bidding  to  be  null  and  void. 

Thirdly,  that  Cunnington' s  plea  was  bad,  as  It 
did  not  appear  that  the  vendors  had,  at  the  time  and 
place  of  auction,  exercised  their  option  of  declaring 
the  bidding  to  be  void  or  had  notified  the  same  to 
the  plaintiff. 

Fourthly,  that  the  19  Geo.  3.  c.  36.  has  notrepealed 
the  7th  section  of  17  Geo.  8.  c.  60. 

Where  defendants  plead  separately  pleas  which 
aie  demurred  to,  each  defendant  ii  not  entitled  to 
appear  by  separate  counsel  on  the  argument  of  the 
demurrer.  WiUaon  v.  Carey,  12  Law  J.  Rep.  (N.a.) 
Exch.  17:  lOM.&W.  641. 

One  of  the  defendants,  who  were  the  owners  of 
oertain  land,  employed  the  plaintiff,  an  auctioneer, 
to  sell  it,  and  without  his  knowledge  engaged  H  to 
make  an  advance  of  lOOi.  upon  a  bidding  of  3,0001^ 
with  a  view  to  raise  the  price.  The  lot  was  knocked 
down  to  H.  The  auctioneer  then  sold  two  other  lots 
belongiug  to  difiBbrent  persons,  and  shortlv  after  the 
end  of  the  entire  day's  sale  demanded  the  auction 
duty  of  H,  who  refused  to  pay  it.  It  was  one  of  the 
conditions  of  sale  that  the  duty  was  to  be  paid  by 
the  purchaser  immediately  afier  the  sale; — Held, 
that,  as  against  the  plaintiff,  H  was  to  be  considered 
the  highest  bidder ;  and  that  the  plaintiff  had  made 
a  valid  demand  of  the  auction  duty  upon  H,  and 
that  the  defendants  were  liable.  WiUeon  v.  Carey, 
12  Law  J.  Rep.  (if.s.}  Exch.  239;  1 1  ImL  &  W.  368. 


AVOWRY. 
[See  Replevin.] 


AWARD. 
[See  Arbitration.] 


BAIL. 


[See  Arrest — Rbcoonizakcb.] 

(A)  Affidavit  and  Order  to  hold  to  bail. 

[See  Arrest,  Under  1  &  2  Vict  a  110. 
S.3.] 

(B)  Bail-bond,  PROCEEDiNas  on. 

(C)  Justifying  Bail. 

(D)  Excepting  to  Bail — Waiver. 

(E)  Discharge  of  Bail. 

(F)  Taking  Money  out  of  Court. 
{Qr\  Bail  in  Error. 

(H)  In  Criminal  Cases. 


(A)  Affidavit  and  Order  to  hold  to  bail. 
[See  Arrest,  Under  1  &  2  Vict,  c  110.  s.  3.] 

(B)  Bail-bond,  Proceedings  on. 

A  plaintiff  can  proceed  on  a  bail-bond,  given 
under  1  &  2  Vict  c.  1 10.  s.  4,  although  he  has  since 
taken  a  step  in  the  original  action.  BetU  v.  Smith, 
10  Law  J.  Rep.  (n.s.)  a.B.  305  $  2  aB.  113 ;  1  O. 
&  D.  285. 


e% 


BAIL. 


A  plaint  who  holds  a  defendsnt  to  bail  under 
the  Stat  1  &  2  Yict  c.  110.  s.  3,  and,  on  baU  above 
not  being  put  in,  takes  an  assignment  of  the  bail- 
bond,  and  commences  an  action  thereon,  onght  not 
on  that  account  to  discontinue  the  action  against 
the  defendant. 

Semhle — That  the  rule  in  the  Exchequer  of 
Hilary  term,  7  WilL  4,  is  rendered  nugatory  by 
the  1  &  2  Vict  c.  110.  Ede  ▼.  CoUingndge,  12  Law 
J.  Rep.  (N.s.)  Exch.  247 ;  11  M.  &  W.  61 ;  2  Dowl. 
P.C.  (N.8.)  764. 

(C)  JusTiFTiNa  Bail. 

Where  a  cause  is  removed  from  the  Lord 
Mayor's  Court,  by  certiorari,  on  the  part  of  the 
defendant,  and  the  plaintiff  serves  the  defendant 
with  a  common  rule  for  a  procedendo,  the  latter  has 
a  right  to  give  notice  of  justifying  bis  bail,  which 
he  has  already  put  in,  and  of  which  he  has  given 
notice,  without  waiting  until  he  is  served  by  the 
plaintiff  with  a  rule  for  better  bail ;  and  if  the 
plaintiff  objects  to  such  a  justification,  he  is  bound 
to  attend  before  the  Judge  when  the  bail  appear 
to  justify ;  and  if  he  does  not,  and  the  bail  are 
allowed,  he  has  no  right  to  treat  the  rule  for  the 
allowance  as  a  nullity,  and  issue  a  procedendo.  Scar- 
nett  V.  IZtce,  1  Dowl.  P.C.  (n.s.)  333. 

(D)  ExcBPTiJio  TO  Bail — ^Waivbb. 

A  plaintiff  does  not  waive  his  exceptions  to  bail 
put  in  under  I  &  2  Yiet  c.  110.  s.  4,  by  delivering 
a  declaration  in  chief,  and  consenting  to  further 
time  to  plead.  Regina  v.  the  Sheriff  qf  Montgomery^ 
•hire,  in  re  Rogers,  1 1  Law  J.  Rep.  (n.s.)  Exch.  109; 
9  M.  &  W.  448  ;  1  Dowl.  P.C.  (w.s.)  388. 

(E)   DlSCHARGB  OF  BaIL. 

The  Court  will  allow  the  sureties  to  a  bond  given 
under  1  &  2  Vict  c.  110.  s.  8.  to  render  their  prin. 
eipal  before  judgment,  though  the  wording  of  the 
bond  is  not  in  strict  conformity  with  the  words  of 
the  act. 

In  such  a  case  it  does  not  appear  necessary,  in 
order  to  make  the  render  effectual,  that  any  affi- 
davit should  be  made  of  the  notice  of  render. 

And  if  a  ca,  so,  is  issued  against  the  defendant,  for 
the  purpose  of  fixing  the  sureties,  the  Court  will 
set  it  aside  as  irregular,  and  stay  proceedings  on 
the  bond.  Saunderton  v.  Parker,  10  Law  J.  Rep. 
(N.8.)aB.  236;  DDowl.  P.C.  495. 

The  Court  will  not  order  a  bond  given  under 
1  &  2  Vict  c.  1 10.  s.  8.  to  be  delivered  up  to  be 
cancelled,  upon  affidavit  that  the  defendant  has 
surrendered  himself,  according  to  the  condition  of 
the  bond.  Hayward  v.  H^er,  IS  Law  J.  Rep. 
(N.B.)  as.  92  ;  5  an.  398  ;  1  D.  &  M.  454. 

(F)  Taking  Monby  ovt  of  Covbt. 

Where  a  party  arrested  by  capias  under  the 
1  &  2  Vict,  c  110.  deposits  money  with  the  sheriff 
under  sect.  4,  and  subsequently  neglects  to  put  in 
bail  to  the  action,  the  plaintiff  is  entitled  to  take 
the  money  out  of  court  without  waiting  for  the  final 
determination  of  the  suit  TtUon  v.  Gale,  9  M.  &  W. 
842  ;  1  Dowl.  P.C.  (n.s.)  383. 

Where  the  defendant  died  abroad  and  intestate, 
the  Court  allowed  bail  to  take  out  of  court  money 
which  had  been  paid  in  by  him  for  the  defendant's 


use,  on  a  motion  for  a  commission  to  examine  wit* 
nessesabroad.  Palmer  v.  Reiffenstein,  8  Sc.  (n.s.  )  347. 

If  a  defendant  has  deposited  money  in  lieu  of 
bail,  and  he  afterwards  leaves  the  countzy,  the 
Court  will  allow  a  rule  nisi  for  taking  the  money 
out  of  court  to  be  served,  by  sticking  it  up  in  the 
office.    Know  v.  Duncan,  9  Dowl.  P.C.  179. 

Money  deposited  in  court  in  one  action,  pursuant 
to  the  43  Geo.  3.  c.  46.  a.  2.  and  the  7  &  8  Geo.  4. 
c.  71.  s.  2,  cannot  be  paid  out  to  an  execution  cre- 
ditor in  another  action  in  satisfaction  of  his  claim, 
notwithstanding  the  provisions  of  the  1  &  2  Vict 
c.  110.  s.  12,  as  that  section  does  not  give  power 
to  seize  money  in  execution  while  in  the  hands  of 
a  third  person  as  trustee  for  the  defendant  Framee 
V.  Camphell^  and  WmUr  v.  Campbell^  9  Dowl.  P.C. 
914. 

(G)  Bail  in  ERaoR. 

Bail  in  error  is  not  necessary  when  the  writ  is 
of  error  coram  nobis,  as  it  is  not  a  supersedeas  of 
execution,  but  the  plaintiff  may  apply  to  the  Court 
^or  leave  to  take  out  execution,  whicn  will  be  granted 
accorded  to  circumstances.  Knight  v.  Thynne,  9 
Dowl.  P.C.  984. 

Money  deposited  in  lieu  of  bail  in  error,  being 
paid  in  for  a  specific  purpose,  on  reversal  of  the 
Judgment,  was  refused  to  be  applied  as  to  bygone 
costs  of  a  demurrer  on  which  the  party  succeeded. 
Collins  V.  Gwynne,  2  Sc.  (n.s.)  85. 

Where  a  writ  of  error  has  been  brought  by  a 
defendant  upon  a  point  raised  under  the  direction 
of  the  Court  upon  a  special  verdict,  and  with  a 
bond  fide  view  of  obtaining  the  decision  of  the  Court 
upon  a  point  of  law,  the  Court  will  stay  execution 
without  requiring  bail  in  error,  such  case  being  ir- 
respective of  the  statute  6  Geo.  4.  c.  96. 

And  quare,  if  under  the  statute  6  Geo.  4.  c.  9S. 
the  Court  may  stay  proceedings  without  bail  in  sll 
cases.  WilHams  v.  Doumman,  13  Law  J.  Rep.  (n.8.) 
aB.  319 ;  2  Dowl.  &  L.  P.C.  131. 

(H)  In  Cbiminal  Cases. 

The  Court  will  grant  a  rule  nisi  for  bailing  in  the 
country  a  party  charged  with  a  felony,  without  the 
production  of  an  affidavit  of  his  poverty.  Regina  v. 
Gregory,  9  Dowl.  P.C.  129. 

The  question  as  to  the  propriety  of  admitting 
a  person  to  bail  when  committed  on  a  charge  of 
felony  is  to  be  decided  with  reference  to  the  pro- 
bability of  his  appearing  to  take  his  trial,  and  not  on 
his  supposed  guilt  or  innocence,  as  appearing  from 
the  depositions ;  and  semble,  that  the  fact  of  a  bill 
having  been  found  by  the  grand  jury  will  of  itself 
have  great  weight  in  inducing  the  Court  to  refuse 
such  an  application.  Regina  v.  Scaife,  10  Law  J. 
Rep.  (n.s.)  M.C.  144;  9  DowL  P.C.  653. 

Where  a  true  bill  for  murder  bad  been  found 
against  a  prisoner  by  the  grand  jury,  but  the  trisl 
was  postponed  in  consequence  of  the  absence  of 
material  witnesses  for  the  prosecution,  the  Court 
refused  to  entertain  an  application  to  admit  him  to 
bail. 

Semhle — The  Court  will  in  no  case  admit  to  bail 
where  a  true  bill  for  a  capital  offence  has  been  found 
against  the  prisoner  by  the  grand  jury.  Regina  v. 
Andrews,  13  Law  J.  Rep.  (n.8.)  M.C.  113  ;  2  Dowl. 
&  L.  P.C.  10. 


BAIL— BANKERS  AND  BANKING  COMPANY. 


63 


On  a  charge  of  bailable  miademeanotir  (aeditious 
language,  &o.)  before  magistrates,  k  is  not  a  ground 
for  refusing  as  bail  partisans  of  the  accused  known 
to  entertain  the  same  opinions ;  but  the  applicatioB 
against  them  for  such  refusal  was  discharged  on  pay- 
ment of  the  applicant's  costs.  Regma  v.  Badger^ 
12  Law  J.  Rep.  (n.s.)  M.C.  ^^ ;  4  a.B.  469  ;  ID. 
&  M.  375. 


BAILIFF. 


The  bailiA  of  inferior  courts  regulated  by  7  Vict 
C.19;  22  Law  J.  Stat  56. 


BANK  OF  ENGLAND. 
[See  Stock.] 

The  issue  of  Bank  notes  regulated,  and  certain 
privileges  given  to  the  Oovenior  and  Company  of 
the  Bank  of  England  for  a  limited  period,  by  7  fr  8 
Tict  c.  32 ;  22  Law  J.  Stat  85 ;  amended  as  to 
penalties,  by  8  &  9  Vict.  c.  76 ;  23  Law  J.  Stat  264. 

Bank  rf  England  ▼.  Booth,  4  Dig.  61,  affirmed, 
Booth  V.  Bank  of  England^  7  C  &  F.  509;  West, 
298. 

After  the  order,  obtained  by  a  judgment  creditor, 
for  charging  the  interest  of  his  debtor  in  govern- 
ment  stock,  standins  in  the  name  of  trustees, 
has  been  made  absolute,  under  the  1  &  2  Vict 
c.  110.  8.  15,  the  Bank  of  England  is  still  bound  to 
pay  the  dividends  to  the  trustees,  being  the  legal 
hands  to  receive  them ;  and  the  trustees  are  to  apply 
the  dividends  according  to  the  eq^uitable  interests  of 
the  parties. 

Costs  were  given  to  the  Bank  of  England  out  of  a 
tmaC  fund  of  government  stock,  in  the  suits  of  the 
teUui  que  inutt  for  the  application  of  the  fund  ac- 
cording to  their  interests,  although  the  decree  was 
made  against  the  Bank, — ^the  Bank  having  acted 
upon  a  doubtful  construction  of  a  late  act  of  par- 
liament, before  that  eonstruction  had  been  settled 
by  any  judicial  datenninatioD.  Britied  v.  Wiikint, 
3  Hare,  2^5. 


BANKERS  AND  BANKING  COMPANY. 

[See  Bills  of  Exchanob  ami>  Promissoat 
Notes  —  Embezzlement  — Jvkt  —  Release  — 
Scire  Facias — Witness.] 

(A)  Public  Reoisterid  Otficbb — Avpoint- 

MBNT. 

(B)  Chanob  of  Name  of  Comfant. 

(C)  Acceftancb  of  Bills  by. 
(D^  Actions  and  Suits. 

(a)  Geturatty, 

{bS  PUadingt  and  Evidence. 

(c)  Judgment  and  Execution, 

(E)  Notice.. 


Certain  contracts  which  have  been  or  may  be 
entered  into  by  certain  banking  and  other  co-part- 
nerships made  good  by  4  Vict  c.  14 ;  19  Law  J.  Stat 
14. 

Farther  provision  made  relative  to  the  returns  by 
banks  of  the  amount  of  their  notes  in  circulation. 
4  ft 5  Vict  c  50;  19  Law  J.  Stat. 84. 


The  1  &  2  Vict  c  96.  relative  to  legiJ  proceed- 
ings by  certain  joint-stock  banking  companies  against 
their  own  members,  and  by  such  members  against 
the  companies,  made  perpetual  by  5  &  6  Vict  c.  85  { 
20  Law  J.  Sut  304. 

Provisions  for  the  regulation  of  joint-stock  banks 
tn  England.  7  &  8  Vict  &  118 ;  22  Law  J.  Stat 
885. 

(A)    Public   Registered   Officer — Appoint- 

ment. 

The  office  of  public  registered  officer  of  a  bank- 
ing company  not  being  an  annual  office,  a  person 
once  appointed  thereto  is  presumed  to  continue  in 
it  untU  the  contrary  is  shewn;  and  therefore  a 
return  made  to  the  Stamp  Office,  dated  in  Mareh 
1841,  and  verified  by  affidavit  of  W  D,  therein 
described  as  public  registered  officer  of  the  com^ 
pany,  is  admissible  as  evidence  of  his  being  so  in 
November  1842. 

A  copy  of  the  return,  certified  by  a  Commissioner 
of  Stamps,  under  sect  4.  of  7  Geo.  4.  o.  46,  is  evi- 
dence of  the  (acts  stated  in  it  j  and  it  is  unnecessary 
to  prove  that  the  affidavit  verifying  it  was  made  by 
thepublic  registered  officer  of  die  company. 

The  affidavit  annexed  to  the  return  purported  to 
be  made  bv  W  D,  one  of  the  directors  of  the  com- 
pany, and  in  the  return  his  name  appeared  as  public 
officer  and  director : — Held,  that  there  was  evidence 
of  his  being  public  officer. 

A  deed  constituting  a  banking  company  trading 
under  the  7  Oeo.  4.  c.  46.  contained  a  stipulation, 
that  if  the  public  officer  should  become  bankrupt, 
he  should  be  disqualified,  and  his  office  become 
vacant : — Held,  that  this  meant  that  he  should  cease 
to  be  public  officer,  not  absolutely,  but  at  the  election 
of  the  company. 

Semhle — That  the  provision  in  the  5th  section  of 
the  7  Oeo.  4^  c.  46,  that  the  return  shall  be  delivered 
between  the  28th  of  February  and  the  25th  of  March, 
is  directory  only.  Steward  v.  Dunut  18  Law  J. 
Rep.  (N.8.)  Exeb.  824 ;  12  M.  &  W.  655 ;  1  Dowt 
&  L.  P.C.  642. 

[And  see  Steward  v.  Greaves^  poet  (D)  (a).] 

(B)  Chamoe  of  Name  of  Coupant. 

In  1833,  a  joint-stock  bank,  under  7  Geo.  4.  c.  46* 
was  established,  by  the  name  of  the  Mirfield  and 
Huddersfield  District  Banking  Company.  In  1836, 
H  8i  Co.,  bankers,  relinquished  their  business  in 
favour  of,  and  united  with,  this  company.  It  was 
afterwards  agreed,  that  the  title  of  the  bank  should 
be  the  West  Biding  Union  Banking  Company;  that 
the  capital  should  be  increased  by  the  creation  of 
new  snares;  and  that  more  directors  should  be 
appointed.  All  the  partners  in  the  house  of  H  & 
Co.  had,  before  the  change  of  name,  been  partners 
in  the  banking  company.  At  the  commencement 
of  the  action,  some  persons  were  proprietors  of  the 
new  company  who  were  not  proprietors  before  the 
junction : — Held,  that  the  bank  being  Uie  same  bank, 
the  change  of  name  was  immaterial ;  and  that  the 
plaintiff,  as  pubUc  officer  of  the  West  Riding 
Union  Banking  Company,  might  maintain  an  action 
against  the  defendants  on  the  above  guarantie. 
Wilson  V.  Craven,  10  Law  J,  Hep.  (k.s.)  £xch. 
448 ;  8  M.  &  W.  584.  [And  see  this  case,  tide 
Ouaravtie.] 


«9 


BAIL. 


A  plaintiff  who  liolds  ft  defendsnt  to  ball  under 
tht  Stat  1  &  2  Yict.  e.  1 10.  s.  3,  and,  on  bail  abote 
not  bting  put  in,  takes  an  assignment  of  the  bail- 
bond,  and  commences  an  action  thereon,  onght  not 
on  that  account  to  discontinue  the  action  against 
the  defendant 

Semble — That  the  rule  in  the  Exchequer  of 
Hilary  term,  7  WilL  4,  is  rendered  nugatory  by 
the  1  &  2  Vict  c.  110.  Ede  y.  CoUingridge,  12  Law 
J.  Rep.  (N.8.)  Exch.  247  i  11  M.  &  W.  61 ;  2  Dowl. 
P.C.  (N.8.)  764. 

(C)  JusTiyriiia  Bail. 

Where  a  cause  is  remoyed  from  the  Lord 
Mayor's  Court,  by  eeriiorari,  on  the  part  of  the 
defendant,  and  the  plaintiff  serves  the  defendant 
with  a  common  rule  for  a  procedendo,  the  latter  has 
a  right  to  give  notice  of  justifying  his  bail,  which 
he  has  already  put  in,  and  of  which  he  has  given 
notice,  without  waiting  until  he  is  served  by  the 
plaintiff  with  a  rule  for  better  bail ;  and  if  the 
plaintiff  objects  to  such  a  justification,  he  is  bound 
to  attend  before  the  Judge  when  the  bail  appear 
to  justify ;  and  if  he  does  not,  and  the  bail  are 
allowed,  he  has  no  right  to  treat  the  rule  for  the 
allowance  as  a  nullity,  and  issue  a  procedendo.  Scar^ 
nett  y.  Rice,  1  Dowl.  P.C.  (n.8.)  833. 

(D)  EzcBPTiHO  TO  Bail — ^Waivbb. 

A  plaintiff  does  not  waive  his  exceptions  to  bail 
put  in  under  I  &  2  Viet  c.  110.  s.  4,  by  delivering 
a  declaration  in  chief,  and  consenting  to  further 
time  to  plead.  Regina  v.  the  Sheriff  of  Montgomery^ 
shiret  in  re  Rogers,  1 1  Law  J.  Rep.  (v.s.)  Exch.  109; 
9  M.  &  W.  448  ;  1  Dowl.  P.C.  (h.8.)  388. 

(E)  Discharge  of  Bail. 

The  Court  w!U  allow  the  sureties  to  a  bond  given 
under  I  &  2  Vict  c.  110.  s.  8.  to  render  their  prin- 
cipal before  judgment,  ^ough  the  wording  of  the 
bond  is  not  in  strict  conformity  with  the  words  of 
the  act 

In  such  a  case  it  does  not  appear  necessary,  in 
order  to  make  the  render  effectual,  that  any  affi- 
davit should  be  made  of  the  notice  of  render. 

And  if  a  ca,  so,  is  issued  against  the  defendant,  for 
the  purpose  of  fixing  the  sureties,  the  Court  will 
set  it  aside  as  irregular,  and  stay  proceedings  on 
the  bond.  Saunderson  v.  Parker,  10  Law  J.  Rep. 
(n.8.)  Q.B.  236;  9  Dowl.  P.C.  495. 

The  Court  will  not  order  a  bond  given  under 
1  &  2  Vict  c.  1 10.  s.  8.  to  be  delivered  up  to  be 
cancelled,  upon  affidavit  that  the  defendant  has 
surrendered  himself,  according  to  the  condition  of 
the  bond.  Hayward  v.  Heffer,  13  Law  J.  Rep. 
(N.8.)  aB.  92  ;  5  aB.  398  ;  1  D.  &  M.  454. 

(F)  Takiwo  Mohbt  out  op  Cotmr. 

Where  a  party  arrested  by  capias  under  the 
1  &  2  Vict  c.  110.  deposits  money  with  the  sheriff 
under  sect.  4,  and  subsequently  neglects  to  put  in 
bail  to  the  action,  the  plaintiff  is  entitled  to  take 
the  money  out  of  court  without  waiting  for  the  final 
determination  of  the  suit  Tuton  v.  Gale,  9  M.  &  W. 
342  ;  1  Dowl.  P.C.  (n.8.)  383. 

Where  the  defendant  died  abroad  and  intestate, 
the  Court  allowed  bail  to  take  out  of  court  money 
which  had  been  paid  in  by  him  for  the  defendant's 


use,  on  a  motion  for  a  commission  to  examine  wif 
nessesabroad.  Palmer  v.  Reiffenstein,  8  Sc.  (n.8.)  347. 

If  a  defendant  has  deposited  money  in  lieu  of 
bail,  and  he  afterwards  leaves  the  country,  the 
Court  will  allow  a  rule  nisi  for  taking  the  mooey 
out  of  court  to  be  served,  by  sticking  it  up  in  iht 
office.    Know  y.  Duncan,  9  Dowl.  P.C.  179. 

Money  deposited  in  court  in  one  action,  pursusnt 
to  the  43  Geo.  3.  c.  46.  s.  2.  and  the  7  &  8  Geo.  4. 
e.  71.  s.  2,  cannot  be  paid  out  to  an  execution  cre- 
ditor in  another  action  in  satisfaction  of  his  claim, 
notwithstanding  the  provisions  of  the  1  &  2  Vict 
c.  110.  s.  12,  as  that  section  does  not  give  power 
to  seise  money  in  execution  while  in  the  hands  of 
a  third  person  as  trustee  for  the  defendant  France 
v.  Campbell^  and  Wintsr  v.  Campbell,  9  Dowl.  P.C. 
914. 

(G)  Bail  in  Bhuor. 

Bail  in  error  is  not  necessary  when  the  writ  is 
of  error  coram  nobis,  as  it  is  not  a  supersedeas  of 
execution,  but  the  plaintiff  may  apply  to  the  Coort 
ibr  leave  to  take  out  execution,  which  will  be  graoted 
accorded  to  circumstances.  Knight  t.  Thynne,  9 
Dowl.  P.C.  984. 

Money  deposited  in  lieu  of  bail  in  error,  being 
paid  in  for  a  specific  purpose,  on  reversal  of  the 
judgment,  was  refused  to  be  applied  as  to  bygone 
costs  of  a  demurrer  on  which  the  party  aucoe^ed. 
Collins  v.  Gwynne,  2  Sc.  (n.s.)  85. 

Where  a  writ  of  error  has  been  brought  by  a 
defendant  upon  a  point  raised  under  the  directioa 
of  the  Court  upon  a  special  verdict,  and  with  s 
bond  fide  view  of  obtaining  the  decision  of  the  Court 
upon  a  point  of  law,  the  Court  will  stay  execution 
without  requiring  bail  in  error,  such  case  being  ir- 
respective of  the  statute  6  Geo.  4.  c.  96. 

And  quare,  if  under  the  statute  6  Geo.  4.  c  96. 
the  Court  may  stay  proceedings  without  bail  in  all 
cases.  Williams  v.  Doumman,  13  Law  J.  Rep.  (n.8.) 
aB.  319 ;  2  Dowl  &  L.  P.C.  131. 

(H)  In  Criminal  Cases. 

The  Court  will  grant  a  rule  nfsi  for  bailing  in  the 
country  a  party  charged  with  a  felony,  without  the 
production  of  an  affidavit  of  his  poverty.  Regim  ▼• 
Gregory,  9  Dowl.  P.C.  129. 

The  question  as  to  the  propriety  of  admitting 
a  person  to  bail  when  committed  on  a  charge  of 
felony  is  to  be  decided  with  reference  to  the  pro- 
bability of  his  appearing  to  take  his  trial,  and  not  on 
his  supposed  guilt  or  innocence,  as  appearing  from 
the  depositions ;  and  semble,  that  the  fsct  of  a  bill 
having  been  found  by  the  grand  jury  will  of  itself 
have  great  weight  in  inducing  the  Court  to  refuse 
such  an  application.  Regina  v.  Sca^e,  10  Law  J. 
Rep.  (n.8.)  M.C.  144;  9  DowL  P.C.  553. 

Where  a  true  bill  for  murder  had  been  found 
against  a  prisoner  by  the  grand  jury,  but  the  trial 
was  postponed  in  consequence  of  the  absence  of 
material  witnesses  for  the  prosecution,  the  Court 
refused  to  entertain  an  application  to  admit  him  to 
bail. 

Semble — The  Court  will  in  no  case  admit  to  bail 
where  a  true  bill  for  a  capital  offence  has  been  found 
against  the  prisoner  by  the  grand  jury.  Regina  v. 
Andrews,  13  Law  J.  Rep.  (n.8.)  M.C.  113 ;  2  Dowl. 
&  L.  P.C.  10. 


I 


BAIL-.BANKERS  AND  BANKING  COMPANY. 


63 


On  a  charge  of  baiUUe  mUdeiDeanotir  (veditious 
language,  &c.)  before  magistrates,  k  is  not  a  ground 
for  refusing  as  bail  partisans  of  the  accused  known 
to  entertain  the  same  opinions ;  but  the  appUcatioB 
against  them  for  such  refusal  vss  discharged  on  pay- 
ment of  the  applicant's  costs.  Regina  ▼.  Badger, 
12  Law  J.  Rep.  (n.s.)  M.C.  66 ;  4  Q.B.  469 ;  ID. 
&  M.  875. 


BAILIFF. 


The  bidlifis  of  inferior  conrU  regulated  by  7  Vict 
c  19 ;  22  Law  J.  Stat  56. 


BANK  OF  ENGLAND. 
[See  Stock.] 

The  issue  of  Bank  notes  regulated,  and  certain 
privileges  given  to  the  Governor  and  Company  of 
the  Bank  of  England  for  a  limited  period,  by  7  fr  8 
Vict  c.  32 :  22  Law  J.  Sut  85 ;  amended  as  to 
penalties,  by  8  &  9  Vict.  c.  76 ;  23  Law  J.  Stat  264. 

Bank  of  England  v.  Booth,  4  Dig.  61,  affirmed, 
Booih  V.  Bank  of  England,  7  C.  &  F.  509;  West, 
298. 

After  the  order,  obtained  by  a  judgment  creditor, 
for  charging  the  interest  of  his  debtor  in  govern- 
ment stocl^  standinff  in  the  name  of  trustees, 
has  been  made  absolute,  under  the  1  &  2  Vict 
e.  110.  s.  15,  the  Bank  of  England  is  still  bound  to 
pay  the  dividends  to  the  trustees,  being  the  legal 
hands  to  receive  them ;  and  the  trustees  are  to  apply 
the  dividends  according  to  the  equitable  interests  of 
the  parties. 

Costs  were  given  to  the  Bank  of  England  out  of  a 
tmat  fund  of  government  stock,  in  the  suits  of  the 
ccsf/vt  que  inuts  for  the  application  of  the  fund  ac- 
cording to  their  interests,  although  the  decree  was 
made  against  the  Bank, — the  Bank  having  acted 
upon  a  doubtful  construction  of  a  late  act  of  par- 
liament, before  that  construction  had  been  settled 
by  any  judicial  datenninatioD.  Briefed  v.  Wilkhu, 
S  Hare,  2^5. 


BANKERS  AND  BANKING  COMPANY. 

[See  Bills  of  Exchanob  ami>  Promissory 
Notes  —  Embezzlement  — Jury — Releasb  — 
Scire  Facias — Witkess.] 

(A)  Pdblic  Reoistbrbd  Officer — ^Afpoint- 

memt. 

(B)  Change  of  Name  of  Comfaky. 

(C)  ACCEFTANCB  OF   BiLLS  BY. 

(D)  Actions  Ain>  Suits. 

(a)  Generally, 

(b)  PUadinge  and  Evidence, 
(e)  Jaulgment  and  Exeeuiion, 

(E)  Notice.. 


Certain  contracts  which  have  been  or  may  be 
entered  into  by  certun  banking  and  other  co-part- 
nenhips  made  good  by  4  Vict  c.  14 ;  19  Law  J.  Stat 
14. 

Farther  provision  made  relative  to  the  returns  by 
banks  of  the  amount  of  their  notes  in  circulation. 
4  ft  5  Vict  e.  50;  19  Law  J.  Stat 84. 


The  1  &  2  Vict  c  96.  relative  to  legal  proceed- 
ings by  certain  joint-stock  banking  companies  against 
their  own  members,  and  by  such  memben  against 
the  companies,  made  perpetual  by  5  &  6  Vict  c.  85  { 
20  Law  J.  Stat  304. 

Provisions  for  the  regulation  of  joint-stock  banks 
in  England.  7  &  8  Vict  c.  118;  22  Law  J.  Stat 
965. 

(A)   Public   Registered   Officer — Appoint- 
ment. 

The  office  of  public  registered  officer  of  a  bank- 
ing company  not  being  an  annual  office,  a  person 
once  appointed  thereto  is  presumed  to  continue  in 
it  untU  the  contrary  is  shewn;  and  therefore  a 
return  made  to  the  Stamp  Office,  dated  in  March 
1841,  and  verified  by  affidavit  of  W  D,  therein 
described  as  public  registered  officer  of  the  conv- 
pany,  is  admissible  as  evidence  of  his  being  so  in 
November  1842. 

A  copy  of  the  return,  certified  by  a  Commissioner 
of  Stamps,  under  sect  4.  of  7  Geo.  4.  o.  40,  is  evi- 
dence of  the  (acts  stated  in  it ;  and  it  is  unnecessary 
to  prove  that  the  affidavit  verifying  it  was  made  by 
the  public  registered  officer  of  the  company. 

Tne  affidavit  annexed  to  the  return  purported  to 
be  made  bv  W  D,  one  of  the  directors  of  the  com- 
pany, and  m  the  return  his  name  appeared  as  public 
officer  and  director: — Held,  that  there  was  evidence 
of  his  being  public  officer. 

A  deed  constituting  a  banking  company  trading 
under  the  7  Geo.  4.  c.  46.  contained  a  stipulation, 
that  if  the  public  officer  should  become  bankrupt^ 
he  should  be  disqualified,  and  his  office  become 
vacant : — Held,  that  this  meant  that  he  should  cease 
to  be  public  officer,  not  absolutely,  but  at  the  election 
of  the  company. 

Semhle — That  the  provision  in  the  5th  section  of 
the  7  Geo.  4^  c.  46,  that  the  return  shall  be  delivered 
between  the  28th  of  February  and  the  25th  of  March, 
is  directory  only.  Steward  v.  Dunn,  13  Law  J. 
Rep.  (N.S.)  Ezch.  824 ;  12  M.  &  W.  655 ;  I  Dowt 
&  L.  P.C.  642. 

[And  see  Steward  v.  Greavet,  pott  (D)  (a).] 

(B)  Chamoe  of  Name  of  Compaxtt. 

In  1833,  a  joint- stock  bank,  under  7  Geo.  4.  c.  46* 
was  established,  by  the  name  of  the  Mirfield  and 
Huddersfield  District  Banking  Company.  In  1836, 
H  &  Co.,  bankers,  relinquished  their  business  in 
favour  of,  and  united  witn,  this  company.  It  was 
afterwards  agreed,  that  the  title  of  the  bank  should 
be  the  West  Riding  Union  Banking  Company;  that 
the  capital  should  be  increased  by  the  creation  of 
new  shares;  and  that  more  directors  should  be 
appointed.  All  tbe  partners  in  the  bouse  of  H  & 
Co.  had,  before  the  change  of  name,  been  partners 
in  the  banking  company.  At  the  commencement 
of  the  action,  some  persons  were  proprietors  of  the 
new  company  who  were  not  proprietors  before  the 
junction : — Held,  that  the  bank  being  the  same  bank, 
the  change  of  name  was  immaterial ;  and  that  the 
plaintifiT,  as  public  officer  of  the  West  Riding 
Union  Banking  Company,  might  maintain  an  action 
against  the  defendants  on  the  above  guarantie. 
Wilton  V.  Crmfen,  10  Law  J.  Rep.  (n.s.)  Ezch. 
448 ;  8  M.  &  W.  584.    [And  see  this  case,  tide 

OUARAVTIE.] 


64 


BANKERS  AND  BANKING  COMPANY- 


(C)  Acceptance  of  Bills  by. 

A  partnership  connsting  of  more  than  six  per- 
sons, carrying  on  the  husinesa  of  bankers  in  or 
within  65  miles  of  London  cannot,  without  violating 
the  acts  of  parliament  respecting  the  Bank  of 
England,  accept,  in  the  coutse  of  such  business,  a 
bill  of  exchange  payable  at  less  than  six  months 
from  the  time  of  acceptance.  Booth  v.  tke  Bank  qf 
EMUmd,  7  C.  &  F.  509. 

Whatever  is  prohibited  by  law  to  be  done  directly, 
cannot  le^pftUy  be  effected  by  an  indirect  and  circuit- 
ous contnvaaoe.    Ibid. 

(D)  AcTfOMS  AiiB  Svm, 

(a)  GeneraUy. 

Assumpsit  by  the  public  officer  of  a  banking  co- 
partnership for  money  lent,  &c.  Second  plea,  that 
the  cause  of  action  accrued  against  a  banking  co- 
partnership, established  under  7  Geo.  4.  c.  £s,  of 
which  the  defendants  were  members,  and  that  the 
defendants  were  sued  as  such  members,  and  not 
otherwise ;  that  B  and  D  had  been  appointed  and 
registered  as  public  officers  to  be  sued  on  behalf  of 
the  said  co-partnership,  according  to  the  statute,  and 
the  said  B  and  D  so  being,  and  being  duly  nomin- 
ated and  appointed  and  registered  as  such  public 
officers,  were  living  and  resident  in  England,  within 
the  jurisdiction  of  this  Court.  Third  plea,  that  the 
causes  of  action  accrued  against  a  banking  co- 
partnership, of  which  the  defendants  were  members, 
jointly  with  G  and  B,  and  that  G  and  B  were 
members  of  another  banking  co-partnership,  of 
which  the  plaintiff  was  suing,  as  the  nominal  pliiin- 
tiff,  on  behalf  of  the  members  of  that  co-partner- 
ship, and,  amongst  others,  of  G  and  B : — Held,  that 
the  creditors  of  a  bankiiig  company,  established 
under  7  Geo.  4.  c.  46,  and  having  a  public  officer 
resident  in  England,  have  no  remedy  at  common 
law  against  the  individual  members  of  the  company, 
but  are  bound  to  sue  the  public  officer ;  and  there- 
fore that  the  second  plea  was  good  in  substance. 
And  semhle,  that  they  could  not  sue  the  indivi- 
dual members,  even  if  no  public  officer  were  ap- 
pointed, or  if  he  were  out  of  the  jurisdiction  of  the 
Court,  but  that  the  company  would  he  compellable 
by  law  to  appoint  a  public  officer.  Secondly, 
that  as  the  statute  exempted  individuals  from 
liability,  the  defence  was  properly  pleaded  in 
bar,  and  not  in  abatement  Thirdly,  that  the  plea 
was  not  an  argumentative  denial  of  the  contract, 
but  confessed  the  contract,  and  avoided  it  by  alleging 
the  statutory  exemption.  Fourthly,  that  the  ap- 
pointment of  public  officers  need  not  be  made 
whilst  the  company  were  carrving  on  their  business 
as  baukers.  Fifthly,  that  the  second  and  third 
pleas  were  not  bad  for  omitting  to  allege  that  the 
cause  of  action  arose  in  respect  of  matters  con- 
nected with  the  business  of  banking.  Sixthly,  that 
it  was  sufficiently  averred  in  the  second  plea  that 
the  parties  therein  named  were  not  only  nominated, 
but  actually  were  public  officers  at  the  commence- 
ment of  the  action. 

Held,  also,  that  one  banking  co-partnership  may 
sue  another,  although  some  individuals  may  be 
members  of  both  co-partnerships.  Stewards. Greaoet, 
12  Law  J.  Rep.  (n.s.)  Exch.  109 ;  10  M.  &  W.  711 ; 
2  Dowl.  P.C.  (n.8.)  405. 


A  joint-stock  banking  oonpuiy  established  under 
the  statute  7  Geo.  4.  c.  40,  and  consisting  oC  nu- 
meroiis  shareholders,  stopped  payment,  being  rery 
laiqgely  in  debt  at  the  time  c  the  business  bocams 
wholly  suspended,  but  not  disaolvsd,  and  thcve 
were  considerable  assets  in  the  hands  of  the  di- 
rectors (who  had  all  become  bankrupt  except  one) 
and  trustees  of  the  company,  though  not  equal  to 
the  debts.  The  directors  who  had  become  bank- 
rupt, had,  according  to  the  rules  of  the  company, 
become  incapable  of  acting,  and  the  trustees  had 
refused  further  to  act  in  the  affairs  of  the  company. 
To  a  bill  filed  by  two  of  the  shareholders  (who  had 
paid  up  their  calls),  on  behalf  of  themsdves  and 
all  the  other  shareholders  except  the  defendants, 
against  the  several  directors,  the  trostees,  the  regis- 
tered officers  of  the  oompanv,  and  such  of  the 
shareholders  as  had  not  paid  their  calls,  and  pray- 
ing the  assistance  of  the  Court  to  relieve  tiiem 
from  the  difficulty  that  had  arisen,  by  causing  the 
assets  of  the  company  to  be  realised,  and  the  debts 
to  be  paid,  and  that  for  such  purpose  a  receiver 
might  be  appointed  and  authorised  to  ane  for  the 
calls  remaining  unpaid,  and  for  the  debts  due  to 
the  company,  in  the  name  of  the  registned  officer, 
a  demurrer  for  want  of  equity  and  want  of  parties 
was  overruled.  WakporA  v.  HoU^  10  Law  J.  Bep. 
(n.8.)  Ch.  13& 

J  B  being  a  member  of  a  joint«stock  hanking 
company,  died  on  the  16th  of  March  1839,  and  in 
the  following  month  the  bank  stopped  payment  In 
June  1839,  a  sum  of  money  was  due  to  J  W  from 
the  partnership  by  simple  contract.  In  Se^ptemher 
1839,  E  and  other  ereditors  of  ike  bank  obtained  a 
judgment  against  the  public  officer  of  the  eompnay 
for  a  sum  of  mMiey ;  and  in  August  1840,  N  P  W , 
also  a  creditor  of  the  hank,  obtained  a  judgnent 
against  it  for  snother  sum.  In  1842  a  suit  was  in- 
stituted by  certain  legatees  under  the  will  of  J  B# 
for  the  purpose  of  a&unistering  his  estate,  and  a 
decree  was  obtained  therein  on  the  20th  of  Decem- 
ber in  that  yeaf,  directing,  amoi^t  other  things, 
the  usual  inquiry  as  to  the  debts  of  J  B,  8ec.  The 
Master  rejected  the  applications  of  J  W  and  R  snd 
others,  and  N  P  W,  seeking  to  prove  their  debts 
under  the  decree,  slthough  not  claiming  satisfaction 
thereof  until  after  ^  payment  of  J  B's  separate 
debts : — Held,  that  the  Master  was  right,  and  that 
the  correct  course  of  proceeding  in  such  a  ease^  to 
bring  the  matter  before  the  Court,  was  by  petition 
for  leave  to  go  in  before  the  Master,  and  make  a 
claim  to  prove,  and  not  by  excepting  to  the  Masters 
report. 

Semble — If  relief  could  be  afibrded  at  all  in  a 
court  of  equity  in  such  a  case  against  the  assets  of 
a  deceased  member  of  a  joint-stock  bank,  it  mnst 
be  before  the  liability  would  have  expired  under 
the  act  7  Gea  4.  c  46,  if  the  party  had  continued 
alive.  Barker  v.  Buttress,  13  Law  J.  Rep.  (>.*•) 
Ch.  58 ;  7  Bea.  134. 

(6)  Pleadings  and  Evidence. 

A  declaration  in  scire  facias  set  forth  the  writ* 
which  recited  a  judgment  reooTered  by  the  plain- 
tiffs against  M,  one  of  the  public  officen  for  the 
time  being  of  a  certain  banking  co-partneiship 
(under  7  Geo.  4.  c  46),  and  which  said  M  hsd 
been  duly  nominated,  &e.  as  such  puUic  offi^'f 


BANKKRS  AND  BANKING  COMPANY. 


65 


aid  WM  «aed  finr  ind  ob  befa«]f  of  the  oompany ; 
and  that  fifteen  penons  (by  name)  were,  at  the  time 
of  recoveriag  avoh  Judgment,  membera  of  the  eo- 
partiienhi]iu  The  writ  directed  the  sheriff  to  sum- 
mon such  fifteen  pecsoas.  The  declaration  set  out 
the  sheriff's  Wbuu  of  nOdl  as  to  all  the  fifteen,  the 
appearance  of  twelre  of  the  fifteen,  and  thereon 
the  pUintiffji  praved  judgment  against  the  twelve, 
without  noticing  further  the  three  who  did  not  ap- 
pear. On  demurrer  to  the  declaration : — Held,  that 
this  varianoe  between  the  writ  and  the  declaration 
waa,  at  moait,  an  irregnUrity  only,  and  not  a 
ground  for  demurrer. 

And  that,  supposing  the  non-joinder  of  these 
three  penons  to  afibrd  in  any  case  ground  for  a 
plea  in  abatement,  sufficient  did  not  appear  upon 
the  declaration  to  support  such  a  plea,  there  b^ng 
nothing  to  shew  that  Uiey  were  alive  at  the  time  of 
the  sheriff's  return. 

Also,  that  by  statute  7  Geo.  4^  c.  46.  members  of 
banking  oo^partnctships  eannot,  to  declarations  in 
aeire/mdaSf  npon  judgments  recovered  against  the 
public  offieers  of  snch  co-partnerships,  plead  in 
abatement  the  non- joinder  of  their  co-partners. 

To  the  declaration  in  Metre  faciae  above  set  forth, 
the  defenduit  pleaded  that  M  was  not,  at  the  time 
of  the  said  recovery,  one  of  the  public  officers  of 
the  company ;  concluding  to  the  country : — Held, 
ill»  sinoe  it  travecaed  a  fact  not  alleged  or  implied 
in  the  dedasatioi ;  and  because,  since  it  admitted 
the  fact  alleged,  ^t  he  was  a  public  officer  at  the 
time  the  action  commenced,  it  ought,  if  the  de- 
fendant meant  to  shew  that  he  had  ceased  to  be 
such  officer  before  judgment  was  obtained,  to  have 
eooduded  with  a  verification. 

Qumrr — If  judgment  in  the  original  action  be 
obtaisied  by  fraud  and  oollusien,  whether  the  de- 
fondant  in  scire  fatiae  upon  the  judgment,  would 
be  allowed  to  plead  snch  fraud  ?  FowUr  v.  Bick- 
ertif^  10  Law  J.  Rep.  (n.s.)  C.P.  149 ;  9  Dowl.  P.O. 
682. 

In  an  action  brought  by  the  puUic  officer  of 
a  joint-stock  banking  co-partnership,  estaUished 
under  7  Oea  4.  c  46,  it  is  sufficient  to  state  that 
the  plaintiff  is  the  manager  of  a  certain  joint-stock 
co-partnership,  established  in  Scotland  for  the 
pnrpoee  of  banking,  and  that  he  has  been  duly 
named  and  appointed  as  the  nominal  plaintiff,  on 
behalf  of  the  oo-partnership^  under  the  provisions 
of  the  statute  7  Geo.  4,  intituled,  &&,  without  stat- 
ing tbat  he  has  been  named  as  manager,  or  that  the 
co-partnership  has  been  established  in  Scotland,  in 
pursuance  of  the  provisions  of  the  act  Christie  v. 
/Vert,  10  Law  J.  Rep.  (]f.a.)  Exch.  195 ;  7  M.  &  W. 
491  {   9  Dowl.  P.C.  291. 

A  declaiadon,  describing  the  plaintiff  as  **  one 
of  the  present  public  officers  of  certain  persons 
united  in  co-partnership /or  tke  purpose  of  carrying 
on  the  trade  and  business  of  banking  in  England, 
according  to  the  statute"  (7  Geo.  4.  c.  46),  is  bad, 
on  special  demurrer,  for  not  stating  that  the  co- 
partnership was  carrying  on  the  trade  and  business 
of  bankers.  Fletcher  v.  Croshie,  1 1  Law  J.  Rep. 
(ir.8.)  Exch.  16;  9  M.  &  W.  252;  1  Dowl.  P.C. 
(irj.)  149. 

A  declaration  described  the  plaintiff  as  "  one  of 
the  present  public  officers  of  certain  persons  united, 
&c.  for  the  purpose  of  carrying  on  the  business  of 

Digest,  1840—1845. 


bankers  in  England,"  under  atat.  7  Geo.  4.  e.  46 : 
— Held,  that  the  omission  of  any  statement  that 
they  actually  were  carrying  on  such  business,  was 
no  ground  for  arresting  the  judgment,  as  it  suffi- 
ciently appeared  from  the  whole  record  that  it  was 
a  co-partnership  within  the  act.  Davidson  v.  Bower, 
12  Law  J.  Rep.  (xr.s.)  C.P.  110 ;  5  Sc.  (n.s.)  589 ; 
2Dow1.P.C.(n.s.)  115. 

In  an  action  against  a  banking  copartnership, 
sued  in  the  name  of  their  public  officer,  the  Court 
disallowed  a  general  plea  of  the  defendant's  bank- 
ruptcy, there  being  other  pleas  on  the  record,  and 
the  company  undertaking  not  to  sue  out  execution 
against  the  defendant  or  his  individual  estate. 

Quare — Whether  the  defeudant  might  not  have 
pleaded  his  bankruptcy  specially,  in  discharge  of 
his  individuul  liability  t  Steward  v.  Dunn,  12  Law 
J.  Rep.  (n.s.)  Ezch.  218 ;  1 1  M.  &  W.  68  ;  2  Dowl. 
P.C.  (w.8.)  742. 

To  an  action  of  assumpsit  for  money  had  and 
received,  the  defendant  pleaded  in  abatement  that 
the  promises  in  the  declaration  mentioned  were 
made  by  him  jointly  with  certain  other  persons 
(thirteen  in  number,  naming  them)  who  were  still 
living,  &c.  Replication,  that  the  said  promises 
were  not  made  by  the  defendant  jointly  with  the 
said  other  persons  in  the  plea  mentioned.  The 
particulars  of  demand  stated  that  the  actiou  was 
brought  to  recover  **  cash  deposited  or  received  by 
the  defendant  as  the  plaintiff*s  banker."  At  the 
trial,  the  plaintiff  began,  and  called  a  witness,  who 
proved  that  she  had  a  banking  account,  on  which  a 
balance  was  due  to  her  to  the  amount  stated  in  the 
particulars,  with  a  banking  company  called  the 
Isle  of  Man  Joint- Stock  Bank,  which  had  since 
become  insolvent,  and  in  which  tiie  persons  men<* 
tioned  in  the  plea,  and  others  also,  were  share- 
holders. The  witness  was  cross-examined  as  to  the 
state  of  the  banking  account,  and  not  as  to  the  fact 
of  the  defendant's  being  also  a  shareholder ;  but  the 
plaintiff  gave  no  affirmative  evidence  to  prove  that 
he  was  one :— Held  by  Pollock,  C.B.,  and  Piatt,  B. 
(Rolfe,  B.  dissentiente),  that  that  fact  was  suffl* 
ciently  admitted  by  the  pleadings  and  proceedings 
at  the  trial  to  entitle  the  plaintiff  to  recover. 

A  banking  company  was  established  in  1886 
under  a  deed  of  settlement,  which  provided  that  the 
business  of  the  company  should  be  carried  on  at 
Douglas,  in  the  Isle  of  Man,  and  such  other  places 
as  should  be  determined  on  pursuant  to  the  clause 
thereinafter  contained  for  that  purpose,  via.  by  the 
unanimous  vote  of  the  directors,  convened  in  a  par- 
ticular manner.  The  defendant,  who  resided  at 
Huddersfield,  was  an  original  shareholder  in  the 
bank,  and  continued  so  until  its  stopping  payment 
in  1843.  In  1889  a  branch  bank  was  opened  at 
CasUetown,  and  the  business  was  carried  on  there, 
as  well  as  at  Douglas,  till  1848 :— Held,  that,  under 
the  circumstances,  the  mere  lapse  of  time  was  evi- 
dence against  the  defendant,  either  that  the  Castle- 
town branch  was  regularly  established  pursuant  to 
the  requisites  of  the  deed,  or  that,  if  it  was  not,  he 
knew  of  and  assented  to  its  establishment  other- 
wise, so  as  to  make  him  liable  to  a  depositor  at 
that  branch.  CrelUn  v.  Calvert  and  Crellin  v. 
Brooht  14  Law  J.  Rep.  (N.S.)  Exch.  875 ;  14  M. 
&W.  11. 
By  sUt.  7  Geo.  4.  c.  46,  for  regulating  co-part- 

K 


BANKERS  AND  BANKING 'OOHBiCKY— BANKER'S  CHEQUE. 


ncrships  of  banken, it  is  providfid  ^ttet hetptt  any 
co-partnership  shall  issue  bills  OTnotM,< or  borrow 
or  take  up  money,  an  account  or  -MimB  shall  be 
made  out,  accorduig'to>t]i«  Ybrtn  in«  sehedulv^  con- 
taining (amo^fat  otiier  partioulars)  the  names  and 
places  of  abode  of  all  the  membetrs  of  aueh  co-part- 
nership ;  and  that  every  such  account  or  return 
shall  be  deliTetedtOithe.ComjaBisttlonera  of  Stamps, 
at  the  Stamp  Office  in  LoadoA^  who  shall  cauae  the 
same  to  be  filed  and  kept  ia  the  Stamp  Offlee,  && 
And  it  is  further  provided  that  such  aeooont  or  re- 
turn shall  be  made  out  by  the  aeci«taiy»  or*  one  of 
the  public  officers,  and  ahall  be  verified  iy  the  oath 
of  such  secretary,  taken  before  any  Justioe  of  the 
Peace ;  and  that  such  account  or  return  shall,  be- 
tween the  28th  day  of  February  and  Ui^  2^th  day 
of  March,  in  every  year  after  such  co-partnership 
shall  be  formed,  be  delivered  by  such  secretary  to 
the  Commissioners  of  Stanips,  to  be  filed  and  kept 
*  as  before-mentioned.",  It  was  further  provided, 
"  that  a  copy  of  such  account  or  return,  so  filed  or 
kept  and  registered,  and  certified  to  be  a  true  copy, 
should  in  all  cases  be  received  in  evidence  as  proof 
of  the  fact  that  all  persons  named  therein  as 
members  of  such  co-partnerships  were  members 
thereof  at  the  date  of  such  account  or  return. 
To  prove  that  certain  persons  were  members  of 
the  co-partnership,  certain  returns,  duly  certified, 
which  were  in  the  form  contained  in  the  schednle, 
and  verified  by  the  oath  of  the  secretary,  sworn  upon 
a  certain  day,  stated  at  the  foot  of  the  returns,  ac- 
cording to  the  schedule,  were  tendered  in  evidence. 
The  date  of  the  oath  was  not  between  the  28th  of 
February  and  the  25th  of  March : — Held,  that  the 
returns  were  admissible,  though  it  was  not  proved 
that  they  were  delivered  to  the  Commissioners  of 
Stamps  between  the  28th  of  Febraary  and  the  25th 
of  March. 

It  did  not  appear,  upon  the  face  of  two  of  the 
returns,  that  the  person  before  whom  they  were 
verified  on  oath  was  a  Justice  of  the  Peace«  It  was 
proved,  aliundey  that  he  was  a  Justice : — Held,  that 
these  returns  were  admissible. 

It  was  proved  at  the  trial  diat  two  of  the  defen- 
dants  were  partners  in  the  bank  of  the  plaintifis : — 
Held,  that  this  fact  was  no  ground  for  entering  a 
verdict  for  the  defendants,  upon  an  issue  directed 
to  inquire  whether  they  were  indebted  to  the  Lon- 
don and  Westminster  Bank.  Bosanquet  v.  Wood- 
ford,  13  Law  J.  Rep.  (n.8.)  aB.  93;  5  O-B.  310; 
1  D.  &  M.  419. 

(c)  Judgtnent  and  Exnwtiotu 

^  A  defendant  having  been  sued  as  the  public  re- 
gistered officer  of  a  joint- stock  banking  company, 
and  taken  in  e:(ecution  on  the  judgment, — Held 
(Parke,  B.  duMtante),  that  execution  might  be  issued 
without  a  scire  facias,  and  that  he  was  not  entitled 
to  his  discharge.  Norwood  v.  Law,  1 0  Law  J.  Rep. 
(N.8.)  Exch.  SO  ;  7  M.  &  W.  208 ;  8  Dowl.  P.C. 
899. 

To  enable  a  creditor  of  a  joint-stock  company, 
who  has  obtained  judgment  against  its  registered 
officer,  to  obtain  the  leave  of  the  Court  to  issue  exe- 
cution against  any  person  who  was  a  member  of 
the  company  when  or  before  the  contract  was  en- 
tered into,  or  when  the  judgment  was  obtained,  it  is 
necessary  that  he  shoald  shew  some  bend  fide  attemjit 


made  to  recover  AroAtf  tott^Mikubar  or  members  for 
the  time  beiiig.  .    .  •  rr     >>] 

Therefore,  when  a  creditor  ha4  sued-fbep*^^ 
tered  officer,  who  waa  yn  a  state  of  notor\onA.inB#r 
vencv,  and  had  issued  executioii  againa^  tliem^io 
which  there  was  a  return  of  mUlfi-bita,.jihexe  beu^ 
contradictory  affidavits  as  to  •  the  knqwlfidge  a^d 
belief,  of  the  respective  deponents,  rejipe^tMig  thf 
state  of  solvency  of>  other  memben  iCSr  ue  ijlme 
being: — Held,  that  the  creditor  was  not  entitled,  on 
these  proeeedings,  to  obtain  a  «e{f« /betas- agwist 
parties  who  had  ceased  to  benembinra.  BahSey 
V.  Law,  10  Law  J.  Rep.  (K.s.)  03. 49^t  4^  Ad.^  K 
802;  4P.  &D.  379. 

Where  a  party  has  tibtaitted  judgneiH  'ugainit 
the  public  ofilcer  of  ii  bankinj^  co'^pmktiiaffshl^, 
under  7  Geo.  4.  e.  46.  a.  9,  the  pMp^r^  x^le  of 
proceeding  to  exeooliBn  «g»aat  umuiiMiii  of  itfie 
co-partnership  is  by  scire  fackiSy  and  nat  byi  sug- 
gestion. .       /       , 

Therefore,  where  tke  defendant  hekom.  biought 
error  in  the  Bxehequtr  Ckatsfaeff  jMa%niii|^  for 
causes,  that  judgment  and  execution  weiie  'giiten 
and  awarded  against  the  memben  without  .their 
appearing  in  court,  or  having  notice  of  the  pro- 
ceedings against  them,  the  suggestion  having,  been 
entered  by  rules  of  the  Oneen^s  Benchi  and  the 
prayer  was  that  judgment  and  award  of  execution 
might  be  reversed, — the  Court  affirmed  ,the  judg- 
ment of  the  Court  below  except  as  to  the  execution, 
but  reversed  it  aa  to  that.  Ranrford  v.  Boeanqitst,  1 2 
Law  J.  Rep.  (n.b.)  Exch.  489. 

(E)  Notice. 

Semhle — That  since  the  passing  of  the  I  &  2 
Vict  c.  96,  notice  to  one  member  of  a  banking 
company  trading  under  the  7  Geo.  4.  c.  46.  is  not 
notice  to  all,  the  co-partnership  being  in  the  nature 
of  a  corporadon.  Steward  v.  bunn,  1 3  Law  J.  Rep. 
(N.S.)  Exch.  824 ;  12  M.  &  W.  655 ;  1  DowL  &  L. 
P.C.  642. 

In  an  action  by  the  pubKe  officer  of  a  banking 
company,  under  the  7  Geo.  4.  c.  45,  fbr  the  balance 
of  an  account,  the  Court  allowed  notice  of  execute 
ing  a  writ  of  inquiry  to  be  served  at  the  last  place 
of  abode  of  the  defendant,  and  1^  atiekiog  the 
same  up  in  the  Master^s  office^  in.  M.  T.,  1841,  In- 
terlocutory judgment  for  want  of  a.  pleft  hating 
been  signed  on  the  11th  of  Janaary  18S9y  and  it 
being  sworn  that  the  defendant  Jkad  goa^  te  South 
Australia,  in  Kavch  18flfiy  to  evade  \paynie»t  of 
his  debts. 

The  Court  also  granted  a  rule  fbr  aerting  upon 
the  defendant  by  Uie  same  means,  netiee  •of  a  sug- 
gestion having  been  entered  upon  the  record  of 
the  change  of  the  name  of  the  public  affloerof  the 
banking  company,  under  the  9th  scotlen  of  the 
statute.  IVo5{n  v.  Loeook,  1  DowL  P.C.  (n.s.) 
197. 


BANKER'S  CHEQUE. 

[See  Bills  of  Exchange  and  Promissort 

Notes. 


1  *l  ' 


BAMKRUBTOY. 


/.  /   /    •  t     t  5 


er 


[See  ^iLLs  or  Bzchanob  akd  Pkomissobt 
NoTBs— Case — Coo  JroviT — Costs,  Security  for — 
jytsrot  AkD  Creditor — Ejectment,  Judgment 
against  Casual   Ejector  —  Friendly  Societt — 

duARAKTIE — IlYTEBPLEADER — JtTDQMEUT,  Setting 

aside — Plradino,  Duplicity,  and  Puis  Darrein 
Continuance — Prochbin  Amy — Sheriff — Stamp 
-^Stoppage  tjs  Tjiansitu— IIVitnesb.] 

,  (Aj.  P^»U|QN4  UA9LB  TQ  B«GOM6  BANXAUPT.  , 

,.  ^B)  ,AcT  ov  BAjnuitiPTcXi 

'/iqifJSi^pqKfti^^tJrpm  PweUiwg-houtet  OMd  other- 
wise  ahtenting  hhnseyi 

..(  (,4)  iFrtmMmiiCewmy^nfiffr^^ • 
,.  .  ^  Umier.l  i  %  fiet.  c.  110.  «.  8. 

iOp  PwiiimaiiiHi  CBKBtMiRi  . 

(i)  Suhetitutiim  of  one  Debt  for  another,  : 

ii^V"i9f  ^MeMdmi'ttt^cfetdrng  <^  Stm, . '  '    - 

(bS  BepHntilon  of. 
(r)  IHreifion, 
(d)  Chttt^ing  the  Venue, 
it)  C&fisoKdafmg. 
■     (/)  iSlecoRfl  Ffa/. 
(^)  Third  Fiat. 
(Jk)  Amendingt 
(i)  VaUdityrf, 
{k)  Opening, 
(J)  Superseding, 
(m)  Auxiliary  Fiat, 

(E)  Annulling  Fiat. 
va)  Causes  for, 

(6)  Practice — Petition   and  Order  for   annui- 
ling, 

(F)  Adjudication  and  Adtebtisembnt. 

(G)  CoiufisuoNEBa. 

(a)  Jurisdiction  and  Power  qf» 
(h)  JhUiss  and  LiabUiiies* 

(H)  SauRABLB  Rbliep. 

( I  )  iMBFBCTOB. 
(J)  COMPBOMISB. 

(K)  Pboov  of  Dbbt. 
(«)  In  gemmut, 
(6)  Under  jakU  Fimt. 

(e>  Bf  Bankrupt  Cradiiary  Feme  Covertf  and  other 
persons, 

(d)  Jnmitfr. 

(e)  Bonds, 

if)  BiUa,  Notes,  and  Cheques, 

ig)  Bankitig  Company, 

(A)  Damages* 

(0  Jesnl  and  Sepamte  Debts, 

(*)  Mortgages, 

(0  Partners. 

(m)  Servants, 

(«)   Whsre  there  is  Security  fir  the  Debt, 

(o)  5lKr«<i^f. 

(p)  7nu<  Money, 

Iq)  Legacy; 

(r)  Decrees,  Judgments,  and  Costs, 

is)  Contingent  Debts* 

(/)  Amount  prooeable* 


i; 


fll>  il4fWft^*l^.. 

(i»)  R^oring. 

(«)  £fcvli»i. 

(y)  £aMme«  ontfiVstfltet. 

(L)  Mutual  Cbbdit  and  Set-off. 
(M)  Assignees. 


{h)  Dbties,  Rights,  and  LiabilUies. 

(t)  AUowmde  </ Coots, 

(d)  AcHom  and  SuHs, 

{eS  Sale. 

if)  Official  Aesignee, 

ig)  Amoeati^ Assignees.' 


{IX)  Messenger. 

(O)  Bankrupt's  Propj^rtt.' 


(a)  What  passes  to  the  Assignees  in  general. 


Investment  qf. 
Bills  and  tfotes. 


i)  Wif^s  Property, 
[e)  Joint  and  Separate  Estate. 

Trust  Money, 
(g)  Leaseholds, 
IhS  Fixtures. 
(t ;  Order  and  Disposition  and  repuied  Oumer^ 

ship, 
(k)  Retaining, 
{l)  Concealment, 

(P)  Mortgages  and  Lien. 
(a)  LegtU  Mortgages*    . 
It)  Equitable  Mortgages* 
.e)  Interest  and  Rents, 
^d)  Redeeming^ 
Tacking, 
^Lien,    . 

(Q)  Pbotbctbd  Dbalinos,  Exbcutiqns,  and 
Paymbnts. 
(a)  Operation  qf2  8f^  Vict.  c.  29. 
{b)  Other  Cases. 

<R)   DlTlDENDS. 

<SJ  Of  the  Bankbuft. 
(a)  Surrender, 
b)  JSxamtnatton, 

[c)  Rights  and  Liabilities, 

[d)  Allowance, 

(T)  Certificate. 
(a)  Allowance  of, 
b)  Staying. 


I'A 


:)  Coiifirming, 

0 


Rfftci  of. 
(U)  Evidemce. 
fa)  In  general 
b)  Misnomer, 
[c)  AffidavUs. 

VioA  voce  Examinations. 
In  Proceedings  under  the  Fiat. 
In  Actions, 
{g)   Witness, 
(V)  Petition. 

(a)  Who  may  petition, 

(b)  Form  qf, 

(c)  Practice* 
(W)  Practice. 

(a)  In  general 

(b)  As  to  the  ftearing  qf  Petitions. 

(c)  Orders, 

(d)  Production  of  Documents, 


68 


BANKRUPTCY— (Act  of  BANKBUPTcr). 


(e)  Separate  Issues, 

(f)  Accounts. 

fg)  Rrference. 
h)  Appeal  and  Special  Case, 
(t)   Contempt, 

(k)  Under  1  4-  2  Will  4.  c.  56.  g.  22. 
(0    Under  I  ^2  He/,  c.  110. 
(m)  Execution  and  Attachment, 

(X)  Audit  op  Accounts. 
(Y)  Jurisdiction. 

(a)  Of  the  Lord  Chancellor. 

(6)  Of  the  Court  rf  Review, 

(Z)  Solicitor  to  the  Fiat. 
(AA)  Costs. 

(a)  In  general 

(6)  r«a/<on,  and  RevlewU  of  Taxaiton, 


The  law  of  bankruptey  amended  by  6  &  6  Vict, 
c.  122 ;   20  Law  J.  Stat  App.  xiii. 

The  sereral  courts  authorized  to  act  in  the  pro- 
secution of  fiats  made  auxiliary  to  each  other  for 
the  proof  of  debts  and  the  examination  of  witnesses. 
Ibid.  sec.  85;  20  Law  J.  Stat  App.  xiii. 

(A)  Persons  liable  to  becomb  bakkrupt. 

Livery-stable  keepers,  coach  proprietors,  carriers, 
ship-owners,  auctioneers,  apothecaries,  market 
gardeners,  cowkeepers,  brick-makers,  alum-makers, 
lime-burners,  and  millers  are  declared  to  be  traders 
within  the  bankrupt  laws,  by  the  5  &  6  Vict  c.  122. 
s.  10 ;  20  Law  J.  Stat  App.  xiii. 

[Ex  parte  Edwards  re  Edwards,  4  Law  J,  Dig.  63 ; 
1  M.  D.  &  D.  3J 

A  farmer  in  Essex  was  in  the  habit  of  growing 
in  open  fields  a  considerable  quantity  of  peas  and 
young  potatoes,  and  of  sending  diem,  day  by  day, 
during  the  season,  to  salesmen  in  London :  — Held, 
that  he  was  not  a  market  gardener  within  the  mean- 
ing of  the  act  Ex  parte  Hammond  re  Hammond^ 
14  Law  J.  Rep.  (n.s.)  Bankr.  14;  1  De  Gex,  93. 

Where  a  party  held  shares  in  a  jdnt-stock  bank- 
ing company  for  a  period  of  two  years,  and  received 
successively  two  years^  dividend  on  his  shares : — 
Held,  that  this  was  sufficient  to  constitute  a  trading 
as  a  banker.  Ex  parte  Wyndham  re  Byronn,  1  M. 
D.  &  D.  146. 

A  party,  having  no  other  visible  oocupation,  was 
made  a  bankrupt  aa  a  dealer  in  yachts.  The  only 
evidence  of  trading  was,  that,  upon  three  several 
occasions,  he  bought  and  sold  a  yacht  for  profit, 
realising  on  such  sale  a  profit  of  190/.,  and  that  on 
some  of  these  occasions  he  employed  abroker,  to  whom 
he  said  that  he  thought  it  no  disgrace  thus  to  in- 
crease his  income ;  but  there  was  no  direct  evidence 
that  he  thus  dealt  for  Uie  purpose  of  gaining  his 
livelihood,  or  that  he  was  consiaered  as  a  trader  by 
any  person  who  knew  or  dealt  with  him.  Quare — 
Whether  this  is  sufficient  evidence  of  a  trading  within 
the  bankrupt  law.  Ex  parte  Cromwell  re  Young, 
1  M.  D.  &  D.  158. 

A  person  who  keeps  a  boarding  and  lodging  house, 
where  guests  are  entertained  by  the  month  or  week, 
each  having  a  bed-room  to  himself,  but  taking  his 
meals  with  the  proprietor  of  the  house,  is  a  trader 
within  the  6  Geo.  4.  c.  16.  s.  2,  which  provides  that 
all  **  victuallers,  keepers  of  inns,  taverns,  hotels,  or 


cofiee-honses,'*  shall  be  subject  to  the  bankmpt 
laws.  Gibson  v.  King,  12  Law  /.  Rep.  (h.s.)  Exsh. 
9 ;  10  M.  &  W.  mi ;  Car.  &  M.  458. 

A  person  who  keeps  a  boarding  and  lodging  heose 
in  which  the  lodgers  take  their  meals  at  her  own 
table,  and  who  occasionally  supplies  diem  with  wine, 
which  she  purchases  of  a  wine- merchant,  is  a  trader 
within  the  6  Gea  4.  c  16.  s.  2,  as  the  keeper  of  a 
hotel.     Ex  parte  Birch  re  Birch,  2  M.  D.  &  D.  669. 

Semble — That  a  member  of  a  gas  company  is  a 
trader.  Ex  parte  Brown  re  Puiioek,  2  M.  D.  ft  D. 
758. 

If  a  solicitor  or  attorney,  ptaetlsittgss  meh,  shall 
also  be  in  the  habit  of  receiving  other  m«n's  monies 
or  estates  into  his  trust  or  custody,  for  the  purpose 
of  investing  them  in  securities,  as  he  may  be  able 
to  procure  them,  and  practise  such  businen  as  a 
trade,  he  will  be  considered  a  trader,  liable  to  the 
bankrupt  laws. 

And  it  will  be  unnecessary  to  consider  whether  he 
was  properly  a  scrivener  or  money  broker,  but  only 
whether  he  was  a  person  **  receiving  other  men's 
monies  into  his  trust  and  custody."  Ex  parte  Gem 
re  Ramsey,  10  Law  J.  Rep.  (v.!.}  Bankr.  41  ;  2  M. 
D.  &  D.  99. 

A  lessee  of  an  iron  mine  purchases  large  qoan- 
tities  of  pig-iron,  which  he  manufaetnres  into  cast- 
iron  implements  for  the  purpose  of  working  it,  and 
the  surplus  of  the  cast-iron  which  he  did  not  use 
he  sold  to  persons  in  the  neighbourhood.  Qm^tre — 
Whether  this  was  not  a  trading  within  the  bankmpt 
law.  The  point  was  so  doub&l  that  the  Court  de- 
clined to  annul  the  fiat  on  the  petition  of  the  bank- 
rupt,but  would  only  give  him  leave  to  try  the  ques- 
tion in  an  action  at  law.  Ex  parte  Salkeldn  CtifriU, 
8  M.  D.  &  D.  125. 

(B)  Act  op  Bankruptcy. 

(a)  Departure  from  Dwelling-house,  and  otkerwiee 
absenting  himse(f. 

[See  Gore  v.  Lhyd,  title  Landlord  autd  Tbnaht.] 
A  party  who  orders  large  quantities  of  goods  of 
different  tradesmen,  without  the  means  of  payment, 
and,  after  they  are  delivered,  secretly  lea^p««  her 
house  in  London,  without  leaving  word  where  she 
is  to  be  found,  and  goes  into  obscure  lodgings  at 
Reading,  must  be  taken  to  depart  tVom  her  dwell- 
ing house  with  intent  to  delay  her  ot^diton,  and 
thereby  commits  an  act  of  bankruptcy.  Bx  parte 
Birch  re  Birch,  2  M.  D.  &  D.  659. 

A  trader  was  absent  tnm  hie  borne,  whioh  be 
appeared  to  have  left  for  the  purpose  of  transactiiig 
business  in  London ;  and,  being  so  abseiil^  he  wrote 
a  letter,  in  which  he  stated,  "  I  am  now  in  Leiidon 
to  avoid  two  wriU" : — Held,  admissible  evidence  to 
shew  an  act  of  bankruptcy  on  the  day  on  whfeh  the 
letter  was  written ;  altnough  there  was  Bo  evidenoe 
that  any  write  were  out  against  him,  or  of  n&y 
other  pressure  by  creditors.  Roach  v,  the  Grwat 
Western  Railway  Company,  10  Law  J.  Rep.  (».«.) 

as.  89. 

A  trader,  who  was  in  insolvent  dremnstmces, 
failed  to  attend  a  general  meeting  of  his  cteAtan, 
which  was  convened  at  his  house  of  bvsfaieBa,  send- 
ing his  solicitor  in  his  place : — Held,  tiiat  this  waa 
an  act  of  bankruptcy,  and  that  it  was  the  bounden 
duty  of  the  bankrupt  to  attend,  and  give  informa- 
tion to  his  creditors  as  to  the  state  of  his  affairs. 


BANKRUPTCY— (Act  of  Bahkbuptcy). 


69 


£*  parU  omd  n  Bmf^  10  Law  J.  Rep.  (m.s.)  Bankr. 
U;  1  M.  D.  &D.  390. 

Where  a  debtor,  upon  appUeatioiM  made  to  him 
\pf  cjpeditors  for  payment  of  their  debts,  made  ap- 
pointments with  them  to  meet  him  at  specified  times 
and  placet,  with  reference  to  a  settlement  of  their 
doroands,  but  failed  to  keep  such  appointments : — 
Held,  that  the  failures  to  keep  the  appointments 
comtituted  acts  of  bankruptcy,  although  the  places 
at  which  the  appointments  were  made  were  not  his 
wtial  place  of  businesB.  BMi$9U  r.  Beil^  10  M.  dt  W. 
940. 

A  trader  having  attended  a  meeting  of  his  credi- 
tor!, is  desired  by  them  to  withdraw  until  they  can 
eome  to  some  resolution  on  the  state  of  his  aJSairs ; 
he  aceordiagly  retires  into  an  outer  room,  where 
he  is  senred  with  a  copy  of  a  writ,  upon  which  he 
abruptly  takes  his  hat,  and  leaves  the  place  of 
meeting  altogether,  not  returning  till  the  expira- 
tion of  an  hour,  when  the  meeting  had  broken  up : 
—Held,  that  his  thus  absenting  ^mself  amounted 
to  an  act  of  bankruptcy.  Em  parti  Deam  n  Demn, 
SM.1X&D.  127. 

(h)  Fraudulent  Conveyance,  ^e. 

An  Issue  directed  to  try  whether  the  executionof  a 
certain  deed  was  an  act  of  fnodnlent  preference  in 
contemplation  of  bankruptcy.  Orugeen  v.  Gerrmrd^ 
4  Y.*C.  119. 

When  a  creditor  assents  to  an  assignment  of  his 
debtor's  property  for  the  benefit  of  his  creditors,  it 
must  be  taken  to  be  an  assent  to  the  common  assign- 
xnent  in  such  cases,  and  not  to  one  by  which  the 
debtor'a  solicitor  is  given  priority  over  other  credi- 
tors In  reepect  of  costs  incurred,  or  to  be  incurred, 
in  defence  of  an  action  touching  the  debtor's  pro- 
perty, or  where  one  creditor  is  given  a  preference 
OTer  any  other  creditor,  without  the  knowledge  and 
etntent  of  such  other  creditor. 

And  where  such  assent  haa  been  given  by  a  cre- 
ditor, he  will  not  be  thereby  prevented  from  taking 
SMlvantage  of  the  assignment,  as  an  act  of  bank- 
r«ptey,upon  the  insertion  of  any  such  unusual  pro- 
wisiona.  E*  p&rte  and  re  Marshall^  10  Law  J.  Rep. 
(K.B.)  Bankr.  34 1  1  M.  D.  &  D.  575. 

A,  a  partner  in  the  firm  of  H  &  Co.,  knowing 
the  firm  to  be  in  embarrasaed  and  insolvent  circum- 
tftancea,  consulted  with  his  solicitor  oirthe  11th  of 
September  aa  to  the  coarse  to  be  adopted  by  the 
firm ;  and  a  conclusion  was  eome  to  that  a  notice 
•hoold  be  sent,  in  the  course  of  the  day,  to  the 
hoBkera  of  the  firm  that,  on  die  following  day,  no 
further  payment  should  be  made  on  behuf  of  the 
firm.  After  this  conclusioa  had  been  come  to,  A 
drew  three  cheques  in  fitvour  of  three  of  the  credi- 
tors of  the  firm,  and  these  cheques  were  on  that  day 
taken  to  the  bank  and  paid.  There  was  no  pres- 
aure  on  die  part  of  any  of  these  creditors.  At  five 
in  the  evening  the  above-mentioned  notice  was  sent 
and  delivered  to  the  bauk : — Held,  first,  that  the 
giving  of  the  three  cheques  came  within  the  words 
"  gilt,  delivery,  or  transfer  of  any  of  his  goods  or 
chattels,**  within  the  meaning  of  the  3rd  section  of 
the  Bankrupt  Act;  and  secondly,  that  the  giving  of 
diese  cheques,  under  the  above  circumstances,  was 
a  **  fmudulent  gift,  delivery,  or  transfer ;"  and  that 
A  had,  on  the  Uth  of  September,  committed  an  act 
of  bankruptey,  capable  of  supporting  a  fiat     Bx 


parte  Smpmm  rtHunt^  14  Law  J.  Rep.  (N.a.)  Bankr. 
1 ;  1  De  Gex,  9. 

The  bankrupt,  previous  to  the  fiat,  having  called 
a  meeting  of  his  creditors  at  Manchester,  H  &  Co., 
creditors  at  Halifax,  wrote  to  G,  an  attorney  at 
Manchester,  to  attend  the  meeting  on  their  behalf, 
saying,  we  will  leave  our  interests  in  your  hands. 
In  pursuance  of  the  resolutions  passed  at  the  me^ 
ing,  which  were  communicated  to  H  &  Co.,  a  trust 
deed  was  prepared  by  G,  and  executed  by  the  bank- 
rupt and  many  of  the  creditors,  but  not  by  H  &  Ca 
A  dividend  was  afterwards  declared  by  the  trustees, 
of  which  H  &  Co.  were  also  informed,  without  mak- 
ing any  objection  to  the  arrangement : — Held,  that 
they  could  not  afterwarda  set  up  this  deed  as  aa  act 
of  bankruptcy.  Ejc  parte  Tealdi  re  Ttaldi,  I  M.  D. 
&  D.  210. 

A  bill  of  sale  by  a  trader  of  all  his  effects  to  a 
creditor,  as  security  for  an  antecedent  debt,  is  an 
aot  of  bankmploy,  although  it  does  not  purport  to 
convey  all  his  efieots»  and  may  have  been  executed 
in  the  hope  of  obtaining  farther  advsnoes  from  the 
cseditor,  and  with  the  intention  of  oontinuing  to 
earry  on  trade;  and  although  such  advances  may 
have  subsequently  been  made,  a^d  no  possessioci 
taken  under  the  bill  of  sale  until  several  weeks  aAer- 
wards,  during  whieh  drae  die  trader  has  earaed  on 
business  as  before. 

Knowledge  by  the  creditor  that  such  bill  of  sale 
comprised  all  his  debtor's  property, — Held,  to  be 
sufficient  notice  to  him  that  it  was  an  act  of  bank- 
ruptey. Lindon  v.  Sharpt,  13  Law  J.  Rep.  (n.b.) 
C.P.  67  ;  7  Sc.  (n.8.)  730. 

An  assignment  of  all  the  property  of  a  trader  in 
consideration  of  the  assignees  giving  promissory 
notes  to  the  trader's  creditors, — Held,  not  to  be  a 
sale  within  the  principle  of  Baxter  v.  Pritehardt  but 
an  act  of  bankruptey.  Ex  parte  Zmlchenbart  re 
Marshall,  13  Law  J.  Rep.  (n.s.)  Bankr.  19 ;  3  M.  D. 
&  D.  671. 

An  assignment  by  a  trader  of  hia  house  and  furni- 
ture to  the  trustees  of  his  son's  marriage  settlement, 
as  a  further  security  for  the  payment  of  a  sum  of 
money  secured  to  them  upon  tne  bond  of  the  trader, 
— Held,  under  the  circumstances,  not  an  act  of 
bankruptey.  SamuUffne  v.  Leader,  10  Law  J.  Rep. 
(M.8.)  Ch.  385 ;  10  Sim.  350. 

(c)   Under  1  ^  2  Vict,  c,  110.  «.  8. 

[See  Gibeon  v.  Muskeit,  post,  (Q)  Protected  Pay- 
roents.] 

(d)  Under  5  Si  G  Vict.  c.  122. 

Provisions  authorizing  a  creditor  to  call  upon  his 
debtor  (being  a  trader)  to  admit  his  debt,  and  fbr 
making  him  bankrupt  upon  his  refusal  or  his  sub- 
sequent neglect  to  pay  or  receive  the  same,  unless 
he  deposes  that  he  has  a  good  defence  to  Uie  de- 
mand. £  &  6  Vict  c.  122.  ss.  U  to  19 ;  20  Law  J. 
Stet.  A  pp.  xiii. 

A  defendant  against  whom  judgment  has  been 
recovered  in  an  action  for  the  recovery  of  a  debt  or 
money  demand,  neglecting  fbr  fourteen  days  after 
due  notice  to  pay,  receive,  or  compound  for  the  same, 
shall  be  deemed  to  have  committed  an  act  of  bank- 
ruptey on  the  fifteenth  day.  5  &  6  Vict  c.  122. 
a.  20 ;  20  Law  J.  StaL  App.  xiii. 

Neglecting  to  obey  a  decree,  or  order,  in  any  case 
in  equity,  or  in  bankruptcy,  or  lunacy,  for  payment  of 


70 


BANKRUPTGY^(P£tinoHt]ia<oaBMTO]t— Fi  AT) . 


ft  aiun  of  moii9|r«.aAer  m  order  Using  »  poremptoiy 

day  for  that  purpose^  und  •ervice  of  nch  order  fouf- 
tieeD  dftyft  before  eoeh  day*  afaall  be  decreed  an  aet  of 
bankrapCey.  d  &6  Yict  e*  122.  &  21 ;  20  Law  J. 
Stat  lA^p.  xiii. 

Filing  a.  signed  and  atteated  declaration  of  insol- 
vency shall  be  an  act  of  benkruptey,  if  a  fiat  issues 
within  two  months.  6  8t  Q  Yiot  c  122.  s.  22; 
20  Law  J.  Stat.  App.  xiii. 

Where  a  trader  had  been  summoned  before  a 
oonuaisaioner  under  6  &  6  Vict  c.  122.  s.  lUand 
before  the  proper  time  had  elapsed  to  constitute  an 
aot  of  banhmploy  witldn  the  meaning  of  the  Idth 
section,  a  fiat  was  by  mistake  issued  which  was 
afterwasda  auMiUedt^^Held,  that  the  eKisteaco  of 
this  iUt  waa^aeh  an  obstruction  to  the  payment  of 
the  petitioning  creditor's  debt,  that  if  he  sued  out  a 
»ew  fiat  liMmded  on  the  omisaiott  to  pay,  &c,  aooord- 
ing  to  the  terms  of  the  14th  section  of  the  above 
aety  (he  Court  would  annul  such  new  fiat  Ex  pari$ 
Mm^tgrw  r0  Rumll,  3  M.  D.  &  D.  386. 

i^fore^WfaMher.  payment  of  the  debt  alter  the 
ioeuing  of  the  imptoperly  ismed  fiatr  would  havo 
eonsEtitBlod  ili,«ot  of  bwJdwptoy  grades  6  G«h  4» 
c.  16.  8.  8.    Ibid. 

A  debtor,  against  whom  an  affidavit  of  debt  has 
been  filed,  under -Hie  proTlaion  of  the  above  act,  will 
be  deemed  to  have  committed  an  act  of  bankruptcy, 
although  he  and  his  two  sureties  may  have  executed 
a  bond  in  a  sufficient  amount  before  the  expiration 
of  the  twenty-one  days,  tmlesa  such  bond  shall  have 
been  allowed  by  a  commissioner  beCore  the  expit«« 
tioD  of  the  time :  and  his  approval  thereof^  after  the 
twenty*one  dayi^  but  before  the  fiat  issues,  will  not 
invalidate  the  aot  of  bankruptioy,  especially  if  the 
notice  of  application  to  the  oommieaioner  was  for 
the  day  after.  Ex  parte  Qooddy  re  G«eddff,  10  Law 
J.  K^.  (9.8.)  Bankr.  72 ;  1M.D.&D.677. 

(C)   PETlTIOinNO  Cb&DITOR. 

(«)  Who  wiay  he. 

iB»  parte  Weodre  H^ood,  4  Law  J.  Dig.  64; 
1  M.  D.  &  D.  92.] 

The  Lord  Chancellor  empowered  to  dispense 
with  the  petitioning  creditor's  bond.  6  &  6  Vict 
c.  122.  fc  8 ;  20  Law  J.  Stat  App.  xiil 

(6)  SuhitUuUon  rfoM  Debt  for  another. 

Csse  where  the  Court,  under  the  circumstances, 
permitted  the  description  of  the  petitioning  creditor's 
debt  to  be  altered  after  the  fiat  issued,  by  the  addi- 
tion of  the  name  of  another  creditor.  Ex  parte 
Haumee  re  Pintt  11  Law  J.  Rep.  (n.8.)  Bankr.  29. 

A  party  who  is  disputing  the  validity  of  the 
petitioBingereditor'ftdebt  in  an  action  at  law,  brought 
againet  him  by  the  assignees^  is  not  entitled  to  an 
order  that  no  proceedings  should  be  taken  for  the 
substitatioo  of  another  petitioning  creditor's  debt, 
without  notice  to  him.  Be  Hvmberstom,  11  Law  J. 
Rep.  (HJS.)  Bankr.  \5\  a.  c  Ex  parte  MoUneux  re 
ilxmbereUme,  2  M.  D.  &  D.  ^72. 

It  is  not  necessary  that  the  commissioner  should 
cxriify  that  the  debt  of  a  creditor  proposed  to  be 
Mib«titnted  for  that  of  the  petitioning  creditor,  has 
b««m  incurred  not  anterior  to  the  debt  of  the  peti- 
tumwif  creditor,  if  the  Court  is  satisfied  of  the  fact 
hy  other  evidence.  Ex  parte  Pubery  re  R^tt,  2.M. 
IX&D,  184. 


A  petitioniiig  creditor  bad  asld  tho  baftkivptfs 
goodsi  in  payment  for  which  he  lock,  three  bills  of 
exchange  accepteil  by  the  bankrupti  which  the  ck- 
ditor  negotiated,  and  which  were  not  in  hia  haada^ 
nor  due  at  the  time  he  issued  ■  the  fiat  The  com* 
missioner  expunged  the  pieof  of  his  debt,  on  Uie 
ground,  that  the  bills  were  not  ia  bis  poeseesiea  at 
the  time  of  the  bankruptcy  :-^Held*  that  an  order 
might  be  made  under  the  18tb  section  of  the  6  Geo.  4. 
c.  16.  for  the  substitution  of  the  debt  of  another 

creditor    ExptartaSmitkre  WUIimh^U^l^-^b^' 
341. 

(c)  Attendance  at  Opening  ^PkKt:' 

ti 

Theoommiasioaer  bae^wec  to  dispenser  with  the 
attendance  of  the  petitioning  erediter  at  the  ^yf"fffg 
of  the  fiat  Exparie  might,  m  tfV^H  «  M.i).  a 
D.  820. 

{d)  Anumnt  and  Nature  ^f  Debt. 

50(.  due  to  one  pei»Qp  or  to  partnen,  70&  due  to 
two  person^  of  1004  to  thne,  ieaeafficaent  petitionT 
ing  creditor's  debt,  by  5  ^  6  Yjct  o.  122*84  9 ;  20  Law 
J..Stat  App.  xiii*  v 

Where  one  of  two  partners  gave  an  acceptance  ia 
the  name  of  the  firm  for  a  pr^^exisfeisig  debt  of  his  own 
without  the  authority  of  the  other  partner: — ^Hek^ 
that  this  aoc^tance  waa  not  a  good  petitioning  ere*- 
ditor* s  debt  to  support  a  joint  fiat  against  the  tWQ 
partners.  Ex  parte  Austeu  re  Weteatt^  1  M.  D.  &  !>• 
247. 

Where  from  various  arrangementa  to  which  a 
creditor  is  privy,  the  twenty-one  days  allowed  for 
securing  a  debt  under  1  &  2  Vict,  c  110-  a.  8,  baa 
been  allowed  to  expire,  he  will  not  be  allowed  to 
found  an  act  of  bankruptcy  upon  such  defouU^ 
e«>ecially  where  the  Court  believes  that  the  affidavit 
or  debt  was  originally  filed  for  oUier  purpoees  than 
that  of  proceeding  to  bankruptcy.  Ex  parte  Bmdd 
reBudd,  10  Law  J.  Rep.  (k.s.)  Bankr.  17 1  1  M.IX 
&D.486. 

The  bankrupt's  brother  forged  certain  acceptaaoea 
in  the  bankrupt's  name;  the  biUa  beoan>e  due  and 
were  dishonoured.  The  brother  was  taken  into 
custody  upon  another  charge  of  forgery,  and  while 
in  custody  the  holder  of  the  bills  of  exchange  ap- 
plied to  tho  bankrupt  for  payinent  The  hank* 
rupt,  to  screen  his  brother,  admitted  hia  liability^ 
and  gave  the  following  memorandum: — "I  heselrf 
acknowledge  myself  responsible  for  certain  hilla  of 
exchange  drawn  by  my  brother  W  J,  upon  me,  and 
bearing,  or  purporting  to  bear,  my  accflptance»  and 
paid  by  him  to  W :  and  also  to  ei^gage  to  provida 
for  and  pay  them,  in  case  my  brother  should  fail  to 
do  so:" — ^iield,  that  this  acknowledgment^ after  tho 
bills  had  been  dishonoured,  did  not  make  the  bank<^ 
rupt  liable,  and  was  insufficient  to  establish  a  good 
petitioning  creditor's  debt  Bx  parte  Edwards  re 
Lathanh  10  Law  J.  R^,  (».8.)  Baaki.  62;  Z  U.D. 
8t  D.  2U. 

(D)  Fiat. 

Provision  for  the  transfer  of  depending  country 
fiats  (1842)  to  the  new  courta,  and  for  the  appoint*^ 
ment  of  official  assignees  thereunder,  made  by  5  &  6 
Vict,  c  122.  ss.  52,  58 ;  20Law  J.  Stat  App.  xiii. 

Country  fiats  are  to  be  tcaoeforrcd  to  and  ppesenttid 
by  the  Court  iu  the  diaUictin  which  suoh  fiat  respec- 


BANKRUPTCY^(FiAiO. 


71 


tirdy  mmy  hcteWteft  istiMd*  OWtor  of  12tb  of 
Kovember  184^ ;  IS  Law  J.  Rep.  (v.b.)  Bankr.  8. 

Contttiyihiti  and  pfDoeeding»  tihevetm^er  «m  di- 
reeted  to  be  filed  in  file  Court  of  Bankruptcy,  hy 
5St9yicL  c.  122.  &  47 ;  SO  Law  J.  Stat  App.  xiii. 

Tbe  node  of  tranemittnig  a  fiat  to  a  dittriet 
eenvt  praaoribod  hf  Order  of  12th  of  November 
1942, 1. 1  13  Law  J.  Rep.  (h.8.)  Bankr.  8. 

(fi)  Dau  md  InmHgt 

-A  fiat  cannot  be  issued  after  twelft  months  from 
the  act  of  bankruptcy.  6  &  6  Vict  c.  122.  s.  7 ;  20 
Law  J.Stat«A]HP'3(iuu  < 

SemhU,  that  a  fiat  may  issue  upon  the  affidavit  of 
die  petTtioning  ereditM',  awom  in  Scotland.  He 
Mtmneif,  It  Law  J.  Rep.  (v.s.)  Bankr.  15;  s.  c. 
gg  pari9  HiMNiey  ft  R»nnp,  2  M.  I>.  &  D.  571. 

(ft)  Regutration  rf. 

Every  commission  or  fiat  in  bankruptcy  trans- 
ferred to  the  Court  of  Bankniptey  in  London 
under  5  8(  €  Viet.  o.  122.  a.  62,  abaU,  before  or 
fintkinth  after  any  proceeding  thereupon  in  sueh 
court,  be  registered  in  the  office  of  the  chief  registrar 
M  Basidgball  Street,  in  a  book  to  be  kept  for  that 
puipoae,  and  altotted  by  ballot  to  one  of  the  Com- 
Bifflrioners  of  attcb  court,  in  tbe  same  manner  as 
fiats  directed  to  sueh  court  are  now  allotted,  or 
as  the  Comniiaaioners  shall  from  time  to  time  direct 
Simflar  provisions  with  respect  to  any  commission 
or  fiat  tranaferred  to  any  district  court 

Every  fiat  isttted  after  the  commencement  of 
tbe  fi  ft  6  Vict  e.  128,  and  directed  to  the  Court 
of  Bankruptcy  in  London,  shall,  forthwith  after  the 
delivery  of  the  same  at  sueh  court,  be  filed  of  record 
in  the  office  of  the  chief  regbtrar  in  Basingfaall 
Street,  and  a  minute  of  the  date  of  so  filing  the 
same  bImH  be  made  at  the  time,  in  writing,  at  the 
feot  of  so«^  fiat;  and  such  fiat  shall  not  be  opened, 
upon  tbe  application  of  any  other  creditor  than  the 
petitioning  creditor,  until  after  the  expiration  of 
tinee  days  from  such  date.  Similar  provisions 
with  respect  to  fiata  directed  to  any  district  court 
SeeOidera  in  Bankruptcy,  12th  of  November,  1842, 
IL,  III.,  IV^  V.  J  12  Law  J,  Rep.  (h.s.)  Bankr.  10. 

AtComies  and  solidtotv  having  in  their  custody 
fiats  opened  after  tbe  pasring  of  1  fr  2  Will.  4.  o.  5d. 
are  to  bring  th^m  into  the  Court  of  Bankruptcy  or 
fittrict  eouit  to  be  registered  and  prosecuted  there. 
Ibid.  Order  VI L 

Minutei  of  the  registration  of  and  proceedings 
under  any  fiat  are  to  be  kept  and  transmitted  to  the 
chief  rsgfstrar  of  the  Court  of  Bankruptcy.  Pre- 
ieribed  ferm  of  the  minutes  to  be  kept.  Order  of 
IM  of  November  1842,  HI.;  18Law  J.Rep.(ir.s.) 
Bankr.  9. 

(e)  Direction, 

Fiataaretobeaentby  thoLord  Chancellor's  secre- 
tsry  to  the  court  to  which  they  shall  be  directed. 
5  &  6  Vict  c  122.  s.  4 ;  20  Law  J.  Stat.  App.  xiiL 

Provision  as  to  what  court  the  fiats  shall  be 
Erected.  8  &  8  Vict  c.  122.  s.  46;  20  Law  J.  Sut 
AM».xiii. 

where  three  of  the  commissioners,  one  of  whom 
was  solioltor  to  the  petitioning  creditor,  had  an  ad- 
verse interest,  and  a  fourth  was  not  likely  to  act,  the 
fiat  was  directed  to  the  list  for  another  place  which 


was  noaresl  to  the  Ifattknipria  ntideiiee*  Bk  fmi$ 
Jonts  re  Jom*,  I  M.  D.  ft  IX  145. 

Where  the  petitioning  creditor  and  the  witnessea 
to  prove  the  requisites  as  well  as  the  majority  of  the 
creditors  resided  in  London,  an  order  was  madelifti^ 
a  London  instead  of  a  country  fiat  EMpafU  itw- 
riton  re  Dunn,  1  M.  D.  &  D.  635. 

Fiat,  where  directed  to  a  London  eoromieaioner. 
Re  Billings,  1 0  Law  J.  Rep.(N.8.)  Bankr.  72. 

Case  in  which  a  fiat  was  directed  to  London,  In- 
stead of  country,  commissioners,  the  debts  amount* 
ing  to  l,400IL,  and  creditors  to  tbe  amount  of  1 ,8001. 
redding  in  London.  Re  Raker,  10  Law  I.  Rep. 
(its.)  Bankr.  82. 

Where  tbe  bankrupt  had  canied  on  bualness  in 
London,  which  was  his  last  place  of  domidle,  hav* 
ing  been  also  engaged  in  mining  spoculatlons  in 
Cornwall,  and  had  been  subsequently  living  with  a 
relation  near  Dover  under  a  feigned  name,  a  fiat, 
that  had  been  issued  to  commissioners  at  Dover  was 
ordered  to  be  impounded,  and  the  prooeedings  under 
it  transferred  to  the  Cotutof  Bankruptcy  in  London, 
to  which  a  renewed  flat  was  orderMl  to  be  issued. 
Exparte  Gregerg  rt  Cme^  and  RatpmieRuehlhroeke  re 
Cove,  2M.D.&D.  92. 

(tt)  Changing  the  yemie. 

Refusal  to  change  venue.  Re  Bktke^  1  M.  D.  ft  D. 
262. 

¥niere  an  order  for  a  London  fiat  had  been  ob- 
tained at  the  instance  of  the  petitioning  creditor, 
instead  of  one  directed  to  the  pIsco  where  the  bank- 
rupt had  carried  on  his  busmess,  and  where  the 
greater  number  of  his  creditors  resided,  and  it  after- 
wards  appeared  to  the  Court  that  there  waa  teason 
to  suspect  that  the  venue  had  been  ebunged  to  serve 
some  secret  purpose  of  the  bankrupt,  and  that  tbe 
petitioning  creditor  was  coUudingwith  the  bank- 
rupt to  accomplish  this  ol\jec^  the  London  fiat  was 
annulled  and  a  country  fiat  directed  to  issue.  Ex 
parte  Miller  re  Irving,  2  M.  D.  &  D.  237. 

The  venue  of  a  fiat  will  not  foe  changed  beoause 
the  existing  means  of  communioation  between  the 
nlaee  of  trading  and  the  dietriet  court  to  Hrhich  it 
belongs  are  not  so  conv«nient  as  those  botwsen  tbe 
place  of  trading  and  tnothordistrlotcourt  ReOrami 
3  M.  D.  ft  D.  330. 

Where  a  fiat  has  been  opened  and  the  bankrupt's 
examination  has  o^mtnenced,  it  is  a  suffieient  answer 
to  a  petition  to  change  the  venue  of  the  fiat,  that  the 
petitioners  do  not  make  out  a  grave  caee  of  benefit 
to  the  estate  combined  uith  the  absence  of  injustice 
to  the  bankrupt  £t  parte  Mitohell  re  Begfin,  9  M. 
D.  ft  D.  397. 

At  the  sitting  for  opening  tiie  fiat,  it  appeared 
that,  for  securing  tbe  petitioning  credStot's  de^  the 
trader  against  whom  the  fiat  was  issued  gave  him  a 

f>n>missory  note,  which  there  were  grounds  fbr  be- 
ieving  was  forged.  No  prosecution  having  been 
instituted,  the  commissioner  declined  proceeding 
with  the  fiat  On  the  petition  of  the  petitioning 
creditor,  the  Court  ordered  the  flat  to  be  transferred 
to  another  commissioner  and  proceeded  with.  Bx 
parte  Hind  re  Barker,  1  De  Oex,  161. 

(«)  Consolidating, 

[Ex  parte  Daw  re  Gewan,  4  Law  J.  Dig.  67 ;  nem. 
Re  Gowan  v.  Daw,  1  M.  D.  &  D.  1.] 


72 


BANKRUPTCY— (ANNiyiii.iHO  Fiat). 


The  Court  refuted  to  order  two  different  fiats  to 
be  worked  before  the  same  commissioner,  merely 
because  the  accounts  of  the  two  bankrupts  were 
intermixed  from  bill  transactions  with  each  other, 
where  the  application  was  made  by  the  petitioning 
creditor  under  one  of  the  fiats.  Re  Hamilton,  1  M. 
D.&D.  312. 

(e)  Second  Fiat* 

The  1 7th  section  of  6  Geo.  4.  c.  16.  does  not  apply, 
where  the  partnership  was  dissolved  before  the  first 
fiat  issued ;  but  where  the  accounts  and  estates  are 
blended  the  Court  will  direct  the  second  fiat  to  be 
issued  to  the  commissioners  under  the  first  fiat.  Ex 
parte  HarUng  re  Simnum,  11  Law  J.  Rep.  (n.8.) 
Bankr.2l:  2  M. D. & D.  603. 

Qumre — Whether  a  person  who  has  sued  out  a 
fiat  which  is  annulled  for  want  of  the  legal  requisites 
may  strike  a  fresh  docket  without  the  leave  of  the 
Court.  Ei  parte  Musgrope  re  RueeeU,  3  M.  D.  &  D. 
386. 

(/)  Third  Fiat. 

Where  a  party  has  been  twice  a  bankrapt,  and  is 
allowed  to  trade  and  create  fresh  liabilities,  and  a 
third  fiat  issues  against  him,  the  Court  will  not  in- 
terfere in  favour  of  the  assignees  under  the  second 
commission,  to  give  them  the  assets  collected  under 
the  third,  although  the  bankrupt  may  not  have  paid 
1 69,  in  the  pound  under  the  second.  Ex  parte  Jung- 
nUchel  re  Carter ,  1 1  Law  J.  Rep.  (n.s.)  Bankr.  13 ;  2  M. 
D.  &  D.  471 ;  and  see  Ex  parte  Bourne,  2  G.  &  J.  137. 

(g)  Amending. 

Amendment  of  misdescription  of  bankrupt  Re 
Kay,  10  Law  J.  Rep.  (n.s.)  Bankr.  72. 

A  fiat  issued  against  a  bankrupt  by  the  christian 
name  of  James,  his  real  name  being  John,  but  not 
opened,  was  ordered  to  be  amended  in  this  respect. 
Ex  parte  Kirby,  12  Law  J.  Rep.  (n.s.)  Bankr.  42. 

Fiat  amended  upon  discovery  of  mistake  in  affi- 
davit of  debt     Re  Linthorp,  1  M.  D.  &  D.  164. 

(A)  Validity  qf. 

Consent  by  bankrupt  to  the  insertion  of  the  ad- 
vertisement forthwith,  held  no  acquiescence  in  the 
validity  of  the  fiat  Ex  parte  Gould  re  Gould,  1  De 
Gez,  29. 

(i)  Opening, 

Ex  parte  KimbeU  re  KitabeU,  4  Law  J.  Dig.  68; 
1  M.  D  &  D.  188. 

Upon  the  neglect  of  the  petitioning  creditor  to 
open  the  fiat  within  three  days,  or  extended  time 
allowed  by  the  Court,  it  may  be  opened  by  any  other 
qualified  creditor  within  fourteen  days,  by  5  & 6  Vict 
c.  122.  s.  4 ;  20  Law  J.  Stat.  App.  ziii. 

The  personal  attendance  of  the  creditor  and  wit- 
nesses is  indispensable  upon  the  opening  of  the  fiat, 
unless  special  cause  shewn.  See  Orders  in  Bank- 
ruptcy, 1 2th  November  1842,  XII.;  12  Law  J.  Rep. 
(n.s.)  Bank.  11. 

Applications  to  extend  the  time  for  opening  any 
fiat  is  must  supported  by  affidavit  to  be  filed  in 
court  Where  Uie  time  is  extended  notice  is  to  be 
sent  by  post  to  the  secretary  of  bankrupts.  See 
Orders  in  Bankruptcy,  12th  Nov.  1842,  IX.  X.; 
12  Law  J.  Rep.  (n.s.)  Bankr.  11. 


Time  for  opening  fiat  not  enlarged  on  petition  of 
bankrupt  to  facilitate  a  composition  by  means  of  a 
trust  deed.  Ex  parte  Drew  re  Drew,  2  M.  D.  &  D.  88 . 
[And  see  Ex  parte  Kirby,  ante  (^).] 

(k)  Superseding, 

The  Court  will  supersede  upon  the  applicatioii  of 
the  bankrupt  with  the  consent  of  all  the  creditors, 
although  the  bankrupt  has  not  surrendered,  he  being 
abroad.  Ex  parte  Chitty  re  Chitty,  10  Law  J.  Rep. 
(m.s.)  Bankr.  65 ;  1  M.  D.  &  D.  682. 

Upon  a  petition  by  the  bankrapt  to  supenede  a 
commission  (issued  so  far  back  as  1804),  with  ths 
consent  of  the  creditors,  where  it  appealed  that  the 
proceedings  were  lost,  and  that  the  commisaioner 
had  on  this  ground  refused  to  certify  that  all  the 
creditors  consented  to  the  supersedeaa,  the  Court 
declined  to  make  any  order.  Ex  parte  Monck  re 
Monck,  1  M.  D.  &  D.  192.  But  see  Ex  parU  Green 
re  Green,  9  Law  J.  Rep.  (n.s.)  Bankr.  29  ;  1 H.  D. 
&  D.  174. 

A  supersedeas  granted  at  the  coat  of  the  bank- 
rupt, the  petitioning  creditor,  and  the  solicitor  ta 
the  fiat,  the  fiat  having  issued  upon  an  act  of  bank- 
ruptcy concerted  between  the  bankrupt,  the  peti- 
tioning creditor,  and  the  solicitor.  Ex  parte  BwmeU 
re  Hardy,  10  Law  J.  Rep.  (n.8.)  Bankr.  71 ;  2  M. 
D.  &  D.  325. 

Where  the  creditor  keeps  out  of  the  way  to  avoid 
being  paid  the  money  until  after  the  twenty-on* 
days  have  expired,  the  Court  will  auperaede  the  fiat 
with  costs.  Ex  parte  Cotton  re  Gallon,  11  Law  J. 
Rep.  (n.s.)  Bankr.  10;  s.  a.  Ex  parte  GrotUm,  %  hL 
D.  &D.401. 

The  Court  will  not  supersede  a  fiat  issued  againat 
an  infant,  where  he  had  held  himself  out  as  an  adult, 
and  made  a  declaration  on  oath  to  that  efifect  Ex 
parte  Bates  re  Bales,  1 1  Law  J.  Rep.  (m.s.)  Bankr.  1  s 
2  M.  D.  &  D.  337. 

Although  an  act  of  bankruptcy  concerted  between 
the  bankrupt  and  the  petitioning  creditor  cannol 
support  the  fiat  as  regards  the  petitioning  creditor, 
nor  can  that  petitioning  creditor  substitDte  anollier 
act  of  bankruptcy ;  still,  where  a  considerable  time 
(four  months)  has  expired  since  the  date  of  the  fiat, 
and  the  assignees  have  taken  various  proceedings 
under  the  fiat,  the  Court  will  allow  the  title  of  the 
assignees  to  be  made  good  by  a  subsequent  act  of 
bankruptcy,  and  will  not  supersede  for  the  puipooe 
of  issuing  another  fiat,  unless  it  appears  that  die 
property  can  be  better  administered  under  the  sew 
fiat 

SembU-'fer  Sir  George  Rose — ^That  even  where 
there  is  no  such  other  act  of  bankraptey  to  aubatir 
tute,  the  fiat  ought  not  to  be  superseded,  if  the  cz«- 
ditors  do  not  allege  that  they  are  in  any  wayaggiieTod 
by  the  proceedings.  Ex  parte  Bostock  re  fFhilekeeid^ 
10  Law  J.  Rep.  (n.8.)  Bankr.  5 ;  1  M.  D.  &  D.  344. 

(0  Juxiliary  Fial. 

Auxiliary  fiat  granted  for  the  proof  of  small  debts. 
In  re  Daintry  andRyle,  2  M.  P.  &  D.  258. 

(E)  Annulling  Fiat. 

Fiats  made  valid  notwithstanding  the  act  of  bank- 
ruptcy was  concerted,  by  5  &  6  Vict  c  122.  a.  8  ;  20 
Law  J.  Stat  App.  xiii. 


BANKRUPTCY-.(Aiiif0LLi!ia  Fiat). 


73 


(a)  CoMMt  for, 

The  bankrupt  wa«  described  in  the  fiat  as  ot  T, 
in  the  coanty  of  Y.  T  was  situated  partly  in  the 
eonnty  of  L  and  partly  in  the  county  of  Yf  and 
the  bankrupt  lived  in  that  part  of  T  which  was  in 
the  county  of  L : — Held,  diat  the  description  of  the 
bankrupt  was  sufficient  tn  re  Woodhead,  14  Law  J. 
Bep.  (h.8.)  Bankr.  8 ;  1  De  Oez,  99. 

In  order  to  procure  a  fiat  to  be  annulled  on  the 
ground  of  misdescription,  it  is  not  necessary  to  prove 
that  any  fraud  was  intended  by  it,  or  that  any  one 
hid  bem  deeelred.  Bx  parte  Lewie  re  Wood,  12  Law 
J.  Rep.  (11.8.)  Bankr.  24 ;  8  M.  D.  &  D.  98. 

Notwithfltandittg  flie  provisions  of  the  1  &  2  Will. 
^  e.  56.  8.  42,  which  declares  that  no  flat  shall  be 
amrelled  by  reason  only  that  it  has  been  concerted 
between  the  petitioning  creditor  and  the  bankrupt, 
vet  where  it  appears  to  be  in  fact  the  fiat  of  the 
biaknipt,  and  not  issued  by  the  petitionmg  creditor 
kend  JIde  for  the  benefit  of  the  creditors,  the  Court 
w9i  order  ft  to  be  annulled.  Br  parte  Lewis  re  Stan- 
liy,  1  M.  D.  ft  B.  806. 

Where  the  affidavit  in  support  of  the  docket 
papefs  stated  the  debt  to  be  due  to  two  partners 
instead  of  diree,  the  flat  was  annulled.  Ex  parte 
Jamee  re  Jmmee,  1  M.  D.  &  D.  2. 

Where  a  fiat  was  issued  by  a  petitioning  creditor, 
who  was  a  consenting  party  to  a  deed  of  assignment 
of  the  bankrupt's  eflects  for  the  benefit  of  his  credi- 
tors, and  this  deed  was  set  down  by  him  as  the  act 
of  bankruptcy,  it  was  ordered  that  he  should  indem- 
niiy  the  assignees  against  the  invaHdxty  of  the  fiat, 
or,  in  default,  that  they  might  issue  a  fresh  one. 
Be  parte  Fermmdee  re  AoUniofi,  1  M.  D.  &  D.  114. 

Where  it  appeared  that  a  fiat  was  issued  by  the 
petitioning  creditor  on  an  instrument  in  the  hands 
of  another  creditor  for  the  mere  purpose  of  stop- 
ping a  suit  in  Chancery  which  was  brought  against 
the  latter,  by  the  bankrupt,  for  an  account,  and  there 
was  no  evidence  of  any  property  to  be  divided 
saongst  the  creditors,  the  fiat  was  annulled  with 
costs.    Ex  parte  Kemp  re  Kemp,  1  M.  D.  &  D.  657. 

Where  the  bankrupt,  after  the  death  of  the  peti- 
tioning creditor,  presented  a  petition  to  annul  the 
fiat,  &p«tiiig  both  the  trading  and  the  debt,  and  it 
appeared  that  his  statement  as  to  the  trading  con- 
fficted  with  his  deposition  on  the  subject  before  the 
eommissioners,  the  Court  refused  to  annul,  more 
than  two  years  having  elapsed  since  the  issuing  of 
theflat    Ex  parte  Ford  re  Ford,  2  l^,  D.&[  T>,  111. 

A  separate  fiat  was  annulled  in  favour  of  a  sub- 
sequent joint  one,  notwithstanding  the  separate 
estate  was  more  important  than  the  joint  estate, 
aad  one  of  the  bankrupts  intended  to  dispute  his 
bsnkruptcy.  Ex  parte  BurdeHn  re  MrUe,  2  M.  D. 
&  D.  187. 

Where  the  petitioning  creditor's  debt  was  found 
to  be  invalid,  and  no  debt  of  sufficient  amount  to 
support  the  fiat,  and  no  debt  incurred  not  anterior 
to  the  proof  of  the  alleged  petitioning  creditor's 
debt  had  been  proved  so  as  to  be  substituted  on  the 
proceeding,  the  fiat  was  annulled  on  the  petition 
of  the  assignees,  and  without  any  prayer  to  issue 
a  new  fiat,  the  bankrupt  not  being  indebted  to  them 
•ither  separately  or  jointly  in  a  sufficient  amount 
to  support  a  fiat.  Ex  parte  Hawkins  re  fForrfoid, 
2H.D.&D.820. 

Digest,  1840—1846. 


Where  an  order  for  a  London  flat  had  been  ob- 
tained at  the  instance  of  the  petidoning  creditor, 
instead  of  one  directed  to  the  place  where  the  bank- 
rupt had  carried  on  his  business,  and  where  the 
greater  number  of  his  creditors  resided,  and  it  after- 
wards appeared  to  the  Court  that  there  was  reason 
to  suspect  that  the  venue  had  been  changed  to  serve 
some  secret  purpose  of  the  bankrupt,  and  that  the 
petitioning  creditor  was  colluding  with  the  bank- 
rupt to  accomplish  this  object,  the  London  flat  was 
annulled,  and  a  country  flat  was  directed  to  issue. 
Sxparte  Milier  re  Trt/mg,  2  M.  D.  &  D.287. 

Although  a  flat  may  be  concerted  between  the 
bankrupt  and  the  petitioning  creditor,  and  may  be 
lawfully  issued  to  defeat  an  execution,  still,  if  the 
main  object  is  to  serve  the  purposes  of  the  bank- 
rupt and  the  petitioning  creditor,  and  not  for  the 
benefit  of  the  general  creditors,  it  will  be  annulled. 
Ex  parte  Spicer  re  Kipping,  2  M.  B.  &  D.  888. 

The  Court  reAised,  on  the  petition  of  the  bank- 
rupt, to  annul  the  flat  on  the  ground  that  he  was 
described  in  it  as  '^John  O,"  instead  of  "John 
Christian  O,"  his  right  name,  he  having  been 
examined  before  the  commissioners,  and  never  men- 
tioned that  he  was  wrongly  named  in  the  flat  Ex 
parte  Gilligan  re  GilUgan,  1  M.  D.  8t  D.  144. 

Sembie--~ThtLt  a  joint  flat  will  not  be  annulled  on 
adcount  of  a  misnomer  in  it  of  one  of  the  bankrupts 
by  the  omission  of  one  of  his  Christian  names. 

Quare — ^Whether  such  a  misnomer  of  a  trader 
in  proceedings  nnder  1  &  2  Yict  c.  110.  s.  8.  is  a 
sufficient  ground  for  annulling  a  flat  founded  upon 
them.  Ex  parte  Bieharde  re  Biehards,  2  M.  D.  &  D. 
498. 

A  trader,  against  whom  a  flat  was  issued,  can- 
?assed  for  particular  individuals  in  the  choice  of 
assignees.  He  also  negotiated  on  behalf  of  a  rela- 
tive for  the  purchase  of  a  part  of  the  estate  from 
the  assignees : — Held,  that  uese  were  sufficient  acts 
of  acquiescence  in  the  flat  to  prevent  his  succeeding 
on  a  petition  to  annul,  although  the  assignees  do 
not  satisfactorily  establish  the  commission  of  an 
act  of  bankruptcy.  Ex  parte  Orundy  re  Grundy, 
2  M.  D.  &  D.  589. 

Where  a  bankrupt  was  described  in  a  flat  issued 
in  July  1842,  as  "  W,  late  of  Pickett  Street  Cham- 
bers, Strand ;"  andthebankrupthad,upto  July  1841, 
occupied  a  place  of  business  answering  to  that  de- 
scriprion,  but  he  had  after  that  time  another  place 
of  business,  and  had  besides  resided  at  two  diflerent 
places  shortly  before  his  bankruptcy,  at  both  of 
which  he  had  contracted  debts:— Held,  that  the 
misdescription  was  fatal,  and  that  the  fiat  must  be 
annulled. 

The  rule,  that  after  a  flat  has  been  annulled,  the 
same  petitioning  creditor  cannot  sue  out  a  new  fiat 
against  the  same  trader  without  the  leave  of  the 
Court,  does  not  render  it  imperative  upon  the  Court 
to  annul  a  new  flat  sued  out  without  such  leave. 
Ex  parte  Thomas  re  Thomas,  3  M.  D.  fir  D.  807. 

The  circumstance  that  the  affidavit  of  debt  was 
sworn  before  the  solicitor  to  the  petitioning  creditor, 
— Held  not  sufficient  ground  for  annulling  the  fiat; 
but  it  is  an  improper  practice,  and  if  it  become  ge- 
neral  may  be  hereafter  considered  sufficient  ground. 
Exparte  fVHght  re  Wright,  8  M.  D.  &  D.  320. 

Where  a  trader  had  been  summoned  before  a 
commissioner  under  6  &  6  Vict.  c.  122.  s.  11,  and, 


74 


BANKRUPTCY-— (AiriruLLure  Fiat). 


before  the  proper  time  had  elapsed  to  oonstitnte  an 
aet  of  baiikraptcy  within  the  meaning  of  the  13th 
section,  a  fiat  was  by  mistAke  issued,  which  was 
afterwards  annulled: — Held,  that  the  existence  of 
this  fiat  was  such  an  obstruction  to  the  payment  of 
the  petitioning  creditor's  debt,  that  if  he  sued  out  a 
new  fiat  founded  on  the  omission  to  pay,  &c.,  accord- 
ing to  the  terms  of  the  1 4th  section  of  the  aboye  act, 
the  Court  would  annul  such  new  fiat.  Ex  parte 
MmtgroM  re  BmeteU,  3  M.  D.  &  D.  386. 

A  docket  was  struck  on  the  22nd  September,  upon 
which  a  fiat  was  issued  on  the  2Sth  September,  but 
was  not  opened  until  the  Uth  October.  In  the 
mean  time,  between  the  22nd  and  29th  September, 
the  bankrupt  received  several  debts  due  to  him,  and 
on  the  latter  day  filed  his  petition  imder  the  Insol- 
vent Act,  5  &  6  Vict  c  1 16,  and  obtained  an  interim 
order  for  protection  on  the  allegation  that  his  debts 
did  not  amount  to  300Z.  On  a  petition  by  the  bank- 
rupt to  annul  the  fiat  on  the  ground  of  the  delay  in 
opening  it,  and  also  for  the  purpose  of  giving  effect 
to  the  proceeding  in  insolvency,  the  Court  declined 
to  do  so  either  under  the  provisions  of  the  5  &  6 
Vict.  c.  122.  s.  4,  or  the  general  provisions  of  the 
5  &  6  Vict.  c.  116.  Ex  parte  Whipple  re  WhippU, 
3  M.  D.  &  D.  449. 

Where  one  of  two  partners,  who  was  anxious  to 
dissolve  the  partnership,  procured  a  creditor  to  issue 
a  joint  fiat  against  the  firm,  and  it  appeared  that  the 
main  object  of  the  fiat  was  to  effect  such  dissolution, 
and  that  the  division  of  the  effects  among  the  credi- 
tors, if  an  object  at  all,  was  so  merely  in  a  slight  and 
inferior  degree,  and  was  a  purpose  only  subsidiary 
to  the  other,  the  fiat  was  held  to  be  issued  under  a 
folse  colour  for  a  concealed  object,  and  was  ordered 
to  be  annulled  at  the  costs  of  the  petitioning  creditor 
and  the  partner  who  induced  him  to  issue  it  Ex 
parte  Phippt  re  CouUon,  3  M.  D.  &  D.  505. 

Non-surrender  by  the  bankrupt  is  no  objection  to 
his  petition  to  annul  the  fiat,  if  the  petition  be  pre- 
sented before  the  time  for  surrendering  has  expired. 

The  circumstances  that  the  bankrupt  has  taken 
the  benefit  of  the  Insolvent  Debtors  Act,  and  that 
the  petitioning  creditor's  debt  was  included  in  the 
schedule, — Held,  insufficient  grounds  for  annulling 
the  fiat     Ex  parte  Gamett  re  Gamelt,  1  De  6ex,  95. 

A  was  made  a  bankrupt  and  creditors'  assignees 
were  appointed.  The  fees  required  to  be  paid  under 
1  &  2  Will.  4.  c.  56.  were  not  paid,  and  the  official 
assignee  had  no  assets.  An  application  hf  the 
bankrupt  under  these  circumstances,  to  have  the 
fiat  annulled,  in  which  the  creditors  concurred,  was 
granted.  Ex  parte  Diamond  re  Diamond,  14  Law  J. 
Rep.  (n.s.)  Bankr.  24;  1  De  Gex,  143. 

(  h)  Practice — Petition  and  Order  for  annulling. 

Ex  pate  Wood  re  Wood,  4  Law  J.  Dig.  71} 
1  M.  D.  &  D.  92. 

Practice  on  a  petition  to  annul  a  fiat  at  the  in- 
stance of  petitioning  creditors  on  the  ground  of  the 
infancy  of  one  of  them.  Ex  parte  Potts  r«  Jyre, 
1  M.D.  &D.  331. 

A  petitioner  seeking  to  annul  the  fiat  for  legal 
invalidity,  not  patent  upon  the  proceedings,  must 
apply  before  the  certificate  is  allowed,  or  soon  after- 
wards, or  must  account  satisfactorily  for  his  delay. 
Ex  parte  Gregory  re  Cretewell,  3  M.  D.  &  D.  572. 

Where  debts  had  been  proved,  and  real  or  household 


property  had  been  sold  under  a  fiat  issued  in  June 
1842,  but  the  bankrupt  had  not  obtained  his  certi- 
ficate,— Held,  that  a  petition  of  a  creditor  who  bad 
no  lien  and  had  not  proved,  presented  in  June  1844, 
to  annul  the  fiat  for  legal  invalidity,  the  delay  not 
being  accounted  for,  came  too  late.  Ex  parte  Max- 
weU  re  Brettargk,  3  M.  D.  &  D.  708. 

On  a  petition  by  the  bankrupt  to  annul,  the  Court 
permitted  an  afiidavit'  of  the  opposite  party  to  be 
read,  which  detailed  the  particulars  of  the  exami- 
nation of  the  bankrupt  before  the  commissioners. 
Ex  parte  Ely  re  Ely,  I  M.  D.  &  D.  357. 

It  is  no  objection  to  the  hearing  of  a  hankniptfs 
petition  to  annul  that  it  was  presented  before  he  had 
surrendered,  if  the  time  for  surrender  had  not  ex- 
pired. Ex  parte  Aasten  re  Wetcoit,  I  M.  D.  &  B. 
247. 

The  Court  will  not  entertain  a  petition  of  a  rela- 
tive of  the  bankrupt  to  annul  the  nat,  on  the  alleged 
ground  that  his  remaining  abroad  was  without  anj 
intention  to  delay  his  creditors,  when  the  petition  is 
presented  without  the  bankrupt's  privity,  and  he 
himself  makes  no  affidavit  on  the  subject.  Ex  parte 
Rhodes  re  Wood,  2  M.  D.  &  D.  41. 

On  a  petition  of  the  bankrupt  to  annul,  supported 
by  affidavits  impeaching  the  validity  of  the  peti- 
tioning creditor's  debt  and  the  act  of  bankruptcy, 
the  depositions  on  the  proceedings  are  not  admis- 
sible in  evidence  against  the  bankrupt  to  establish 
these  requisites.  Ex  parte  Preseott  re  Preteett, 
1  M.  D.  &  D.  199. 

A  bankrupt,  after  being  denied  to  a  creditor, 
acknowledged  in  the  course  of  the  same  day  to*  a 
third  person  that  he  had  given  orders  for  that  pur- 
pose, as  he  knew  the  creditor  wanted  money: — 
Held,  that  this  acknowledgment  was  erldence 
against  the  bankrupt,  on  his  petition  to  annul  the 
fiat    Ibid. 

A  and  B  carried  on  business  in  partnership  to- 
gether. A  fiat  in  bankruptcy  issued  sgainst  A  and 
B,  and  they  were  a^udicated  bankrupts.  At  the 
time  of  the  adjudication,  A  was  in  France.  Within 
three  months  after  the  advertisement  of  the  bank- 
ruptcy in  the  Gazette,  A  presented  a  pedtion,  pray- 
ing that  the  fiat  mi^ht  he  annulled,  but  did  not 
serve  B  with  the  petition  within  that  period: — Held, 
that  the  Court  was  not  precluded  from  hearing  the 
petition  by  the  5  &  6  Vict  c.  122.  s.  24. 

At  the  hearing  of  a  petition  to  annul  a  fiat  of 
bankruptcy  for  want  of  legal  requisites,  presented 
within  the  time  mentioned  in  the  24th  section,  the 
Court  of  Review  is  not  precluded  by  the  24th  sec- 
tion from  directing  an  action  to  be  tried  beyond 
that  period,  for  the  purpose  of  ascertaining  whether 
the  legal  requisites  had  been  complied  with ;  but 
the  petitioner  at  the  trial  of  such  action  will  be  held 
to  be  limited  to  the  points  raised  on  the  petition,  and 
not  allowed  to  go  beyond  them. 

A,  by  such  petition  as  before  mentioned,  prayed 
that  the  fiat  might  be  annulled,  on  the  ground  Uiat 
the  petitioning  creditor's  debt,  which  was  100/.,  and 
due  to  him  on  account  of  rent,  could  not  support  a 
fiat,  as  having  accrued  after  the  trading.  It  ap- 
peared in  an  affidavit  that  A  had  paid  a  sum  in 
respect  of  property  tax  on  this  100/.;  but  A  did  not, 
in  his  petition,  make  any  objection  to  the  debt  as 
being  less  than  100/.: — Held,  tliat  in  such  an  action 
as  before  mentioned,  A  would  not  be  allowed  to  take 


BANKRUWCY— (AdJTTDICATIOH  A5I>  ADTBBTISBXBirT). 


75 


•sy  objectloii  as  to  the  anonnt  of  the  debt.  Eg 
parU  Veywty  rt  FeyM,  18  Law  J.  Rep.  (n.8.) 
Baqlcr.  3  ;  3  M.  D.  ft  D.  420. 

A  petitioii  was  presented  beyond  the  time  limited 
Ky  the  6  &  6  Vict  e.  122.  s.  24,  for  annulling  a  fiat 
on  the  ground  of  fraud.  All  the  legal  requisites  of 
the  fiat  were  admitted  by  the  petitioner : — Held, 
that  the  Court  of  Review  was  not  precluded  from 
hearing  the  petition  by  the  24th  section.  Et  parte 
PkSppt  re  CouUoUy  18  Law  J.  Rep.  (n.s.)  Bankr.  5  ; 
S  M.  D.  ft  D.  488. 

A»  being  in  England,  was  adjudicated  a  bank- 
rupt. More  than  twenty-five  days  after  notice  of 
the  adjudication  had  been  inserted  in  the  Gazette,  A 
presented  a  petition,  praying  that  the  fiat  might  be 
annulled  on  the  ground  that  he  was  not  a  trader : — 
Held,  that  the  Court  was  precluded  from  hearing 
the  petition  by  the  5  ft  fi^^Viet.  c.  122.  s.  24. 

A,  within  the  twenty-one  days  mentioned  in  the 
24th  section,  forwarded  to  his  solicitor  a  correspon- 
dence which  had  passed  between  A  and  the  official 
assignee,  relative  to  A's  intention  to  dispute  the 
flat: — Held,  that  this  was  not  a  commencement  of 
a  proceeding  within  the  meaning  of  the  24th  sec- 
tion. Ex  parte  Thorold  re  Thoroid^  18  Law  J.  Rep. 
(na)  Bankr.  1 ;  1  Ph.  289;  8  M.  D.  ft  D.  285: 
reversing  s.  c  12  Law  J.  B«p.  (n.s.)  Bankr.  41 ; 
d  M.  D.  ft  D.  274. 

The  bankrupt  is  not  entitled  to  a  copy  of  the  de- 
position on  which  the  adjudication  proceeded  on  his 
petition  to  annul.  Ex  parte  Abbott  re  Abbott,  2 
K  !>•  ft  I>.  «4. 

As  to  when  a  fiat  will  be  annulled  to  give  efifect 
to  a  trust  deed,  see  Ex  parte  Yates  re  Peake,  2  M. 
D.  ftD.128. 

The  order  to  annul  a  separate  fiat  in  favour  of  a 
joint  one  is  quite  of  eourse.  Ex  parte  Pemberton 
re  Cope,  1  M.  D.  ft  D.  190. 

Where  an  order  to  anpul  was  made  by  the  Court 
of  Review  on  the  SOth  of  May,  and  it  was  not  laid 
before  the  Lord  Chancellor  till  the  1st  of  June, 
when  it  was  signed  by  him  and  dated  on  that  day, 
his  Lordship  refiised  to  alter  the  date  to  the  80th 
of  May.     Re  Harper,  1  M.  D.  ft  D.  289. 

The  fiat  issued  on  February  28,  adjudication  took 
place  on  the  27th,  but  was  afterwards  annulled. 
Farther  evidence  in  support  of  the  bankruptcy  was 
adduced  before  the  commissioners,  who  declined 
adjudicating  de  novo  npon  the  evidence.  At  the 
end  of  fourteen  days  firom  the  issuing  of  the  fiat,  the 
bankrupt  presented  a  petition  to  annul  the  fiat : — 
Held,  Uiat  the  fiat  ought  to  be  annulled.  Ex  parte 
NiekoleoH  re  NiehoUon,  8  M.  D.  ft  D.  295. 

Order  made  for  superseding  a  commission  and 
annulling  a  subsequent  fiat  under  the  composition 
contract  clauses,  sects.  188.  and  184,  of  the  6  Geo.  4. 
e.  16.  Ex  parte  Clarke  re  Rotcoe,  8  M.  D.  ft  D. 
595. 

Fiat  annulled  in  a  bankruptcy  in  which  there  had 
not  been  any  choice  of  creditors'  assignees,  although 
the  fees  of  102.  and  20/.  required  by  the  1  ft  2  Will. 
4.  e.  66.  had  not  been  paid.  Ex  parte  Miller  re 
MUler,  14  Law  J.  Rep.  (n.s.)  Bankr.  25 ;  1  De  Gex, 
144. 

The  declaration  in  an  action  for  maliciously  suing 
out  a  flat  in  bankruptcy  contained  an  allegation  that 
it  was  ordered  by  the  Court  of  Review,  **  that  the 
said  fiat  should  be  annulled;  and  the  same  was 


accordingly  thereby  then  annulled,  and  the  pro- 
ceedings on  the  ssid  fiat  were  thereupon  ended 
and  determined."  The  order  of  the  Court  of  Re- 
view was,  that  the  fiat  "  be  annulled,  if  the  Right 
Honourable  the  Lord  Chancellor  shall  think  fit  ;*' 
and  at  the  foot  of  it  was  a  confirmation  of  it,  signed 
by  the  Lord  Chancellor : — Held,  that  the  allegation 
was  substantially  proved.  Kemp  v.  King,  Car.  ft  M. 
896. 

A  writ  of  JUri  facias  was  lodged  in  the  sherifl's 
hands,  to  be  executed  on  the  goods  of  a  debtor 
a^^ainst  whom  a  judgment  had  been  obtained.  Pre- 
viously to  the  issuing  of  the  writ,  a  fiat  in  bank- 
ruptcy had  issued  against  the  debtor,  under  which 
he  was  declared  a  bankrupt,  and  assignees  were 
duly  appointed.  The  shenfif  returned  nulla  bona, 
but  before  he  had  made  the  return,  the  Court  of 
Review  made  an  order,  that  the  fiat  should  he  an- 
nulled if  the  Lord  Chancellor  should  think  fit ;  and 
after  the  return  was  made  the  Lord  Chancellor 
made  an  order  accordingly.  In  an  action  against 
the  sherifif  for  a  false  return, — Held,  first,  that  the 
order  of  the  Court  of  Review  had  no  operation  un- 
til the  Chancellor's  order;  secondly,  that  the  return 
was  not  false,  inasmuch  as  neither  a  supersedeas  of 
a  commission  in  bankruptcy  under  the  old  law,  nor 
the  order  of  the  Chancellor  annulling  the  fiat  in 
bankruptcy  under  the  present  law,  had  any  retro- 
spective effect ;  and  thirdly,  that  even  if  it  bad,  the 
sheriff,  being  a  public  officer,  and  having  made  the 
only  return  he  could  make  at  the  time,  ought  to  be 
protected,  and  was  on  that  ground  entitled  to  the 
verdict  SmaUeombe  v.  Olivier,  13  Law  J.  Rep.  (n.s.) 
Exch.  805 ;  13  M.  ft  W.  67 ;  2  Dowl.  ft  L.  P.C. 
217. 

(F)  Adjudication  and  ADVEBTisfiiiEiiT, 

A  trader  is  entitled  to  five  days'  notice  of  adjudi- 
cation before  its  advertisement,  and  if  he  can  shew 
sufficient  cause  against  it  within  that  time,  it  is  to 
be  annulled,  by  5  ft  6  Vict.  c.  122.  s.  23 ;  20  Law  J. 
Stat  App.  xiii. 

The  date  of  the  fiat  must  be  stated  in  the  adver- 
tisement See  Orders  of  12th  Nov.  1842 ;  12  Law 
J.  Rep.  (n.8.)  Bankr.  11. 

If  the  bankrupt  intends  to  dispute  the  adjudication 
he  must  give  notice  of  his  intention  two  days  before 
the  time  of  shewing  cause  against  it  See  Orders 
in  Bankruptcy,  12th  Nov.  1842,  XIII.;  12  Law 
J.  Rep.  (n.s.)  Bankr.  11. 

The  18th  rule  in  Bankruptcy,  under  the  5  ft  6 
Vict  c.  122,  was  ordered  to  be  relaxed  under  special 
circumstances.  Ex  parte  Reed  re  Reed,  13  Law  J. 
Rep.  (n.s.)  Bankr.  12. 

Where  a  commissioner  refused  to  adjudicate  the 
bankruptcy,  because  he  was  not  satisfied  with  the 
evidence  of  the  trading,  which  appeared  to  the  Court 
to  be  sufficient,  it  was  recommended  that  the  matter 
should  be  submitted  to  the  decision  of  a  subdivision 
court  Ex  parte  Brown  re  Puttock,  2  M.  D.  &  D. 
758. 

Quare — ^Whether  the  Court  will,  on  the  applica- 
tion of  the  bankrupt,  make  an  order  to  stay  the 
advertisement,  wliere  the  bankrupt  has  prefented 
no  petition  to  annul  the  fiat  Ex  parte  Pickstock 
re  Pickstock,  2  M.  D.  ft  D.  319. 

The  Court  declined  allowing  the  certificate  of  a 
bankrupt  who  had  passed  his  last  examination  be- 


76 


BANKRUPTCY— (COMHI88I0NHB8). 


fore  tbe  fortv-Beooiid  day,  and  ordaved  another  to 
be  advertuea  for  his  last  examination.  Ex  parU 
East  re  Battf  8  M.  D.  &  D.  321. 

An  adYertisement  notifying  that  a  meeting  of  the 
creditors  of  the  bankmpts  would  be  held,  to  assent 
to  or  dissent  from  the  assignee,  compromising  sundry 
suits  pending  in  Chancery  in  which  the  assignee  was 
plaintiff,  and  certain  persons  to  be  named  at  the 
meeting  were  defendants,  for  the  recovery  of  certain 
parts  or  shares  in  certain  copper  mines: — Held, 
insuflScient  in  not  setting  forth  the  names  of  the 
parties  to  the  suits  proposed  to  be  compromised, 
there  being  six  different  suits,  to  all  or  any  of 
which  the  advertisement  might  apply.  £x  parte 
Magmu  re  Grundy,  3  M.  D.  &  D.  693. 

(G)  COMMISSIONEaS. 

Provisions  made  for  the  superseding  and  compen- 
sating existing  country  commissioners,  the  appoint* 
ment  of  twelve  additional  commissioners  of  the 
Court  of  Bankruptcy  to  whom  countiy  flats  are  to 
be  directed,  and  the  appointment  of  deputy  regis- 
trars, by  5  &  6  Vict  c.  122.  ss.  68  to  63 1  20  Law 
J.  Stat  App.  xiii. 

(a)  Jurisdiction  and  Power  qf. 

The  commissioner  has  power  to  dispense  with 
the  attendance  of  the  petitioning  creditor  at  the 
opening  of  the  fiat  Et  parte  Wright  re  Wright, 
3  M.  D.  &  D.  320. 

Commissioners  have  no  jurisdiction  to  expunge 
a  proof  placed  on  the  proceedings  by  order  of  the 
Conrt  of  Review ;  they  can  only  expunge  a  proof 
on  the  ground  that  &e  debt  is  not  due.  It  is 
irregular  for  them  to  state,  as  a  ground  for  ex- 
punging, that  the  bankrupt's  liability  has  been  dis- 
charged. Ex  parte  WhUworth  re  Mayor,  2  M.  D.  &  D. 
164. 

A  bankrupt  was  committed  by  the  commissioners 
upon  a  warrant,  the  concluding  words  of  which 
were,  '*  which  said  several  answers  so  given  on  the 
said  several  examinations  as  aforesaid  by  the  said 
W  D,  and  the  schedule  by  him  referred  to  and 
herein  annexed,  as  part  of  this  our  warrant,  not 
being  satisfactory  to  us  the  said  commissioners, 
these  are  therefore  to  require  you,"  &c  to  take  him 
into  custody  and  keep  him,  &c. 

Upon  an  application  to  this  Court  that  the  pri- 
soner might  be  brought  up  to  be  discharged  for  the 
insufficiency  of  the  warrant,  it  appeared  from  the 
affidavit  that  several  examinations  of  the  prisoner 
bad  taken  place,  but  the  part  of  the  warrant  con- 
taining the  questions  and  answers  was  not  brought 
before  the  Court  by  the  affidavit,  nor  any  part  ex- 
cepting the  conclusion  above  set  forth : — Held,  that 
the  part  of  the  warrant  before  the  Court  was  suffi- 
cient Ex  parte  Daunceyt  12  Law  J.  Rep.  (k.b.) 
aB.  239. 

A  bankrupt  having,  in  1841,  been  examined  by 
the  Commissioners  of  Bankrupts,  and  by  them 
committed  for  returning  unsatisfactory  answers, 
was  on  the  10th  of  November  1 843,  examined  be- 
fore a  single  commissioner  in  the  country,  who 
then  stated  that  he  would  not  grant  a  warrant  On 
the  21st  of  November  tbe  Commissioner  did  grant 
a  warrant  of  commitment  against  him,  which  set 
forth  the  questions  and  answers  on  the  latt  examin- 
ation only,  and  stated  that  the  answers  were  not 


satisfactory  :->H eld,  first,  that  a  aingle  Commia- 
siooer  had  power  to  commit  under  Sie  46th  and 
52nd  sections  of  the  5  &  6  Vict  c  122.  Secondly, 
that  it  was  unnecessary  to  set  out  in  the  warranty 
the  examinations  taken  prior  to  November  1843L 
Lastly,  that  it  did  not  clearly  appear  that  the  Com- 
missioner was  funetue  officio,  on  the  10th,  so  as  not 
to  be  entitled  to  issue  his  warrant  on  the  21st  of 
November;  and  under  the  above  dicomstanoes 
the  Court  refused  to  grsnt  a  habeat  eorpme  to  dis- 
charge the  bankrupt  Ex  parte  Datmctp,  13  Law 
J.  Rep.  (k.s.)  Exch.  165 ;  12  M.  &  W.  271. 

The  defendants,  commissioners  of  bankrupts^ 
issued  their  summons  to  the  plaintiff,  wherein  they 
commanded  him  to  appearat  their  meeting,  at  elewn 
o'clock,  and  bring  with  him  a  certain  deed  of  asiigB- 
ment.  He  appeared  accordingly  at  eleven,  and 
afterwards  at  one,  when  the  commissioners  being 
engaged  in  another  case,  and  his  attendance  not 
being  dispensed  with,  he  went  away  before  hecoold 
be  examined.  He  was  afterwards  apprehended,  by 
virtue  of  a  warrant  issued  by  the  oommiasionenb 
The  warrant,  after  recitins  the  summons,  &c;,  di- 
rected the  constable  to  brmg  him  before  the  com- 
missioners "to  be  examined  as  aforesaid,  and  to 
produce  the  said  assignment:"— Held,  first,  that  the 
issuing  of  the  warrant  was  regular,  the  plaintiff 
being  bound,  not  only  to  attend  at  the  appointed 
hour,  but  to  wait  till  he  could  be  examined.  Secondly, 
that  the  warrant  was  not  vitiated  by  the  introduction 
of  the  words  "  to  be  examined  as  aforesaid,  and  to 
produce  the  said  assignment ;"  and  that  the  Judge^ 
instead  of  nonsuiting  the  plaintiff  should  have 
directed  the  jury  to  find  a  verdict  for  the  defendants. 
Wright  V.  Maude,  12  Law  J.  Rep.  (n.s.)  Exch.  22; 
10  M.  &  W.  627 ;  2  Dowl.  P.C.  (h.s.)  517. 

In  a  commitment  of  a  bankrupt,  for  not  satisfac- 
torily answering  questions  put  to  him  in  the  coono 
of  an  examination,  the  qif^estions  and  answefs  in 
respect  of  which  the  commitment  prooeeds  shoald 
be  set  forth  and  particularised!  and  therefore  a 
general  allegation  of  the  answers  having  been  un- 
satisfactory, is  not  sufficient  In  re  Uadimfd,  I 
Dowl.  P.C.  (K.8.)  885. 

A  prisoner  detained  in  the  Queen's  Prison  since 
1841,  under  three  executions,  one  of  which  was  for 
a  debt  exceeding  20^,  in  August  1844  petitioned  the 
Court  of  Bankruptcy,  under  the  statutes  6  8i6  Vict 
c  1 16,  and  7  &  8  Vict  c  96,  and  obtained  an  in- 
terim order  for  protection  from  process,  and  was 
ordered  by  the  commissioner  to  be  dischaiged,  and 
was  discharged  out  of  custody  a*  to  such  exseutiona, 
according  to  the  last-mentioned  statute.  Upon  his 
coming  up,  purauant  to  notice,  for  hia  first  examin- 
ation, in  the  following  month,  it  appeared  to  the 
commissioner  that  the  petitioBer  had  recently  peti- 
tioned the  Insolvent  Debtors  Court;  and  that  all 
his  estate  and  eflfects  were  then  vested  in  the  pro- 
visional assignee  of  that  court,  under  the  vestmg 
order ;  and  that  the  proceedings  were  then  pending, 
whereupon  the  commissioner  refused  the  final  order, 
and  ordered  that  the  petitioner  should  be  remanded 
to  his  former  custody,  as  to  such  executions  as  would 
remain  in  force  if  the  interim  order  had  not  been 
made,  and  ordered  one  of  the  mesaengers  of  the 
Court  of  Bankruptcy  to  take  the  petitiOBer,  and 
convey  him  to  the  Queen's  Prison,  there  to  be 
detained  upon  such  executions: — Helc^  that  the 


BANKRUPTCY--(IviPi€TOE). 


77 


coBuniMioaer  had  power  to  make  this  order  of 
remand,  under  thettatutetabore  referred  to,  although 
the  ground  of  remand  was  not  one  of  those  specified 
in  sect  24.  of  the  7  &  8  Vict  o.  96,  which  gives 
power  to  remand  in  certain  oases. 

Held,  also,  that  this  was  not  a  case  within  the 
piOTiso  to  sect  2&  of  the  same  act 

The  Court  will  not  consider  whether  the  commis- 
sioner had  rightly  determined  that  the  petitioner's 
caae  was  not  within  the  act,  as  thai  waa  a  question 
which  the  commissioner  had  jurisdiction  to  inquire 
into  and  determine,  and  this  Court  was  not  author- 
ised to  reriew  his  decision.  In  n  Partington^  14 
Law  J.  Rep.  (n.s.)  aB.  57. 

A  prisoner  who  had  been  for  more  than  twelve 
moQlha  in  custody,  in  August  1844  petitioned  the 
Court  of  Bankruptcy,  and  was  discharged  by  the 
commissioner,  with  an  interim  order  for  his  proteo* 
tion  from  process.  Upon  the  examination,  the 
oommisaiooer  refused  the  final  order,  and  remanded 
the  defendant  to  his  former  custody,  on  the  ground 
that  he  was  not  entitled  to  the  benefit  of  the  aet, 
aa  he  had  recentiy  petitioned  the  Insolvent  Debtors 
Court  and  all  his  estate  was  vested  in  the  provi- 
■ional  assignee  of  that  court: — Held,  that  the  com- 
missioaer  had  a  right  to  remand,  though  on  a  ground 
not  specified  in  the  24th  section  of  the  7  &  8  Vict 
c.  96,  such  right  being  incident  to  his  jurisdiction 
to  grant  the  interim  order. 

The  28th  section  gives  the  commissioner  power, 
*'  if  BO  day  be  named  for  making  the  final  order,  or 
if  the  eonsidention  of  such  final  order  be  a4joumed 
awe  dUf  or  such  final  order  be  refused,"  to  make 
mxL  Older  to  protect  the  petitioner  from  arrest  or  de« 
tention,  to  take  efiect  after  the  time  to  be  named  in 
anch  order ;  and  then  provides  *'  that  no  debtor  shall 
be  imprisoned  on  any  process  for  more  than  twelve 
calendar  months,  for  any  debt  contracted  before  filing 
Ilia  petition,  in  case  the  final  order  shall  be  reftised, 
or  shall  not  be  made,  or  in  case  the  protecting  order 
•hall  not  be  renewed" : — Held,  that  this  provision 
applies  to  cases  in  which  the  defendant  is  entitied 
to  the  benefit  of  an  interim  order,  and  limits  the 
imprisonment  to  twelve  months  after  the  refusal  of 
the  filial  order,  or  its  indefinite  postponement  or  the 
nea-ienewal  of  the  interim  order.  In  n  Pwrtmgtony 
14  Law  J.  Rep.  (n.s.)  Exoh.  122;  13  M.&  W.  670; 
2  DowL  &  L.  F.C.  650. 

A  debtor  to  a  bankrupt  having  been  lawfully 
arrested  by  warrant  issued  by  a  commissioner 
(forming  a  district  court  of  bankruptcy)  under 
the  6  Geo.  4.  c  16.  s.  33.  and  6  &  6  Vict  c  122. 
waa  hroui^t  up  in  euatody  of  the  messenger,  to  be 
examined,  and  afker  his  examination  the  commia* 
sioaer  said  he  was  discharged  on  payment  of  the 
costs,  and  a  memorandum  to  that  efiect  was  in- 
dorsed on  the  warrant  but  not  under  the  seal  of  the 
commisciDner.  In  an  action  of  trespass  for  detain- 
ing the  debtor  until  the  costs  were  paid, — Held,  that 
the  operalioB  of  the  warrant  which,  on  the  face  of 
it  justified  the  custody  only  until  the  debtor  wss 
brought  before  the  commissioner  to  be  examined, 
ceased  aa  soon  as  he  was  brought ;  certainly  after 
the  oath  had  been  taken  and  the  examination  com- 
menced ;  but  that  the  debtor  was  liable  to  be  further 
detained  under  the  6  Qeo.  4.  c  16.  s.  34,  by  warrant 
which  by  the  5  &  6  Vict  c.  122.  s.  79.  must  be  under 
the  hand  and  seal  of  the  commissioner. 


Held,  also,  that  the  Courts  of  Bankruptey,  though 
they  are  constituted  by  the  5  &  6  Vict  c  122.  s.  66. 
courts  of  record,  and  have  the  power  of  committing 
for  contempt  have  not  a  common-law  jurisdiction, 
or  any  other  power  than  that  which  the  statute  gives, 
or  which  is  incident  thereto ;  therefore  that  the 
order  for  the  detention  of  the  debtor  until  the  costs 
were  paid,  was  without  jurisdiction  and  void,  and 
that  the  messeneer  alto  must  be  aasumed  to  have 
known  tbe  invalidity  of  the  order,  and  was  not 
protected  by  it 

Held,  also,  that  the  messenger  was  liable  in  an 
action  of  trespass.  Watwn  v.  BodeU,  14  Law  J.  Rep. 
(N.B.)  Exch.  281 ;  14  M.  &  W.  67. 

(6)  Dutus  and  LiaUUties, 

It  is  part  of  the  duties  of  the  commissioners  to 
execute  any  reference  made  to  them  by  the  Court 
of  Review ;  but  neither  the  Chief  Judge  of  that 
Court  nor  the  Lord  Chancellor  has  authority  to 
compel  them  to  do  so,  in  caae  of  their  refusal.  Ex 
pane  Steward  re  Blake,  13  Law  J.  Rep.  (ii.b.) 
Bankr.  10. 

QiuBre — Whether  a  commissioner  of  the  Court 
of  Bankruptcy  is  bound  to  obey  an  order  of  refer- 
ence of  the  Court  of  Review.  Bx  parte  CurlewU  re 
CmriewU,  3  M.  D.  &  D.  362. 

(H)  Equitable  Relxev. 

Where  short  bills  had  been  deposited  with  country 
bankers  and  had  been  by  them  indorsed  to  their 
agents  in  London,  who  had  a  lien  upon  them  for 
advances  to  the  country  bankers: — Held,  on  the 
bankruptcy  of  the  country  bankers,  that  the  pro- 
ceeds of  the  bills,  after  satisfying  the  lien  of  the 
London  bankers,  ought  to  be  distributed  rateably 
among  the  depositors  of  the  short  bills.  Ex  parte 
Froggatt  re  Parker,  3  M.  D.  &  D.  322. 

(I)  Inspector. 

In  an  order  appointing  an  inspector,  liberty  was 
given  to  him  to  apply  to  the  Court  or  to  the  com- 
missioner. Ex  parte  Sandereen  re  Eoane,  3  M.  D. 
&  D.  300. 

The  Court  will  not  order  the  appoiAtment  of  an 
inspector  of  the  separate  estate  of  one  of  the  bank- 
rupts before  the  choice  of  assignees.  In  re  Daintry 
and  Kyle,  2  M.  D.  &  D.  257. 

An  order  was  obtained  for  the  appointment  of  an 
inapector,  to  be  chosen  by  the  separate  creditors,  for 
the  purpose  of  protecting  their  interests  against  the 
claims  of  the  joint  creditors.  At  a  meeting  held 
for  this  purpose,  one  of  the  assignees  and  the  soli- 
eitor  to  the  fiat  took  an  active  part  in  favour  of  a 
particular  individual,  for  whom  the  commissioners 
also  permitted  a  creditor  holding  a  mortgage  on  the 
joint  estate  to  vote,< — which  carried  the  election. 
The  Court,  under  these  circumstances,  annulled  the 
choice,  and  appointed  the  party  who  would  have 
been  otherwise  elected  by  the  majority  in  number 
and  value  of  the  separate  creditors.  Ex  parte 
Wileon  re  Manley,  1  M.  D.  &  D.  636. 

Under  a  joint  fiat,  if  the  interests  of  the  separate 
creditors  require  it  the  Court  will  make  an  order  for 
the  appointment  by  tiiem  of  an  inspector  to  collect  in 
the  separate  effects,  with  authority  to  bring  actions, 
&c.  in  the  names  of  the  assignees.  Ex  parte  Wright 
re  Damiry,  2  M.  D.  &  D.  434. 


M 


BANKRUFTCT~>(Pkoor  ov  Dibt). 


A  teptimte  fiat  wu  ntnuned  in  fiiToar  of  «  rab- 
leqneiit  jomt  one^  notwithstanding  the  aeparate 
estate  was  more  important  than  the  joint  estate,  and 
one  of  the  bankrupts  intended  to  dispute  his  hank- 
mptcy.  If,  under  such  circumstances,  an  inspector 
should  become  necessary  to  protect  the  interests  of 
the  separate  creditors,  the  appointment  will  be  at 
the  expense  of  the  joint  estate.  Sx  parti  Bwdikim 
re  MiUt,  2  M.  D.  &  D.  187. 

Where  an  inspector  is  appointed  to  protect  the 
intereste  of  the  separate  creditors,  the  costs  of  and 
incidental  to  the  application  were  directed  to  be  paid 
out  of  the  separate  estate.  Ex  parte  Howard  re 
Hurat,  2  M.  D.  &  D.  485. 

The  costo  of  appointing  an  inspector  do  not,  as 
of  course,  come  out  of  the  estate  on  behalf  of  which 
be  is  appointed.  Ex  parte  SanderMn  re  Evant^  3 
M.  D.  &  D.  800. 

(J)   COMPBOHISE. 

Qtuere — ^YHiether  the  Court  will  set  aside  a  com- 
promise agreed  to  at  a  meeting  properly  convened) 
on  the  ground  merely  of  ite  being  an  imprudent 
agreement,  without  fraud  being  suggested. 

Neither  the  bankrupts  nor  their  representetiYet 
bare  a  right  to  appear  on  petitions  relating  to  com- 
promises of  claims  on  behalf  of  the  estate.  E* 
parte  Magmu  re  GrunSbry,  3  M.  D.  &  D.  693. 

(K)  Pboov  of  Debt. 
(a)  IngeneraL 

Teas  are  sold  to  be  paid  for  at  appointed  days, 
the  sales  being  made  according  to  the  custom  of 
the  trade,  whereby  the  goods  when  sold  are  left  as 
a  pledge  for  fliU  payment  with  the  vendor,  who,  in 
ease  of  non-payment,  is  at  liberty  to  re-sell,  and 
efaaige  the  loss  to  the  original  purchaser.  The 
purchase-money  is  not  paid  at  the  appointed  time^ 
tile  purchaser  oecomes  bankrupt,  and  the  vendor 
having  sold  part  of  the  teas  before  the  fiat,  and  the 
Kst  afterwards,  gives' the  estate  credit  for  the  clear 
proceeds  of  the  sales,  tendering  a  proof  for  the  re- 
sidue of  the  original  purchase-money : — Held,  that 
although  there  was  no  delivery  of  the  goods,  the 
original  sal^  was  a  binding  contract  within  the 
Statute  of  Frauds,  and  that  the  claim  of  the  ven- 
dors constituted  not  unliquidated  damages  but  a 
proveable  debt  Ex  parte  Moffat  re  Tate,  2  M.  D. 
&  D.  170. 

B  being  in  custody  under  a  ea,  to,,  at  the  suit  of 
the  plaintifi^  the  defendant  entered  into  the  follow- 
ing undertaking: — **  In  consideration  of  your  dis- 
charging B,  I  undertake  that  he  shall  pay  the  debt 
due  to  you  by  four  half-yearlv  instalmenta;"  B  was 
discharged  accordingly: — Held,  that  this  under- 
taking constituted  a  debt,  proveable  under  a  fiat  of 
bankruptcy  against  the  defendant  Lane  v.  Burg' 
hart,  10  Law  J.  Rep.  (n.b.)  aB.  343;  1  O.  &  D. 
311. 

The  bankrupt  was  a  member  of  a  joint-stock 
banking  company,  and  kept  an  account  with  the 
bank  as  a  customer ;  at  the  time  of  his  bankruptoy 
he  was  indebted  to  the  bank  in  a  considerable  balance 
beyond  the  value  of  his  shares  in  the  bank,  and 
some  other  properhr  on  which  the  company  had  a 
lien : — Held,  that  this  balance  constituted  a  prove- 
able debt  Ex  parU  WaUU  re  Drewry,  2  M.  D.  & 
0.201. 


A  lent  part  of  his  Cuba  bonds  to  tbe  firm,  upon 
their  undertakiUg  to  replace  them  within  three 
months,  if  required  so  to  do  by  A,  and  the  firm 
deposited  in  the  box  some  railway  bonds  as  a  secur- 
ity. After  the  expiration  of  three  months,  these 
bonds  were  changed  for  other  bonds,  and  no  time  was 
agreed  upon  for  replacing  the  Cuba  bonds : — Held, 
that  A  had  no  proveable  debt  against  the  estate  of 
the  firm,  or  of  any  of  the  partners,  in  respect  of  this 
loan,  and  that  he  was  not  entitled  to  the  proceeds 
arising  from  the  sale  of  the  bonds  which  had  been 
so  deposited.  Ex  parte  Eyre  re  BtddmXph,  12  Law 
J.  Rep.  (ir.B.)  Ch.  266 ;  3  M.  D.  &  D.  12 ;  1  Ph. 
227. 

Where  the  defendant  in  an  action  has  become 
bankrupt,  after  verdict  and  before  judgment,  and 
the  plaintiff  has  proved  for  the  debt,  but  has  not 
been  permitted  to  prove  for  the  costs,  the  Couit 
will,  upon  summary  application,  under  6  Geo.  4. 
c.  16.  s.  69,  stay  proceedings  in  the  action  for  the 
recovery  of  the  costo.  Woodward  v.  Mereditk,  13 
Law  J.  Rep.  (m.s.)  aB.  822;  2  Dowl.  &  L.  P.C. 
136. 

(6)  Under  joint  Fiat. 

A  testatrix  bequeathed  3,000/.  to  two  trustees 
upon  trust  to  invest  it  in  the  ftmds  or  on  real  se- 
curities, or  to  lend  it  to  the  house  of  H  &  Ca,  by 
whatever  firm  the  same  might  be  called,  at  interest, 
with  power  to  vary  the  securities  for  others  of  a 
like  nature.  The  house  of  H  &  Co.  then  consisted 
of  the  two  trustees  and  two  other  partners.  One 
of  the  trustees  died,  and  successive  changes  took 
place  in  the  firm,  which  ultimately  consist^  of  the 
surviving  trustee  and  a  new  partner,  who  had  notice 
of  the  trust  At  the  death  of  the  testatrix,  the  then 
firm  owed  to  her  estate  more  than  3,0001.,  ^nd  that 
amount,  less  the  legacy  duty,  was  suffered  to  remain 
due  from  them  at  interest,  and  was,  on  the  succes- 
sive changes  of  the  firm,  carried  over  to  the  credit 
of  the  trustee  as  due  from  the  new  firm,  and  on  the 
last  change,  the  surviving  trustee  took  from  his 
partner  and  himself  a  promissory  note  for  the  amount, 
payable  six  months  after  notice.  On  the  firm  be- 
coming bankrupt, — Held,  that  a  breach  of  trust  had 
been  committed,  and  that  there  was  a  right  of  proof 
against  each  separate  estate.  Ex  parte  Pauisoa  re 
Harford,  1  De  Gex,  79. 


(c)  By  Bankrupt  Creditor,  Feme  Covert^ 

persont. 

Where  a  creditor  becomes  bankrupt  he  must  join 
with  his  assignee  in  the  affidavit  in  proof  of  the 
debt  The  affidavit  of  the  assignee  alone  is  not 
sufficient  Ex  parte  Robton  re  Jmner,  2  M.  D.  &  D. 
66. 

Feme  covert  petitioning  by  her  next  friend  per- 
mitted to  prove  the  value  of  a  legacy  of  stock  be- 
queathed to  her  separate  use,  but  transferred  into 
the  name  of  her  husband,  who  sold  it  out,  and 
became  a  trustee  appointed  to  receive  the  diri* 
dends.  Ex  parte  Wellt  re  Whitmare,  2  M.  D.  ft  D. 
604. 

Executors  liable  for  the  default  of  tiielr  co-exe- 
cutor, who  had  become  bankrupt, — Held,  entitled 
upon  payment  by  them  to  the  benefit  of  the  proof 
in  bankruptcy  against  bis  estate.  Lincoin  v.  Wriglitt 
4  Bea.  427. 


BANRRUPTCY^(PiUM»r  oi  DiBf ), 


79 


On  a  diisolatioii  of  partnership,  the  retiring 
gives  to  the  continuing  partner  a  bond  for  a  aom 
payaUe  by  instalments,  and  after  one  instalment  is 
paidt  it  is  agreed  that  the  bond  shall  be  cancelled, 
on  the  obligor  giving  fresh  bonds  for  sums  amount- 
ing to  the  sum  then  due :  such  new  bonds  being 
executed  to  obligees  nominated  by  the  retired  part- 
ner. At  the  time  of  executing  the  new  bonds,  the 
obligor  is  under  some  degree  of  pecuniary  pressure, 
but  does  not  contemplate  bankruptcy  or  msolvency* 
Afterwards  he  becomes  bankrupt: — Held,  that  the 
new  obligees  were  entitled  to  prove  against  his 
estate,  and  that  the  want  of  any  notification  of  the 
dissolution  of  partnership,  or  of  any  change  in  the 
style  of  the  firm,  or  of  any  consideration  between 
the  new  and  old  obligees,  or  between  the  obligor 
and  the  new  obligees,  would  make  no  difierence« 
/«  re  Todd,  1  De  Gex,  87. 

A,  an  innkeeper,  assigns  the  premises  and  furni- 
ture  to  B,  as  his  successor  in  the  inn,  and  placea 
his  son,  who  was  a  minor,  with  B,  at  a  yearly 
salary  in  the  first  instance,  but  upon  the  under* 
stan^og  that  he  was  afterwards  to  be  taken  in  as  a 
partner.  The  licence  is  transferred  to  B  and  A*b 
son  jointly,  and  B  becomes  bankrupt  after  con- 
tracting a  large  debt  with  A,  the  proof  of  which  is 
rejected  by  the  commissioners  on  the  ground  that 
A  concealed  his  son's  minority,  and  thus  induced 
parties  to  trust  the  bankrupt,  who  had  no  capital : — 
Held,  that  the  commusioners  were  not  justified  in 
rejecting  the  prooC  E*  parte  AriAer  re  New,  2 
M.  D.  &  D.  784. 

A  &  Co.  wrote  a  letter  to  B  in  the  following 
terms : — "  We  hereby  become  bound  to  guarantee 
to  you  all  current  obligations  and  engagements  in 
your  hands  to  which  C  may  be  a  party,  and  all  his 
future  obligations  and  engagements  that  may  come 
into  your  ^rnds."^  After  the  date  of  this  letter,  B 
discounted  bills  for  C,  and  A  &  Co.  became  bank- 
rupt:—  Held,  that  under  this  guarantee,  B  was 
entitled  to  prove  the  debt  incurred  in  respect  of 
discounting  the  bills  against  the  estate  of  the  bank* 
rupts.  Ex  parte  Littlejohn  re  Duncan,  12  Law  J. 
Bep.(N.a.)  Bankr.  31 ;  3  M.  D.  8e  D.  182. 

(^)  Annuity. 

[See  JZr  parte  Broadky  re  Pilcker,  poet,  («)  Con- 
tingent Debts.] 

An  annuity  granted  for  a  term  of  years,  the  con- 
sideration for  which  was  the  good  will  of  a  business, 
may  be  ordered  to  be  valued  according  to  the  di- 
rections of  the  6  Geo.  4.  c.  16.  s.  64.  Ex  pwrie 
JSeholee  re  Jemmett,  1  M.  D.  &  D.  384. 

The  bankrupt,  in  consideration  of  7,000/.,  granted 
an  annuity  of  9242.  140.  for  his  life,  he  to  be  at 
liberty  to  redeem  the  whole  annuity  for  7,0002., 
and  upon  such  repurchase  of  the  said  annuity  the 
grantee  was  to  assign  any  policy  or  policies  of  as- 
surance which  he  should  or  might  have  effected 
upon  the  life  of  the  bankrupt  The  grantee  effected 
assurances,  and  then  the  grantor  became  bank- 
rupt : — Held,  that  the  grantee  was  entitled  to  prove 
for  the  value  of  the  full  amount  of  the  annuity, 
without  deducting  the  yearly  premiums,  and  with- 
out giving  up  the  policies  to  the  assignees.  Ex 
parte  Fanuah  re  Burghart,  10  Law  J,  Rep.  (n.8.) 
Bankr.  50;  1  M.  D.  &  D.  514. 

A,  B,  and  C  (C  being  a  surety  only)  jointly 


and  severally  granted  an  annuity  in  eonsideration 
of  a  sum  of  money  paid  to  A  and  B,  and  cove- 
nanted that  they,  or  some  or  one  of  them,  would 
pay  the  annuity.  A  warrant  of  attorney  was  also 
given  to  enter  up  judgment  against  the  three,  or 
any  or  either  of  them,  as  a  further  security  for  the 
payment  of  the  annuity ;  and  a  joint  judgment  was 
entered  up  against  the  three.  A  and  B  became 
bankrupts : — Held,  that  the  grantee  of  the  annuity 
might  prove  under  that  fiat  against  the  two  for  the 
value  of  the  annuity ;  the  debt  on  the  covenant  not 
being  merged  in  the  joint  judgment  against  the 
three ;  and  A  and  B  being  the  grantors  who  re- 
ceived the  consideration  money.  Ex  parte  PenmeU 
re  Keareley,  10  Law  J.  Rep.  (N.a.)  Bankr.  77;  2 
M.  D.  &  D.  273. 

(e)  Bonds. 

A  and  B  enter  into  a  joint  and  several  bond  to  C, 
D  and  £ ;  C  delivers  the  bond  to  A  (who  was  her 
son)  for  safe  custody,  and  after  for  some  time  re- 
ceiving the  interest  firom  A,  she  and  D,  another  of 
the  obligees,  die.  B,  one  of  the  obligors,  also  dies, 
when  his  executors  and  A  make  an  arrangement 
together  without  the  privity  of  £,  the  surviving 
obligee,  and  erase  the  name  and  seal  of  B  from  the 
bond: — Held,  that  this  did  not  invalidate  the  bond 
as  against  A,  and  that  on  his  bankruptcy  the  snr- 
vivinff  obligee  might  prove  for  the  amount  of  the 
principal  and  interest  due  upon  the  bond.  Bx  parte 
Smith  re  Smith,  8  M.  D.  &  D.  378. 

Members  of  a  brewing  firm  execute  a  joint  and 
several  bond  to  the  bankers  of  the  firm,  conditioned 
to  be  void  if  the  brewers  paid  the  balance  due  at 
any  time  to  the  bankers  when  thereunto  requested, 
such  request  to  be  in  writing,  and  to  be  sent  to  tho 
bank  on  the  bankruptcy  of  one  of  the  obligors :' — 
Held,  that  a  request  must  have  been  made  before 
the  bankruptcy  to  entitle  the  bankers  to  prove.  But 
it  appearing  that  the  amount  was  due  on  bills  of 
exchange  which  had  been  dishonoured,  and  which 
the  bankers  had  in  writing  required  the  brewers  to 
pay,  without,  however,  referring  to  the  bond: — Held, 
that  this  was  a  sufiScient  request 

The  bills  were  drawn  or  accepted  by  the  bank- 
rupt and  two  other  directors  of  the  brewing  firm> 
describing  themselves  as  such  directors,  but  not 
otherwise  purporting  to  bind  the  firm :  —  Held, 
that  this  created  no  separate  liability  of  the  bank- 
rupt entitling  the  bankers  to  prove  on  the  bills  alone. 
Ex  parte  FUntoff  re  Rodham,  3  M.  D.  &  D.  726. 

(/)  BUls,  Notet,  and  Cheques, 
[See  ante,  {e)  Bonds.] 

A  owed  B  2772.,  and  to  secure  the  amount  depo- 
sited wi^  him  bills  to  the  amount  of  1,5182.  drawn 
by  A  and  accepted  by  C ;  A  and  C  both  became 
bankrupt: — Held,  that  B  might  prove  the  full 
amount  of  the  bills  under  the  fiat  against  C,  but 
not  receive  dividends  beyond  the  sum  of  2772.  Ex 
parte  PMUpe  re  Parker,  1  M.  D.  fir  D.  232. 

A  and  B,  as  joint  executors,  carry  on  their  tes- 
tator's trade  in  copartnership  for  the  benefit  of  his 
family,  and  it  is  arranged  between  them  that  A 
should  alone  draw  and  accept  bills  and  manage  the 
cash  transactions.  A  having  refused  to  accept  any 
more  bills  drawn  by  H  and  D,  B,  unknown  to  A, 
authorizea  her  son  to  accept  them,  and  A  and  B 


80 


BANKRUPTCY--(P]iooF  or  Dxbt). 


afterwards  become  bankropt :  ^  Held,  that  the 
holders  of  these  bilU  oould  not  prove  them  against 
the  joint  estate.  Ex  partg  Hoidtunrth  re  Robinson, 
1  M.  D.  &  D.  47fi. 

Proof  admitted  on  a  bill  of  exchange  obtained 
by  fraud,  where  the  holder  was  ignorant  of  the 
fraud.  Ex  parU  Samuel  re  PfUlpot,  2  M.  D.  &  D. 
384. 

A  creditor  £or  goods  sold,  who  has  received  bills 
for  the  amount,  may  prove  for  part,  and  proceed  at 
law  for  the  other  (confirming  Ex  parte  Sly,  2  G.  &  J. 
163).  Newton  re  Newton,  11  Law  J.  Rep.  (n.8.) 
Bankr.  7 ;  2  M.  D.  &  D.  422. 

A  and  B,  who  are  partners,  and  C  as  their  surety, 
gave  a  joint  and  several  promissory  note  to  D,  by 
which  they  jointly  and  severally  promise  to  pay  D 
the  amount  of  a  partnership  debt  due  from  A  and 
B.  The  note  was  signed  by  A  and  B,  not  as  indivi- 
duals, but  in  their  partnership  firm,  and  by  C, 
the  surety : — Held,  that  this  note  could  not  be 
treated  as  the  several  note  of  each  one  of  the 
three,  but  as  the  several  note  only  of  the  surety 
and  the  joint  note  of  A  and  B ;  and  that  on  the 
bankruptcy  of  A,  who  had  survived  his  partner,  B, 
the  holder  of  the  note,  could  only  rank  as  a  cre- 
ditor against  the  joint  estate.  Ex  parte  Wilson  re 
Manley,  3  M.  D.  &  D.  57. 

Where  A  survived  B,  his  partner,  and  continued 
the  business  in  the  same  firm  of  A  &  B ;  and  at  the 
time  of  B*8  death  a  large  balance  was  owing  by  them 
to  their  bankers,  to  whom  A*  some  time  after  B'a 
death,  indorsed  several  bills  in  the  partnership  firm 
of  A  and  B : — Held,  that  it  could  not  be  inferred 
from  this  circumstance  alone  that  the  bills  were  so 
indorsed  upon  a  partnership  transaction  of  A  to 
B,  and  that  the  bankers  might  prove  the  amount  of 
the'  bills  against  the  separate  estate  of  A.  Ex  parte 
Wilson  re  Manky,  8  M.  D.  &  D.  57. 

B  accepted  bills  in  favour  of  A,  and  delivered 
them  to  A  for  the  special  purpose  that  A  should 
raise  money  on  them  for  B.  A  brought  an  action 
against  B  on  these  bills,  and  recovered  judgment 
against  him  for  the  amount  of  the  bills.  B  having 
afterwards  become  bankrupt,  A  tendered  a  proof 
for  the  sum  for  which  he  had  recovered  judgment 
The  proof  was  rejected.  Ex  parte  Mudie  re  James^ 
12  Law  J.  Rep.  (n.s.)  Bankr.  25  ;  3  M.  D.  &  D.  66. 

Two  of  six  partners  who  had  giTcn  a  confidential 
clerk  a  general  authority  in  writing  to  sign  bills 
and  notes  on  behalf  of  the  firm,  directed  the  clerk  to 
sign  four  promissory  notes  in  Uie  name  of  the  firm, 
payable  respectively  to  one  or  the  other  of  the  two 
partners  who  claimed  to  be  creditors  of  the  aggre- 
gate firm  in  respect  of  an  excess  of  capital  ad- 
vanced bv  them  for  the  purposes  of  the  partner- 
ship. The  two  partners  afterwards  indorsed  the 
notes  to  a  separate  creditor  for  a  private  debt  of  ono 
of  the  two  : — Held,  that  although  as  between  these 
two  partners  and  the  other  members  of  the  firm  the 
notes  were  unjustifiably  created  and  possessed  by 
the  two,  yet  in  the  absence  of  all  fraud  or  con- 
nivance in  the  transaction  by  the  party  to  whom 
the  notes  were  indorsed,  the  firm  of  the  six  were 
liable  for  the  amount ;  and  that  on  the  bankruptcy 
of  the  firm  the  holder  of  the  notes  had  a  right  to 
prove  the  amount  of  them  against  the  joint  estate. 
Ex  parte  Bushell  re  Acraman,  3  M.  D.  &  D.  615. 

A  customer  paid   in  bills  of  exchange  to  his 


bankers  and  became  bankrupt.  The  baakera 
proved  for  the  whole  balance  due  fhnn  him,  and 
afterwards  some  of  the  bills  of  exchange  paid  in  were 
paid  in  full  by  other  parties  liable,  some  before  and 
some  after  the  dividend  was  declared  : — Held,  that 
the  proof  ought  to  be  reduced  by  the  amount  of  the 
paid  bills  and  the  dividends  refunded.  Ex  parte 
Hornby  re  Pritehard,  1  De  Gex,  69. 

R  M,  who  carried  on  business  in  partnership 
with  J  C,  J  P,  and  T  S,  as  bankers,  signed  one  of 
the  notes  of  the  bank  in  this  form,  "  I  promise  to 
pay,  &c  For  J  C,  R  M,  J  P  and  T  S,  R  M."  On 
the  firm  becoming  bankrupt, — Held,  that  the  holders 
could  not  prove  on  this  note  against  the  separate 
esUte  of  R  M.    In  re  Clarke,  1  De  Ges,  153. 

Customers  draw  cheques  on  their  bankers  with 
whom  their  accounts  are  already  overdrawn,  and 
pay  away  the  cheques,  which  come  to  the  hands 
of  other  bankers.  The  second  bankers  remit  to  the 
first  the  cheques  in  a  printed  circular,  dedring  the 
amount  of  diem  to  be  paid  to  the  London  corre- 
spondents of  the  second  bankers.  Notwithstanding 
thia  circular,  the  custom  between  the  bankers  is  to 
pay  one  another^s  cheques  so  far  as  cixcttmstancea 
permit,  by  remittances  of  notes  of  the  bankers 
sending  the  cheques  directly  to  those  bankers,  the 
understanding  being,  however,  that  the  chcMjuea 
should  be  paid  on  the  day  on  which  they  are  re- 
ceived, or  on  the  day  following,  either  by  such 
remittances,  or  by  remittances  according  to  the 
directions  of  the  circular.  The  first  bankers  give 
the  second  credit  in  their  books  for  the  amount 
of  the  cheques,  but  become  bankrupt  three  days 
alter  receiving  them,  and  without  having  made  any 
payment  or  remittance  in  respect  of  them,  knowing 
at  the  time  of  receiving  the  cheques  that  bankruptcy 
was  inevitable.  The  assignees  obtain  payment  from 
the  customers  of  the  full  amount  of  the  cheques: 
— Held,  that  the  second  bankers  were  entitled  to 
payment  in  full  of  the  same  amount  out  of  the 
bankrupt's  estate.  Ex  parte  Cole  re  Wise^  3  M.  D. 
&  D.  189. 

(g)  Banking  Company, 

Where  a  member  of  a  banking  company,  who  kept 
a  banking  account  with  the  company  as  a  customer, 
became  bankrupt,^Held,  that  under  1  &  2  VicL 
c.  96,  the  company  might  prove  for  the  balance  due 
from  the  bankrupt  member,  on  his  banking  accounL 
Ex  parte  Davidson  re  Caldieott,  10  Law  J.  R«p.  ( v.8.) 
Bankr.  58;  1  M.  D.  &  D.  648 :  confirmed  2  M.  D.& 
D.368;  ]lLawJ.Rep.(M.s.)Ch.l. 

L,  a  partner  in  the  bank  of  Messrs.  B  &  Col,  was 
appointed  treasurer  of  a  savings  bank.  L,  in  pur- 
suance of  the  statute  9  Geo.  4.  c  92.  a.  7,  gave  a 
bond,  by  way  of  security,  to  the  cleric  of  tlw  peaces 
and  in  the  returns  periodically  sent  to  the  Conimifr- 
sinners  for  the  Reduction  of  the  National  Debt,  in 
pursuance  of  the  46th  section  of  that  act^  acknow- 
ledged that  the  balancea  from  time  to  tiaoe  were  m 
his  hands.  The  managers  of  the  savings  faaiik, 
who  had  opened  an  aeooant  with  B  &  Ca  before 
L*8  appointment,  continued  that  aodonnt  after  audi 
appointment,  as  if  it  had  not  been  made,  and  not 
interfering  in  any  manner.  They  sent  the  money 
to  the  bank,  received  interest  on  it,  drew  it  out  hy 
their  cheques,  and  were  in  all  respects  treated  aa  the 
other  customers  of  the  bank.    B  &  Co. 


BANKRUPTCT—CPRoor  of  Dkbt). 


81 


bankniptti  and  at  the  time  of  the  bankniptcy  a 
balaaee  of  l,118£i  waa  dae  to  the  saTinga  bank,  on 
their  account  with  the  bank : — Held,  that  this  sum 
of  1,118/.  waa  money  in  the  hands  of  L,  by  virtue 
of  his  employment  under  8  &  4  Will.  4.  c.  14. 8.  28, 
and  payable  out  of  hia  separate  estate  in  priority 
to  hia  ether  debts.  Bx  parte  Riddle  re  Batton,  12 
Law  J.  Rep.  (ir.B.)  Bankr.  19 ;  3  M.  D.  ft  D.  80. 

Where  a  bankrupt,  after  the  commission  of  an  act 
of  bankruptcy,  of  which  his  bankers  had  notice, 
though  not  the  act  of  bankruptcy  on  which  the  fiat 
issued,  drew  upon  them  various  cheques  in  favour 
of  several  of  his  creditors,  which  cheques  were  duly 
paid  by  the  bankers,  it  waa  held  that  the  bankers 
oonld  not  prove  the  amount  of  these  payments  under 
the  fiat  Where  bankers,  with  the  knowledge  of  an 
act  of  bankruptcy  committed  by  their  customer, 
took  a  guarantee  from  a  surety  on  his  behalf,  to 
secure  to  a  given  amount  all  sums  then  or  thereafter 
to  become  due  from  the  customer,  but  the  surety 
had  no  notice  of  the  act  of  bankruptcy,  and  after* 
wards  paid  to  the  bankers  the  full  sura  for  which  he 
was  guarantee,  without  specifying  to  which  portion 
of  the  bankei^s  debt  the  payment  was  to  be  applied : 
—Held,  that  such  payment  was  to  go  in  reduction 
of  that  portion  of  the  banker's  debt  which  waa 
proveable  under  the  fiat,  and  not  of  that  which  was 
not  pioveable.  Ex  parte  Sharp  re  Ma$ant  8  M.  D. 
&  D.  490. 

The  8  ft  4  Will  4.  c.  14.  s.  28,  which  provides 
that  if  any  person  thereafter  to  be  appointed  to  an 
office  in  a  saving^  bank,  and  having  money  in  his 
hands  belonging  to  the  bank  shall  become  bank- 
rupt, the  bank  shall  be  paid  in  full,  applies  only 
to  savii^  banks  wMeh  have  conformed  to  9  Geo.  4. 
0.92. 

What  is  a  sufilcientcompliance  with  9  Geo.  4.  c.  92. 
a.  6,  providing  that  no  savings  bank  shall  have  the 
benefit  of  the  act  unless  its  rules  provide  that  no 
person  being  treasurer,  manager,  or  trustee  of  such 
institution,  or  having  any  controul  in  the  manage- 
ment thereof,  shall  derive  any  benefit  from  the  de« 
I»osita  in  the  bank,  except  as  in  the  act  mentioned. 

The  certificate  of  the  barrister  under  9  Geo.  4. 
c  92,  that  the  rules  of  a  savings  bank  aro  in  con- 
formity with  the  act,  is  not  conclusive.  Ex  parte 
HayHee  re  Clarke,  2  M.  D.  ft  D.  64^8. 

(A)  Damages, 

The  bankrupt  undertook  to  supply  a  creditor 
who  was  under  pecuniary  engagements  for  him  with 
five  pieces  of  cloth  per  week,  or  to  forfeit  and  pay 
104  per  piece  as  liquidated  penalty  for  every  piece 
deficient.  The  bankrupt  made  such  frequent  de^ 
fiiult  in  the  regular  supply  of  the  cloth  that  be 
incurred  penalties  to  the  amount  of  3,870/.,  which 
the^creditor  claimed  to  prove,  although  no  specific 
damage  was  alleged  to  have  been  sustained  by  him 
by  the  non-performance  of  the  agreement,  and  the 
only  balance  really  due  to  him  was  48/.  18t.  Bd, : — 
Held,  that  this  was  a  claim  for  unliquidated  damages 
founded  on  a  penalty,  and  was  uiereforo  not  the 
subject  of  proof.  Ex  parte  Maclean  re  Ewnu,  2  M. 
D.&D.564. 

An  ag^reement  is  entered  into  for  the  sale  of  a 
ship  at  sea,  when  she  should  arrive  at  her  port  of 
discharge,  for  4,000/.,  and  that  within  one  month 
after  her  arrival,  or  such  further  time  as  should  be 

DiOBST,  1840—1845. 


necessary  for  repairs  and  discharging  the  cargo,  the 
purchaser  should  on  the  execution  of  a  bill  of  sale 
to  him  of  the  vessel,  deliver  promissory  notes  for 
the  purchase-money,  in  default  whereof  the  vendor 
was  to  be  at  liberty  to  resell,  and  the  purchaser  was, 
within  a  month  after  the  resale,  to  pay  the  loss 
occasioned  thereby ;  and  if  the  ship  was  lost  the 
agreement  was  to  be  void.  The  purchaser  became 
bankrupt  before  the  ship  arrived,  and,  on  the  assig- 
nees declining  to  complete  the  contract,  the  vendor 
resold  :-.Held,  that  he  could  not  prove  for  the  loss 
occasioned  by  the  resale.  In  re  Galet,  I  De  Oex, 
100. 

(i)  Johti  and  Sepanede  Debts. 

A  ft  B  being  jointly  indebted  to  C,  B  becomes 
bankrupt,  but  Uie  joint  efllects,  not  being  more  than 
equal  to  the  payment  of  the  partnership  debts,  aro  left 
in  the  possession  of  A,  who  afterwards  makes  an 
arrangement  with  C  for  the  payment  of  his  debt  by 
instalments,  and  as  a  further  security  hands  over 
the  deeds  of  certain  leasehold  property  to  which 
he  was  separately  entitled  for  the  purpose  of  pre- 
paring an  assignment  A  only  paid  some  of  the 
instalments,  and  a  separate  fiat  afterwards  issued 
against  him : — Held,  that  this  was  no  evidence  of 
the  conversion  of  the  joint  debt  of  A  and  B  into  the 
separate  debt  of  A,  and  that  G  could  therefore  only 
prove  against  the  joint  estate.  Ex  parte  Smith  re 
Keatley,  1  M.  D.  ft  D.  165. 

Whero  a  separate  fiat  issues  against  one  of  two 
persons  who  have  been  in  partnership,  and  a  joint 
creditor  is  permitted  to  prove  his  debt,  the  Court 
will  direct  an  inquiry  whether  there  is  any  joint 
estate,  notwithstancting  the  partnership  was  dissolved 
before  the  issuing  of  the  fiat  Ex  parte  Birley  re 
Krauts,  1  M.  D.  ft  D.  387. 

Where  a  separate  fiat  was  issued  against  A,  on  the 
petition  of  two  persons  who  were  joint  creditors  of 
A  and  B  and  separate  creditors  of  A: — Held, 
(reversing  the  decision  of  the  Court  of  Review,) 
that  they  were  entitled  to  prove  against  the  estate 
of  A,  in  respect  of  both  the  joint  and  separate  debts. 
Ex  parte  Burnett  re  Blake,  11  Law  J.  Rep.  (n.s.) 
Ch.  180;  2  M.  D.  ft  D.  357:  reversing  s.  c.  10 
Law  J.  Rep.  (11.8.)  Bankr.  45 ;  and  1  111.  D.  ft  D. 
608. 

A  New  York  house  accepted  bills  for  the  accom- 
modation of  a  Virginia  house  on  an  agreement  for 
reimbursement  entered  into  by  a  London  merchant, 
the  correspondent  of  the  Virginia  house.  After- 
wards the  London  merchant  entered  into  partnership, 
and  by  letter  desired  the  New  York  house  to  transfer 
all  credits,  advices  and  instructions  then  in  force 
from  him  to  the  new  firm,  and  to  transfer  any 
balances  due  to  or  from  him  to  the  new  firm.  The 
New  York  house  replied  that  they  would  make  up 
and  transfer  to  the  new  firm  the  open  accounts  in 
joint  exchange  transactions,  but  they  hoped  to  have 
the  account  current  made  up  before  they  carried 
the  old  account  to  the  new  firm.  They  afterwards 
paid  the  accommodation  bills  and  drew  on  the  new 
firm  for  the  amount  The  new  firm  became  bank- 
rupt:— Held,  that  under  the  ciroumstances,  the 
separate  liability  was  discharged,  and  that  the  New 
York  house  were  only  joint  creditors.  Ex  parte 
Jackson  re  Warwick,  2  M.  D.  ft  D.  146. 

A  partnership  firm  mortgage  part  of  the  joint 

M 


82 


BANXRUPTCt— (tRoot  6if  Dwt). 


estate  to  secure  a  joint  debt,  and  by  the  mortgage 
deed  corenant  jointly  and  severally  for  payment  of 
the  debt: — Held,  that  on  their  bankruptcy  the 
mortgagee  might  prove  the  whole  debt  against  each 
separate  estate  without  giving  np  his  security.  Ex 
parte  Shepherd  re  Ptummer,2M.  £>.  &  D.  204. 

A  joint-stock  banking  company  becomes  insol- 
vent, and  a  suit  in  Chancery  is  instituted  to  wind 
up  the  accounts.  A  separate  Hat  issues  against 
one  of  its  members,  and  his  separate  estate  pays  his 
separate  creditors  20s,  in  the  pound,  leaving  a  sur- 
plus : — Held,  that  the  joint  creditors  of  the  company 
are  entitled  to  receive  dividends  out  of  the  surplus, 
though  the  joint  estate  has  not  been  administered ; 
and  that  the  separate  creditors  are  not  entitled  to 
be  paid  interest  prior  to  the  joint  creditors  being 
nude  equal  as  to  the  principal*  Ex  parte  Wood  re 
Wehtter,  10  Law  J.  Ilep.(K.8.)  Bankr.  73;  2  M.  D. 
&  D.  28S. 

A,  B  and  C  dissolve  their  partnership,  and  C 
executes  a  regular  assignment  of  the  partnership 
eflbcts  to  A  and  B,  and  notice  of  the  dissolution 
appears  In  the  Oacette.  A  and  B  continue  the  busi- 
ness in  the  same  firm  until  the  bankruptcy,  which 
is  more  than  a  twelvemonth  after  the  dissolution 
and  assignment : — Held,  that  a  joint  creditor  of  A, 
B  and  C  could  not  prove  against  the  estate  of  A  and 
B.    Ex  parte  Gumey  re  GUuteott,  2  M.  B.  &  D.  541. 

A  and  B,  who  are  partners  trading  under  the  style 
of  C  &  Co.y  sign  a  guarantee  by  their  private  names 
onlyinthefoUowing  form:  *' The  undersigned  hereby 
guarantee,"  &c.  ^Inn^fe— the  proof  in  bankruptcy 
upon  this  guarantee  must  be  made  against  the  joint 
estate,  if  there  were  any. 

But  the  partnership  having  been  dissolved  after 
the  signature  of  the  guarantee  by  an  agreement 
under  which  B  was  to  be  the  sole  owner  of  the 
stock,  debts,  and  effects  of  the  firm,  he  taking  on 
himself  its  liabilities: — Held,  that  a  mere  general 
statement  that  at  the  time  of  the  dissolution  then 
were  outstanding  credits  amoundng  to  200t,  and 
that  credits  to  the  amount  of  102.  were  recoverable, 
without  particularizing  them,  was  not  sufficient 
ground  for  preventing  the  creditors  under  the  gua- 
rantee from  receiving  dividends  out  of  B's  separate 
estate.  Ex  part  Burdekin  re  Heytoard,  2  M.  D.  &  D. 
704. 

A  customer  who  keeps  at  his  banker's,  for  safe 
custody,  a  box,  to  Uie  key  of  which  the  bankers 
have  access,  lends  to  a  partner  in  the  bank  some 
railway  bonds  contained  m  the  box,  on  the  security 
of  certain  certificates,  which  are  thereupon  deposited 
in  the  box,  together  with  a  memorandum  stating  the 
circumstances  of  the  loan,  but  not  fixing  any  time 
for  the  replacement  of  the  bonds.  Afterwards  the 
partner,  without  the  customet^s  knowledge,  removes 
the  certificates,  and  substitutes  for  them  other  se- 
curities.   The  firm  becomes  bankrupt : — 

Held,  1st,  That  the  joint  estate  was  not  liable  in 
respect  of  the  abstraction  of  the  certificates. 

2nd,  That  although  no  time  was  fixed  for  the 
replacement  of  the  bonds,  the  abstraction  of  the 
certificates  rescinded  the  loan,  and  gave  the  cus- 
tomer a  right  of  proof  against  the  separate  estate 
of  the  partner :  the  authority  of  Utterton  v.  Vernon^ 
not  applying  to  such  a  case.  Ex  parte  Eyre  re 
Jiiddulph,  2  M,  V.  k  I),  M :  amrmed  3  M.  D.  &  D. 
12 ;  I  Ph.  227  {  12  Law /.  lUp,  (N,s,) Ch.  266. 


[And  see  Belcher  v.  Capper^  It  Law  X'ftep. 
(n.s.)  C.P.  274, — 5hii*  and  SRiPPtNO^  Cbarter- 
party.] 

A  carries  on  the  business  of  a  grocer  separately, 
and  also  that  of  an  iron- founder  in  partnership  wltt 
B.  After  thus  trading  for  four  years  he  seils  off 
the  stock  of  the  grocery  business  and  retires  who19)f 
fh)m  that  trade,  investing  the  proceeds  in  the  ih>fi- 
foundry  business,  which,  with  the  exception  of  a 
small  sum  brought  in  by  B,  constituted  the  Whol^ 
capital  of  the  partnership.  A  joint  fiat  Is  issued 
against  A  and  B,  sixteen  months  ilfter  A  had  retired 
from  his  separate  grocery  trade : — Held^  Aat'itip 
creditors  of  A  in  the  grocery  |rade  could  not'pro% 
against  the  jofait  estate  of  A  and  B.  Bxpitrti  YjVAftaii 
re  Tttffier,  2  M.  D.  &  D.  781. 

A  and  B  who  are  partners,  and  C  as  th^r  flirety; 
give  a  joiut  and  several  promissory  note  to  I),  bt 
which  they  "jointly  and  severally  promise  to  pij* 
to  D  the  amount  of  a  partnership  debt  due  fhftn  A 
and  B.  The  note  Is  signed  by  A  and  B,  not  as  in- 
dividuals, but  in  their  partnership  name,  and  by  C 
the  sure^: — Held,  that  this  note  could  not  be 
treated  as  the  sevend  note  of  each  one  of  the  three, 
but  as  the  several  note  only  of  the  surety,  and  the 
joint  note  of  A  and  B  i  aad  that  on  the  bankruptcy 
of  A,  who  had  aurvived  his  partner  B,  the  holder  of 
tiie  note  could  only  rank  %s  a  creditor  against  tbf 
joint  estate.  Ex  parte  Wilson  re  Manley,  3  M.  D.  ft 
D.67. 

A  survives  6,  his  partner,  and  continues  the 
business  in  the  same  firm  of  A  and  B.  At  the  time 
of  B*s  death  a  large  balance  was  owing  by  them  to 
their  bankers,  to  whom  A  some  time  after  B's  death 
indorses  several  bOls  in  the  partnership  firm  of  A 
6t  B  :— Held,  that  it  could  not  be  inferred  from  this 
circumstance  alone  that  the  bills  were  so  indorsed 
upon  a  partnership  transaction  of  A  and  B,  and  that 
the  bankers  might  prove  the  amount  of  the  bills 
against  the  separate  estate  of  A.    Ibid. 

The  rule  that  a  joint  debt  cannot  be  proved 
against  the  estate  of  a  bankrupt  partner,  as  long  as 
there  is  a  solvent  partner,  applies  to  co-contractors. 
Ex  parte  Field  re  Rogere,  12  Law  /.  Rep.  (M.a.) 
Bankr.  27;  3  M.D.&D.  95. 

A,  fi,  C  and  D,  carried  on  business  in  co-partner- 
ship as  bankers,  and  became  bankrupt.  At  the  time 
of  the  bankruptcy,  X  had  in  his  possession  notes 
issued  by  the  bank,  signed  by  A,  in  the  following 
fbrm  : — **  I  promise  to  pay  the  bearer,  on  demand, 
61  ht  A,  B,  C  and  D,  (signed)  A."  X  proved  fbf 
the  amount  of  these  notes  against  the  joint  estate 
of  A,  B,  C  and  D.  On  a  petition  by  X  for  liberty  to 
withdraw  his  proof  against  the  jomt  estate,  and  td 
prove  against  the  separate  estate  ef  A, — Ordered 
that  X  might,  on  withdrawing  the  proof  made, 
tender  such  proof  as  he  might  be  ad^sed  against 
the  separate  estate  of  A,  wi&ont  prejudice  to  the 
question  of  its  legality. 

A  proof  tendered  by  X,  in  this  case,  against  the 
separate  estate  of  A,  having  been  admitted  by  the 
commission :  ordered,  on  a  petition  by  the  assignees, 
that  the  proof  should  be  expunged.  Ex  parte  Bmct^ 
ley  re  Clarke,  13  Law  J.  B«p.  (m.s.)  Bankr.  23 ;  3  M. 
D.  &  D.  736. 

(*)  Mortgagee, 
An  equitable  mortgagee  of  an  estate  of  which  the 


BANJ(EUPTCY-(F«cM>r  ot  Dnv). 


83 


liaalmipt  u  legally  the  Qwnect  vulj  prore  without 
giving  up  mis  security  if  the. estate  which  is  subjeot 
to  the  mortgage  be  so  encumbered,  that  the  bank- 
nipt  would  have  no  beneficial  interest  in  it  if  the 
mortgage  were  removed* 

A  partnership  consisting  of  a  (athec  and  son  is 
dissolved ;  the  fatiier  equitably  mortgages  an  estate 
of  his  own  to  secure  a  debt  due  from  the  son 
separately,  and  efterwards  dies  indebted  jointly 
with  Uie  son  to  an  amount  more  than  sufficient 
to  exhaust  his  assets  including  the  mortgaged 
estate,  even  if  the  mortgage  were  removed.  The 
estate  desceoda  to  the  son,  who  becomes  bankrupt : — 
Held,  that,  the  mnrtgagee  might  proves  ^d  keep  his 
security.    Ez  parU  Twmy  re  Taylor^  3  M.  D.  &  D. 

Where  i^  legal  mortgagee  had  obtained  the  com- 
missioner's order  for  sale  of  the  property  comprised 
in  the  security,  and  part  of  the  property  had  been 
fold,  and  the  proceeds  applied  in  reduction  of  the 
debt,  and  the  remainder  of  the  property  proved 
unsaleable, — the  mortgagee  was  permitted  to  give 
up  the  unsold  property  and  prove  for  the  unpaid 
portion  of  his  debt  JEx  parte  Greaves  re  Price,  1  De 
Gex,119. 

(0 


Bt  parte  Lam  re  Hayne^  4  Law  J.  Dig.  75;  1 M. 
D.&P-16. 

By  a  partnership  deed  a  partner  entitled  to  one- 
fourth  of  the  capital  and  profits  en^ges  to  furnish 
more  than  hia  proportion  of  the  capit^  if  required, 
it  heing  agreed  that  the  excess  should  at  his  death 
%e  secured  to  his  representatives  by  a  mortgage 
upon  the  partnership  property,  he  having  power  to 
appoint  by  will  one  or  more  of  his  sons  to  succeed 
to  his  fourth  part;  by  his  will  he  appoints  such 
of  his  sons  to  succeed  him  as  should  be  selected 
by  bis  widow  and  one  of  his  partners,  whom  he 
appoints  his  executrix  and  executor^  but  directs 
that  during  the  minority  of  the  sons,  and  afler 
providing  for  their  maintenance,  the  surplus  profits 
of  his  share  shonld  fall  into  his  residuary  estate. 
At  his  death|  the  sons  being  minors,  the  business 
is  carried  on  as  before,  the  testator's  represeiv> 
tatives  taking  his  place,  but  not  taking  or  calling 
ibr  any  security  ibr  the  debt  due  to  his  estate  in 
respect  of  the  excess  of  capital  advanced  by  him. 
On  the  widow  dying,  and  the  surviving  partner  be^ 
coming  bankrupt: — Held,  that  there  could  be  no 
Tight  of  proof  on  behalf  of  the  testator's  estate  against 
the  joint  estate  of  the  surviving  partners  in  respect 
of  this  debt  Ex  parte  Thompeon  re  Derkam^  2  VL 
D.  &  D.  761. 

A  covenant  by  two  continuing  partners,  with  a 
third  who  had  retired,  to  pay  the  debts  of  the  parU 
nership,  was  held  to  give  no  right  of  proof  to  the 
creditors  of  that  partnership,  in  competition  with 
the  creditors  of  the  two— nor  to  entitle  them  to  any 
lien  upon  the  partnership  eficcts  assigned  to  the 
two  in  cousideration  of  such  .covenant.  Ex  porta 
Curmeff  re  GUucott,  13  Law  J.  Bep.  (n.b.)  Bankr. 

17. 

Two  of  the  members  of  an  iron  company  carry 
on  a  distinct  trade  as  bankers,  but  are  not  the  ordi- 
nary bankers  of  the  company.  They  make  ad- 
vances at  interest  to  die  company  for  the  purpose 
of  relieving  it  when  it  is  in  a  state  of  difficulty  and 


preunre,  and  without  taking  or  asking  for  any 
•ecurity,  and  under  such  circumstances  as  to  lead 
to  the  inference  that  the  advances  would  not  have 
been  made  had  not  the  bankers  been  partners  in 
the  iron  company.  On  the  company  becoming 
bankrupt, and  there  being  no  evidence  except  such  as 
was  furnished  by  the  nature  of  the  transaction  itself, 
that  the  character  of  a  banking  transaction  belonged 
to  it, — Held,  that  the  advances,  though  made  in 
fact  by  bankers,  were  not  made  by  them  in  their 
character  of  bankers,  and  were  not  consequently 
dealings  between  trade  and  trade,  giving  a  right  of 
proof  against  the  estate  of  the  company, — the  use  of 
the  facilities  afforded  by  a  trade  not  being  neces- 
sarily a  use  of  them  in  the  trade  itself  Ex  parte 
mUiamt  re  Oliver,  8  M.  D.  &  D.  433. 

(m)  Seroantt. 

The  Court  authorized  to  direct  the  payment  of 
three  months'  wagee,  or  salary,  not  exceeding  80/., 
to  any  servant  or  clerk  of  the  bankrupt,  and  any 
wages,  not  exceeding  40j.,  to  any  labourer  or  work- 
man, by  5  &  6  Vict  o.  122.  ss.  28.  &  29;  20  Law  J. 
Stat  App.  xiii. 

Semble,  that  it  is  not  competent  for  the  assignees 
tx>  withhold  the  payment  of  wages  or  salary  to  a  clerk 
or  servant,  upon  an  alleged  case  of  neglect  of  duty, 
unless  prepared  to  go  into  evidence  to  shew  sudi 
neglect  If  not,  the  allegation  to  that  effect  will 
be  struck  out  by  the  Court  as  scandalous  and  im- 
pertinent Ex  parte  Hampton  re  BurkiU^  1 1  Law  J. 
Ren.  (v.8.)  Bankr.  12;  2  M.  D.  &  D.  462. 

A  nuUe  or  other  seaman  is  a  servant  within  the 
6  Geo.  4.  c.  16.  s.  48,  and  as  such  entitled  to  six 
months'  wages  in  fkill. 

The  servant  of  a  bankrupt  is  not  entitled  to  six 
months'  wages  in  priority  to  the  payment  of  the 
costs  of  working  the  fiat  Ex  parte  Hamhorg  re 
Hudeouy  II  Law  J.  Rep.  (k.Sv)  Bankr.  24;  2M. 
D.  &  D.  642. 

A  lent  a  sum  of  money  to  B,  and  an  agreement 
was  entered  into  at  the  time  of  the  loan  that  B 
should  take  A  as  his  clerk  at  a  salary  of  200/.  a  year 
to  attend  to  the  cash  department  only.  In  No- 
vember 1844,  A,  who  was  then  suffering  horn  illness, 
absented  himself  from  the  business  of  B,  with  the 
consent  of  B.  In  February  1845,  B  became  bank- 
runt:— Held,  that  A  was  entitled  to  80/.,  under  6  & 
6  Vict  c.  122.  s.  8.  Ex  parte  Harris  re  CUpeon,  14 
Law  J.  Rep.  (N.a.)  Bankr.  26 ;  1  De  Gex,  165. 

(n)  Where  there  it  Security  for  the  Debt, 

Where,  under  a  bankruptcy,  parties  have  proved 
their  debts  on  the  footing  of  holding  no  security, 
they  will  not  generally  be  permitted  to  withdraw 
their  proo^  and  set  up  a  security;  but  ignorance  of 
the  existence  of  a  security  may  be  ground  for  grant- 
ing relief  to  a  party  who  has  so  proved.  Grugeon 
v.  Gerrard,  4  Y.Si  0,119, 

A  guarantie,  though  not  stamped  at  the  date  of 
the  bankruptcy,  may  be  proved  when  stamped.  Ex 
parte  Nicholton  re  Sheppard^  10  Law  J.  Rep.  (n.s.) 
Bankr.  8. 

A  being  a  bond  fide  holder  of  two  bills,  accepted 
by  the  bankrupt,  for  the  payment  of  which  he  also 
held  a  security,  transfers  the  security  to  B,  who 
proves  for  the  amount  under  the  fiat: — Held,  that 
such  proof  did  not  prevent  the  right  of  A  to  prove 


84 


BANKRUPTCY— (Pa<KMP  of  Dt»v). 


also  oa  UiA  bills,  though  k  miglit  be  a  quesUoB  for 
future  consideration  whether  he  would  be  entitled 
to  receive  diTidends  on  such  proof.  Ex  parU  -— **- 
re  Barham,  1  M.  D.  &  D.  179. 

A  entered  into  a  guarantie  for  the  payment  of  a 
debt  due  from  the  bankrupt  to  B,  upon  which  oeca^ 
sion  the  bankrupt  deposited  with  A  a  lease,  by  way 
of  equitable  mortgage,  for  his  indemnity.  B  proves 
for  the  whole  amount  of  his  debt,  and  then  A  applies 
as  equitable  mortgagee  for  the  sale  of  the  leasenold 
property: — Held,  that  before  any  part  of  the  pro* 
ceeds  of  the  sale  could  be  appropriated  either  in 
payment  to  B,  or  for  the  indemnity  of  A,  so  much 
of  B's  proof  must  be  expunged  as  the  net  proceeds 
of  the  sale  to  be  received  by  A  or  B  respectively 
should  amount  to.  Ex  parte  Sherrtngton  reBondf 
IM.  D.&D.195. 

One  of  two  bankrupts,  W  M,  being  a  partner  in 
another  £rra  of 'M  &  S,  gave  a  security  to  the  peti- 
tioners for  any  monies  that  might  become  due^ 
either  from  the  house  of  the  bankrupts  or  from  the 
firm  of  M  &  S: — Held,  that  the  proceeds  of  the 
security  might  be  applied,  first  in  discharge  of  the 
debt  due  from  the  firm  of  M  &  S.  Ex  parte  Qlyn 
re  Medley,  1  M.  D.  &  D.  25. 

A  creditor,  to  whom  a  bankrupt  has  made  an 
assignment  to  secure  a  debt  with  interest,  cannot| 
without  giving  up  the  security,  prove  upon  a  pro* 
missory  note  part  of  the  consideration  for  which 
consists  of  arrears  of  interest  upon  the  secured  debt 
Ex  parte  Clark  re  Clark,  1  M.  D.  &  D.  622. 

A  vendor  of  teas,  retaining  some  of  the  warrants 
in  his  hands,  applied  for  payment  of  them,  where- 
upon the  vendee  paid  100/.,  and  said,  *<  You  may 
hold  the  warrants  for  the  teas,  as  a  security  for  the 
remainder  of  the  account:" — Held,  upon  the  bank- 
ruptcv  of  the  vendee,  that  the  vendor  had  a  right 
to  sell  the  teas,  and  prove  for  the  deficiency,  if  any* 
Ex  parte  Tunning  re  Colee,  10  Law  J.  Rep.  (n.8.) 
Bankr.  60;  1  M.  D.  &  D. 691. 

A  &  B,  partners,  mortgage  their  joint  estate  to 
C,  and  enter  into  joint  and  several  covenants  for 
payment  of  the  mortgage  debt  Upon  their  bank- 
ruptcy, C  claims  to  hold  the  joint  security,  and  to 
prove  the  debt  against  the  separate  estate  of  such 
bankrupt: — Held,  that  C  was  entitled  to  do  so^ 
retaining  his  Joint  securiw.  Ex  parte  SkefAerd  re 
Plummerf  1 1  Law  J.  Rep.  (N.a.)  Ch.  25. 

A  partnership  firm  mortgage  part  of  the  joint 
estate  to  secure  a  joint  debt,  and  by  the  mortgage 
deed  covenant  fointlv  and  severally  for  payment  of 
the  debt: — Held,  that  on  their  bankruptcy  the 
mortgagee  might  prove  the  whole  debt  against  each 
separate  estate  without  giving  up  his  security.  Ex 
parte  Shepherd  re  Plummer,  2  M.  D.  &  D.  204;  1 
Ph.  56. 

The  title-deeds  of  property  belonging  to  one  of 
two  partners  in  trade  are  deposited  with  a  banking 
firm,  to  secure  the  balance  of  tlie  account  current 
between  the  banking  firm  and  the  partnership.  On 
a  particular  advance  being  ailerwards  made  by  the 
former  to  the  latter,  the  partner  to  whom  the  deeds 
belong  writes  a  letter  to  the  eflbct  that  the  object 
of  the  deposit  is  to  secure  that  "as  well  as  any 
fa  tare  advances;*'  an  alteration  takes  place  in  the 
ni<v;hr.rft  of  the  banking  firm,  but  the  new  firm 
r*Uia  iae  dtedM,  and  continue  to  advance  money  to 
".16  partoerihip: — Held,  that  the  existing  banking 


firm  were  entitled  to  th«  bcneit  «f  tlie  ieoarity. 
£r  fMrto  AnMk  re  Gye,  2  M.  D.  ft  D.  814. 

Where  the  bankrupt  and  his  wife  eaDeevted  a 
power  of  appointment  of  the  wife's  estate  to  a  en^ 
ditoT  as  a  security  for  a  debt  dttc  from  the  bankrvpts 
— Held,  that  the  creditor  might  prove  for  the  whole 
debt  witliout  giving  up  the  seeurity,  it  being  inemm* 
bent  on  him  to  recover  what  he  could  from  the 
bankrupt's  estate  before  he  leeorted  to  the  piupeity 
of  the  wife.  Exparte  HedderiyreHiekUm,2U.J}. 
&  D.  487. 

One  of  three  partnen  depoeita  with  a  Joint  cre- 
ditor a  bond  belonging  to  himself  to  aeeue  the 
partnenhip  debt: — Held,  on  the  banknrotcy  of  the 
partners,  uiat  the  creditor  could  prove  the  amounfc 
of  his  debt  against  the  joint  estate,  without  giving 
up  the  bond.  Em  peurte  Hamfam  re  Bidge^  2  K.  D. 
&D.  544w 

W,  the  father  of  S,  the  intended  wife»  on  the 
marriage  of  S,  gave  a  bond  to  the  trustees  of  the 
marriage  settlement,  conditioned  for  the  payment 
of  5,000i.  at  his  death.  R,  the  intended  husband 
of  S,  covenanted  with  the  trustees  to  pay  to  tfaeaa 
5,000i.  after  his  death,  and  assigned  to  them  p^- 
cies  of  assurance  for  5,000^,  with  a  declaration  that 
the  sums  received  in  respect  of  the  policies,  if  they 
amounted  to  5,0001^,  were  to  be  considered  aa  a 
satisfaction  of  the  covenant  The  trnats  of  tins 
5,000^.,  the  subject  of  the  covenant,  were  (in  the 
events  that  happened)  for  S  for  life,  with  remainder 
to  R.  R,  after  the  marriage,  became  bankrupt  and 
the  trustees  proved,  as  a  debt  against  his  estate,  for 
the  value  of  his  covenant,  and  the  sum  leceived  in 
respect  thereof  produced  4SR  stock,  and  was  in- 
vested in  their  names.  The  assignees  of  KasaigBcd 
to  W  all  the  interest  of  R  under  the  settlement, 
whether  in  the  48  U  or  the  policy  fund.  R  died, 
and  5,99R  stock,  the  produce  of  the  policies,  was 
invested  in  the  names  of  trustees.  W  beeame  bank- 
rupt and  died:— Held,  affirming  the  decision  ef  the 
Court  below,  that  the  trustees  of  the  settlemenC 
were  entitled  to  hold  the  two  sums  of  43R  and 
5,99 U.  agidnst  the  assignees  of  W  towards  satisfao' 
tion  of  t£»  bond  of  W.  Burridge  re  Bow,  13  Law  J. 
Rep.(N.8.)Ch.l78;  1  Y.&Col.C.C.183:  affirming 
S.C  11  LawJ»Rep.(N.8.)Ch.869;  Ib.588. 

A,  having  some  Cuba  bonds  deposited  in  a  bos 
at  his  bankers',  lent  part  of  them  to  one  of  the 
partners  in  the  banking  house,  who  deposited  in 
the  box  eome  railway  shares  as  a  security.  The 
firm  afterwards  became  bankrupt,  and  A  then  dis- 
covered that  the  railway  shares  had  been  abstracted 
from  the  box  by  the  partner  who  had  deposited 
them,  without  the  knowledge  or  concurrence  of  the 
other  partners,  and  that  he  had  lodged  otiier  shares 
in  lieu  of  them: — Held,  that  A  was  entitled  to  the 
proceeds  arising  from  Uie  sale  of  the  shares  which 
were  deposited  in  the  box  at  the  time  of  the  bank- 
ruptcy, in  part  discharge  of  the  loan  made  by  him 
to  one  partner,  and  that  he  was  entitlod  to  pioTe 
against  his  separate  estate  for  any  deficiency,  bat 
that  he  was  not  entitled  to  prove  against  the  joint 
estate  of  the  firm.  Ex  parte  Eyre  re  Biddulph,  1 2  Law 
J.  Rep.  (N.S.)  Ch.  266 ;  8  M.  D.  &  D.  12;  1  Ph.  227. 

Merchants  procure  accommodation  firom  banken 
on  entering  with  sureties  into  a  covenant  to  pay  the 
floating  balance  due  from  time  to  time  up  to  a  cer- 
tain limited  amount,  subject  to  a  proviso^  that  in  the 


BAKRRUPTCT— (PBOor  or  Dxbt)* 


85 


ffmt  of  the  flnioviit  dne  exoMdinf  at  diat  time  the 
fixed  timk,  any  dhridends  reeehred  under  the  hank- 
ruptey  ahonld  he  applied  exolnaiTely  in  payment 
ef  the  ezeeea,  withoat  the  raietiea  being  entitled  to 
any  part  of  the  ^videnda  nntil  the  whole  of  such 
ezeeaa  waa  pakL  Seme  of  the  anretiea  take  from 
ane  of  the  principal  debton  a  counter  security  and 
indemnitir,  in  respect  of  their  liability  under  the 
amount,  but  without  the  bankera  having  notice  of 
die  tranaaetion.  The  merchants  became  bankrupt, 
being  indebted  to  the  bankers  beyond  the  limit 
fixed  by  the  deed,  and  the  hankers  receive  difidends 
OD  the  whole  debt,  and  recover  the  amount  secured 
by  the  deed  from  the  sureties,  two  of  whom  are 
reimbursed,  by  means  of  their  counter  security,  out 
of  the  separate  estate  of  one  of  the  bankrupts:-^ 
Held,  that  the  bankers  were  entitled  to  retain  the 
whole  amount  so  received  by  them.  Ex  parte  Hope 
re  Permmdee,  S H  D.&  D.720. 

(e)  Sureties, 

Bankera  made  an  advance  to  a  customer  on  the 
seenrity  of  a  joint  promissory  note  of  himself  and  a 
surety.  The  eualomer  altmwards  pays  into  the 
bank  generally  sums  exeeeding  the  amount  of  the 
advance,  but  also  draws  out  a  still  larger  amount, 
and  beoomea  bankrupt: — Held,  that  the  surety  is 
not  entitled  to  have  the  payments  appropriated  in 
discharge  of  the  sum  secured  by  the  note.  Ex  parte 
WkUtpertkre  Mayor,  2 M. D.  &D.  164. 

(p)  Trust  Money. 

A  bankmnf  s  reversionary  interest  under  the 
tittsCa  of  a  wik,  erdned  to  be  sold,  and  the  proceeds 
applied  in  making  good  moniea,  which  had  come  to 
hia  hands  aa  trustee  under  the  same  trusts,  and  had 
been  miaapplied.  Ex  parte  Bardman  re  ifelyneux, 
S  M.  D.  &  I).  659. 

Where  the  bankrupt  and  his  co-tmstees  had  been 
guilty  of  s  breach  of  trust,  and  a  bill  in  Chancery 
had  been  filed  against  them  by  the  eestuis  que 
tnut  for  an  account,  which  suit  was  pending  at  the 
time  of  the  bankruptcy,  the  cesiais  que  trust  were 
permitted  to  enter  a  claim  for  the  amount  due  to 
them,  without  prejudice  to  the  Chancery  suit,  and 
all  dividends  in  respect  of  the  claim  were  ordered 
to  be  tranaferred  by  the  accountant  in  bankruptcy 
to  the  credit  of  the  bankruptcy  and  of  the  suit.  Ea 
parte  Stately  re  M*NHl,  1  M.  D.  &  D.  648. 

Where  a  party  at  the  time  of  a  misapplication  of  a 
fond  by  the  trustee  was  cognisant  or  the  fact,  but 
had  then  no  right  or  interest  whatever  to  the  fund, 
sad  afterwards  acquired  such  right  as  administrator 
to  the  cestui  que  <rw/.— Held,  that  his  rights,  as 
adminititrmtor,  were  not  aflected  by  such  previous 
knowledge,  on  the  ground  of  acquiescence.  Where, 
therefore,  the  trustee  in  such  a  case  became  bank- 
rapt,  alter  committing  a  breach  of  trust,  the  ad- 
miaistmlor  of  the  cestui  que  trust  was  not  provented 
fnea  proving  for  the  amount  of  the  interest  in  the 
trost  fund,  which  accrued  due  in  the  lifetime  of  the 
testui  que  trust.  Ex  parte  Smith  re  Clarke,  2  M.  D. 
&D.U3. 

A  testator,  after  giving  2,000^  to  his  daughter, 
directed  that  she  should  let  her  said  legacy  remain, 
eontinue,  and  be  in  the  hands  of  his  executors  (his 
three  sons),  until  she  should  marry,  and  he  charged 
the  payment  ^  it  upon  his  real  estate,  which  he 


devised  to  his  three  eOns;  all  the  three  sons  died, 
having  devised  their  property  to  the  bankrupts: — 
Held,  that  Uie  legacy  was  payable  now  out  of  the 
nal  estate,  though  the  legatee  was  never  married. 
Ex  parte  and  re  Porster,  10  JjairJ,  Rep.  (N.8.)  Bankr. 
34t  1 M.  D.  &  D.  41 8 :  affirmed  10  Law  J.  Rep.  (m.s.} 
Ch.  240t  2M.D.&D.177. 

¥rhero  a  joint  fiat  issues  against  the  troasnror  of 
a  savinga  bank  and  his  co-partner  in  trade,  the 
trustee  can  (under  the  8  WilL  4.  c.  14.  a.  28.) 
claim  only  a  priority  of  payment  of  any  debt  owing 
by  him,  out  of  his  separate  estate,  and  have  no 
claim  whatever  against  the  joint  estate,  although 
the  separate  estate  may  prove  insufficient  to  satisfy 
the  debt  Ex  parte  Appaek  re  Ashley ,  1  M.  D.  &  D. 
88. 

MThero  a  bankrupt  trustee  has  sold  out  stock, 
forming  the  trust  ftind,  and  converted  the  proceeds 
to  his  own  use,  proof  may  be  made  against  his 
estate,  either  for  the  amount  of  the  produce  of  the 
stock,  or  for  die  value  of  the  stock,  at  the  time  of 
his  bankruptcy,  as  shall  appear  most  for  the  benefit 
of  the  cestui  que  trust.  Ex  parte  Gamer  re  Iveson, 
1  M.  D.  ft  D.  497. 

A  marriage  settlement  recites  that  it  had  been 
agreed  that  a  debt  should  be  assi^ed  to  the  trus- 
teea  upon  trust,  after  calling  it  in  to  invest  the 
money  upon  such  security  as  should  be  approved 
of  by  the  husband  and  his  father,  either  on  govern- 
ment, real,  or  personal  security,  and  by  the  wit- 
nessing part,  the  debt  is  assigned  upon  trust  on 
calling  in  and  investing  the  same  on  government, 
real,  or  personal  security,  or  in  the  purohase  of 
lands,  at  the  sole  order,  and  by  the  sole  direction, 
consent,  and  approbation  of  the  husband  and  his 
father,  or  the  survivor  to  stand  possessed  thereof, 
on  the  trusts  therein  mentioned.  Then  followed 
the  trusts,  and  a  power  in  the  usual  form  for  the 
trustees,  with  the  consent  of  the  husband  and  his 
father,  or  the  survivor,  in  writing,  to  invest  the  trust 
money  in  the  funds,  or  on  roal  seenrity,  or  in  the 
purchase  of  freehold  or  leasehold  estates : — Held, 
that  the  last  clause  controlled  and  interpreted  the 
former  parts  of  the  settlement,  and  that  the  loan  of 
the  trust  fiind  to  a  bank,  in  which  one  of  the  trus- 
tees was  a  partner  on  an  interost  note,  without  a 
written  consent,  was  a  breach  of  trust  constituting  a 
proveable  debt  against  the  separate  estate  of  the 
trustee.  Ex  parte  HakeweU  re  Wise,  2  M.  D.  &  D. 
607. 

Leave  given  for  a  third  person  to  prove  agunst 
the  estate  of  a  bankrupt  trustee,  though  there  was 
a  solvent  co-trustee.  Ex  parte  Harris  re  Osbal" 
diston,  1 1  Law  J.  Rep.  (n.8.)  Bankr.  16. 

Infant  cestais  que  trust  being  entitled  to  a  sum 
of  stock  standing  in  the  names  of  trustees,  subject 
to  a  Hfe  interest  in  their  mother,  and  to  a  power  of 
appointment,  which  has  not  been  exercised,  the 
trustees,  in  violation  of  the  trust,  sell  out  the  stock, 
and  advance  the  proceeds  to  the  fother  of  the  eestuis 
que  trust.  In  a  Chancery  suit,  instituted  by  one 
of  the  infants,  the  trustees  are  ordered  to  pay  into 
court  the  amount  which,  by  their  answer,  they 
admitted  to  have  received  upon  such  sale.  They  do 
not  comply  with  the  order,  but  become  insolvent, 
and  one  becomes  bankrupt: — Held,  that  the  eestuis 
que  trust  were  not  entitled  to  an  order  to  prove 
against  the  estate  of  the  bankrupt,  either  for  the 


9« 


BASMMXJVIQX^i^woo^  dff  1>mt>. 


iK^VQ  «C.^  otj^itl  fmai  «if>'«tQ«k,  91  for  Uie  wm 
qwdeteAUi  be  paid  into  wmt,  but  only  to  aoi  order 
to  go  in  and  make  Buch-proorf  as  Uvey  oould  aalabUah  { 
the  djridfinda  on  tbe  proof  to  be  paid  ialocoturt 
fyaparU  CMwrg  Wekfh  &M,  D.  &  D,  327. 

By  a  mavriage  aettlenioiit  «i  sum  of  money  waa  tff 
be  reoehred  by  the  tnistcieay  aad  inveetfcd  in  real  or 
goyemment  seewritiea,  and  tbe  interest  waa  to  be 
paid  totke  vrife  for  liftv  for  ber  aepaxato  use,  wi^ 
out  a  po^r  of  finticipation,  fvitb  remainder  tQ  tb# 
f;biidrep,  Que  of  tbe  tmatees  'reoeivea  the  .moxteyi 
and  Adv^mcm  it  to: a  pantporsbip  of  mercba«ia  witfa'* 
out  talclii^  fi^F  seoiirity*  He  jeceirea  tbe  intereat 
fsi9^  tbe  pactnemhipi-  and  paya  U  over  .to  tbe  wi^ 
reg?K3arly,  up  t«  l^e^  tim«  «f  to  deaths  afterwnzds 
tbe  partneiahip.paya  tbe  iAlev<^t  to  tbe  wife  directly^ 
and  witbooit  tbe  mteiTenltion  of  tibe  aurviving  trus<» 
te^  Ip,  the  paitnerabfp.bfiiolEB  t^  acceui^ta  relating 
to  tbf9  wbole  tranwatwo  are  entered  aa  between  tbe 
lYlfe and thepajrtpfecabip  only.  Upon  tbe pactner-* 
fbip  beoomuig  ,baiikropt,-T-Held«  tbat  tibe,  partnera 
^ad.  oonstituttd  tbemaelycs  directly  tn^ateef^  and 
tbat  the  proof  on  behalf  of  the  truat  eatat^  mghit 
he  made  either  ag^st  the  joint  estate  or  tbe  atpa- 
raieeatates*    JSapof^  ^09^fy4«r(9a^9i%d  M.I>« 

,4HM»ie— Whether  there  would  hare  beoi  a  r^t 
of  proof  against  Ihe  ae9»arato  eatatoa  if  i^he  firm  had 
been  eonatrnetive  truateea  only*  or  whether  tbe 
term  "amttriivtwe  tT%$f*  is  sn^Spiently  definite^  to 
admit,  of  any  geaeml  rule  b^ag  laid  down  upon 
the  point*  >  Ibid* 

Wbece  aa  ezeeutor,  who  waa  also  reaiduaxy  lega<i 
tee*  bad  part  of  hia  leatatofa  estate  in  bis  banda  4(t 
tlM  time  ofbia  bankirvptey,  a«d  a  pxnof  .h«d  been 
made  in  xespeet  thereof,  a  legatee  was  held  entitled 
jtotpf^ment  In  |iill|  oat  of  tba:diridends. .  ^  parU 
ajfiomreWHt,  11  Law  Jr  9«p»  (K.a.)  Bankr.  21; 
a.  e.  £x  parte  Turner  re  Wett,  2  M.  D.  &  D4  613.< 

(r)  Decrees,  Judgments^  and  Costs, 

.  Where  &  plainitiff  obtained  a  decree  against  the 
defendant;  raferring  it  to  the  Master  to  take  an 
aoeoont  of  viiat  waa  dne  to  the  plaintiff,  and  tbat 
what  tbe  Maater  should  so  ilnd  to  be  due  should  be 
paid  to  the  plaintiff  with  coats,  to  be  taxed  by  tbe 
Master*  and  tbe  Master  did  not  make  his  report 
until  after  a  fiat  had  iasued  against  tbe  defendant  1 
•n^Ueld,  Uiat  tbe  decree  was  not  final,  and  therefore 
tbe  plaintiff  waa  not  entitled  to  pnoTe  for  the  amount 
af  die  debt  and  eoste  found  due  by  tbe  Master'a 
veport.   Ex  pm-te  Crosse  re  Bedmgfieldi2.lLl^.&l>. 

Queere — Whether  thexsommissionerB  baveautho* 
rity  to  inquire  into  the  validity  of  a  judgment  which 
|a-  the.  foundationr  of  tbe  proof  of  tbe  petitioning 
ai^ditor'a  debt.  Sembh,  t^t  thc^  may  at  aU  events 
iiv^vdce-  bow-  much  is  due  en  the  judgment;  JSsi 
pm'te  Pretfiett  re  Frescattt  1  M,  2>.  &  P.  199. 
•  Wherej  bowev«ri  tlte  bai^krupt  might  liave  im^ 
peached  jke  judgment,  six  months  before  the  issuing 
of  the  fiat,  and  did  not  petition  to  ani;iul  until  six 
months  after  it  bad  isaued^  an  inquiry  was  refused* 
Ibid. 

.  Altbovgb.a  creditor,  whose  debt  has  been  inserted 
in  tbe -schedule  of  a  party  taking  the  benefit  of  lUs 


lAtolvant  J>abtora  AptJ#  BQtpiss««ntf9dfiP9in{>BOfaig 
for  the  balance  of  bis  debt,  under  a^anhsequent  Hat 
against  tbe  insolvent^  yet  where  the  debt  is  founded 
on  »  warrant  of  attorney  given  by  the  insolvent,  and 
a  judgment  theneoi^  entec«4  up  l^  bim  in  jQcaitd  of 
bia  crediitors,  tbe  creditor  i;a«not  then  prove  lor  the 
balance  under  a  aabsequent  fiat.  £x  pvrU  Bam 
re^Cepkftime,  2  M«  D.  &  P.  #SL 

A  commenced  a  suit  against  bis  wife  iif  'tbe  ef^ 
fUetiaatical  court,,. fiw  the*  Purpose  of  obtainsi^  a 
divorce  on  tha  ground  of  aduWy>  Xbe  wife  retaini^ 
i^.proator,  to  wham  a  large  sum  became  duewjEe^ 
spect,  of  easts.  While  £e  .suit  ,waa  in  psogreaa  A 
became  baolLrupt  A\  proctor^-  atter  tbe  baiil^^ 
ruptcy,  by  A's  authority,  declined  to  ploc^ed  wi|H 
tbe  suit.  CTbe  wile's  proctor,  Mi^  tbe  uanlprup^, 
having  prooumd  a  taxjitioo  of  .)kis  coste  up  tf^ithe 
banJ(rpptQy,.and  tendered  a  proof  in  respect  tb^reiif 
against' A's  estate ;-*-Held,  that  he  WH  fiiUit}ed  to 
make  aucb  proa£ 

A  commiasjton  to  examine. witnesses  was  opeoed 
« day  or  tare  be£iwe  tbe  bankruptcyt  butwaa.xmt 
returned  uiitil  a  day  or  twp  after  ;-^eld,  that  tlie 
wbole 'of  the  costo  of  tbe  cemmissipn  were,  foir  the 
purpose  of  the  proof,  "  costo  incurred  b^re  t^ 
bankruptey.''  Ex  parte  Moore  m  re  Westrupp^  14 
Law  J.  Rep.  (n.«.)  Bankr.  19  \  1  De  Oex,  178. 

(r)  Conttngent  Debts* 

A  being  in  custody  in  execution  fisr  debt  at  th^ 
suit  of  tbe  |4ainti&,  the  defendant  gave  a  written 
pndevtaking  to  pay  tbe  amount  of  tbe  debt  by  in^ 
stalments,  in  ■  conaideration  of  A's  disobaige  oat  af 
custody ;  A,  ,at  the  same  time^  with  the  bnowledgf 
of  tbe  defendant  giving  a  warrant  of  attornegr  ta 
seoure  the  payment  of  tbe  instalments*  A.  vaa 
thereupon  disobarged  put  of  custody,  but  naraf 
paid  any  part  of  the  debt.  Before  the  first  ijDstalr* 
m^ntbeoMBe  due^  tbe  defendant  baoame.  a  bank- 
rupt, and  aubseqnently  obtained  bia  oertiJSoate  i^-^ 
field,  tbat  jM  tbe  debt  waa  kept  alive  by  tbe^  wiarnant 
of  attopra^,  tbe  defendant's  undertakiJ9g  ^ab  <MMt 
aa  absolute  premise  to  ^y  A*s  debt,  but  jb  m^re 
coUateral  agreenoent  to  indemnify  the  pl^tiQ^i 
and  no  default  having  been  made  before  the  baak> 
ruptcy»  it  was  net  a  debt  proveable  under  its.ajad 
the  defiandanf  a  oertifioate  was,  therefore^  no  bac  to 
an  action  againat  bim.  Lane  v.  Surghari,  11  Lam 
J.  Bep.  (ii.a.)  C.P.  jia ;  1  G.  &  D.  311. 

A  agreed  to  aell  to  B  for  4,0001.  a  ship  employed 
nn  a  distent  yoyacpe,  when  she  should  arrive  at  ber 
port  of  diachaige  im  tbe  United  Kingdom,  «Ad  B 
agreed  within  one  montb  after  ber  arrival,  or  within 
such  further  tincie  as  should  be  necessary  lor  effect* 
ing  tbe  repairs  and  discharging  the  caxgcw  oa  the 
execution  of  a  bill  of  sale  of  the  veasel,  to  deliTcr  to 
A  two  promissory  notea  for  the  amount  of  tbe  pnr- 
chase*naoney,  in  defnult  of  which  A  might  aell  the 
abipt  and  ke^  tbe  i^eeds  in  part  of  tbe  purchase* 
m^ney,  B-  undertaking  to  pay  to  A  &i^ J.  deficieitoy 
witbin.one  calendar /moniii  afiar  sucb  aale^  and  in 
case  tlie  vessel  should  be  lost,  the  agreement  waa 
to  be  void.  On  the  27  th  of  March  the  shiparrived» 
before  which  time  B  became  bankrupt.  On  the 
31st  of  March,  A  gave  notice  of  ber  arrival  to  the 
assignees,  who  dedined  to  complete  the  contract, 
and  A  st^d  tbe  ship  for  2,S33^ :— Held,  that  thia 
agreement  amounted  to  a  contract  on  tbe  part  of  B 


BAW1tRIJraC*^!y)bF  o*i  bi^. 


W 


mated  oir«tt6t9ier-<^Miti]igcfn«Y,  txid  that  A  could 
part  fbr  thci  lliilanc«  of  the  4,0007. ,  after  dedaeting 
Ae  atnottttt  of  the  proceeds  erf  the  sale  of  the  ship. 
^furte  Hanhmi  n  Gales,  8  M.  D.  &  D.  SM. 

Piroof  alloi^ed  on  a  contingent  annuity,  although 
ttie  eortSngeney  mfght  never  happen.  JS^  pttrte 
Broadleyre  PUeher,  11  Law  J.  Rep.  (if.8.)  Baiikir* 

Vhet^  the  pajnncnt  of  sk  de!>t  hilif>een  nostp^ed 
^  a  g;iten  tittle,  as  an  hjdehtnitjr  to*  me  debtoir 
tttimt  A^cctiitlrifegnt  loss,  the  ^de^  may  he  prored^ 
Hf^edHid^ds  will  he  tnaitttaMed  Ifr  the  meni- 
tiW^!  Stmrit  Rogttt  f*  RMimiVl  taw  J.  Rep: 

A  fftflier' hequeaths '  Mft  tmsine^s  and  stock  in 
t!tdetolhi«  sons,  with  &  det^aration  that  a  grandson , 
tlietranitiftiit,  shonld  be  admStft<d  fnto  tin  firm  on 
Mttnaing  titent3r>oni»,  or  In  deftnlt  thereof  that  thft 
sons,  or  the  survivor  of  them,  should  pay  the  gratid^* 
wt  1,0Wt  on  his  attaining-  twenty-one.  On  'the 
h^toniptey  of  the  surviving  son  before  the  grandsoti 
•ttaioed  twenty-one  t — Held,  that  there  was  a  tight 
of  IJWiofibr  the  1,000C  as  a  contingent  debt.  Ex 
fvte'Me0areff  re  Megterey,  1  De  Ge«,  1^. 

A  vendor  of  cotton  in  Anaerioa^  by  direction  of 
^  purchasers  in  England,  ships  the  cotton  on 
bMrd  If  vessel  belonging  to  the' latter.    The  pur- 
^lutsen  become  bankrupt,  and  atterwards  tlie  Teasel 
■ttivei  hi  England  and  is  taken  possAssion  of  by  a 
iM%i0^in  right  ofhife  ihorfgage.  Themoitgage^  . 
^«i^pai«to  be  a  partnei^-in  a  fiim,  who  are  the  agents 
tif  ttefVtjndor,  and  nptfn  a  notios  ftom  them  daim-^ 
^  slight  to  stop  the  cotton  in  iratuUu,  he  permits 
Ruih  hi^lake  noMession  ef  it    They  sell  it  at  i 
li^tedgfveQieSr  principal  credit  in  his  accooiit 
^  flle  nroeeeds.    The  vendor  beeome»  bankrupt 
Ai»  iietmri  of  troyer  fbr  the  cotton  is  commenced 
'^fltf  the  mortgagee  by  the  purchasers'  assignees 
^  N  cimpromls^y  upon  the  terms  of  the  pur* 
clutters'  assignees  proving  against  the  estate  of  the 
▼M4or  ht  the  amount  of  the  proceeds,  for  the  be- 
i>^bf  the  mortgagee,  the  ktter  agreeing,  in  the 
went  of  no  dividend  being  paid  by  a  certain  dar, 
Aatjndgraent  for  the  full  amount  of  the  proceeds 
^lottk^  be  entered  up  against  hhn  in  the  action. 
Proof  is  made  accoraingly,  but  no  dividend  paid, 
in'  t&e  mortgagee  pays  the  ftilf  amount  of  &e  pro- 
ceeds of  %e  sale  to  the  purchasers*  assignees.    Use 
♦*n^'s  assignees  Aen  tender  a  proof  for  the 
^^riginal  price  of  the  cotton  against  the  estate  of 
^ptmshtriers.    Held,  that  the  proof  ought  to  he 
sdn^tetf  ftr  the  fuH  amount    Ex  partt  Mbhjneut 
rt  JfwOtenim,  1  De  Gex,  121. 

By  the  custom  of  the  tea  trade,  when  teas  are  sold 
*t  aghren  prompt  or  future  day  ef  payment,  the 
^"^pays  a  deposit  In  part  payment  of  the  purchase- 
^Mtoey,  and  the  rendor  retains  the  teas  or  warrants 
J^weinitMig  them,  tintil  the  day  M  prompt ;  when  if 
^fnlt  to  pay  the  balance  of  Hie  purchase-money, 
t»e  vendor  is  at  liberty  to  re- sell  the  teas  and  to 
2*n?e  the  purchaser  with  any  deficiency,  together 
^A  itttemt  firom  the  prompt  day,  warehouse 
Kot,  Stc : — ^Held,  that  where  the  vendee  became 
hukmp%  before  the  day  of  prompt,  and  the  assig- 
nees refused  to  take  the  teas,  or  pay  the  balance  of 


{h^^unihase-^oifey,  the  t«flddr  n^Ht  revolt  thi^m, 
l»d  prove  for  th^  amount  of  the  deflciendy.  Ejt 
petrie  Migatt  t9  Taie,  1  M:  D.  ft  D.  282. 

A  debtor  in  1881,  agreed  with  his  credrCor  to 
pay  him  a  composition  or5«.  in  the  pound  upon  the 
amomit  of  his  debt,  by  instalments.  The  iritt  in- 
stalflf^nt  was  paidj  irhen  the  creditor  agreed  to  giti^ 
the  debtor  a  release  in  full,  on  his  paying  the  balance 
of  the  ctmipoaition.  The  debtor  mkAt  defkuH  $ti 
payment  of  the' balshoe;-but,1n  February,  1889, 
being  pressed  ibr  'the  payMent  of  the  demand  ^ 
the  creditor,  he  made  a  peymenr  of  MWL  ih  part 
of  the  baltmee  Hf  the  eempo«M(m,  and  required  ^ 
receipt  asfo^  a  composltrMi  of  6«.  in  the  pbund  ttptaA 
the  balance  of  account  owing  by  him.  The  dTediloT 
acknowledged  the  payment  of  the  1002.,  but  declined 
sigUing  a  receipt  fu  thisfbrm.  tm  Septemb^  1 899, 
&e  debtor  became  bankrupt: — Huld,  thtt  the 
agre^meut  for  tlie-  composition  did  not  preclude  the 
creditorihmi  proving  for  the  batanoeof  thecrrigfmd 
debt,  and  that  it  was  not  burred  by  the  Statute  of 
I/imitatlons.  £«r  parte  BttUten  re  Wbth€t»poe»,  f 
M.  D.  ft  I>.  28». 

Where  an  order  direets  that  all  proceedings  had; 
and  taken  tmder'a  n^parate  flM;>sbftU  betransforM 
to,  and  incorporated  with,  the  proceedings  under  4t 
itntkt  one,  the  eommiMioners  are  bound  t«f  tidmit 
the  proofk  as  they  stand  under  the  separate  fiat, 
and  cannot  insist  on  a  neditor  dedaeting  the 
auKmut  of  a  dividend  received  by  hhn  under -tb^ 
septfate  flirt,  and  proving  onfy  for  the  balanced 
his  debt  under  the  joint  fiiat  Ex  parte  Bemwm  ¥e 
Haddon,  1  M.  D.  ft  D.  50^, 

A  partnership  firm  mortgage  part  of  the  joint 
eMite  to  aecure  a  joint  debt,  and  by  fhnfr  m«rtgige 
^ed  covenant  jOfUtly  add  severally  for  paymeut  of 
the  debt!— H^d,  t^t  on  their  bankmpt»y'  Ale 
mortgagee  might  prove  the  whole  debt  asuinst  eadt 
separate  estate,  Without  giving  up  his  ooouri^. 
Sat  parte  Shepherd  re  Pktimii^t  2  hf.  D.  &  D.  20^^ 

1  Ph.  ^.  V  .  .   . 

The  petitioners  being  equitable  mortgagees  of 
certain  property  of  the  bankrupt's,  obtained  the 
usual  order  for  the  sale  of  the  property  with  liberty 
to  bM,  and  to  prove  for  any  defiei^cy.  They  als^ 
held  the  joint  and  several  bonds  of  the  banitrant 
for  the  payment  6f  the  mortgage  money.  The 
petitioners  obtained  the  usual  order  In  the  case  «f 
an  equitable  mortgage,  with  Hbertyto  bidandprov^ 
for  any  deficiency,  and  the  estate  waa  sold  to  <}ne 
of  the  petitioners  for  a  sura  amounting  neariy*  to 
the  whole  debt : — ^Held,  that  the  petitiouera  eduld 
not,  under  these  cireumstanees,  prove  agnnsi'  the 
separate  estates  on  the  bonds  for  the  full  amount  iof 
the  debt,  but  only  for  the  deficiency  unsatisfied  'by 
the  proceeds  of  the  sale.    Ex  parte  Reynalre  Cfife, 

2  M.  D.  ft  D.  637. 

A  trustee  under  a  will,  permits' the  ttvst  fund  am 
the  monies  are,  from  time  to  thrie,  i^ali^ed  lobe 
paid  into  the  hands  of  certain  bankers  who  have 
knowledge  6f  the  trusts.  One  of  the  pattners,  with- 
out the  assent  of  the  trustee,  deals  with  a  jportioti  of 
(he  fhnd  by  inveslSng  it  on  mortgage  i-^Beld^  that 
the  bankers  were  not  jointly  and  separately  liable  ih* 
the  character  of  the  trustee,  but  that  they  on^y 
incurred  a  liability  as  between  banker  and  customer, 
and  that  on  the  hnnkruptey  of  the  bankers,  the 
trustee  could  only  prove  against  their  j<»in  testate 


88 


BANKRUPTCY— (Mutual  CAB^rr  Airi)  Sit-Off). 


for  BQch  balanee  as  was  in  tbeir  hands  at  the  time 
of  the  bankraptcy.  Ex  parte  Burton  re  Biddulpk, 
S  M.  D.  &  D.  364. 

Semble,  that  the  sum  laid  out  on  mortgage  must 
be  cousidered  as  in  their  hands  at  the  time  of  the 
bankruptcy,  although  the  mortgage  itself  might 
enure  for  the  benefit  of  the  oeetm  que  trust.    Ibid. 

Executors  pay  the  legacies  bequeathed  to  in- 
fants to  their  father,  who  invests  them  on  colonial 
securities,  and  makes  lai^  profits,  and  becomes 
bankrupt : — Held,  that  the  legatees  were  entitled 
to  have  proof  made  upon  the  whole  amount  of  the 
profits.  Ex  parte  Montefiorere  Mont^fore^  I  De  Gex, 
174. 

(tt)  Expunging. 

It  is  not  a  neoessary  consequence  of  an  order  to 
expunge  a  proof  that  the  party  must  refund  any 
dividends  received  upon  it.  Ex  parte  fVileon  re 
Bentley,  1  M.D.  &  D.  1186. 

The  Court  will  entertain  the  application  of  a 
single  creditor  to  expunge  a  proof.  Ex  parte  Broadky 
re  Pilcher,  11  Law  J.  Rep.  (n.s.)  Bankr.  28;  2 
M.  D.  &  D.  524. 

The  Commissioners  have  no  jurisdiction  to  ex- 
punge a  proof  which  has  been  placed  on  the  pro* 
ceedings,  in  pursuance  of  an  order  of  the  Court  of 
Review,  and  can  only  expunge  a  proof  on  the 
ground  that  the  debt  is  not  aue.  And  it  is  irregular 
for  them  to  state  as  a  ground  for  expunging,  that 
the  bankrupt's  liability  has  been  dischaigeX  Ex 
parte  Whituwrth  re  Mayer,  2  M.  D.  &  D.  164. 

Case  where,  under  the  circumstances,  the  Court 
held,  that  there  was  no  legal  partnership  between 
the  bankrupt  and  a  creditor,  and  refused  to  ex- 
punge his  proo£  Ex  parte  Turquand  re  Fonder'' 
plank,  U  Law  J.  Rep.  (n.s.)  Bankr.  1 ;  2  M.  D.  &  D, 
339. 

A  proof  will  not  be  ordered  to  be  expunged 
merely  beeause  the  instrumeot  on  which  the  proof 
was  made  required  a  stamp.  Ex  parte  Byrom  re 
Byrom,  3  M.  D.  &  D.  53. 

{w)  Bettering, 

A  bill  of  exchange  was  given  by  a  bankrupt  to  a 
creditor,  in  considmtion  of  an  advance  of  money, 
made  more  than  six  years  before  the  bill  was  given, 
five  years  after  the  proof  was  made,  and  dividends 
had  been  received  upon  it  The  commissioners 
ordered  the  proof  to  be  expunged  on  the  ground 
that  the  bill  was  not  such  an  acknowledgment,  in 
writing,  of  the  debt  as  took  the  case  out  of  the 
Statute  of  Limitations: — Held,  that  the  bill  was 
sufficient  for  that  purpose,  and  consequently  that 
the  proof  must  be  restored.  Ex  parte  Wibon  re 
Bentley,  I  M.  D.  &  D.  586. 

Where  the  bankrupt  had  absconded  to  America, 
and  the  commissioners  had  expunged  the  proof  of 
a  debt,  relying  chiefly  on  the  evidence  afforded  by 
the  entries  in  the  bankrupt's  books,  the  proof  was 
ordered  to  be  restored,  as  evidence  of  this  descrip- 
tion ought  not  to  have  countervailed  the  oath  of  the 
petitioner.  Ex  parte  Boler  re  BuraUf  1  M.  D.  &  D. 
602. 

(jr)  Election. 

A  joint  and  separate  creditor,  who  has  proved 
against  the  joint  estate,  not  permitted,  without 


special  gronnds,  to  .letire  jAkmu  his  proo^  and  lo 
prove  against  the  separate  estate.  Ex  parte  Dixom 
re  RobhuoHt  2  M.  D.  &  D.  312. 

(y)  Evidence  and  Practice. 

A  judgment  creditor  need  not  produce  an  offioe 
copy  of  the  judgment,  as  a  proof  of  his  debt,  when 
he  elects  to  go  in  under  the  bankruptcy,  to  noalcc 
his  proof  as  for  a  simple  contract  debt.  Ex  pmrte 
Spiller  re  Wartert,  10  Law  J.  Rep.  (vX)  Bankr.  4S ; 
2M.D.&D.43. 

The  Court  will  not,  in  the  absence  of  evidence, 
assume  that  a  Commissioner,  in  rejecting  a  proof, 
stated  his  reasons.  Ex  parte  Mudie  re  Jamee^  1 1 
Law  J.  Rep.  (ir.s.)  Bankr.  18;  2  M.  D.  &  D.  490. 

Where  a  creditor,  through  inadvertence,  omits 
to  prove  at  the  final  dividend  meeting,  the  Court 
will  allow  him  to  call  a  fresh  meeting  for  that  pur- 
pose at  his  own  costs,  and  will  rescind  the  former 
dividend,  so,  however,  as  not  to  disturb  any  pay- 
ments made  to  the  creditors  who  have  already 
received  it.  Ex  parte  DUworth  re  SoUand,  3  M.  D. 
&  D.  63. 

Where  a  creditor  has  omitted  to  prove  his  debt 
until  siter  a  dividend  has  been  declared  and  ia  in 
course  of  payment,  the  Court  will  not  permit  him 
to  prove  so  as  to  interfere  with  the  amount  of  the 
dividend  payable,  on  the  proof  of  the  other  creditors. 
Ex  parte  M*Ckeanere  M'Cktane,  1  M.  D.  &  D.  329. 

(L)  Mutual  Cbedit  and  Set-off. 

To  a  declaration  in  assumpsit,  by  the  aasignoea 
of  a  bankrupt,  for  goods  sold  and  delivered,  by  a 
bankrupt,  the  defendant  pleaded  by  way  of  set-off, 
that  before  notice  of  any  act  of  bankruptcy,  and 
before  the  issuing  of  the  fiat,  and  before  actioB 
brought,  the  defendant  gave  credit  to  the  bankrupt, 
by  accepting  certain  bUls  of  exchange  for  his  ao» 
commodation,  and  at  his  request,  without  any  coo- 
sideration  or  value,  which  said  bills  were  before 
notice  of  the  bankruptcy  negotiated  by  the  bank- 
rupt, for  his  own  use  and  benefit  $  that  the  credit 
so  given  was  likely  to  end  in  debts  from  the  bank- 
rupt to  the  defendant ;  and  that,  afterwards,  before 
the  commencement  of  the  action,  the  defendant 
paid  the  said  bills.  On  special  demnrrer,  on  the 
ground  that  no  mutual  credit  was  shewn, — Held,  a 
good  set-ofiT,  under  the  6  Geo.  4.  o.  10.  s.  60. 

Held,  also,  that  the  asugnees  could  not  reply  a 
fraudulent  delivery  of  the  goods.  Bueeell  v.  Balif 
10  Law  J.  Rep.  (m.8.)  Exeh.  300;  8  M.  &  W. 
277 ;  1  Dowl.  P.C.  (h.8.)  107. 

The  defendants,  who  were  bankers,  had,  pie- 
viously  to  the  24th  of  October  1842,  discounted  bills 
to  a  large  amount  for  certain  customers,  who  became 
bankrupts  on  that  day,  at  which  time  the  defen- 
dants had  in  their  hands  a  balance  of  179/.  19s.  1  Id. 
belonging  to  them.  The  bills  were  indorsed  by  the 
bankrupts  in  blank,  and  two  of  them  were  paid  by 
the  acceptors  before  the  bankruptcy  $  the  others, 
far  exceeding  in  amount  the  sum  of  179L  19«.  11«L, 
did  not  become  due  until  the  16th  of  November, 
and  other  subsequent  days.  The  action,  which 
was  for  money  lent,  &c.,  was  commenced  on  the 
2nd  of  November  1842,  and  on  the  8th  of  the  same 
month  the  defendants  proved  against  the  bankrupts' 
estate  the  whole  of  the  bills,  except  the  two  which 
had  been  paid,  deducting  the  balance  of  179/.  19s. 


BANKRUPTCY— (AsflioiTBte). 


89 


iU  :^-Held»  Omt  the  defendants,  as  indorsees  of 
the  InUs,  wen  entitled  to  set  them  off  in  the  present 
actios.  AiMger  v.  Currk,  13  Law  J.  Rep.  (N.a.) 
Excb.203;  12M.&W.751. 

Aasumpsit  by  assigfnees  of  T,  a  bankrupt,  for 
money  had  and  received  to  the  use  of  the  assignees, 
Pks,  that  before  any  notice  of  any  act  of  bank- 
rnptsyy  the  deSendant  gave  credit  to  T  by  aocept- 
ing  &r  his  accommodation  a  bill  of  exchange, 
dxaim  by  T  on  the  defendant,  which  before  any 
notice  of  his  bankruptcy  T  negotiated ;  that  the 
dtdit  so  given  by  defendant  was  extremely  likely 
to  end  in  a  debt  from  T  to  defendant ;  that  ailer- 
vsidi  and  Ix^ore  the  commencement  of  the  action, 
the  defendant  paid  the  amount  of  the  bill  to  the 
ludders,  whereby  T  became  indebted  to  the  de- 
feadast  for  the  amount  of  the  bill.  The  plea  then 
allsged,  that  before  the  defendant  had  notice  of  any 
set  of  bankruptcy,  and  before  the  issuing  of  any 
fiat  against  the  said  T,  and  before  the  commence- 
ment of  this  action,  T  delivered  to  the  defendant 
two  bills  of  exchange,  accepted  b^  M  &  R,  in  order 
that  the  defendant  might  receive  the  amounts 
thereof  for  the  use  of  T ;  that  after  the  bankruptcy, 
but  befofe  the  issuing  of  any  fiat,  the  defendant 
received  tiie  amounts  of  the  bills,  and  was  ready 
and  willing  to  set  off  the  two  sums  against  each 
other.  On  special  demurrer  to  the  plea, — Held, 
first,  thai  the  declaration  was  correct  in  laying  the 
money  to  have  been  received  to  the  use  of  the 
plaintifi  as  assignees.  Secondly,  that  the  plea 
shewed  such  a  mutual  credit  between  the  bankrupt 
and  the  defendant,  as  entitled  the  defendant  to  the 
set>off  noder  6  G^eo.  4.  e.  16.  s.  60,  notwithstand- 
ing  that  the  action  was  for  money  received  to  the 
OSS  of  the  assignees.  Thirdly,  that  the  plea  was 
not  theiefine  baid,  as  it  was  not  an  argumentative 
denisl  thsidie  money  was  received  by  the  defendant 
to  the  me  of  the  plaintiffs  as  assignees.  BittUsiam 
V.  Hwiif,  U  Law  J.  Rep.  (v.s.)  C.P.  117;  2 
DowL  &  L.  P.C.  817. 

One  of  two  assignees  not  allowed  to  set  off  his 
own  debt  against  the  amount  of  a  dividend  pay- 
aUs  to  a  er^or  under  the  fiat,  although  be  swore 
that  the  creditor  had  agreed  to  allow  such  set-off 
^parti  Mfey  re  Howarth,  1  M.  D.  &  D.  263. 

A,  in  consideration  of  an  advance  of  500^  from 

^>  s  oonatry    banker,    gave    B    a    promissory 

'^^  for  that  sum.     B  £posited  this  note  and 

<^  leettrities  with  C,  his  London  banker,  to 

"^<>ffs  a  debt  due  to  Mm.     B  became  bankrupt. 

At  the  time  of  B's  bankruptcy,  A  had  notes  of  B's 

^^  to  the  amount  of  68R    The  value  of  the 

xcnritiee  held  by  C  were  more  than  sufficient  to 

m«y  him  the  debt  due  to  him  from  B : — Held, 

^  A  was  entitled  to  set  off  the  amount  of  notes  in 

^i^pouesnoo  sgainst  the  sum  due  on  the  promis- 

Miy  note^  and  was  entitled  to  a  lien,  in  respect  of 

(his  dgfat,  on  the  surplus  securities  In  C's  nands, 

without  prejudice  to  the  rights  of  other  persons 

standing  in  the  same  situation  with  himself.    Ex 

part$  StaiUmt  re  Wite,  12  Law  J.  Rep.  (n.8.)  Bankr. 

S9;3M.D.&D.2^. 

Connnissioners  are  empowered  by  an  act  of  par- 
limient  to  levy  rates  and  duties  on  vessels  entering 
a  harhonr,  and  also  tolls  on  vessels  navigating  a 
river  communicating  with  the  harbour,  imd  they 
vs  leqniied  to  apply  the  rates  and  duties  in  the 

DiOBST,  1840—1845. 


improvement  of  the  harbour,  and  the  tolls  in  the 
improvement  of  the  river.  They  deposit  the  monies 
received  by  them  with  one  of  their  number,  who 
is  a  banker,  and  acts  as  treasurer,  and  the  accounts 
and  drafta  relating  to  tlie  harbour  and  river  are 
separated  and  distinguished  from  each  other.  The 
banker  having  failed, — Held,  that  a  debt  due  from 
him  on  one  account  might  be  set  off  against  a  debt 
due  to  him  on  the  other,  and  that  the  assignees 
might  be  restrained  from  proceeding  against  the 
conunissioners  to  recover  the  latter  debt,  although 
the  set-off  would  furnish  a  good  legal  defence.  Ex 
parte  Pearce  re  Lat^mead,  2  M.  D.  &  D.  142. 

The  defendants  being  indebted  for  money  lent 
to  them  by  their  bankers,  who  afterwards  became 
bankrupta,  received  from  their  customers  on  the 
day  of  the  bankers*  stopping  payment,  but  without 
notice  of  an  act  of  banloruptcy,  certain  5L  notes  of 
the  bankrupts,  in  part  payment  of  antecedent  debts, 
on  condition  of  debiting  themselves  with  so  much 
only  as  they  should  receive  from  the  assignees  upon 
the  notes.  They  also  received  from  other  parties 
other  5L  notes  of  the  bankrupts,  for  which  they  were 
to  pay  so  much  only  as  they  should  receive  from 
the  assignees  for  such  notes.  An  action  for  money 
lent  having  been  brought  by  the  assignees  of  the 
bankrupts  against  the  defendants : — Held,  that  the 
defendants  had  a  beneficial  interest  in  the  first  de- 
scription of  notes,  and  might  therefore  set  them  ofi( 
but  that  they  could  not  set  off  the  second  description 
of  notes,  as  they  held  them  merely  as  trustees  for 
others.  Far  tier  v.  WUaon,  13  Law  J.  Rep.  (n.s.) 
Exch.  209;   12  M.  &  W.  191. 

(M)  Assignees. 

(a)  Choice  rf. 

Meetings  for  the  purpose  of  choosing  assignees, 
although  no  assignees  may  be  chosen,  are  meetings 
"for  i&  choice  of  assignees"  within  the  meaning  of 
the  1  &  2  WilL4.  c66.  Exparte  AiiUer  re  MUkr. 
14  Law  J.  Rep.  (n.s.)  Bankr.  25;  1  Be  Gex,  144. 

Petition  by  a  bankrupt  for  a  new  choice  of  assig- 
nees, upon  the  ground  that  the  administration  of 
his  estate  was  delayed,  from  the  two  assignees  not 
agreeing  together  in  the  appointment  of  a  solicitor, 
and  the  proceedings  being  impounded:— Held,  that, 
it  appearing  to  the  Court  that  the  bankrupt  and  one 
of  the  assignees  were  colluding  in  the  petition,  for 
the  purpose  of  having  a  solicitor  appointed,  who 
had  been  already  removed  from  being  solicitor  to 
the  fiat,  the  bankrupt  was  not  entitled  to  the  prayer 
of  his  petition. 

SembUj  a  bankrupt  whose  estate  is  not  likely  to 
pay  Is.  in  the  pound  may  have  a  locua  standi  in  a 
petition  for  a  new  choice  of  assignees.  Ex  parte 
Oaket  re  Oakee,  10  Law  J.  Rep.  (n.s.)  Bankr.  66  ; 
2  M.  D.  &  D.  60. 

Where  an  assignee  had  sold  his  debt  to  a  creditor 
who  was  adverse  to  the  fiat,  and  was  ordered  to  be 
removed,  and  a  new  one  chosen  in  hia  room,  he 
waa  restrained  £rom  voting  in  the  choice  of  the  new 
aasignee.  Ex  parte  Stagg  re  Burtan,  2  M.  D.  &  D. 
186. 

The  commissioners  have  no  authority  to  prevent 
a  creditor,  who  may  have  an  interest  adverse  to  the 
rest  of  the  creditors,  from  voting  in  the  choice  of 
assignees,  under  6  Geo.  4.  c  16.  s.  61.    Ex  parte 

N 


90 


QANKRUrFCl^(A«il0irmi). 


II;  aM.D.ft^D.46#* 

.  CAfee  when  th«  Court  aUoired  die  braUMur  of  ft 
lunatic  to  pcore  tod  Vote  i*  tfaeohoioe  of  ftBaigneea 
Xflr  parU  Ayhmtt  M  F^uringdm,  11  Law  J.  JBkpi 
(N.S.)  Banki.  9h 

-.  Th0  ^ttUSc  oficier  «f  a  banking  coBipafty  Qwy 
■vote  by  atMoiey  on  biAisIf  •£  lb*  company  aVtbt 
ohoioe  of  aiBigneoi.  Em  fmrU  Jekropd  rt  Mmmfm^ 
1  M.  D.  «c  D.  561. 

It  it  ft  good  pisftctice  not  to  ratify  the  cboico  of 
Bisigneesy  unleae  the  peieona  ehoMo  are  pteoentftod 
Jtooept  the  trust  i  bat  unibU^  ft  departure  from  this 
preetioe  does  not  hiTalidate  the  ftppotntment.  Ibid. 

The  oommlBsioBen^  upon  inpropet  grouada,  re* 
jeoted-a  proif  by  a  creditor*  of  ft  debt  lai^r  in 
ftinaaiit  than  all  the  otibef  debts  of  the  baaimp^ 
the  olgect  of  the  soIicBtor'a  opposition  to  the  proof 
bciag  topgevcot  the  creditor  Toting  in  the  oboioe 
of  asaigneea:*— Held,  that  the  eboiee  should  be 
Tacated,  and  that  the  craditors  sbould  nahe  *  new 
vfaoioe.  SpOler  v  Waifers,  10  Law  J.  Hep*  (K4.) 
3ankr.  48  7  2  M.  D.  &  D.  48. 

A»  B,  C,  D,  and  £  -were  traetees  of  a  (md^  of  which 
£  veodved  and  appropriated  the  ineomc^  £  waa  ftf» 
tsrwBffds'fbaBd  a  fuoknipt.  Under  an  order  of  Ihe 
G«nit«  A,  B,aad  C  proved  a  debt  against  the  estate 
of  £  in  respect:  of  the  sum  so  appropriated  by  him. 
At  a  meeting  «f  ereditors  at  wluob  A,h,C,  and  D 
alone  were  ptesent,  A,  B,  and  C  elected  D  to  be  the 
drsditOis"  assignee.  Onapetitidnofthebanhriipt^-^ 
HeM,  that  A,  Bi  and  C  were  not  orefitoxs  entitled 
to  vote  for  assignees,  and  that  their  choice  must  be 
•et  aaide.  Ex  parte  Ramt  tb  AovWiH  Law  J.  Rep. 
<N.s.)  Bankr.  17  {  I  De  Oea,  111. 

When  the  creditors  ohoosc  their  aasigneesy  and 
tfae  oommissioners  reject  one,  there  most  be  a  new 
chstee  Ex  porU  Wikim  re  motehmtd^  1  M.  D.  &  D. 
234. 

A  conptomise  of  a  contest  for  the  ehoiee  of 
'assignees  by  whsch  Ae  business  of  the  bankruptcy 
was  divided  between  two  distinct  firraa  of  solieitors, 
Who  were  to  be  jointly  appointed  solicitors  to  the  fiat, 
strongly  disapproved  9£  by  the  Conrt  Rx  pmrte 
Turner  re  Martin^  8  M.  D.  &  D.  528. 

(b)  Duties^  RighUt  and  Liabilities, 

The  Court  will  only  sanction  a  compromise  made 
by  the  assignees  with  a  claimant  against  die  bank- 
mpt's  estate  aubject  to  the  approbation  of  the  ooas** 
misdoner.    /n  re  Marekafl,  8  M.  B.  &  D.  44A. 

A  being  indebted  to  B,  absconds  to  America, 
upon  which  B  sends  out  a  power  of  attorney  to  an 
agent  there,  to  recoiver  ftom  A  what  mamcy  he  can. 
B,  hearing  of  a  similar  proceeding  by  another  ore- 
<fitor,  suee  out  a  flat  agsiskst  A,  and  is  chosen  one 
of  his  Sssignees,  and  afterwards  B's  agent  in  Ame» 
rioa  obtains  a  sum  of  monev  firom  A,  and  remits  it 
to  B  iti  England  i-^H^ld,  that  this  money  was  re- 
eeived  by-  B  iti  his  ebaractev  of  assignoe,  and  that 
B,  having  himaoif  become  bsakmpt,  might,  under 
the  6  Qeo*  4^  c.  16.  s.  106,  be  charged  with  &e 
amount^  togetber  wi<lh 'Interest  at  6L  per  eenl,  not- 
withstanding he  had  obtained  his  certificaie.  Ek 
parte  Ralph  re  Marmadukey  8  M.  D.  &  D^  881. 

If  a  sheriff  sef^  goods  under  a  writ  of ;t  fiu  vqpon 
a  judgment  fownd^  upo»  a  warrant  of  attorney, 
such  writ  becomes  tom  by  the  issuing  of  a  fiat 


ilgajnst  libA  debtor  befroo  thft  iala.  Jn  stseb  cmm 
tfterittion  ereditors  in  ftdreiso  actions}  wboft«  wiiia 
have  been  lodged  with  the  dieriff  bolora  tJse  S«««ii^ 
of  the  fiat,  take  in  prioriu  to  the  assignees  of  the 
bankrupt  Graham  v.  fntherby,  and  Grahatm  v. 
Lynee,  14  Law  J.  Rep.  (%«.>  aB.  296. 

Whkess  the  oonNBisaioBers  ftt  a  meeting  t»  AWiit 
the  accounts  of  the  sssigoees  and  deolaxe  a  clivi* 
dend,  found  a  certain  aum  to  be  in  thehan^s  of  the 
assignees,  and  declared  a  dividend  accordinglv; 
iemUif  that'  each  of  the  asaigaees  is  liable  f»r  the 
ppymont  of  the  dividend,  although  the  yriocipal 
fund  for  that  purpose  bad  been,  vseeivod  bjr  wad 
was  then  in  the  hands  lof  only  one  of  the  9mBwg^^f% 
If  an  assigDee  objects  to  be- so  charged  witb  naoney 
in  the  hM^s-of  his  co«>assignee,  he  should  atate  faia 
ol^eotioii  to  the  oonimisaiopier  at  the  audiA,  and  not 
lie  by  until  a  petition  is  presented  for  the  payment 
of  the  dividend.  Em  parte  Ridley  re  Kni^bt^  9  M« 
IX&D.418. 

Iftqiiiry  direoted  as  to  the  conduot  of  aa  asai^Ma 
in  selliag  a  rererslonary  interest  of  the  bankrapt» 
and  as  to  his  diligence  in  endeavouring  to  xeoaver 
eertain  debts.  Mm  parU  Byrem  re  Byreia»^  S  M.  JX 
&  D.  55.  ^ 

(c)  JIhwanee  t^f  Costs. 

Aasigneca  are  entitled  to  have  the  directian  of 
the  Court,  with  regard  totherightaof  pactieaolaini- 
ing  to  be  equitable  mortgagees  of  property  of  the 
bankrupt;  and  are,  therefore,  entided  to  their  ooats 
out  of  the  mortgaged  estate,  although  they  havw 
been  requeeted  to  oeneuv  in  a  sale  without  a  peti* 
tien  being  presented.  Ex  parte  Stevens  re  Smrgom^ 
fthLD.&B.  817. 

A  provisional  assignee^  who  is^made  a  defiendaaft 
iii  a  roreclaanre  suit«  ia  not  entitled  to  hare  hiscoala 
from  the  plaintifll  even  though  he  discSsiBia  by*  hia 
answer,  and  has  bo  aaacts  of  the  insolveBt*s  entslie 
in  his  handa  Appleby  v.  Duke^  18  Law  /.  Rep. 
<K.s.)  Oh.  9;  1  Ph.  278:  affirniiag  a  c.  11  X^w  1. 
Rep.  (N.a)  Ch.  104;  1  Hare,^H18. 

An  official  assignee  Who  is  made  a  defiemdaat  to  a 
foreclosure  suit,  is  not  enticed  to  hate-  hia  coots 
from  the  plaintifi^  even  though  by  his  aaavrer  he 
daimed  no  interest  eaoept  as  assignee^  asKl  dia^ 
claimed  at  tiie  bearing,  and  haa  no  aaseta  of  the 
badcrupcra  esUte  in  his  hands.  Omrk  ▼.  JV&tmai^ 
18  Law  J.  Rep.  (n.s.)  Ch.  10 ;  1  Ph.  276 :  rereraiag 
a  c  11  Law  J.  Rep.  (v.a.)  Ch.  16.;  1  Y.  Bt  Col. 
C.C.  58. 

Petition  praying  for  liberty  to  prove  a  debt  a^ainat 
the  estate  of  a  bankrupt^  on  behalf  of  a  peraao  of 
unsound  mind>«*field,  that  the  assigneea  were  not 
entitled  to  get  dieir  costs  of  the  petition  firom  the 
petitioner.  Ex  parte  Bueknallre  BiiAloii,  12  Laaw  J. 
Ren.  (N.a)  Bankr.  42. 

Petition  by  an  exeoutor,  who  had  beeonae  bank- 
rupt, for  liberty  to  prove  a  debt  against  hia  own 
estate,  in  the  oharacter  of  eiocowtor:— ^iield,  that 
the  assignees  were  not  entitled  to  get  their  coats  of 
the  petition  iipcm  ^e  petitioner.,  Bxpurte  Snotelian 
re  Ha^d,  12  Law  J.  Rep.  (sLa)  Bankr.  «7. 

An  excctttorappropriatedalegsny,  wbieh  he  held 
in  tntst,^snd  becsme  bankrupt  A  petation  ma 
prevented  by  the  eestul  qua  traete,  foe  liber^  to 
prove  the  amount  of  tha  legacy  against  ihe  ettato 
of  the  bankrupt: — Held,  that  the  assignees  wecw 


BANKRUPTCy-^(Artto#xii8). 


91 


ftiteilftledlbgett1l€4r  coiti  tff  thi»  t>etitiotr  (Vom 

J.  Re^  (ita)  Babki-.  87. 

(J)  AcHmu  and  Suits. 
[8dt  Biu«  oy  EicHANOB.] 

PloviflMit  nlftde  for  enabiiiig  Mugiiees  of  one 
nembtr  of  «  partfiereliip  to  sue  th*  debtors  otiM 
frn,  by  5  &:«  Vict.  c.  122.  s.  81 ;  20  Ltir  J.  Stat 
^p.  liii. 

Adebtopfe  a  ba[nkni]it,  vhen  sued  by  the  assignees 
withn  tketnkie  allowed  for  tlie  banlrttipt  to  dkputo 
the  flat,  empowered  to  pay  the  dobt  into  coor^  by 
6ft4^Vkl  c  122.  *.  2«  f  20  Law  J.  Stat  App.  xiii. 

Wbere  H  appeared  at  the  trials  that  after  bank- 
rapteyi  eighty-five  baddies  of  yam,  of  the  Talue  of 
1141,  had  been  delivered  by  the  bankrupt  to  the  de- 
Icttdaoti,  as  they  alleged,  to  meet  att  acocmmodatioii 
Kd  whiehlfafey  w«re  aooot  to  give  the  bankrupt;  and 
the  goods  were  accompanied  by  an  invoice,  wlii^h 
MMid  ttem  to  lie  btt^hi  by  ^  d«fetida«U  of  the 
teaknipt:— Held,  imder  those  drenmstaaees^  that 
Ike  ssDgtteaa  might  waiTe  the  tort,  and  bring  as- 
Mmpsit  for  goods  ooM  and  delivered.  RtmeU  v. 
Bell,  10  M.  &  W.  840. 

A  contract  between  a  railway  company  and  a 
builder  contained  a  clause,  that  in  case  the  builder 
iboiiid  beoome  insoltiettt  or  be-  declared  boBkrupt, 
Au,«r  ahoald  ftom  any  other  cause,  independent 
sf  the  act  of  tiR  eompny,  be  pieveated  from  con*- 
tiaaing  his  oontriet,  it  should  bo  lawful  for  the 
osBspany  to  give  him  a  notice  in  writing,  reqniilag 
hnt  to  pioeeed ;  aadthat  in  ease  the  btoldcr  should 
fixr  ssrendays  sfter  inch  notice  given,  make  dtefitukt 
in  proceeding,  it  should  be  lawful  for  the  company 
to  employ  odior  workmen ;  and  that  all  the  tools 
snd  materials  then  deKvered  for  the  porpoae  of  the 
vorks  theraby  oonCraotBd  fot,  and  then  being  on  otr 
sheet  the  site  of  tho  said  woiks,  ahonld,  upon  sneh 
dfliiaK  as  afoeesaid^  becotxie  and  be  in  all  reapects 
^oaadersd  aa  the  abaolute  property  of  the  oom* 
pony."  Notice  was  given  to  the  builder  on  the 
llthofApiiL  On  the  17th  be  heeamo  bankrupt. 
Oothe  18th  the  company -entired  on  the  woiks:-^ 
Hdd,  that  the  asaignoeo  were  entitled,  to  Tecovor 
^  tosis  snd-nMiteriBlswhieh  were  osi  the  works  on 
^  17th,  in  trover  agatnat  the  ooaspaay.*  Booth  v. 
thtGtvAWnUm  BaUwm Coamttny.  10 Law  J.  Bep. 
(■A)aE8a.  -^       -r-  y 

The  oaner  of  a  him^ej  after  mortgaging  it  an.  fee, 
ooBtioued  io  possession,  and  let  it  as  a  ready-foit. 
3U>hsd  boose  tvtise  defendant  He aAeiwards  be. 
<»»s  bankrupt^  and  dien,  vn&k  the  assent  nf  hk 
*>ngBies,  let  the  honoe  ready  flirniabed  to. the  do- 
tedsDtfby  the  week,  who,  after  three  weeks'  ocon^ 
Mte*  itccived  •  notion  Ivom-  the  mortgagee  to  pay 
the  rent  to  him : — Held,  in  an  aetioo  by  the  assignoas 
of  the  bsnkfopt,  for  lue  and  oooupation  of  the 
iMue  Kod  fumitan,  that  ihey  were  entitled  to 
nmyer  %a  the  Asraiture ;  the  rent  of  the  house  and 
™""tsre  aright  b«  apportioned,  or,  if  not,  that  the 
^uy  anight  infoi;  on  the  notice  fay  the  mortgagee^  a 
^  *gnement  by  the  tenant  to  take  the  house  Atnn 
"•.■•rtWee  at  •  voasonaUe  rent,  and  to  pay  the 
^gnces  of  the  Iwwtoiyfr  mortgagor  a  rensonaUe 
"^n^austien  for  the  nae  o£  the  fnmitura  atOmm 
!'^^tf*neB^.  Jl  I.afw  J.  Rep«  (s.&)  £xoh. M  ;  8  M. 


•  To-  an  aetion  of  ttmmi  by  ^tlnr  aarfgneos  >ofv  €t 
H  and  W  L,  bankrupts,  against  the  sheriff,  the 
defendant  pleaded  tbstt  one  O  H  and  one  W  L, 
traders,  befaig  indebted  to  G  S  and  W  S,  the 
kttar  sued  out  a  jH  ^  against  tbo  aiiid  Gh  H  anil 
W  L,  which  was  delivered  to  the  ddfendant,  ms  ahei 
riff,  to  be  eneouted ;  that  the  shetiff,  after  the  said 
O  H  and  W  L  became  banknipt  an  afonaaid,  and 
beforethe  flat,  took  the  goods  and  Ivfied  the  amount 
by  sale ;  that  afterwards  a  fiat  iaaued  agaiast  tbe 
said  bankrupts,  nnd«  which  the  plaintlOb  were 
appointed  asaignoeo,  and,  as  snoh  aasigneeo,  became 
entitled  to  the  posoeasion  of  the  snkl  goods,*  loWdk 
pot9$tntm  if  the  fonnakm  rf  Ae  plaiaiiyt  as  ^t»dg^ 
ne§»  tin  the  isejsroMom  mmUned^  The  plea-  Ifcen 
averrod  that  the  creditors  had  nc4,  at  the  time  of 
exodwting  the  writ,  notice  of  any  prior  aot  of  bnnk*> 
ruptcy !— Held,  flrs^  that  this  dofonce  might  bo 
given  in  evidence,  either  under  the  plen  of  not  posv 
sosaed,  or  not  guilty.  Secondly,  that  tiie  plea  wha 
not  an  argumentative  plea  of  not  posaeosed,  aa  it 
admitted  the  aaaignees'  right  by  relatfon  to  the 
possession  of  the  goods  at  the  time  of  the  oxeontiott: 
^uOttf  whether  tlfe  plen  amounted  to  an  argument 
tntive  denial  of  the  tUU  of  theplidntifib.  Thirdly, 
that  it  anffioiently  appeared  that  the  persons  ds*- 
scribed  in  the  plea  aa  traders  and  bankrupts  werfe 
the  same  aa  those  mentioned  in  the  declarafion. 
Fonrdily,  that  it  wna  unneeesaaiy  to  arer  that  the 
aeisnre  or  Ihe  flat  was  anbasqnent  to  llie  passing  of 
2&8Vict  &291  l^stfrnv.  A.  QaMin,  12  Lstw  J. 
Rep.  (N.a)  Each.  209 ;  11  M.  «e  W.  277 }  2  JXnri. 
P.C.  (K.B,)  7M. 

Where  the  parties- striking  a  docket  and  issuing  n 
fiat  took  from  the  bankrupt  a  pirotnissory  note  for  a 
greater  amount  in  the  pound  than  the  other  dFodi- 
Osrs,  with  a  view  to  a  oorapoeition  deed,  which  note 
laaa  afleArarda  paid,  at^  nn  precotdinga'talQBn  on 
the  fiat: — Held,  that  although  the  case  fell  within 
the  Stfa  aectinn  of  O'CfcSo.^.a  16,  andanohoecurity, 
and  the  whole  debt  nf  the  credhor  might  be  fovfoited 
under  the  baricanpt  iaw%  yet,  .aa  tbe  snma  paid  on 
the  notn  conld  not  have  been  rrco^ered  by  the 
bankrupt  himaelf,  who  was  n  party  to  the  agreement, 
they  could  not  be  reooeeidd  ib  an  aotiUn  by  aeaig- 
nees  appointed  under  a  commission  issued  on  a 
subsequent  act  of  bankruptcy.  Belcher  v.  Sam- 
dsme,  18.  Law  J.  Rep.  (ii.a.>  aB.  297. 

In  an  action  of  trover  by  the  aaaignoes  lof  a 
trader,  to  reonver  the  value,  of  property  seised  by 
the  cieditor  under  a  bill  of  sale,  it  was  oontended, 
that  even  if  the  bill  of  sale  were  not  ileelf  an  art  of 
bankruptcy,  yet  the  debt-  which  it  was  given  b> 
secure  had  been  discharged  by  aubsoquest  pav- 
ments  by  the  tnder  prior  to  the  aeiaura  The 
assignees  reootered  in  the  action  of  trover,  on  the 
ground,  that  the  ball  of  sale  waa  an  act  of  hanlc- 
Tuptoy  :-r*Held,  that,  in  an  action  for  money  had 
and  Mceivedt  brought  by  ihb,  assignees  to  recover 
the  sums  paid  to  tlM  ereditor  by  the  bankrupt,  afW 
the  execution  of  dw  bill  of  ss^,  they  were  not 
ettopned  from  denying  that  the  sums  so  paid  hl4 
been  legally  appropriated  in  discharge  of  the  origi- 
nal  debt  Idrndon  v.  Sharpt^  IS  Law  J.  Rep.  (n<8,) 
C.P.  67  {  7  So.  (U.S..)  1S(L 

Defondants,  oreditara  of  a  bankrupt,  having  niter 
tba  aot  o6  bankruptcy  and  hcfore  feh«  fiat»  seiaod  his 
goods  uqdnr  a  jl.  /<i.,  tiie .  assignees  afterw^cds 


92 


BANKRUPTCY— (AfiBiGKrai). 


claimed  tbtttn  from  the  theriff,  who  bMmglit  the 
paETties  before  a  Judge  hj  an  interpleader  mle. 
The  Judge  dkeoted  the  goeda  to  he  aeld,  Mid  the 
money  to  be  brought  into  court,  to  abide  the  event 
of  an  issue ;  the  amignees  making  no  objection,  nor 
suggesting  any  other  mode  of  disposing  of  the  goods. 
The  execution  creditors  afterwards  abandoned  all 
claim  to  the  goods.  The  assignees  having  brought 
an  action  of  troter  against  them,  to  nworer  the 
difference  1»etween  the  produce  of  the  eale  and  the 
▼alue  of  the  goods  at  the  time  of  tiie  seisure : — 
Held,  that  the  assignees  were  not  entitled,  as  a 
matter  of  law,  to  reoorer  such  diftrenoe^  and  that 
it  was  no  misdirection  in  the  Judge  to  tell  the  jury 
that  if  the  sale  watt  bond  JUk,  they  might  consider 
the  produce  of  the  sale  aa  the  measnre  of  the  da- 
mages. WMtmore  v.  Blacky  14  Law  J.  Rep.  (ir.s.) 
Exch.  19;  18  M.  ft  W.  507 ;  2  Dowl.  ft  L.  P.C. 
44d. 

Where  a  suit  was  instituted  by  the  creditors*  as- 
sigueea  and  the  official  assignee  of  a  banhrapt ;  and 
tlie  official  assignee  was  remioved,  and  a  new  one 
appointed  in  his  plaoe,— the  name  of  (iie  new 
official  assignee  was  ordered  to  be  sfubstituted  in 
the  place  of  the  name  of  thelbrmer  official  assignee 
in  the  proceedinn  in  the  suit  Lto^d  v.  Wming^ 
14  Law  J.  Rep.  (m.r.)  Ch.  iQ, 

{e)  Sale. 

[See  Spscific  PsBFORKAiiCB,  Sidebotkam  ▼.  Ber- 
rhtgUmf  5  Bea.  261.] 

Case  in  which  the  Court  refused  to  allow  the 
assignee  to  fix  the  reserred  bidding.  Et  parte 
LetHeott  re  (Urdem^  1 1  Law  J.  Rep.  (n.b.)  Bankr.  18. 

On  a  sale  under  the  fiat  of  premises  mortgaged 
by  llie  bankrupt,  leave  was  given  to  Ae  assignees 
to  fix  such  resenred  bidding  as  Ae  oommissioner 
might  approve  of*  Ex  parte  LaekmgUm  re  Hamlet, 
8  M.  D.  ft  D.  881. 

A  petition  by  assignees  that  they  might  be  at 
liberty  to  fix  reserved  biddings  for  the  di&rent  lots 
of  a  bankrupt's  real  estates  about  to  be  sold  by 
'  them  by  auction,  no  evidence  being  adduced  of  the 
value  of  the  estates,  was  refused.  In  re  HamUty  1 2 
Law  J.  Rep.  (n.s.)  Bankr.  48. 

The  Court  refused  to  make  an  order  to  stop  the 
sale  of  the  bankrupt's  efiects,  on  the  ground  that 
the  bankrupt  had  presented  a  petition  to  annul, 
without  inspecting  the  proceedings  to  see  whether 
the  fiat  could  be  supported.  Re  Atkiaeanf  1  M.  D. 
ft  D.  238. 

On  a  sale  of  a  mortgaged  estate  of  the  bankrupt 

.  under  an  order  of  the  Court  of  Review,  the  assignees 

n^ost  have  the  conduct  of  it,  and  it  is  an  improper 

practice  for  the  sale  to  be  conducted  by  the  mort> 

gagee.     Ex  parte  Cuddon  re  Cock^  8  M.  D.  ft  D.  802. 

Where  a  partner  of  one  of  the  assignees  of  a 
bankrupt  purchased  a  part  of  the  bankrupt's  pro- 
perty at  a  sale  by  public  auction, — an  application 
to  the  Court  for  the  purpose  of  protecting  the  pur- 
chaser, supported  by  strong  evidence  that  the  trans- 
action was  perfectly  fair,  was  refused.  In  re  Undell, 
12  Law  J.  Rep.  (n.s.)  Bankr.  23. 

The  bankrupts  took  a  reversionary  interest  in 
some  property  as  residuary  devisees  under  their 
father's  will,  of  which  also  they  were  eonstitttted 
executors.  The  testator  died  more  than  forty  years 
ago,  and  upon  the  death  of  the  last  temmt  for  life, 


the  bankrapts'  assigneea  sold  their  interest  in  this 
property,  and  required  the  bankrupts  to  join  ni  a 
conveyance  to  the  purchasers.  It  was  objected,  that 
some  of  the  testator's  debts  which  were  charged  on 
this  property  might  be  still  unpaid,  and  that  the 
assignees  had  no  power  to  dispose  of  it,  as  it  wss 
thus  subject  to  a  trust: — Held,  that  in  the  absence 
of  all  evidence  of  any  outstanding  debts,  the  assig- 
nees had  a  full  right  to  dispose  of  this  property, 
and  that  the  bankrupts  were  bound  to  join  inl3ieeon> 
▼eyanoe.  Ex  parte  BoUon  re  Mexon,  1  M.  D.  ft  D. 
M7. 

At  a  meeting  of  the  bankrupts'  creditors  a  resolu- 
tion was  entered  into  by  the  majority  then  present 
that  if  certain  claims  of  the  bankrapts  for  com- 
pensation in  respect  of  seisuresmade  by  the  Dsaish 
government  should  prove  beneficinl  to  the  estate, 
the  creditors  would  reb'nquish  all  right  to  the  above 
reversionary  property : — Held,  that  this  wss  only  a 
eonditional,  and  not  a  final  arrangement,  and  did  not 
prevent  the  assignees  from  selling  the  reversionary 
property.    Ibid. 

(/)  QficialJtsignee. 

Provisions  made  lor  the  appointment  and  rem«val 
of  official  assignees  and  their  duties  under  oonntry 
fiats,  defined  by  5  ft  6  Vict  c.  122.  ss.  48,  ^1,  IS— 
66 1  20  Law  J.  Stat.  App.  xiii. 

The  mode  of  appointing,  disabiKties,  and  seoarity 
to  be  given  by  and  duties  of  official  assignees  pre- 
scribed by  Lord  Chancellor.  Order  in  Bankruptcy 
of  12th  Nov.  1842 ;  12  Law  J.  Rep.(K.8.)  Bankr.  14. 

An  officisl  assignee,  though  he  may  decline  to 
pay  a  creditor  bis  dividend  until  he  produces  the 
security  which  he  holds  for  his  debt,  is  not  justified 
in  refusing  to  pay  it  on  the  production  of  each 
security.  Ex  parte  Satmdert  re  Innes,  2  M.  D.  ft  D. 
129. 

The  appointment  of  an  official  assignee  is  a 
matter  peculiarly  within  the  discretion  of  the  com- 
missioner, with  which  the  Lord  Chancellor  will  not 
interfere,  unless  under  very  strong  circumstances. 
Therefore,  although  an  estate  had  been  nearly 
wound  up  bcfbie  the  passing  of  the  5  8ls  6  Vict, 
c.  122,  and  it  was  stated  that  all  that  remained  to 
be  got  in  consisted  of  the  damages  recovered  in  an 
action  by  the  creditors'  assignees,  who  had  expended 
large  sums  out  of  pocket  in  the  prosecution  of  the 
action,  the  Lord  Chancellor  refused  to  direct  tiiat 
no  official  assignee  should  be  appointed.  Bx  parte 
Bowker  re  Potter,  8  M.  D.  ft  D.  824. 

In  suits  b^  or  against  the  assignees  of  a  bank- 
rupt, where  the  bankruptcy  took  plaee  and  the  suit 
was  instituted  before  the  statute  directing  the  ap- 
pointment of  official  assignees,  and  no  official  assig- 
nee is  a  party  to  the  suit,  at  the  hearing  any  of  the 
parties  are  entitied  to  an  inquiry  whether  an  official 
assignee  of  the  bankrupt's  estate  has  been  ap- 
pointed.    Ta^oiR  V.  JVilUams,  8  Hare,  858. 

A  petition  presented  to  the  Lord  Chanoellor  by 
the  creditors'  assignees,  stating  that  they  had  re- 
covered all  the  assets  of  the  bankrupt,  and  praying 
for  an  order  that  no  official  assignee  should  be  ap- 
pointed, with  a  view  to  save  the  expense  of  the  per- 
centage, ftc,  was  reAised,  but  the  costs  were  allowed 
out  of  the  banlonpt's  estate. 

The  Lord  Chancellor  has  authority  to  make  such 
an  order,  but  as  it  refers  to  matters  in  which  the 


r 


BANKaUFTCY— (fiAHEBi7Pt*fl  Pftopxary). 


93 


MiiiiDiaiiiufirt  laiTe  fiiU  dMCrttioB^  the  Coaitirill 
be  rekctant  to  interfere.  /»  f  Piutr,  12  Law  J. 
fi«p.(Kj.)Ch.437« 

The  Court  has  power  to  charge  an  official  aeeig- 
nee  202.  per  cenK.  intefest  B*  part*  Twnmr  rt 
2Wvr,  11  Law  J.  Rep.  (m.s.)  Bankr.  25;  2  M.D. 
k  D.  481. 

Ad  offielal  aeeignee  who  is  remoTod  has  no  right 
to  ntaio  the  papers  belonging  to  the  bankrupt's 
eiUte  is  his  hands  nntil  he  is  i emunezated  fibs  his 
aer?icetunder  the  fiat;  and  if  he  rcfusee  to  hand 
tlum  o?er  to  his  successor,  he  will  be  ordered  to 
deliTer  them  up  with  costs.  Ex  portt  Grakam  re 
MM,  2  M.  D.  ft  D.  290. 

llie  Court  willy  with  the  ooncunwDce  of  the 
bankcapt's  assignees,  permit  the  oiBcial  assignee  to 
Rtiin  in  his  hands  oertaiB  securities  of  the  bank- 
iiipt»vhs«e  tranefemng  them  into  the  JBank  would 
came  delay  and  iiiconvenienoe  in  getting  in  the 
ettotc^and  settling  the  accounts  of  the  banksupt 
tie  Wri^  10  Law  J.  Rep.  (n.s.)  Bsakr.  44. 

Upon  an  application  by  an  official  assignee  to  be 
indemnified  by  the  creditors'  assignee  from  the  costs 
of  a  pending  action,  in  which  the  name  of  the  official 
ttii^Ke  bad  been  joined  as  a  co^plsintiff  without 
hiieoossnt,  the  Court  ofiGered  him  a  reference  to 
the  commissioner  to  inquire  whether  the  actioii  was 
for  the  benefit  of  the  estate ;  and  that  being  declined, 
oidered  the  petition  to  stand  over  until  the  result  of 
the  setioQ  was  known. 

Upon  the  case  coming  on  for  further  directions 
•fier  a  Terdict  obtained  against  the  assignees,  it 
jyipcsring  that  Uie  creditors'  assignee  had  offered 
Ua  penooal  indonnity  for  the  costs  of  the  action  a 
year  before  the  petition  was  presented,  which  was 
^coUoed  by  the  official  assignee,  the  Court,  upon 
the  renewal  of  that  undertaking  by  the  creditors' 
■Kignees,  dismissed  the  petition  with  costs.  £i 
firteTw^maid  f»  Dichetuon,  8  M.  D.  &  D.  475. 

(g)  Removal  of  Jssigtiees. 

An  ssmgnee  was  removed  at  his  own  request, 
nerdsr  thst  he  might  bid  at  a  sale  of  part  of  the 
^kmpt's  estate.  JB»  parU  P^rket  re  Ba^,  S  M. 
D.  &  D.  885. 

Whers  one  of  seversl  assignees  is  removed,  it 
•jems  that  the  25th  end  26th  sections  of  the  1  ft  2 
Y^.  4  c.  56.  require,  for  the  effectually  vesting  of 
the  bsnkrapt's  estate,  that  anew  assignee  should  be 
appointed  in  his  room.  &t  parte  DameU  re  DmtUU, 
'M.D.&D.  612. 

y^fxsK  an  assignee  becomes  bankrupt  the  com- 
''^oiMrB  may  direct  his  removal  and  a  new  choice, 
^Aeat  any  application  to  the  Court  of  Review. 
^  We  Ammt  re  JdrntoOy  1  M.  D.  &  D.  104. 

Where  the  sole  assignee  wsa  the  managing  clerk 
^1  lolicitor  who  had  bought  an  estate  of  ^e  bank- 
^pt  and  had  neglected  to  complete  the  purchase, 
^CoQrt  ordered  him  to  be  removed,  and  that  Uiere 
r^d  be  a  new  choice.  Rs  parte  Aikmore  re  Lucee, 

^^^Q^  an  assignee  had  sold  his  debt  to  a  ereditor, 
*1M)  wst  adverse  to  the  fiat,  he  was  ordered  to  be 
"^nwvady  and  a  new  one  chosen  in  his  room,  and  he 
^  "BetiRained  from  voting  in  the  choice  of  the  new 
jj^^oee.    Ex  parte  Stagg  re  Burtmf  2  M.  D.  &  D. 

^^le  an  assignee  connived  at  the  insertion  of  a 


fietitiaua  debt  in  the  bankrupt'a  baknoe  sheet,  at* 
tended  with  other  ciroumstances  of  ficaud,  he  was 
ordM-ed  to  be  removed,  and  to  pay  the  costs  of  the 
petition,  and  those  of  his  removal,  together  with  the 
costs  of  a  new  ohoioa  E*  parte  Perr^er  re  Timee, 
1  M.  X>.  &  D.  276. 

(N)  MESSXNOE&. 

Where  a  measeoger  was  appointed  by  warrant  of 
Commissioners  of  Bankruptcy,  ordering  him  to 
keep  the  bsnkrupt's  efkcU  **  till  we  give  you  order 
for  the  disposal  thereof,"— Held,  that  this  did  not 
prevent  the  assignees,  when  elected^  from  appointing 
another  messenger.  Robsen,  v.  Joaattelm^  Id  Law  J. 
Rep.  (N.a.)  C.P.  132;  7  Mv  &  G.  351. 

(O)    BANKRTJPt'S  P»OF£KTY. 

(a)   What  patees  to  the  Jssignee^  in  general. 
Twopenny  v.  Peyton^  4  Law  J.  Dig.  82 ;   10  Sim. 

487. 

Asanmpsit  by  the  aasignees  of  a  bankmpt  The 
declaration  in  substance  stated,  that  T  H,  before 
his  bankruptcy,  agreed  to  buy  ffom  the  ddendant 
2,000  qnaiters  of  linseed,  free  on  board  at  Odiessa, 
at  30s.  10(1.  per  quarter,  the  shipment  to  be  it»de 
on  hoard  the  buyer*s  vessel  on  arriyal  at  Odessa, 
which  vessel  was  to  be  forthwith  chsrteted  for 
thence,  end  the  amount  of  the  invoice  was  to  be 
paid,  on  handing  over  the  same  and  the  bills  of 
ta^ng  to  the  buyers  in  London.  The  declaration 
then  ststed  mutual  promises  by  Harris  and  the 
defendant,  and  averred  that  T  H  despatched  ayessel 
to  Odessa,  which  arrived  there  in  a  reasonable  time, 
and  was  ready  to  receive  the  Unseed  on  board;  that 
before  its  arrival  T  H  had  become  bankrupt,  but 
that  the  master  of  the  ship  was  ready  and  offered  to 
receive  the  Mnseed  on  board,  and  to  give  biUs  of 
lading,  pursuant  to  the  agreement ;  that  the  defen- 
dant refused  to  deliver  the  linseed  on  board.  The 
declaration  further  stated,  that  the  plaintifis  after- 
wards, within  a  reasonable  time  after  the  arrival  of 
the  vessel  at  Odessa,  gave  notice  to  the  defendant 
of  their  being  ready  and  willing  to  pay  for  the 
Hnaeed,  on  delivery  in  London,  according  to  the 
agreement;  yet^e  defendant  refused  to  deliver. 
Plea,  that  the  plaintiffs  did  not,  within  a  reasonable 
time  after  the  arrival  of  the  vessel  at  Odessa,  give 
notice  to  the  defendant  of  their  intention  to  adopt 
the  contract: — Held,  on  special  demurrer,  by 
Parke,  jB.,  Oumey,  £.,  and  Ro\fe,  B.,  (Lord  Abinger, 
C,  B,  dieeentiente,) — first,  that  the  declaration  dis* 
closed  a  good  cause  of  action,  on  which  the  plain- 
tifis were  entitled  to  recover.  Secondly,  that  the 
plea  was  no  answer  to  the  action.  Oibeon  v.  Csmc- 
tkere,  11  Law  J.  Rep.  (n.s.)  Exch.  138}  8  M.  &  W. 
321. 

The  assignees  of  a  bankmpt  can  sue  only  for  the 
breach  of  such  contracts  ss  in  their  nature  relate  to 
the  personal  estate,  or  to  some  subject  of  property 
which  passes  to  them  by  the  assignment 

A  right  of  action  for  unliquidated  damages  for 
breach  of  a  contract  for  the  employment  of  the 
bankrupt's  personal  skill  and  labour,  does  not  pass 
to  his  assignees,  even  though  the  damage  would  be 
compounded  partly  of  personal  inconvenience,  and 
partly  of  consequential  loss  to  the  bankrupt's  per- 
sonsl  estate. 

The  defendant  agreed  to  employ  the  plaintiff  for 


L 


94 


BAMKB^PTCY-^iBjLiiKMrpv't  FiMnmn). 


•eren  ymn  «s  »  fonmaa  in  tkM  bturioMi  oC  &  tgrp« 
ibiuider,  &e,  Th«  sontraot  was  broken,  by  dis* 
missiDg  ib«  plaintiff,  wbo  afterwards  beoame  bank" 
rupt :  •^  Held,  that  the  bankmpt,  and  not  the 
aasignees,  aheuld  sue  for  the  breach  of  tlie  «oiitract» 
the  damages  belonging  to  the  asatgnees  if  recovered 
before  the  certificate. 

Where  the  breach  of  a  contract  relating  to  the 
person  only  is  a  damage  to  the  petsoual  estate  as 
well  as  to  the  person,  executors  may  sue  fi>r  snch 
breach,  and  recover  damages  to  the  extent  of  the 
iigury  to  the  personal  estate ;  but  no  right  of  aotiony 
in  respect  of  suck  contraet^  passes  to  &e  assignees 
of  a  bankrupt 

QcMvr#'— Where  the  contraet  in  its  nature  relates 
to  both  the  person  and  the  persoual  estate.  Beek» 
ham  V.  Drak€,  10  Law  J.  Rep.  (h.8.)  £xch.  S56 ; 
8  M.  &  W.  846. 

The  defendants,  who  were  the  solicitors  of  S,  who 
bad  become  indebted  to  them  for  work  done,  received 
certain  sums  belonging  to  S  from  his  agents  and 
applied  them  in  disclMrge  of  their  claim  upon  S. 
8  having  afterwards  become  bankrupt,  and  his 
assignees  having  brought  an  action  sgainst  the 
dfifendants  to  recover  this  money, — Held,  that  it 
was  a  misdirection  in  the  Judge  to  tell  the  jury  that 
if  the  defendants,  befoce  the  bankruptcy,  received 
the  mottcy  to  the  uRe  of  the  bankropi,  they  held  it 
after  the  bankruptcy  to  the  use  of  the  assignee& 
Pennell  v»  4*tmt  14  Lav  J.  &ep.(N.s.)  Bxcli.  309  { 
14M.&W.41^. 

The  assignees  of  a  bankrupt  may  maintain  an 
action  in  their  own  names  for  a  chose  in  action  (a 
promissory  nste)^  belongiiig  to  the  bankrnptf  s  wife 
before  marriage;  the  assignment  operating  as  aa 
absolute  transfer,  which  enables  them  to  instatuie  a 
suit  to  reduce  it  into  possession,  without  the  concuiv 
rence  of  the  wila  Yate§  v.  Sherringi^m,  12  Xaw  J. 
3«p.(l¥.s.) £a«h.  2U I  11  M.  &  W.  42. 

Xnaa  action  by  .indorsee  sgainst  the  aeoeptorof  a 
bill  of  ezjshange^  the  defendant  pleaded  that  the 
plaintiff  became  bankrupt,  and  obtained  his  certifi- 
cate in  1830;  that  in  1839  he  beoame  bankrupt 
again ;  that  although  his  certificate  was  allowed  in 
Kovemhev  in  that  year,  his  estate  had  not  paid  Ida 
in  the  pound,  and  that  the  bill  sued  on  wasmdorsed, 
and  the  cause  of  action  aoerued  after  that  allowance, 
whereby  the  ssqm  became  vested  in  the  plsiotiff's 
assignees  ^^Ueld,  in  error,  that  the  plea  was  bad, 
inssmuch  as  it  did  not  state  any  interference  on  the 
part  of  the  assignees* 

A  bankrupt  has  a  good  title  to  all  property 
acquired,  and  a  good  right  to  sue  on  all  contractu 
made  with  him  between  the  fiat  and  the  allowance 
of  his  oerti&cate,  and  also  alter  the  allowance  of  his 
certificate  under  a  second  fiat  against  him,  under 
wliich  his  estate  has  not  paid  I5s.  in  the  pound, 
unless  bis  assignees  interfere  and  claim  the  pro* 
perty  or  the  benefit  of  such  contracts. 

Sembk — That  he  acquires  such  property  in  the 
nature  of  an  agent  for  the  benefit  of  his  assignees. 

Held,  on  special  demurrer,  that  in  a  plea  of  the 
bankruptcy  of  a  plaintiff,  the  words  "  became  and 
was  a  bankrupt  within  the  meaning,"  &c.,  was  a 
sufi^cient  statement  of  the  act  of  bankruptcy. 
Htrhert  v.  iSs^er,  13  Law  J.  Rep.  (h.s.)  a.B.  209; 
2  Dowl.  &  L.  P.C.  49. 

K  £^  S,  being  type-founders  and  psrtnersi  D  being 


a  looEst  partner,  made  an  ^gnenrnt  wilh  8,-  on 
behalf  of  themselves  and  D,  wfasrsby  B  agreed  to 
serve  K  &  S,  and  the  survivor  of  tfaem,  in  their 
business,  for  seven  years,  and  not  to  engage  in  any 
other  business  on  his  own  aeoount.  B,  haTing 
been  dismissed  frsm  the  service  without  reasonable 
and  probable  cause,  and  having  beoome  bankrupt, 
afterwards  brought  an  action  agaiast  K,  S  and  DIbr 
sneh  dismissal  :^<Held,  on  error,  reversing  the 
judgment  of  the  Court  of  Exchequer,  that  the  right 
of  action  passed  to  the  assignees  of  the  bankrapc, 
as  part  of  the  personal  estate,  whereof  profit  might 
be  made. 

Held  also,  affirming  the  judgment  of  the  Conit 
of  Exchequer,  that  aU  the  partners  were  properly 
made  defendants  in  the  action,  the  oontract  having 
been  made  on  behalf  of  all,  although  signed  by  two 
only.  Draker.  Beekkmn^  12  Law  J.  Rep.  (h.8.)  £xch. 
486;  11M.&W.31&  ^ 

The  assignees  of  a  bankrupt  banker  are  entitled 
to  recover  interest  accruing  after  the  bankrupteyv 
on  the  overdrawn  accounts  of  the  customers  of  the 
bank.  Pstt  v.  Beaoan^  13  Law  J.  Rep.  (x.s.)  CP. 
187 :  8  Sc.  <H.s.)  818. 

The  plea  of  not  possessed,  in  an  action  of  trover, 
puts  in  issue  the  right  of  the  plsintiff  against  all  the 
wocl^ 

L,  in  1838,  purchased  under  a  bond  fide  bill  of 
sale,  certain  furniture  belonging  to  and  in  the  pos- 
session of  C.  C  continued  in  possession,  as  before^ 
and  in  1839  became  bankrupt  His  sssignees  aaade 
no  claim  to  the  goods  till  1841,  when  the  shezi^ 
under  a  >f. /a.  against  C,  seized  and  sold  the  good^ 
of  which,  up  to  that  time,  C  hsd  rcoaained  thus  re- 
puted owner.  After  the  ssle^  C's  assignees  gave 
notice  of  their  claim  to  the  sheriff  In  an  actioD  of 
trover-  by  L  agsinst  the  sheri£^ — Held,  that  under 
the  plea  of  not  possessed,  the  sheiiff  might  set  up 
the  title  of  the  assignees,  and,  upon  proof  of  tl» 
facts  above  ststed,  was  entitled  to  a  vwdict.  Leakt 
v.^owdsy,  12  LawJ.Rep.  (K.s.)C.P.6fi;  2DowL 
P.O.  (H.S.)  624. 

An  action  of  trespass  for  bsesking  and  enteriag 
the  plaintiff's  dwelling-house  end  tsking  his  goods, 
does  not  pass  to  the  assignees  of  a  bankrupt. 

QMort — Whether  a  plea  of  bsnkruptcy,  limited 
to  so  much  of  the  declsration  as  applied  to  the 
damage  done  to  the  bankrupt's  wta/s,  would  he  a 
good  bsr  to  the  recovery  of  the  value  of  the  gooda. 
Brewer  v.  Dew^  12  Law  J.  Rep.  (h.b.)  £xdi.  44A ; 
II  M.  &  W.  626 ;  1  Dowl. 8s L.  P.C. 388. 

Trespass  for  breaking  and  entering  the  dwelling- 
house  and  garden  of  the  plsintiff,  and  msking  a 
great  noise  and  disturbance  therein,  &o.,  whereby 
the  plaintiff  and  his  family  were  greatly  harssaed, 
disturbed  and  annoyad  in  ^  peaceable  possession 
of  the  dwelliug-house,  &o. 

Pies,  that  after  the  trespsss,  and  alter  the  com- 
menoement  of  the  suit,  the  plaintiff  had  beoome 
bankrupt,  and  one  W  P  was  appointed  assignee^ 
whereby,  and  by  virtue  of  the  statutes,  &c,  the  said 
causes  of  action  vested  in  the  said  W  P : — Held,  on 
general  demurrer,  that  the  plea  was  bad. 

QMers — Whether  it  would  have  been  good  if  it 
had  been  shewn  that  the  loeut  in  quo  passed  to  the 
assignee.  Spenee  v.  Bcgere^  12  Law  J.  Rep.  (n.s.) 
£xch.  2S2 ;  1 1  M.  &  W.  191 ;  2  Dowl.  P.C.  (ii.a.> 
999. 


r 


/ 


HAMKRUPTCY^CBAliE&fJi^v'i  PftopfeETT). 


9S 


Im  an  MeAm  bjr  Ae  plaintiflBs  n  antgneet  of 

btikniptsy  for  work  do&e^  materials  proyided,  and 

goods  sold  by  Ukid,  as  svcb  ns^nees,  it  appeared 

Ihtt  the  action  waa  bronght  to  iccorer  the  price  of 

«cftam  eagTavinga  stxuok  off  by  the  banlorapts  for 

the  defiendant    The  £at  issued  on  the  2 1  at  of  Jqm 

1841.    On  the  23rd  of  June  one  of  the  plaintlA, 

the  ofiiotal  assignee,  was  appointed,  the  other,  the 

«ccditors*  assignee^  having  been  appointed  on  the 

(kh  of  July.    The  ovder  was  given  by  the  defendant 

Is  the  bankrapt  after  the  act  of  bankruptcy,  before 

the  fiat    Aftec  the  fiat,  tiie  bankrupt  applied  to  one 

of  tbe  pUintifis,  who  was  then  petitioning  creditor, 

hi  money  to  eooBplctie  tiie  wo^  in  question,  and 

teoeiTsd  from  him  money,  out  of  whieh  the  paper 

vss  bought  lor  the  completion  of  the  order.    The 

wesies  of  the  assignees  were  used  about  the  work* 

Part  of  the  wodL  was  performed  befiore  the  fiat,  a 

put  after  the  fiat  and  before  the  appointnient  of  the 

eiediton^  assignee,   and  dK  remainder  alter  the 

appsiataient  of  the  ui-editors'  assignee  >— Held,  that 

there  was  no  ground  for  a  nonsuit,  and  that  the 

singnses  mi|^  recover  the  whole  amount  for  wetk 

done  and  materials  supplied  by  themselves,  the 

eoBlnct  being  entire,  and  there  being  evidence  for 

the  jaiy  of  the:  wwk  having  been  done  by  the  bank* 

rapes  as  their  agents.  fVhitmore  v.  Gibnottr^  1$  Law 

J.  Bcp.  (11.81)  Snh.  SOI ;  12  M.  &  W.  808. 

A  hanknpt,  before  bankruptcy,  paid  to  his 
haafcers  a  smn  of  money  for  the  purpose  of  meeting 
his  soeeptanoe  when  d«e.  The  bankrupt's  account 
htmg  overdrawn  to  a  greater  amount,  his  bankers 
ausspplied  the  mooey  by  placing  it  to  his  credit  s 
snd  the  aoeeptanee  was  diuionoined,  and  remained 
in  the  hands  of  die  hsibder  until  the  bankruptoy.  In 
a  special  action  by  tiie  assignees  against  the  bankers 
fi»  faresch  of  contract, — Held,  that  the  measure  of 
dsmsge  was  what  the  bankrept  himseif  oeuld  have 
ncoveied  far  the  breaoh  of  the  contract  had  he  con- 
tiaoed  advent,  snd  not  the  ultimate  less  to  the 
bsnkrapt*s  estate,  aocording  to  the  result  of  the 
pioo&  upon  it.  Hill  v.  Smith,  18  Law  J.  Rep^  (n.b.) 
fiieh.  248;  12  M.  &  A¥.  6IS. 

A  right  of  action  for  seduction  does  not  pass  to 
the  ass^nees  of  a  bankrupt.  Hmoatd  v.  Crmpikir, 
10  Lair  J.  Rep.  (h.s.)  fix<^.  865  i  8  M.  &  W.  601. 
A  foreign  creditor,  by  his  sgent  at  Caleutta, 
praved  the  amount  of  his  whole  debt  against  the 
<Mate  of  P  ft  Co.,  who  had  been  declared  insolvents 
ittder  the  Indian  Insolvent  Act,  9  Geo.  4.  e.  78. 
After  making  snch  proof,  and  receiving  dividends 
Qpoa  his  whole  debt,  he  instituted  a  suit  in  the 
courta  in  the  island  oif  Java,  to  recover  a  plantation 
Of  estate,  which  was  held  by  one  of  the  insolvents 
asa  traatee  for  his  own  firm  of  P  &  Co.  and  that  of 
€  ft  Ca  in  equal  shares ;  to  which  suit  the  assign 
peea  of  the  insolvents  appeared  as  defendants ;  but 
jodgment  was  given  in  favour  of  the  creditor,  and 
ht  the  sale  of  the  estate  for  his  benefit ;  the  proceeds 
^  which  amounted  to  three-fifths  of  his  whde  debt. 
The  assignees  filed  a  bill  on  the  equity  side  of  the 
Snprene  Court,  at  Caloutu,  against  the  creditor's 
^^t  there,  praying  that  the  dividends  might  be 
ftfaaded,  and  that  the  defendantsmightbe  restrained 
bjr  injanction  finom  receiving  any  further  dividends 
until  all  the  other  creditors  were  put  on  an  equal 
^Nting  with  the  creditor  at  Java ;  and  judgment 
**•  given  against  the  assignees  on  demurrer: — 


H^,  on  appeal^  that  the  eatatto  in  Jav»  did  not 
pass  to  the  sssignees  under  the  asrignment,  or  Ibnn 
any  part  of  the  ftmd  that  was  availaUe  for  the 
benefit  of  the  geneml  creditors;  and  that  the  cre- 
ditor was,  therefore,  not  bound  to  reftind  the  divi- 
dends, nor  prevented  from  receiving  any  future 
dividends ;  provided  he  did  not  receive  more  than 
20i.  in  the  pound  upon  his  whole  debt.  Coekerell 
T.  Diclnns,  8  Moora,  P.C.  98;    1  M.  D.  ft  D.  45. 

But  the  bill  having  steted  that  the  creditor  had 
also  instituted  proceedings  against  certain  debtors 
of  the  insolvent  at  BencooTen: — Held,  that  the 
assignees  were  enticed,  under  the  prayer  for  general 
relief,  to  an  injunction  to  stay  the  receipt  of  ftir&er 
dividends  until  the  proceedings  at  Bencoolen  were 
abandoned    Ibid. 

A  trader  carrying  on  business  in  Regent  Street, 
but  residing  elsewhere,  associates  ti)e  name  of  his 
son  with  his  own  in  the  business ;  the  sen,  however, 
having  no  share  in  the  profits,  but  merely  a  salary 
of  120t  a  year.  The  house  in  Regent  Street  was 
leased  to  the  father ;  the  ground-floor  be&ng  used 
lor  the  purposes  of  business,  and  the  other  part  let 
out  in  lodgings,  tiie  rents  of  which  wers  plaoed  to 
the  father's  private  acoonnt,  and  all  taxes  and  other 
outgoings  were  also  placed  to  his  debit,  in  the  part- 
nership books.  The  son  was  permitted  to  occupy 
apartments  in  the  hoose  fbr  hi*  own  resideticej  but 
the  father  had  the  controul  over  the  entire  property ! 
—Held,  that  this  pmperty  wis  not  distributable 
among  the  joint  creditors  but  belonged  to  tbe  sepa- 
rate estate  of  Ae  father.  Ex  parte  Mttrtait  re  Aehley, 
1  M.  D.  ft  D.  252. 

A  London  firm  advanoe  money  to  a  merchant 
who  is  abo«t  to  make  a  oonsignment  to  their  cor« 
respondents  in  Calcutta,  andthey  takeasaseomrity 
the  bill  of  lading,  which  they  send  to  their  conre* 
•pendents,  with  an  account  of  the  transaction,  and  a 
direction  for  the  latter  to  remit  the  return  proceeds 
to  the  merchant  through  them.  The  correspondents 
sell  the  goods  and  remit  directly  to  the  merchant  a 
bill  of  exchange  drawn  upon  the  London  finn  fbr 
the  ftiU  amount  of  the  proceeds  in  the  following 
form : — "  Pay  through  your  goodselves,"  ftc  The 
hill  of  exchange  is  received  by  the  sasigoees  of  the 
merchant,  who  beoomes  bankrupt  before  its  arrival : 
—Held,  that  they  are  bound  to  give  it  up,  on  being 
paid  the  diflbrence  between  the  proceeds  of  the  sale 
and  the  advance  made  to  the  bsnkrupt,  and  that 
the  London  and  Indian  firms  might  properij  join 
in  presenting  a  petition  to  have  the  bill  delivered 
up.  Et  parte  Mackey  re  Morrieem,  2  M.  D.  ft  D. 
186. 

A  sent  a  bill  of  exchange,  drawn  in  his  favour, 
to  the  bank  of  B,  with  whom  he  had  a  banking 
aooount,  and  was  credited  by  B  for  the  amount 
B  afterwards  became  bankrupt,  and  at  Hie  time  of 
his  bankruptcy  had  the  bill  in  his  power.  It  was 
stated,  that  it  was  the  custom  of  the  bank  of  B,  and 
of  all  the  banks  in  that  part  of  the  country,  to  cre- 
dit their  customers,  who  deposited  bills  and  notes, 
for  the  amount,  and  to  treat  such  bills  and  notes  as 
their  own  property.  A  denied  that  he  had  autho- 
rised B  so  to  deal  with  ihem.  A  had  a  balance  in 
his  favour  at  the  bank  firom  the  time  of  the  deposit : 
— Held,  that  A  was  entitled  to  the  produce  of  the 
bill. 

A  sent  a  bank  peat  bill  to  the  bank  of  B,  pre- 


96 


BANftRUPTCYMBAVit»^*'«  PBOtiatr). 


▼ioufeiy  to  hk  bankruptey,  iritli- »  it^qeift  tbat  it 
shiyHld  be  placed  to  his  aooounl  :*>^Held,  wider  the 
same  oireumstancca^  thatAiras  ontitled  tothepro** 
duce  u[  tke  bank  poat  bilL  Er  parti  Atkins  re  Wlm^ 
12  Law  J.  Rep.  (h^.)  Baskr.  28 ;  2  M.  D.  &  D.  lOS. 
The  memorandum  of  deposit  of  a  bond  stated 
that  a  polioy  of  aasummoe  on  the  life  of  the  obligor 
waa  alao  depoeited  with  the  bond,  but  this  was  not 
the  fact,  and  the  policy  was  found  in  the  baukropts' 
chest,  at  the  time  of  their  bankruptcy  ^x— Held, 
that  the  peUoy  passed  to  the  aasignees.    Ex  parti 

Testator  beqaeathed  his  residuary  eaute  to  trvs* 
tees ;  and  after  making  a  provision  out  of  it  lor 
the  benefit  of  his  aoftfbr  hia  life,  and  after  tha  son's 
death  for  his  wife  and  ehildren,  he  directed  that,  if 
hia  son  ahoald  assign  er  charge  the  interast  to 
whieh  he  waa  entitled  for  life,  «v  attempt  or  agree 
to  do  or  coinmit  any  act  wiiercbj  the  same,  or  any 
part  thereof,  might,  if  the  absriute  property  thcveof 
wove  Tested  in  himy  be  fotfeited  to  or  become  vested 
in  any  person  or  persons,  then  the  trustees  should 
pay  and  apply  the  said  interest  for  the  maintenance 
and  support  of  his  son  and  any  wife  and  child  or 
children  he  might  have,  and  for  the  education  of 
such  issue,  as  the  trustees  should  in  their  discse- 
tion  think  fit  Some  years  after  the  testaior*  a  deadi 
thosonbcoame  bsakruptz-^Ueld,  that  the  trust  ibr 
the  benefit  of  the  son,  his  wife  and  children,  wus 
valid,  and  that  the  assignnes  were  not  entitled  to 
any  part  of  the  provision.  QmUen  v.  Crowkmnt, 
10  Sim.  642. 

(fr)  Investment  of , 

The  commiaaioner  may  direct  the  inveatraent  of 
the  money  paid  on  aeeowit  of  the  bankrupt  on  the 
sale  or  exobangeof  any  stocks  or  seouritieB.  Ordsr 
of  12th  of  Kovenber  1842,  XXh ;  13  Law  J.  Rspi. 
(nj.)  Bankjt,'i6. 

FoDu  and  mode  of  signatofie  of  order ibrpaytnent 
of  money i or, sale  or  tvanafer  of  seoutitiea;^  Id. 
XVIL.     .V.-:.. 

'  ''\6)mtUtmdirote$. 

AU  negotiable^  ifisknittenis  of  the  bsikrupt  ave 
to  be  ide^Qsksd^  by  .the< official.. asslgncn  in  the 
Bank  of  Ba^nd,  who  are  lo  pffeaeDt*4hn«nme  for 
paymfot,  and  mote  or  protest  (them  if  dishonousedi 
and  to  cedrifywhen  any  money  has  been  paid  Uiersdn^ 
and  the  amount  reoeived.  Orders  of  1  jkh  of  Hfo' 
veniberU48vi2^IX.XS:XL;  18  LnwJ«  Bep.<«A) 
Banks.  16?^  .      . 

(d)   Wife's  Property, 

Bum  V.  CarvaihOf  4  Law  J.  Dig;<88<s  4  I^  &  Cr. 
690; 

The  assigiieeB  .of  a  bankrnipi  oannot,  in  their 
names  alone,  naaintsftn  an  action  en  a  ohsse  in 
aetiob  (&  g^  a  promissoiy  note),  made  to  the  w^  of 
the  bankrupt  bafore  her  marriage. 

Qvnre^-whether  ,an  a^ttioov  to  enforce  such  a 
seonrifey,  ought  to  be  brought  in  the  munes  of  the 
assignees  and  the  wife ;  or  whether,  if  the  aetien 
were  bf ought  by  the  hnsband  and  wife,  upoB  a^ljea 
allegiBg  the  banknipfcy  of  the  husband,  it  mig^t 
not  be  replied  that  the  action  was  brought  for  the 
benefit  of  the  assignees.  Sherrington  v.  Yatest  IS 
Law  J.  Rep.  (n.8.)  Exch.  249 ;  12  M.  &  W.  S5S, 


One  of  the  planitifi,  whilst  she  was  nfsme  nole, 
having  lent  a  sum  of  money  to  libs  defendanty  and, 
before  her  marriage  with  the  other  plalntifi^  assigned 
it  to  trustees,  wi£  power  to  them  to  receive  and 
recover  it,  and  to  hold  it  upen  trust  ftir  her  sole 
and  separate  use  duiiug  her  life,  and  for  the 
children  9i  her  intended  marriage  s-^Held,  that 
this  debt  did  not  peas  to  the  assignees  under 
her  hosband'a  bankruptoy,  but  might  be  aaed^ 
for  by  herself  and  her  hnabendi  Patnkant'^*.' 
Hurst,  10  Law  J.  Rep.  (n.s.)  £xck  486  ;  6  M.  &r 
W.  748. 

(c)  Joint  and  Separate  E^iiUe,  < 

A  oousignment  is  made  by  one  firm  to  another 
thmugh  a  third,  who  make  an  odvenee  to  tiss  first  * 
on  an  agreement  for  the  lien  upon  the  return  pvK  ' 
eeeds.    The  proceeds  an  acoerdingly  remitted,  to 
them,  but  before  their  arrival,  the  ooasigBsss  have  - 
dissolved  partnership,  and  separate  fiats  luve  iasued 
against  eaeh  of  thenu    By  the  dissolution  deed  it 
is  agreed  that  a  certain  portion  of  the  partnership 
credit  shonid  belong  to,  and  a  certain  portion  of  the 
partnenhip  debts  shonid  be  psid  byt,one  of  the  part- 
ners, to  whom,  in  pursnanoe  of  this  agreement,  Am 
assignees    of  the  other  partner  transler  all  his 
interest  in  the  above*mentioncd  return  preeeeda: 
— Held^  that  this  interest  constituted  sepsrate  nmd 
not  a  joint  estate.   Ejt  parts  Birk^  rs  Jghseai,  2  NL  D. 

A  small  debt  of  IL  14«.  due  to  the  above  firm 
before  its  dissolntton:^Held,  under  the  eireuns- 
stances  of  the  case,  not  joint  property^  for  the  pttm 
pose  of  preventing  a  joint  cssditor  from  seoeiviikg 
dividends  out  of  Use  separate  estate.    Ibid. 

(/)  Trust Mpnfiyf  .    :    \. 

fitdck  •standing'  in  the  nataO'  of  tiir  bttkcupt;  (in 
trust  for  other  persona,  dnsa  net'pAsato  the.aasig^  • 
naee  under  the  72nd  action  o£ithe  Baukrapi  Aset, 
although  it  is  net  entesedinr  the  nameef  the  bank- 
rupt as  trustee  in  th«  bonk  boilk.  .E»pa^H%timia^ 
re  Biddulph,  I  U,  D»  8i  D.A^* 

Dividend  warrants  on  which  the  bankrupts  in 
their  character  of  stodsbfokerA -sTere  intrusted  to 
receive tibe.dmdendsi  tmi  wfaiehtbtiy^ hAdfMdtfl 
for  their  own  debt,  were  ocdered  to  be  delivtered  up 
to  trustees,  who  had  employed  the  taaiikrupte  «a. 
their  stookbr^eTS.  Ea  para  Oregwy  rs  Wai^ki, 
2M.D.&D.6i3. 

A  treasurer  of  a  finondly  osciety,  estebltah^d 
under  the  above  act,  and  the  10  Ge<k  4.  c  ^,  paid  , 
himself  a  debt  due  from  a  third  party  out  of  Uie 
ntoniea  of  tlie  society,  and  took  for  the  security  oC 
the  society  a  very  insuffiaieot  mortgage  from  hia 
debtor>  wl»eb  neirtgage  two  of  .the  trastees  of  the 
soeiety  were  ioiduced  to-  execute,  they  not  knowing 
the  contents  of  it : — Held,  upon  the  bankruptcy  oC 
the  treasurer,  that  this  was  money  due  and  owing 
from  him  to  the  society*  at  the  time  of  hia  hank^ 
ruptey,  within  the  meaning  of  the  above  act^  and 
thsjt  the  society  were  entitled  to  be  paid  in  full,  in 
priority  to  other  ereditoraof  the  bankrupt.  £x  parts 
Bnrga  re  Baker,  10  Law  J.  Rep*  (».&.}  Bai}kr.  80 ;  1 
M.  D.  8e  D.  540. 

The  28th  teotioB  of  the  4  8{  5  WiU.  4.  o.  1 4.  (giving 
priority  of  payment  out  of  the  estates  of  bankrunt 
offioe-holders  in  savings  banks)  is  not  applicable 


BANKRUPTCY-^BAHSR9Pt*fl  Pjiotem<t). 


97 


W  tma^  bftniks  nofe  entoblishcd  according  to  the 
pfDT«oii8  of  the  9  Geo.  4.  c.  92. 

TkM  certifieatie  and  opinioDs  of  the  barrister  ap- 
poiiUed  under  the  9  Geo.  4.  c.  92,  are  not  conclosWe 
on  the  queation  of  the  rules  and  regulations  of  a 
Hvings  bank  being  in  conformity  with  law,  and 
irithin  the  proTiaiona  of  the  act  (section  4). 

The  book  of  rules  and  regulations  of  a  ssTings 
Uak,  although  entered,  deposited,  and  filed  as 
&cclBd  by  the  act,  ia  not  binding  on  the  asaigfnees 
of  t  bankrupt  office-holder  (section  5). 

The  barrister  appointed  under  the  9  Geo.  4.  c  92. 

gtTehii  certificate,  that  the  rules  of  the  L^S^^nga 

Bank  were  conformable  to  law,  and  within  thrpro* 

Tisoas  of  the  act;  and  those  rules  were  entered, 

fikd,  sad  deposited  ae  directed  by  the  acL-    By  the 

lit  ride  it  was  directed,  that  the  savings  bank  should 

be  nader  the  raaiuigenient  of  a  president,  vice-preai« 

deat,  trustees  and  managers,  who  were  not  to  derive 

aay  beoefit    By  the  2nd  rule  it  was  directed,  that 

the  oonmittee  of  managers  should  be  empowered 

(auiong  other  things)  to  elect  a  treaaurer.    Messrs. 

C.  &  Co.  were  elected  treaanrera,  and,  having  money 

in  thsir  hands  belonging  to  the  savings  bank,  became 

bankxupt    On  a  petitioo  by  the  trustees  of  the 

saviogs  bank  for  priority  of  payment, — Held,  that 

the  L  Savings  Bank  waa  not  within  the  provisions 

of  the  9  Geo.  4.  c.  92,  and  waa  not  entitled  to  priority 

of  pajnaent  out  of  the  eatatea  of  Messrs.  C.  &  Co. 

Ex  parte  Haines  re  Clarke,  18  Law  J.  Rep.  (n.8.) 

Bankr.13;  3M.  D.&D.  663. 

The  tmstess  of  a  friendly  society  were  in  the 
bshit  of  paying  money  into  the  bank  of  W  &  Co. 
at  N,  ia  order  that  W  &  Co.  might  at  once  transmit 
it  to  their  London  bankers,  to  be  paid  by  then  inte 
the  Bsak  of  England.  A  sum  was  paid  into  the 
kank  of  Mesars.  W  &  Co.  for  the  above  purpose,  but 
iMfore  it  was  tiaaamitted  to  London,  Meaars.  W  fr 
Ca  beeame  baakrupts^Held,  that  W  &  Co.  had 
IMC  Boaies  in  their  handa  by  virtue  of  their  office 
or  cfDpIojmeat,  within  the  meaning  of  the  4  &  5 
^UL  4. c  40.  s.  12.  EMfmrU  Whipkamre  WUe,  16 
Uw  J.  B«p.  («.a.)  Bankr.  8 ;  3  M.  D.  &  D.  564. 

(g)  Leasekoldt, 

^iortgBgee  of  leasehold,  held  fin*  a  tefm  of  years, 
}<M  with  the  mortgagor  in  leasing  part  of  the  pro* 
P^  tft*  A  B  for  the  residue  of  the  term,  at  a  rent  of 
^perittD.,  payable  to  the  morteagor,  hisesceeotors, 
Miuidstntors,  and  assigns.  TIm  lease  contained 
rebate  reserving  tiie  right  of  re-entry,  in  oaae  of 
'^J^ymentof  rent,  to  tire  mortgagor,  his  executors, 
*"^'fitrstoT8  or  assigna.  There  was  also  a  decla- 
^'^  thit  nothing  therein  contained  should  be 
*?°^ed  to  defeat,  impeach,  or  determine  the  eatate 

^  "witgec  gaundier  the  mortgage  deed,  so  fitr 
"1^  ^  nme  afifected  the  entirety  of  the  premises. 
^^  (be  execution  of  the  deed,  the  mortgagor  be- 
^e  hiaknipt : — Held,  that  A  B  was  entitled  to 
^oeaefitof  this  lease,  exempt  from  the  mortgage, 
f^t  thM  the  mortgagee^  and  not  the  assignee  of  the 
^UQpt  mortgagor,  was  entitled  to  tiie  rent  of  SI, 
P^ jwnum.    Bdward  v.  /oust,  1  Coll,  C.C.  247. 

The  Cout  cannot  sanction  the  renewal  of  a  lease 
f^Jl^gnees  for  the  purpose  of  carrying  on  the 
°"^pt'8  bndneas,  if  any  creditors  object  to  that 
'T^ment,  notwithstanding  it  has  been  deter- 
'BiM  open  by  a  majority  of  creditors  present  at  a 

DiOBST,  1840-— 1845. 


meetittg  duly  convened  for  that  purpose.  A  refer** 
enee  was  directed  to  the  Commissioners,  under  these 
circumstances  to  appoint  such  time  and  place  aa 
might  be  thought  most  beneficial  for  the  ssJe  of  the 
bankrupt's  property.  Ex  parte  Miller  re  MtUer^  1 
M.  D.  &  D.  39. 

A  parol  lease  is  within  6  Geo.  4.  c.  16.  s.  75,  as 
to  assignees  electing.  Bx  parte  Hopton  re  Reeves,  2 
M.  D.  &  D.  847. 

The  assignees  of  a  bankrupt  lessee,  who  had  made 
an  equitable  mortgage  of  lus  lease,  previoualy  to 
his  bankruptcy,  upon  the  petition  of  the  lessor, 
under  the  6  Geo.  4.  e.  16.  s.  75,  ordered  to  eleet  to 
accept  or  decline  the  lease.  Bx  parte  Hanburjf  re 
Wegg,  12  Law  J.  B^p.  (n.s.)  Bankr.  48. 

A  Icasor  is  entitled  under  6  Geo.  4.  c.  16.  s.  75. 
to  an  order  on  the  asaignees  to  elect  whether  thegTi' 
will  accept  or  decline  a  lease,  notwithstanding  the 
lease  iain  the  hands  of  a  third  person,  with  whom  it 
was  deposited  by  the  bankrupt  by  way  of  equitable 
mortgage.  Ex  parte  Fardf  re  Bait,  3  M.  D.  &  D«' 
840. 

(*)  Pixtttres, 

ISee  post  (i).} 

A  trader  mortgages  the  trade  prenrisea  in  foe  and 
then  enters  into  partnership,  and  the  firm  carry  on 
business  in  the  same  premises,  and  erect  trade  fi»^t 
tures :  — Held,  on  their  bankruptcy,  that  the  mortga* 
gee  was  entitled  to  the  trade  fixtures.  Bx  parte 
CoUmraEmekm,  2  M.  D.  &  D.  725. 

(«)  Order  and  Ditpontion  and  reputed  Oumership. 

[See  Belcher  V,  Capper,  1 1  Law  J.  Rep.  (m.8.)  C.P. 
274— Ship  and  Shippxho,  Charkev^parly.] 

In  an  action  by  the  assignees  of  a  bankrupt  for 
money  received  for  the  plaintifia'  uae,  the  defendant 
gare  notiee  of  his  intention  to  dispute  the  trading, 
petitioning  creditor's  debt,  &c  it  appeaired  that 
the  debt  of  the  original  petitioning  creditor  having 
proved  inauffldent  to  support  the  fiat,  an  order  of 
the  Court  of  Review  was  obtained  under  the  6  Geo.  4. 
c.  16.  s.  18.  for  substituting  one  of  the  partners  of 
the  firm  of  J,  L,  &  Co.,  bankers,  as  a  new  petitioning 
creditor.  This  order,  whioh  was  put  in  evidence  at 
the  trial,  stated  that  the  firm  had  pretted  a  debt  e^- 
eUnt  to  enpport  the  fiat,  that  it  waa  an  existing  debt, 
and  was  incurred  not  anterior  to  that  of  the  original 
creditor's  debt;  and  it  then  directed  the  fiat  to  be 
prooc«ded  with.  The  plaintifi,  in  further  proof  of 
the  new  petitioning  creditor's  debt,  produced  cer- 
tain cancelled  cheques  drawn  by  the  bankrupt  upon 
J,  L,  &  Co.,  and  proved  by  a  clerk,  who  spoke  from 
his  recollection,  that  at  the  time  of  these  cheques 
being  drawn  this  bankrupt's  account  with  J,  iZ,  & 
Co.  was  greatly  overdrawn.  The  plaintiffs  also 
pit^dttced  a  promissory  note,  dated  long  before  the 
fiat,  and  made  by  the  bankrupt  payable  to  J,  L,  & 
Co.,  for  upwarda  of  1501.,  which  some  days  bdfore 
the  trial  had  been  aeen  in  the  possession  of  J,  L, 
Si  Co.r^Held,  first,  that  although  the  order  of  the 
Court  of  Review  was  evidence  of  the  petition,  it  waa 
no  proof  of  the  new  debt  having  been  contracted  at 
or  after  the  time  of  the  original  petitioning  credi- 
tof^B  debt,  nor  that  the  new  debt  waa  of  the  tequi> 
aito  amount,  or  contracted  prior  to  the  act  of  bank- 
ruptcy:— Held,  aecondly,  that  the  cheques  were 
primd  facie  evidence  of  the  payment  of  a  debt  due 

O 


9^ 


B4.NKRUFrCY^OAintBUi^'«.  VmrwHJh 


(rom  J,  L,  &  Co*  to  tke  bankrupt^  and  not  of  ft  loim 
Cq  ^Im,  and  therefoce  iofinfficient  to  prove  the  new 
petitioning. cr^ivoi'p  i^ht.  Thirdly » tluit  the  pro* 
niissox^  note  waa  also  insufficient  for  this  piurpoae, 
not  being  evidence  as  agaiu&t  a  strafigex  of  any 
debt  due  at  the  time  of  ita  date. 

Th^  goods,  foE  tbe  pnK:eeda  of  which  the  adion 
iras.brougbt,  had  b^en  mortgaged  by  the  bankrupts 
and  at  the  time  of  the  act  of  bankruptcy  were  in  the 
h^nda  of  the  shetriff,  having  been  previonslT  seised 
by  him  under  jblu  ejciecution.  Smbk — That  ihe 
goods,  not  being  in  the  order  and  disposition  of  thi^ 
bankrupt  a^  the  time  of  the  act  of  bankruptcy,  di4 
not  pass  to  his  assignees.  Fletcher  ▼.  HaaMtng,  1$ 
I^aw  J.  :itcpu  (N,s.)  EKGh,  150 ;  12  M,  &  W.  574- 

.Tenant's  Bxtures  are  not  within  tbe  72nd  sectinn 
ojf  ^  Geo.  4%  c.  16.    Sg  parte  Heathcote  re  Qghowm^ 

A  bankrupt  effected  a  policy  of  assurance  on 
the  life  of  a  third  party,  and  before  his  bank- 
ruptcy, and  without  any  assignment  in  writ- 
ing, deposited  it  with  the  defendants  as  a  secu- 
rity for  a  balance  due  and  mouev  lent  The 
bankrupt,  up  to  the  time  of  his  bankruptcy,  stood 
in  the  assurance  books  as  the  party  assuring,  and 
np  nolioe  of  any  deposit  or  transfer  of  the  policy  to 
the  defendant  had  been  given  to  the  assuraAce 
office.  A  surrender  of  the  policy  was  demanded  by 
the  plaifijtiffs,  who  were  the  assignees  of  the  bank- 
rupt, before  an  action  brought,  and  refused;  and 
no  part  of  the  balance  or  money  lent  was  ^aid 
pr  tendered  before  the  commencement  of  the  action: 
— Held,  that  as  the  transfer  of  the  policy  was  in- 
tended as  a  lien,  and  not  as  an  equitable  assignment, 
the  plaintifEi  qould  not  recover  the  policy  In  an 
action  of  trover. 

An  instrument  so  deposited  is  not  in  the  order 
and  disposition  of  the  bankrupt,  with  the  consent 
of  the  true  owner,  within  the  meaning  of  the  statute 
6  Gea  4.  c  1^.  a.  72.  Gibson  v.  Ooerhiryy  10  Law 
J.  lUp.  (N.s.)  Exch.  219 ,  7  M.  &  VV.  556. 

All  the  assured  in  the  Equitable  Assurance 
Office  are  partners  in  the  society,  and,  therefore, 
express  notice  of  an  assignment  of  a  policy  effected 
with  that  society,  need  not  be  given  in  order  to  take 
the  policy  out  of  the  order  and  disposition  of  the 
assignor.  Duncany,  ChamherlaynCf  10  Law  J.  Rep* 
(N.8.)  Ch.  807;  11  Sim.  123. 

A  trader  being  indebted  to  the  estate  of  a  testa* 
tor,  in  Mi^  183 1,  asaigned  to  the  residuary  legatee 
of  that  testator  a  ahare  in  a  manufacturing  concern* 
in  oonsideration  of  which  a  sum  of  money  was  paid 
to  the  trader,  and  the  securities  for  his  debt  were 
£|iven  up.  The  manufacturing  business  was  ear- 
ned on  m  the  name  of  the  trader,  until  the  2nd  of 
JanuAry  1832.  On  the  26th  of  January,  a  fiat  in 
bankruptcy  was  iasued  against  the  trader,  on  a  debt 
prior  to  the  assignment : — Held,  under  the  circum- 
stances, that  the  share  in  the  manufacturing  con- 
cern was  not  in  the  order  and  disposition  of  the 
bankrupt  Bunvutyne  v.  Leader t  10  Law  J.  Rep. 
(m.8.)  Ch.  385  ;  10  Sim.  360. 

After  dissolution  of  a  partnership,  the  continuing 
partner  remained  in  possession  of  the  partnership 
effects,  down  to  the  time  of  the  bankruptcy,  but 
without  any  assignment  thereof  having  been  made 
to  him,  and  carried  on  the  business  upon  his  sepa- 
rate account,  though  in  the  partnership  name : — 


I{eld,  thai  this  property  wan  to  h*  a^niaistared  as 
the  joint  property  of  the  pArtnerahip ;  .and  that  the 
72nd  section  of  the  ^aokrujit  Act^  mm  tp  reputed 
ownership,  did  not^pply  aa  between  partii«ri»     • 

Per  Sir  G4  iZMer^Wbere  upon  a  diisalutioo,  Hftfi 
property  is  assigned  oil  agreed  to  be  aasigned  to  Uie 
continuing  partner,  then  the  property  viU  he  w^ 
▼erted ;  but  if  the  agreement  he  only  executof]%ljb^ 
property  will  not  be  conrerted.  £9  pmO^  Coijpv  <v 
Johnston,  lOLawJf.  Rep.  (si.p.)  Bankiwll ;  1  M«J>. 
&  J).  3£8. 

A  person  to  whom  estates  axe  mortgaged  to  s^ 
cur^be  balance  due  fro^i  time  t^  tiineoA.«cooiii|( 
currRt,  mor^fges  his  interest  under  the  moitgiige 
and  becomes  bankrupt  In  auoh  a,  case  it  la  not 
necesaary  to  give  notice  of  the  suh*inortgage4o  the 
original  mortgagor  to  take  the  mortgage  debt. out 
of  the  order  and  disposition  of  the  orioinal  moith 
gagee.  BxparU  Mockay  r$  Wrighi,  1  M.  D.»  ]X 
550. 

In  the  assignment  of  debts  from  An  old  firm  ^« 
new  jSrm,  where  the  debts  were  very  ovmerouaand 
small  (as  the  accounts  of  tallymen)  :-^Heid,  that 
the  doctrine  of  notice  did  not  apply,  to  prevent  the 
property  assigned  passing  to  the  assigneeei  aa  ia 
the  order  and  disposition  of  the  batULrupt.  £x 
parU  Woodgate  re  Little,  1 1  Law  J.  Rep,  (s. flu)  Banks. 
25;  2  M.  0.  &  X>.  394. 

Where  policies  of  insnrance  or  sharea  in  a  bank 
are  aasigned  without  notice^  it  will  be  neceaaaiy  idr 
the  parties  claiming  them  as  in  the  order  and  dis- 
position of  the  baukrup  to  bring  psoof  of  repu- 
tation of  ownership  in  the  bankrupt  Ex  parU 
Cooper  re  Yovng^  11  Law  J.  Rep.  (n.8.)  Baakr.  29 ; 
2M.B.&D.  L 

The  bankrupta  purchased  certain  copyhold  pce« 
perty,  with  varioua  fixtures  erected  thereon*  whicb 
were  in  law  removable  as  between  landlord  and 
tenant,  as  well  as  on  the  principle  of  the  benefit  of 
trade.  They  afterwards  mortgaged  the  property, 
together  with  all  these  fixtures,  describing  them 
precisely  in  the  words  used  in  the  purchase  deed. 
After  the  mortgage  they  erected  on  the  premiaw 
some  other  fixtures  of  the  like  nature,  and  con- 
tinued in  the  possession  of  the  whole  property  up 
to  the  period  of  their  bankruptcy ; — Held,  that  all 
these  nxtures  passed  to  the  mortgagee,  aa  parcel  of 
the  mortgaged  estate,  and  were  not  to  be  oonsideied 
aa  goods  or  chattels  in  the  order  and  dispositioa  oC 
the  bankrupts  at  the  time  of  their  baBkruptcy, 
within  the  meaning  of  the  72nd  section  of  the 
6  Geo.  i.  c  1^.  Ex  parte  Meynal  re  Gye,  2  M.  D, 
&D.'H3. 

Where  the  bankrupt,  who  was  a  direotor  of  a 
joint-stock  company^  mortgaged  his  sharee  to 
secure  aa  advaace  of  nooney,  but  stipnl«tad  that  o» 
notice  should  be  given  of  the  tranaactioa  to  tbe 
company,  not  wishing,  it  to  be  knowa  to  his  brother 
directors,  and  the  mortgagee  acceded  to  this  8tipa?> 
lation,  the  shares  were  held  to  be  in  the  order  and 
disposition  of  tbe  bankrupt  within  the  meaaing  of  tbe 
6  Gea  4.  c  16.  a.  72.  ibr  parts  Nuttmg  re  Bemiat^ 
2  M.  D.  &  D.  302. 

Shares  held  by  a  trustee  in  his  own  name^  but 
identified  and  a  trust  declared  thereoo,-^el^  aiol 
to  be  in  the  order  and  diapositioa  of  the  bankrapti 
Finkelt  v.  Wright^  12  Law  J.  Rep.  (v,b.)  Ch.  i  19  3  2 
Hare,  120. 


BANKlltJWCY— <BAirk^i»TV  P^tiiftrr)! 


dd 


A;l^ai»^owbe)r  tff  tefiihi  goodi,  by  deed,  hi 
Mhdiferiten  itf  nsttinl'lore  oud  affection,  gave 
ttofite  Ut«m  B,  trpon  trntt,  to  permit  and  suffer 
A  to  htfe  flie  aie  and  eBjoyroent  of  them  for  life, 
Md  after  M«  deeeasa,  to  and  for  the  benelH  of  *B^ 
Uiezeniton,  aditrinistratora,  and  aasigna.  Thia 
dted,  and  tha  tnuiafdr  of  property,  were  not  made 
priiHeariHAorimta,  and  A  continued  mYirible  poa- 
iMrian  of  <&»  gooda,  mitil  the  time  of  hia  bank- 
Miyleyl><-Heldi  that  the  gooda  iirert  in  the  order 
and  dispontion  of  A,  with  the  consent  of  the  true 
owner,  mderthe  t«tm$  of  the  72nd  aection  of  the 
^tOoft^  Act  Ex  parte  Castle  re  Aeraman,  1 2  Law 
J.lejk(irj.)Bankr.  80;  5M.D.&D.117. 

Geodft  cf  tn  intestate  remained  in  the  handa  of 
l«6  «f  iMr  neit-of-lrin,  up  to  the  time  of  their 
lM&bii|itey,  which  happened  two  yeara  after  the 
deMi^  ^  the  intestate,  without  any  administration 
iMT&g'been  taken  out  to  her  estate  and  effects,  al- 
thoagh  the  bankrupta  had,  previously  to  the  bank- 
wp*ey,  prid  aereral  of  her  debts: — Held,  that 
ft«w  iiwAs  were  within  the  72nd  aection  of  6  Geo.  4. 
e.16,  and  that  the  assignees  were  therefore  entitled 
to  them,  sad  not  the  administrator  of  the  intestate. 
h  ft  Tkmat,  K  Law  J.  Rep.  (n.s.)  Ch.  59. 

A  peiey  of  insurance  is  a  chattel  within  the  72nd 
*<ti«i  af  tf  Geo;  4.  c  16 ;  and  to  take  it  out  of  the 
Older  and  diapoaition  of  the  bankrupt,  cBrect  notice 
rf  fte  aasignment  must  be  given  to  the  insurance 
eeniMnj*  namely,  such  notice  as  would  clearly 
Bidkate  a  change  of  interest,  and  make  the  com- 
piny  liable  to  pay  the  amount  a  second  time,  if 
P^d  to  other  persons  than  the  assignee. 

A,  hfdeed,  aiBsigned  to  B  a  policy  on  his  life,  io 
*>CQR  a  debt,  and  handed  over  the  policy  to  B. 
1^  preniims  were  paid  by  B,  but  the  receipta 
Jw  giren  \tj  the  company  aa  to  A.  A  became 
wnpt,  and  B,  after  aome  treaty  with  the  as- 
"S^Nes  in  bankruptcy,  continued  to  pay  the  pre- 
■AinH  till  h*%  death.  After  A*s  death,  his  assignees 
^^■^tted  the  money  due  upon  the  policy,  as  in  the 
^  and  dispodtibtt  of  the  bankrupt  The  only 
'^'I'leiKe  of  notice  to  the  company  was  a  note  in  the 
tosrgia  of  fheir  books,  opposite  the  declaration 
i^t  by  A  on  the  occasion  of  eilbcting  the  policy, 
"liettera  t»  be  sent  to  C  &  W,  by  order  of  C." 
C  ft  W  were  the  iolicitors  of  B,  but  it  did  not  an- 
jwthat  diat  was  known  to  the  company  :*— Held, 
■^  thii  was  not  sufficient  notice  to  take  the 
•todttrt  doe  on  the  policy  out  of  the  order  and  dfs- 
PJ^tmiafthe  bankrupt;  but  that  B  was  entitled 
^y  !b  a  Ueu  thereof,  Ibr  the  smounrt;  of  the  nre^' 
Bioms  paid  by  him,  with  interest  Weety,  Reid, 
»  X««r  J.  Rq,.  (ir.s.j  Ch.  245  j  ^  Hare,  249. 
'^^  0  tsrign  an 'tteir  stbck  and  efifects  to  trustees 
w  ftebeaefll  bf  tbefr  creditors,  and  diasolve  their 
J'^hiehMp  y  S  eontinues  ou'the  same  premises  «nd 
yfe>  «n  a*  dOlbrent  'branch  bf  trade,  and  soon 
"''''Wkrdl takes  in  H  as  a  partner:  part  of  the 
i^ef  S  ft  O,  whieh  had  been  assfgned  to  (siiatees, 
*|to  a  ^[ohBtity  of  New  IfealsBd^ax  whieh  remafhed 
*i>(M'hp(ht.fhe  ivren^iVB,  but  was  separately  ware- 
""ned  and  kept  distinct  from  the  stock  of  the 
^'^  (Wrteerihip,  and  waa  hM  adapted  ibr  the  new 
^lArtine  «anfed  on  by  S  ft  H.  A  separate 
^^'si  sued  out  against  H,  and  six  ihtof^fhs  after- 
^*>»W  a  looit  At  agdhist  8  ft  O :— ^Held,  that  the 
*>>ignees  of  8  ft  O  were  entitled  to  the  flax,  and 


that  the  clause  of  order  and  dispositfbn  did  not 
apply  to  such  a  state  of  circumstances.  Ex  parte 
Fardon  re  Swaneborought  2  M.  D.  ft  X).  094. 

Policies  of  assurance  were  mortgaged  and  de-' 
livered  to  A,  who  gave  notice  to  the  assurance 
offices.  A  mortgaged  and  delivered  these  policies 
to  B,  who  gave  no  notice  to  the  offices,  and  did  hot 
make  the  transaction  public.  A  afterwards  becatoef 
bankrupt : — Held,  that  the  policies  were  in  the  order 
and  disposition  of  A  at  the  time  of  his  bankruptcy. 

The  rule  in  WiUianu  v.  Thorp  recognized,  aii<r 
Ex  parte  Smith  (2  Sim.  857,}  overruled.  Ex  parte 
Pott  re  Daintrtfy  12  Law  J.  Rep.  (n.b.)  Bankr.  38 ;' 
2  Sim.  257. 

An  executor  de  son  tort  takes  possession  of  thd 
intestate's  effects,  pay  some  of  his  debts,  and  car- 
ries on  the  trade  for  two  years,  when  be  become)^' 
bankrupt,  no  person  having  taken  out  Tetters  of  ad-' 
ministration : — Held,  that  the  efibcts  of  the  Intes- 
tate did  not  pass  to  the  assignees  of  the.  bankrupt^^ 
as  being  in  his  order  and  disposition  with  the  con-' 
sent  of  the  true  owner. 

Sembte — ^Where  a  lease  expires  by  bankruptcy^ 
there  can  be  no  ROod-wiTl  fbr  sale.  Ex  parte  Tho-' 
nuu  re  Thomatf  Id  Law  J.  Rep.  (n.s.)  Bankr.  75 ;  ^ 
M.  D.  ft  D.  294:  reversed  1  Ph.  189;  8  M.  D. 
&D.40.  '^ 

A  mortgaged  a  policy  of  assurance  to  B,  who' 
gave  no  notice  of  the  mortgage  to  the  office.  B 
mortgaged  this  policy  to  C,  who  gave  no  notice 
either  to  A  or  the  office.  B  afterwards  became  bank- 
rupt : — Held,  that,  as  against  C,  the  policy  was  in 
the  order  and  disposition  of  B  at  the  time  of  the 
bankruptcy.  Ex  parte  Wood  re  Looiemore^  12  Law 
J.  Rep.  (n.8.)  Bankr.  42 ;  8  M.B.  ft  B.  815. 

The  bankrupts  being  mortgagees  of  various  poli- 
cies of  Tife  assurance,  of  which  the  respective  In- 
surance offices  had  notice,  deposit  them  with  their 
bankers  to  secure  the  repayment  of  advances,  but 
Ae  bankers  gire  no  notice  of  such  deposit  to  the' 
different  offices : — Held,  that  the  policies  must  'be' 
considered  as  in  the  order  and  disposition  of  1}i.e 
bankrupts  within  the  72nd  section  of  the  Bankrupt 
Act,  and  that  the  same  principle  applied  to  one  6f 
the  policies  which  was  effected  with  a  mutual  as- 
surance con^any.  Ex  parte  Arkwright  re  Datntryi 
8M.D.ftD.  129. 

M  ft  R  carried  on  business  in  partnership  toge^' 
ther.  A  deed,  dated  in  December  Td40,  recited 
that  ^r  ft  R  were  indebted  to  the  parties  thereto  of 
tfie  third  part(their  creditors), that  they  wereunablb' 
to  pay  their  debts  in  f^U,  that  they  had  proposed  to 
pay  lOi.  in  the  pound,  and  that  A  had  agreed  to  exc-' 
cute  a  covenant  fbr  the  better  securing  the  dixe  and; 
ptinctnal  payment  of  the  compdsition  on  having  th^' 
assignnient  thereinafter  mentioned  nratfe  to'liim.': 
The  deed  then  contained  i  covenant  IVom  A  for  th^' 
payment  ia  the  creditor^  of  the  composition,  on  xjf 
before  October  IMl.  The  deed  then  witnessed  ttak 
M  ft  R  assigned  all  l!he  good^s,  debts,  tttd  chitteUj 
belottgingto  them  as  copartners  to  A;  The  deed' 
was  executed  by  all  the  creditors"  except  V ;  who, 
however,  was  cognizant  of  all  the  eircnmstandes. 
M  ft  R  relinquished  business  after  the  exertion  of^ 
the  deed,  and  A  took  pdssession  of  the  goods.  H  ft 
R  had  little  or  no  separate  property.  A  became 
bankrupt  on  June  8rd,  1841,  and  M  ft Rweremade 
bankrupts  on  June  16th,  the  petitioning  creditolr 


90 


BitNEBUn:Cl^(A$il{>irm). 


11;  2M.D.»D.469» 

.  CA6e  when  th«  Couri  altUiltecl  the  hrolber  of  * 
lunatic  to  pi;ove  tnd  vota  i*  dwohoioe  of  anaigneea 
iSv  pttrie  Ayltakv  f^  F€uringd<m,  1 1  Law  J.  Jkfb 
<«.■.)  Baxikar.  81. 

i.  The  paUic  oflicer  W  a  banking  coBipMy  xniiy 
"vote  by  aliODiey  on  bdWf  W  lh»  oompany  alt  the 
vhoioe  of  aaaigneoi.  Bm  jmrie- Jokroifd  re  HiMflrd^ 
1  M.  D.  ft  ]>.  66^. 

it  is  a  good  pctctioe  not  to  ratify  the  cboicp  of 
Msigneety  unloM  tbo  penona  ehoton  aro  present  and 
Aooept  the  trutt  9  bat  tembltif  a  departure  from  tbio 
pracCioe  doeanot  invalidate  the  appointment.  Ibid, 
.  The  oommiBsioneri^  upon  improper  grouada,  re* 
gected  a  proaf  by  a  creditor*  of  a  debt  lacg^  in 
atoanot  timn  ali  .the  otibet  debtr  of  Uia  banin]^t» 
ibe  direct  of  the  solidtar'a  oppotition  to  the  proof 
beiag  to'pMvent  the  creditor  Totin^  in  the  oboice 
of  aaaigneea'.^^Held,  tbat  the  eboiee  aboiild  be 
T aeate^  aod^  tbat  the  credttort  aboudd  make  a  new 
idioioe.  JS^ller  re  WdUeri,  10  Law  J.  Hep.  (ii4.) 
Bankr.  48 ;  2  M.  D.  &  D.  48» 

A,  B,  G,  D,  and  E  -were  trcietef  a  ef  a  foad^  of  which 
£  Teceived  and  appropriated  the  income.  E  waa  af» 
teiEwairda^foond  a  bankrupt.  Under  an  order  of  the 
Gwsati  A,  S,aad  C  previed  a  debt  against  the  eMate 
of  £  in  reipect  of  the  sum  ao  appropriaied  by  him. 
At  a  meetmg  of  eredttora  at  whtoh  A,B,C,  and  D 
alone  -ware  ptteeent^  A,  B,  and  C  elaeted  D  to  be  the 
dreditbis"  aadf  nee.  On  a  petiddn  of  the  bankrupt^ — 
Hdd,  that  A,  Bi  aad.C  vtfere  not  crediton  .entitled 
to  vote  for  assigrnees,  and  that  their  dioice  niuat  be 
•et  aaide.  'Ex  parte  Mowt  re  Bowati4i  Law  J.  Rep. 
<ir.8.)  Banhr.  17 ;  I  De  Gex,  111. 

Where  the  creditoia  ohooae  their  afiaigneee^  and 
the  ooimaimrionere  rejeot  one,  there  must  be  a  new 
•eheiee.  Bat  parU  Wibm  re  mdtBhnd,  1  M.  D.  &  D. 
£34. 

A  ooiwpnnviBe  of  a  eonteet  for  the  eboiee  of 
laaeigneea  by  which  tfteimaineaa  Of  the  banlemptoy 
waa  dif  ided  between  two  diatinet  £ana  of  aolidtora, 
atho  were  to  be  jointily  appoiafted  aolicitera  to  the  fiat, 
atrongly  disapproved  ii  by  the  Coart  £r  part» 
Turner  re  MarHtiy  S  M.  D.  &  D.  523. 

ifi)  Duties^  Uight9,  and  Liabilities. 

The  Court  vfU  daly  sanation  a  compromise  made 
by  the  aasigne^s  with  a  claimant  againat  die  bank- 
ttipt'e  estate  subject  to  the  appmbation  of  die  com*- 
mlairiotfer.    /n  re  Manhalls  8  M.  D.  &  D.  448. 

A  being  indebted  to  B,  absconda  to  Ameriea, 
^upon  whi^  B  sends  ont  a  power  of  attorney  to  an 
agent  tlwM,  to  Tecorer  ftom  A  what  money  be. can. 
B,  hearing  oi  a  similar  proceeding  by  another  ore- 
<Ktdr,  guee  out  a  fiat  agaiaist  A,  krA  is  choacn  one 
of  hib  iissignees,  and  afterwards  B's  agent  in  Ame- 
rioa  obtains  aaam  of  money  £rom  A,  and  remits  it 
to  B  iti  England i-**-Hald,  that  thia  ■  money  was  re- 
ceived by-^B  in  his  character  of  aasigaae^  and  that 
B,  ha ving'himaolf  become 'ibankrapt^mightr  under 
•the  6  Geo;  4%'  c<  16.  s.  106,  be  ebeiged  nvith  1^ 
amount^  together  wi^  'tntenet  at  6k  per  e«at.,  3io(>- 
withstanding  be  had  obtained  his  oertificale.  Bx 
parte  Ralph  re  Marmaduke,  S  Mi  D.  8('i>.  381; 

If  a  sheriff  selzie  goods  under  a  writ  ofJLfa,  tq>on 
a  judgment  foaiAd^  upon  a  warrant  of  attorney, 
auch  writ  beoamea  void  by  the  iaaning  of  a  ftit 


agehiat (bo  debtor  befiira-tlia  aala.  inianek caaa 
aaeetstion  oreditoKa  in  adTeiae  adionei- whose  wnM 
have  been  lodged  with  the  sheriff  befora  the  iaaaing 
of  the  fiat,  take  io  priority  to  the  assignees  of  the 
bankrupt  Oraham  y.  VTitherbtft  and  Grakam  v. 
Lynet,  14  Law  J.  Rep,  (aa.>  Q.B.  990. 

Wiibeia  the  oommliaioeers  at  a  meeting  to  ^viit 
the  acoounta  of  the  aseigneea  and  de^aze  a  divi« 
dend,  fouad  a  certain  sum  to  hp  in  the  handa  of  tha 
assignees,  and  declared  a  dividend  accordingly* : 
HmbUf  that*  each  of  4he  aaaigaeea  ia  liable  £ar  the 
payment  of  the  dividend«  altbotigh  the  principal 
fand  for  tbat  ptvpose  bad  been  taeeiyad  by  aod 
waa  then  in  the  hands  wf  only  one  of  .the  asai^ae« 
If  an  assitenee  objecto  to  be*  so  charged  with  money 
IB  the  bands  of  bw  co-aasignee,  be  ehould  atate  hie 
otQeotiott  to  the  oommisaiopier  at  the  audit,  andnoC 
tto  by  until  a  petition  is  presented  kr  the  payment 
of  the  dtvadead.  £a  parte  tUdky  re  Knigkt^  8  U, 
2)L&a418. 

Inquiry  direotad  aa  to  the  conduct  of  an  aasigjooa 
in  seliiag  a  jreyeraionary  intextat  of  the  bankrupt 
and  aa  to  hie  diligence  in  endeatouriog  to  reoovef 
certain  debtji.  Mx  pierU  B^fem  re  Byr9wi^  $I/Ll>, 
&  D.  55.  ,      .  .  .s 

(c)  AUowance  ^  Costs. 

Aaaigneea  are  entitled  to  have  the  diroction  of 
the  Court,  with  segard  to  tfaerighta  of  paifieoolainfr- 
ing  to  be  equitable  martgagem  of  property  of  tba 
•bankrapa;  and  ate,  there^re,  entitled  to  tfaek^  casta 
out  of  the  mortgaged  estate,  adthongh  they  hay« 
lieen  reqneeted  to  oenauv  in  a  aale  without  a  peti- 
tion being  presented.  Ex  parte  Sevens  re  Burgou^ 
3M.D.&D.  817. 

A  provisional  asaigpnee^  who  is- made  a  defendaoft 
to  a  forecloanre  suit,  ia  not  entitled  to  have  iiia  cbata 
from  tiie  plaintifi^  even  though  be  ditelaima  byliia 
answer,  and  haa  no  aeactB  of  tba  insdlTeat*8  eatate 
in  bis  handa  Appiebf  v.  Duke,  18  Law  J.  Rep. 
(k.8.)  Oh.  9  ;  1  Ph.  378  :  affiBning  a.  c.  11  Law  1. 
Rep.  (ir.a.)  Ch.  194;  1  Haie,308. 

An  official  assignee  who  is  made  a  defintdaat  ta  a 
foreolosare  suit,  ia  not  entitled  to  hate-  liia  caata 
£nom  the  plaintifi^  even  though  by  his  aiiawer  he 
daimed  no  interest  eaoept  aa  aasignee^  and  dia»> 
claimed  at  the  bearing,  and  baa  noaaseta  of  the 
baakruptra-  estate  in  his  hands.  €Iar*  v.  WUatai^ 
13Law  J.Rep.(K.s.)Ch.  10;  1  Ph.  276:  ra^eraing 
a  c.  11  Law  J.  Bopu  (v.s.)  CSb.  1#;  1  Y.  &  Col. 
C.C.  83. 

Petition  ptaying  for  liberty  to  pa^ore  a  delA  agsdnat 
tibe  estate  of  a  faaakmpt^  on  behalf  of  a  porsem  erf* 
unsound  mind?— Held,  that  the  aaaigneea  were  not 
entitled  to  get  dieir  coata  of  the  petition  firom  the 
petitioner.  Bxparie  BuoknaUre  Biskton,  12  Law  J. 
Aen.  (9.8.)  Bankc  42. 

Petition  by  an  executor,  who  had  become  hank- 
xtipt,  for  liber^  to  pr(^e  a  debt  agadnat  his  own 
eatato,  in  the  character  of  exeovtor: — >Held,  that 
the  aaaigaeea  were  not  entitled  to  get  their  coata  of 
the  petition  from  the  petitioner.  Bx  parte  SttowUon 
re  Na^d,  12  Law  J.  Rep.  (Vi&)  Bankr.  S7, 

An  executar  appropirlatsd  a  fegaay,  wfatsh  he  held 
in  tmst,'  and  became  bankrupt  A  petition  waa 
pre^Behted  by  the  ceeiui  pie  trtsUf  fiw  liberty  to 
prove  tiie  amonnt-  of  tba^  legacy  againat  the  eatato 
of  the  bankrupt: — Held,  that  the  asaigneas  were 


r 


BASHKBJOtTC^-^Am^Htm). 


91 


MtetlKhd%Dgfltt1lc4r  cMtt  df  th^  t»etl^ir  fWim 
tte)Mitioite(«.  Rjf parte Beald  r4  Netman,  Vlhtm 
J.  MUf.  (w.a.)  Bankr.  37. 

(d)  AcHcutf  and  SuiU. 

[See  BtiAs  of  Eichamojb.] 

Provisiene  made  for  enabling  aasigneee  ef  one 
iBMnber  ef «  partnenliip  to  eue  the  debten  of  the 
ini|  hy  6  &«  Vict,  c  122.  t.  81 ;  20  Law  J.  SUt 

AdebCor  Co  a  bankra|it,  when  sued  by  the  assigneee 
withm  tbethkie  allowed  for  the  bankrupt  to  diepuve 
the  fiat,  empowered  to  pay  tiie  debt  inte  eonr^  by 
ftft^Yiet  e.  lis.  e.  26  ;  20  Law  J.  Stat  App.  xiii. 

Where  if  appeared  at  fhe  trial,  that  after  bank- 
faptoy»  eighty^fiTe  buddies  of  yam,  of  the  talue  ef 
I14JL,  had  been  delWeired  by  the  banktnpt  te  the  de- 
ftndaota,  as  they  alleged/ to  meet  an  aceommodatieii 
UU  whidi^iey  were  aiwiit  teglve  the  bankrupt ;  and 
the  goods  were  accompanied  by  an  inveice,' which 
Mstld  Ihem  to  be  htmgM  by  H»e  def^ndiusts  of  the 
biBkrapt:— Held,  under  these  ciretimstanoss,  that 
the  aarigneea  might  waive  the  tort,  and  bring  as- 
nmpeit  for  goods  eeM  and  •delivered.  RuMell  ▼. 
Bell,  10  M.  &  W.  340. 

A  contract  between  a  railway  company  and  a 
builder  contained  a  clause,  that  in  case  the  builder 
ihoaU  beoome  insoHteirt  sr  be  declared  bai^cnipt, 
l^c^«r  shmsld  ftom  any  other  cause,  independeni 
el  the  act  of  tike  oorapany,  be  preheated  from  cod* 
tianing  hia  oontraet,  it  should  be  lawful  for  the 
OMspany  to  give  him  a  notice  in  writing,  requiring 
hhn  to  piueeed ;  and^hat  in  eaae  the  builder  should 
fat  seren  days  after  sneh  notice  given,  make  (Be&iilt 
in  proceeding,  it  should  be  lawful  for  the  company 
to  employ  other  workmen  ^  and  that  all  the  tools 
aad  matoials  then  deUvered  for  the  purpose  of  the 
wsrks  thereby  oontracted  for,  and  then  being  on  of 
sheiit  the  she  of  the  said  worics,  should,  upon  «ieh 
4eiiu]l  as  sfoMsaid,  become  and  be  in  all  respeetn 
^oBsideted  sa  tbe  abeolute  property  of  the  oom* 
psny."  Notice  waa  given  to  the  builder  on  tbe 
ilthetf' April  On  the  17th  he  became  bankrupt. 
On  the  lath  thecoinpanyentired  on  the  wuxkn;-^ 
Held,  that  the  assignees  were  entitled  to  recorer 
<he  toob  and- materials  which  were  en  the  works  on 
the  17th,  in  trover  againat  the  uompany/    JioaeA  v. 

tSt^T-  ''^<>-^'^^^""-^- 

Tilt  ovner  af  a  house^  after  mertgagiag  it  in  fee, 
continued  in  possession,  and  let  it  as  a  ready-foiV 
aisbed  house  to-tte  defendant  He  afteswatde  be- 
<uie  bankrupt^  and  then,  wiib  the  aasent  of  hk 
ssrigntes,  let  the  house  ready  flirniahed  to  the  do- 
tedant,  by  the  week,  who,  after  three  weeks'  ocou- 
psiiQA^ilpcetvednoliee  irom.  tbe  mortgagee  to  pay 
the  rent  to  him : — Held,  in  an  aetioD  by  the  assigneas 
of  the  bankrupt,  for  use  and  ocoupatieB  ef  the 
Imss  sod  fuxnitnn,  that  they  were  entitled  to 
iscDver  iu  the  fiunBiture }  the  rent  of  the  house  and 
^mntare  might  be  apportioned,  or,  if  not,  that  the 
juty  might  infe^  on  the  notiee  by  the  mortgagee^  a 
n^  agreement  by  the  tenant  to  take  the  house  Arom 
^noitgsgee  at  s  reasonaUe  rent,  and  to  pay  the 
assigBses  of  the  bankrupt  mortgagor  a  reasonable 
■wpeniatiaB  for  the  use  of  the  Asmitura  Aihtm 
•^Maikam,.  H  htm  J.  Rep.  (>.&)  £xoh.  M ;  «  M. 


^0-  an  aetSoQ  «f  ttfiwi  by  Ntlw  as^lgueea  4>fv  €^ 
H  and  W  L,  bankrupts,  against  the  sheriiE;  the 
defendant  plesided  ths(t  o«i  a  H  and  one  W  L, 
traders,  being  indebted  to  G  S  und  W  S,  the 
tatter  sued  out  a  jH  ^  against  ike  adid  G  H  anil 
W  L,  which  was  delivered  to  the  defendant,  us  sbei 
riia;  to  be  exeeuted)  that  the  sheriff,  after  the  said 
O  H  and  W  L  beoame  bankrupt  aa  albnaaM,  awl 
before  the  fiat,  took  the  goods  and  leried  tbe  amount 
by  sale ;  that  afterwards  a  fiat  issued  agaiast  thie 
said  bankrupts,  under  which  the  phdntifib  were 
appointed  asaigneee,  and,  aa  suoh  aasigneee,  became 
en&tled  to  the  posaeasion  of  the  ssnd  goods,*  loJWdk 
potgesiiom  U  the  poeaesmom  qf  <fte  pUm^jfk  at  ^uig\- 
neea  m  the  dmhretkm  wtmtiaiied*  The  plea  tlien 
averred  that  the  creditors  had  not,  at  the  time  of 
exeottdng  tlie  writ,  notice  «f  any  prior  aot  of  bank*- 
ruptcy: — Held,  fiiet  that  thia  defbuee  might  he 
given  in  evidence,  either  under  the  plea  ef  not  poaw 
aessed,  or  not  guilty.  Secondly,  that  the  plea  wua 
not  an  argumentative  plea  of  not  posaessed,  as  it 
admitted  the  assignees'  right  by  relation  to  the 
possession  of  the  goods  at  the  time  M*  the  exeoutioa: 
^uOrtf  whether  tSte  plea  amounted  to  au  argumen- 
tative denisl  of  the  titU  of  the-plasntifb.  Thirdly, 
that  it  sufBoiently  appeared  thst  the  peraons  de» 
scribed  iu  the  |deft  aa  tmders  and  baiixnipts  were 
the  same  as  theoe  mentioned  in  the  deelarafion. 
Fourthly,  that  it  was  unneeesaary  to  aver  that  the 
seizure  or  the  flat  was  cubasqUent  to  the  paasing  ef 
2  &  3  Viet  c  291  UMO/m  v.  JSi.  Qmmtm^  12  Law  J. 
-Bep.  (N.&)  Exeh.  200;  11  M.  &  W.  277|  2  Dowl. 
P.C.  (K.a^  7M. 

Where  tbe  parties  striking  a  docket  and  issuing  u 
fiat  took  from  the  bankrupt  it  promissory  note  fer  a 
Ifreater  amount  in  the  pound  than  the  ether  csedi- 
tofs,  with  a  view  to  a  eompositien  deed,  «4iicb  note 
wiaa  afileiwarda  paid,  and  on  prsceedinga^  taken  on 
the  fiat: — Held,  that  although  the  case  fell  within 
the  6th  section  of  6*Geo.4.&  10,  andauohaecufdty, 
and  the  whole  debt  «f  the  creditor  might  be  forfiaited 
under  the  bankrupt  law%  yet,  aa  tbe  snma  paid  on 
the  note  eeuid  not  have  been  rrcovered  by  the 
bankrupt  himaelf,  who  was  u  party  to  the  agreement, 
they  could  not  be  resavered  iU  an  aethin  by  assig- 
nees appointed  uuder  a  commission  issued  on  a 
subsequent  act  of  bankruptcy.  Belcher  v.  Sam- 
denu,  18  Law  J.  Rep.  (ma)  Q.B.  297. 

In  an  notion  of  trover  by  the  amignees  jof  a 
trader,  to  recover  the  value  of  property  seised  hf 
the  ciuditor  under  a  bill  of  sale,  it  was  oontended, 
that  even  if  the  bill  of  sale  wetn  not  itself  an  a^  of 
bankruptcy,  yet  the  debt  which  it  was  given  (o 
secure  had  been  discharged  by  aubaeqiMOt  pav. 
menta  by  the  tnder  prior  to  the  aeisurfk  The 
aaaignees  reootendin  the  action  of  trover,  on  the 
ground,  that  the .  bill  of  sale  waa  an  act  of  bank- 
Tuptoy  3-**Held,  that,  in  an  aetion  for  money  had 
and  received,  brought  by  thci  assignees  to  reeover 
the  sums  paid  to  tlM  erediler  by  the  bankrupt^afW 
the  execution  of  the  bill  of  salcr  they  were  net 
estopped  fiuDi  denying  that  the  sums  so  paid  htd 
been  legally  appropriated  in  discharge  of  the  origi- 
nal debt.  JJndon  v.  Sharpt^  13  Law  J.  Rep.  (n.s.) 
C.P.  67 ;  7  So.  («.a.)  73a 

Defiandants,  oreditara  of  a  bankrupt,  halving  af^r 
the  not  of  bankmptcy  aad  before  the  fiati  seised  hjs 
goods  .ui|der  a  ju  /q.,  Ae    assignees  a(terwac4s 


92 


BANKRUFTCY--(AMio]raai). 


claimed  tbem  from  the  sherifF,  wlio  bvonglit  the 
patties  before  a  Judge  by  an  interpleader  rule. 
The  Judge  directed  the  goods  to  bo  sold,  «ad  the 
money*  to  be  brought  into  court,  to  abide  the  ervont 
of  an  issue ;  the  assignees  making  no  objection,  nor 
suggesting  any  other  mode  of  disporingofthegoods. 
The  execution  creditors  afterwards  abandoned  all 
claim  to  the  g^oods.  The  assignees  having  brought 
an  action  of  trorer  against  &em,  to  nooTer  the 
difierenoe  between  the  produce  of  the  sale  and  the 
value  of  the  goods  at  the  time  of  the  aeixore: — 
Held,  that  the  assignees  were  not  entitled,  aa  a 
matter  of  law,  to  reoorer  such  dUfetenoe,  and  that 
it  was  BO  misdirectioii  in  the  Judge  to  tell  tbo  jury 
that  if  the  sale  waa  b&nd  JUe,  they  might  consider 
the  produce  of  the  sale  aa  the  measnre  of  the  da* 
mages.  Whitmore  y.  Blaek^  14  Law  J.  Rep.  (w.a.) 
Exch.  19;  IS  M.  ft  W.  607 ;  2  Dowl.  ft  L.  P.C. 
445. 

Where  a  suit  was  instituted  by  the  creditors'  as- 
aigneei  and  ^Sb»  official  assignee  of  a  baoknipt ;  and 
the  official  aaaignee  was  removed,  and  a  new  one 
appointed  in  his  place,  ^- the  name  of  Che  new 
official  assignee  was  ordered  to  be  substituted  in 
the  place  of  the  name  of  the  former  official  aaslgnee 
in  the  proceedings  in  the  suit.  Lloyd  ▼.  Wmrimgf 
14  Law  J.  Rep.  (M.a.)  Ch.  j>6. 

(c)  Sale. 

[See  Specific  PBaFORMASCB^  SidebotMam  ▼.  Ber- 
rhigton,  S  Bea.  261.] 

Case  in  which  the  Court  refused  to  allow  the 
assignee  to  fix  the  reserved  bidding.  Et  parte 
Ledhattn  Chrdettf  11  Law  J.  Rep.  (m.s.)  Bankr.  18. 

On  a  sale  under  the  fiat  of  premises  mortgaged 
by  the  bankrupt,  leave  was  given  to  the  assignees 
to  fix  such  reserved  bidding  as  the  commissioner 
might  approve  of.  £»  parte  LaekiugUm  re  Hamlet, 
8M.  D.  &D.  881. 

A  petition  by  assignees  that  they  might  be  at 
liberty  to  fix  reserved  biddings  for  the  di&rentlots 
of  a  bankrupt's  real  estates  about  to  be  sold  by 
'  tbem  by  auction,  no  evidence  being  adduced  of  the 
value  of  the  estates,  was  refused.  In  re  Hamlet^  12 
Law  J.  Rep.  (n.s.)  Bankr.  48. 

The  Court  refused  to  make  an  order  to  stop  the 
aale  of  the  bankrupt's  effects,  on  the  ground  that 
the  bankrupt  had  presented  a  petition  to  annul, 
'  without  inspecting  the  proceedings  to  see  whetiier 
the  fiat  could  be  supported.  Re  JikmeeHf  1  M.  D. 
&  P.  288. 

On  a  sale  of  a  mortgaged  estate  of  the  bankrupt 
under  an  order  of  the  Court  of  Review,  the  assignees 
must  have  the  conduct  of  it,  and  it  is  an  improper 
practice  for  the  sale  to  be  conducted  by  tiie  mort- 
gagee.    E*  parte  Cuddm  re  Cock,  8  M.  D.  &  D.  802. 

Where  a  partner  of  one  of  the  assignees  of  a 
bankrupt  purchased  a  part  of  the  bankrupt's  pro- 
perty at  a  sale  by  public  auction, — an  application 
to  the  Court  for  the  purpose  of  protecting  the  pur- 
chaser, supported  by  strong  evidence  that  the  trans- 
action was  perfectiy  £ur,  was  refused.  In  re  lAndeU, 
12  Law  J.  Rep.  (n.b.)  Bankr.  28. 

The  bankrupts  took  a  reversionary  interest  in 
some  property  as  residuary  devisees  under  their 
father's  will,  of  which  also  they  were  constituted 
executors.  The  testator  died  more  than  forty  years 
ago,  and  upon  the  death  of  the  last  tenant  for  life, 


the  bankrupts'  assigneea  sold  their  intetcat  in  tins 
property,  and  required  the  bankrupts  to  join  in  a 
conveyance  to  the  purchasers.  It  was  objected,  that 
some  of  the  testator's  debts  which  were  charged  on 
this  property  might  be  still  unpaid,  and  that  the 
assignees  had  no  power  to  dispose  of  it,  as  it  was 
thus  subject  to  a  trust : — Held,  that  in  the  absence 
of  all  evidence  of  any  outstanding  debts,  the  asaig- 
nees  had  a  full  right  to  dispose  of  this  property, 
and  that  the  bankrupts  were  bound  to  join  in  thecon- 
veyance.  Ex  parte  BoiUm  re  Mesont  I  M.  D.  Ik  D. 
•07. 

At  a  meeting  of  the  bankmpta'  creditors  a  resolu- 
tion was  entered  into  by  the  majority  then  present 
that  if  certain  claims  of  the  bankmpta  for  com- 
pensation in  respect  of  seiauresmade  by  the  Danish 
government  sh<mld  prove  bene€cial  to  the  estate, 
the  creditors  would  relinquish  aM  right  to  the  above 
reversionary  property : — Held,  that  this  waa  only  a 
conditional,  and  not  a  final  arrangement,  «nd  did  not 
prevent  the  assignees  from  selling  the  revetaicmary 
property.    Iktd. 

(/}  QgieiQl  Aengnee, 

Provisions  made  for  the  appointment  and  remerval 
of  official  aasignees  and  thdr  duties  under  noantry 
fiats,  defined  by  5  &  6  Vict  c  122.  ss.  48,  51,  68— 
56 ;  20  Law  J.  Stat.  App.  xiiL 

The  mode  of  appointing,  disabilities,  and  security 
to  be  given  by  and  duties  of  official  assignees  pre- 
scribed by  Lord  Chancellor.  Order  in  Bankruptcy 
of  12th  Nov.  1842;  12  Law  J.Rep.(N.s.)  Bankr.  14. 

An  official  assignee,  tfaongh  he  may  decline  to 
pay  a  creditor  his  dividend  until  he  produces  the 
security  which  he  holds  for  his  debt,  is  not  justified 
in  refusing  to  pay  it  on  the  production  €»f  such 
security.  E*  parte  Sanndere  re  Innee,  2  M.  D.  &  D. 
529. 

The  appointment  of  an  official  Msignee  is  a 
matter  peculiarly  within  the  discretion  of  the  com- 
missioner, with  which  the  Lord  Chancellor  will  not 
interfere,  unless  under  very  strong  circumstances. 
Therefore,  although  an  estate  had  been  nearly 
wound  up  before  the  passing  of  the  5  &  6  Vict, 
c.  122,  and  it  was  stated  that  all  that  remained  to 
bo  got  in  consisted  of  the  damages  recovered  in  an 
action  by  the  creditors^  assignees,  who  had  expended 
large  sums  out  of  pocket  in  the  prosecution  of  the 
action,  the  Lord  Chancellor  refused  to  direct  tiiat 
no  official  assignee  should  be  appointed.  Ex  parte 
Bowker  re  Potter,  3  M.  D.  &  D.  324. 

In  suitB  by  or  against  the  assignees  of  a  bank- 
rupt, where  the  bankruptcy  took  place  and  the  suit 
was  instituted  before  the  stotute  directing  tike  ap- 
pointment of  official  assignees,  and  no  official  assig- 
nee is  a  party  to  the  suit,  at  the  hearing  any  of  the 
parties  are  entitled  to  an  inquiry  whether  an  official 
assignee  of  tiie  bankrupt's  estate  has  been  ap- 
pointed.    Tatam  v.  Williams,  8  Hare,  858. 

A  petition  presented  to  the  Lord  Chanoellor  by 
the  creditors'  assignees,  stating  that  they  had  re- 
covered all  the  assets  of  the  bankrupt,  and  praying 
for  an  order  that  no  official  assignee  should  be  ap- 
pointed, with  a  view  to  save  the  expense  of  the  per- 
centage, &c.,  was  refused,  but  the  costs  were  allowed 
out  of  the  bankrupt's  estate. 

The  Lord  Chancellor  has  authority  to  make  auch 
an  order,  but  as  it  refers  to  matters  in  wMch  the 


BANKJaUPTCY— (fiAirsauPW*«  Psopkrvt). 


93 


ITS  hmyt  full  ditentioiiy  the  dmitirill 
be  lelueunt  to  ioUrfere.  In  f  PMer,  12  Xaw  J. 
Aep.  (ha)  Ck.  437. 

The  Coart  has  power  to  chaige  as  official  aaiig- 
nee  202.  per  cent.  inteNtt  Ex  parU  2WfMr  re 
Jaraer,  11  Law  J.  Rep«  (ma)  Bankr.  25;  2M.D. 
ft  J>.  431. 

An  offimal  asaignet  who  ia  removod  haa  no  right 
to  ratain  the  papen  helonging  to  the  bankrupt's 
eitale  in  hia  hamb  until  he  is  remunenited  fbv  his 
amiceaiiBder  Uie  fiat;  and  if  he  rafusea  to  hand 
them  orer  to  hia  sncceaaor,  he  will  be  ordered  to 
dcUver  tbem  up  with  coata.  Ex  parte  Grakam  re 
i«K«,  2  M.  D.  &  I>.  290. 

The  Court  will,  with  the  concurrence  of  the 
bankrupt'a  aaalgneea,  permit  the  oilioial  aaaignce  to 
retain  in  hia  handa  oertain  seeuritiea  of  the  bank- 
rop^  whexe  traaafemog  them  into  the  Bank  would 
canae  delay  and  iifconvenience  in  getting  in  the 
estate^  and  aettling  the  aeconata  of  t)ie  luinkrapt 
Me  Wright,  10  Law  J.  Rep.  (ma)  Baakr.  34. 

Upon  an  application  by  an  official  asaignee  to  be 
indemnified  by  the  creditors'  assignee  from  the  coats 
of  a  pending  action,  in  which  the  name  of  the  official 
iiaignee  had  been  joined  aa  a  co-plaintiff  without 
hia  oottoeat,  the  Court  ofifered  him  a  reference  to 
the  commisaioner  to  inquire  whether  the  action  was 
for  the  benefit  of  the  estate ;  and  that  being  declined, 
eidered  the  petition  to  stand  o^er  until  the  result  of 
the  aotiqn  was  known. 

Upon  the  caae  coming  on  for  further  direotiona 
after  a  verdict  obtained  against  the  assignees,  it 
appearing  that  the  creditors'  aasignee  had  ofibred 
Ilia  pecaonal  indemnity  for  the  costs  of  the  action  a 
year  before  the  petition  was  presented,  which  was 
declined  by  the  ofElcial  assignee,  the  Court,  upon 
the  renewal  of  that  undertidung  by  the  creditors' 
assignees,  dismissed  the  petition  with  costs.  Ex 
porta  TwrfmoMd  re  DUkemeon,  3  AA.  D.  3i  D.  475. 

(g)  Removal  of  Assigneei. 

An  aa«gnee  waa  removed  at  his  own  request, 
in  order  that  he  might  bid  at  a  sale  of  part  of  the 
hankmpt*s  eatate.  Ex  parU  Perkee  re  Ba^^  3  M. 
D.  &  D.  335. 

Where  one  of  several  assignees  is  removed,  it 
aecma  that  the  25th  and  26th  sections  of  the  1  &  2 
Will.  4  c.  56.  require,  for  the  efiectnally  vesting  of 
the  bankrupt's  estate,  that  anew  assignee  should  be 
appointed  in  hia  room.  Ex  pmrte  DameU  re  DmrieU, 
8  M.  D.  &  D.  612. 

Where  an  asaignee  becomes  bankrupt  the  com- 
ausaionerB  may  £rect  hia  removal  and  a  new  choice, 
without  any  application  to  the  Court  of  Review. 
ExperUBmuorreJokmen,  1  M.  D.  &  D.  104. 

Where  the  aole  assignee  waa  the  managing  clerk 
of  a  solicitor  who  had  bought  an  eatate  of  the  bank- 
rupt and  had  neglected  to  complete  the  purchase, 
the  Court  ordered  him  to  be  removed,  and  that  there 
should  be  a  new  choice.  Ex  parte  Aikmore  re  Lucas, 
SM.D.&D.461. 

Where  an  asaignee  had  aold  hia  debt  to  a  creditor, 
who  waa  adverse  to  the  fiat,  he  was  ordered  to  be 
removed,  and  a  new  one  chosen  in  his  room,  and  he 
waa  restrained  from  voting  in  the  choice  of  the  new 
attignee.  Ex  parU  Siagg  re  Bmrtm,  2  M.  D.  &  D. 
IM. 

Where  an  aaaignee  connived  at  the  insertion  of  a 


fietitiaiMi  debt  in  the  bankrupt'a  balanee  aheet,  at- 
tended wilh  other  ciroumataaces  of  fraud,  he  was 
ordered  to  be  removedy  and  to  pay  the  costs  of  the 
petition,  and  thoaeof  his  removal,  together  with  the 
coats  of  a  new  choioeu  £x  parte  Perryer  re  Times, 
1  M.  D.  &  D.  276. 

(N)  Messengeb. 

Where  a  meaeenger  was  appointed  by  warrant  of 
Commiaaioners  of  Bankruptt^,  ordering  Um  to 
keep  the  bankn^t's  efieeta  **  ftiU  we  give  ^ou  order 
for  the  disposal  thereof," — ^Ueld,  that  this  did  not 
prevent  the  asaigneaa,  when  elected,  from  appointing 
another  messenger.  Robeem,  v.  Jemateeikn^  13  Law  J. 
Rep.  (N.a.)  C.P.  132;  7  M.  &  O.  351. 

(O)  BAmtRTJPT's  Property. 

(a)   What  paeeti  to  the  Assignees  in  generaL 
Twopennp  v.  Peyton,  4  Law  J.  Dig.  82 ;  10  Sim. 
487. 

Asanmpsit  by  the  aasignees  of  a  bankrupt  The 
dedaradon  in  aubatance  stated,  that  T  H,  before 
hia  bankruptcy,  agreed  to  buy  from  the  defendant 
2,000  quarters  of  linaeed,  free  <m  board  at  Odessa, 
at  30«.  lOdL  per  quarter,  the  shipment  to  be  itede 
on  board  the  boyer^s  vessel  on  arrival  at  Odessa, 
which  vessel  waa  to  be  forthwith  chartered  for 
thence,  and  the  amount  of  the  invoice  waa  to  be 

{>aid,  on  handing  over  the  same  and  the  bills  of 
a^g  to  the  buyers  in  London.  The  declaration 
then  stated  mutual  promises  by  Harris  and  the 
defendant,  and  averred  that  T  H  despatched  a  vessel 
to  Odessa,  which  arrived  there  in  a  reasonable  time, 
and  was  ready  to  receive  the  linseed  on  board ;  that 
before  its  arrival  T  H  had  become  bankrupt,  but 
that  the  master  of  Che  ship  was  ready  and  oftred  to 
receive  the  linaeed  on  board,  and  to  give  bilk  of 
lading,  pursuant  to  the  agreement ;  that  the  defen- 
dant refused  to  deliver  the  linseed  on  board.  The 
declaration  further  stated,  that  the  plsintifis  after- 
wards, within  a  reaaonable  time  after  the  arrival  of 
the  vessel  at  Odessa,  gave  notice  to  the  defendant 
of  their  being  ready  and  willing  to  pay  for  the 
Unaeed,  on  delivery  in  London,  according  to  the 
agreement;  yet*the  defendant  refuaed  to  deliver. 
Plea,  that  the  plaintaffs  did  not,  within  a  reasonable 
time  after  the  arrival  of  the  vessel  at  Odeasa,  give 
notice  to  the  defendant  of  their  intention  to  adopt 
the  contract: — Held,  on  special  demurrer,  by 
Parke,  B.,  Ommeff,  B.,  and  Rf^,  B.,  (Lord  Jbmger, 
C.  B,  dissentiente,) — first,  that  the  declaration  dis- 
closed a  good  cause  of  action,  on  which  the  plain- 
tiffs were  entitled  to  recover.  Secondly,  that  the 
plea  was  no  answer  to  the  action.  Oibeon  v.  €Uirr»' 
there,  1 1  Law  J.  Rep.  (m.8.)  Exch.  138 }  8  M.  3e  W. 
32L 

The  aasignees  of  a  bankrupt  can  sue  only  for  the 
breach  of  such  contracta  as  in  their  nature  Tehite  to 
the  personal  estate,  or  to  some  subject  of  property 
which  passes  to  them  by  the  assignment 

A  right  of  action  for  unliquidated  damages  for 
breach  of  a  contract  for  the  employment  of  the 
bankrupt's  personal  skill  and  labour,  doea  not  pass 
to  his  assignees,  even  though  the  damage  would  be 
compounded  partly  of  personal  inconvenience,  and 
partly  of  conaequential  loss  to  the  bankrupt'a  per- 
sonal estate. 

The  defendant  agreed  to  employ  the  plaintiff  for 


aa 


BANIiEUrTq¥^(FB00f  <»r  Pm^ 


9idered  to  be  piii4  into  <M>«rt«  but  oolfr  to  iu»  order 
to  go  in  andmftkeBQcb  proof  48  th(ey  oould  oaUbUih ; 
tJbe  dsfidends  on  tbe  proof  to  bepwd  uMo.coiurt 
Mf^porU  Me$  re  WehK  SM.  D.i^  D.  327. 

Bjr  ^  mtvriage  oettloQiieiit «  sum.  of  aoney  wag  to 
bo  reoehrod  by  tho  truBtoo^y  and  invofted  in  koaI  or 
govenuneot  aeowritieBf  and  tbe  unterost  was  to  bo 
paid  to  Upye  vfifo  for  ]}£ew  for  ber.n^^ato  upe,  WiUb/< 
out  a  powQFof  fu^cipatioih  witb  romaindef  to  ^ 
cbilcbrim*  One  of  tbe  te^i^tees  'reooivoa  tha  .mono}^ 
ai»d  adFfo^fvas  it  ^.a  por^iorsbip  of  nicroba^fr  vitji- 
out  talui^  MOF  8i9oiirity*  He  jpecoivea  fthe  intcreat 
fttm  tib  pactperAhip,.  aj»d  pay«  it  ovQ^.totba  w^b 
rc;giUarly,  vp  t«  ibe^  time  Af  to  de«tt^  ail^rwacda 
tbe  partnon^hip  pays  tho  iatefest  to  tbe  vdfe  direcUyi 
awl  iriUHkUit  tiae^  intenreati^n  of  tibo  aurviving  rx^tn 
Ut^  In  the  paitnerab^p.b^kBt^acGoui^^  luting 
tp  Um  wbole  traofftAtioR  aro.ontered  aa  botweon  tbe 
wife  aad  thepart^t^nbip  on^-  Upon  tbe  partner-; 
fbip  beoomug  .bafJ(nipt,-*-^Held«  tbat  tbe  partnen 
1^  cooatitiitcd  tbqpaaalvts  -directly  ti^i^ato^  aB4 
tbat  tbe  proof  on  bebalf  of  the  truat  estato  iiiighC 
be  made  oitbar  a0UO«t  thejoiaft  eatate  or  the  sopa* 
nUa  eatatof.  Bsparie  W9«dm  re  Jertmif^f  d  M.  P. 
k  JX  399. 

ilvrieff^— Wbotbor  tboro  would  bare  been  a  light 
of  proof  against  dio  scqparate  tst^tea  if  the  firm  ba4 
boon  oonstrootive  trustees  oi>ly»  or  whether  .the 
ttrm  ^^ctmirtuiive  tntei^*  is  w^Scieimy  definite  to 
admit  of  any  geaenl  rule  being  laid  down  upon 
Ibe  poinL    Ibui. 

{q)  Legatg. 

Dnisceaaexerator,  who  was  also  residuary  legSi* 
toff  bad  part  of  bis  testator's  estate  in  his  bands  at 
tiis  time  oCKia  banlwpteyf  and  a  pzpof  bad  been 
made  in  laspoet  tbersof,  a  legatee  wms  held  entitLod 
to-payoBent  in  full,  ont  of  tbo  dividends. .  Eat  poris 
IkifiomTe  W€$t,  11  JUw  J.  ^pw  (k.«.)  Bankr.  2lf 
%.  €.  Ex  parte  Turner  re  IVeet,  2  M.  D.  &  P.  613.' 

(r)  DecreeSf  Judgments^  and  Costs. 

Wbne  a  pbiiatiff  obtained  a  decree  against  .tbo 
daicndaot,  refeniag  it  to  tbe  Master  to  tslLs  an 
secaaat  of  what  waa  due  to  tbe  plaintifi*,  an4  tbat 
wbat  tbe  Master  should  so  find  to  be  due  should  bo 
paid  to  tbe  nlaintifr  with  costs,  to  be  taxed  by  tbe 
Master,  and  the  Maator  did  not  make  his  rjsport 
Willi  after  a  fiat  had  issued  against  the  defendant  i 
«-*Uald,  that  tbo  decree  waa  not  final,  and  tberefon 
tbo  pUiatiff  waa  not  entitled  to  prove  for  the  amount 
«f  tlw  debt  and  oosts  found  due  by  the  Master's 
aeport  Exp0rtsCrwereBedingfield,2U.D.&I>» 
300. 

H^K^rs— Whether  thecomnuBsionors  have  autho- 
rity to  inquire  into  the  yalidity  of  a  judgment  which 
ts  tbe  foiwdatian  of  tbe  proof  of  the  petitioning 
oifditar'a  debt  Sfmble,  Ubat  they  may  at  aU  events 
im^n  bow  muck  is  due  on  the  ju4gment  JSm 
pwU  PreeoHt  re  FrsscotU  1  M,  P.  &  P.  199. 

Wb«f««  bo««over,  tbe  bankrupt  might  have  im- 
paaebed  tbe  judgment,  six  months  before  the  issuing 
0^  tbe  fiat,  and  did  not  petition  to  anpul  until  six 
MMWtbs  after  it  had  issued,  an  inquiry  was  refused, 
Ibid, 

Allboiigba  ereditor,  whose  debt  has  been  inserted 
in  tbe  aobodule  oif  a  party  taking  tbe  benefit  of  tbo 


Insolvant  Pobtora  Aoti^  nf^prevontfsdfirompBosiQg 
for  the  balance,  of  his  debt,  under  a  subsequent  fiat 
against  the  insolvent^  yet  where  the  debt  is  fouxidod 
On  a  warrant  of  attorney  given  by  the  insolvent,  and 
a  judgment  theneoi)  ootecodtip  1^  bini  i«i  £eaud  of 
bis  creditors,  tbe  creditor  (;4umot  then  prove  for  the 
bslapce  under  a  snbsequsnt  fiat.  £x.  f^arU  Btfrm 
f«.  C«|^ft9fv,  2  M4  P.  3c  P.  $3L 

A  commenced  a  suit  against  his  wife  in  .the  os^ 
fdetiastical  cour^  for  the-  pm^i^e  of  obtaiw^  a 
divorce  on  the  ground  of  adultc^ry.  The  wifo  retainod 
i|  prootor,  to  when  a  large  sum,  hecaoie  dueiuisj* 
spoet  of  oosts. .  While  tbe  suit  was  in^^  pmgress  A 
became  ban^i^pt  W  prootoi^^  aiter  tb^  bank^ 
ruptcy,  by  A's  authority,  declined  to  p^ocofd  villi 
tbe  suit*  Tbe  wifo's  pro«tor,  afi^  tbo  uanlgrup^yt 
baying  prooumd  a  taxation  of  .his  oosts  up  to'tbe 
bankruptcy,. a^d  /tendered  a  proof  lu  respect. thereof 
against  A' s  estato:"*-Held,  that  be  iras  entitled  to 
make  such  prooC 

A  commission  to  examine  witoesses  was  opened 
^  dsy  or  tipo  before  the  baokruptoir*  but  was,  not 
lwturned>untU..aday.or  twn  after  ;r^)Held|  that  .tbo 
whole  <af  tbo  costs  of  t]bo  commissioli  w»e,  for  tl^o 
purpose  of  the  proof,  "  oosts  incurred  be^re  tho 
bankruptcy."  Ex  fHwte  Moore  w  re  Weslruppt  14 
Law  J.  JElep.  (N.a.)  Banfcr.  19 1  1  Do  Qex,  173. 

(<)  Contingent  Debts. 

A  being  in  custody  in  exocutiou  for  debt  at  tbo 
suit  of  tbe  plaintififi,  tbe  defendant  gave  a  wxittou 
undertaking  to  pay  tbe  amount  of  tbo  debt  fay  in* 
atalmonta,  in  consideration  of  A's  disobarge  out  of 
custody ;  A*  ,at  the  same  time^  witk  tbo  knowledge 
of  tbe  defendant  giving  a  wai^snt  of  attpmsgr  to 
secure  the  pi^ymont  of  the  iustalmoutar  A  w«a 
thereupou  dUoharged  out.  of  cnstodyi^  but  uavflDT 
paid  any  part  of  the  debt.  Before  tb^  iirst  i^istaJr 
mont  booamo  du«»  tbo  defendant  beoamo  a  bank** 
rupt,  and  subsequently  obtsinoclbiaoertifioate:**- 
Held,  tbat.aa  tbo  debt  waa  kept  alive  by  tbe>  warrant 
of  atto^ey,  tbo  defendant's  undertsking  was  iuot 
an  abaoluto  promise  to  pay  A^s  debt^  but  a  mere 
coUatoral  agreement  to  ludomnify  tbe  plaJutifi^i 
and  no  default  having  boeo  made  before  tbe  bankr 
rnpt(^s  it  was  not  a  debt  proveablo  under  it}. and 
the  defondanf  a  oertificate  was,  therefore^  no  bar  to 
an  action  against  him*  Lane  v.  Swghartf,  11  X«aw 
J.  Rep.  (ir.s,>  C.P.  33 ;  1  G.  &  P.  31L    , 

A  agreed  to  sell  to  B  for  4,0002.  a  ship  employed 
on  a  distant  voya^pe,  when  she  should  arrive  at  ber 
port  of  discharge  in  the  United  Kingdom^  ajtd  B 
agi^ed  within  one  month  after  bi^  arrival,  or  within 
such  further  time  as  should  be  necesaaiy  for  effect* 
ing  the  repairs  and  diocbarging  the  cargo*  on.tho 
execution  of  a  bill  of  sale  of  the  yesseV  to  delivor  to 
A  two  promissory  notes  for  tbo  amount  of  tbe  par- 
chase-monoy,  in  default  of  which.  A  J^oigbt  sell  tbo 
sbipi  and  keep  tbo  proceeds  in  part  of  the  puscbas^* 
BBoney,  B  undertaking  to  pay  to  Asuy  defideiMqF 
within  one  caleudsr  month  after  such  sals^  and  ia 
psusfi  tbe  vessel  should  he  lost,  the  sgreement  waa 
to  be  void.  On  the  27  th  of  March  the  shiparrivedi 
before  which  time  B  became  hankriq>t.  On.  the 
81st  of  March,  A  gave  notice  of  her  arrival  to  the 
assignees,  who  defined  to  coittpleto  tbe  contract, 
and  A  sold  the  ship  for  2,833i. :— Held,  diat  tbU 
agreement  amounted  to  a  contract  on  tbe  part  of  fi 


BAWtRUncy^Fabbf  o4  ftcBt). 


W 


muoetl  on  another  CMtingency,  And  that  A  could 
prcrre  for  the  balance  of  the  4,000/.,  after  dedaethig 
the  ainonnt  of  the  proceeds  of  the  sale  of  the  ship. 
£r  parte  Harrison  r$  Gaiet,  8  M.  D.  &  B.  SM. 

Proof  allowred  on  a  contingent  annuity,  akhongh 
the  cofitfaigenoy  iMght  never  happen.  B*  partt 
Broadlrv  re  Fikher,  11  Law  J.  Rep.  (it.8.)  Btnkr; 
2B';  2  M-  D.  ft  B.  5S4. 

Wbefe  fhe  payment  of  a  dehthdiheen  postponed 
for  a  giren  time,  as  an  indemnity  to  tht  debtor 
against  a  contingent  loss,  the  debt  may  be  prorad, 
one  the  dS^dtnida  will  be  mafartahted  in  the  mean^ 
thne.  Bxparit  Roger*  re  Mobbim,  11  Law  J.  Rep; 
(ir.SL)BanlTf.  d. 

A  fsAer  bequeaths  h^  business  and  stock  iii 
trsde  tofhis  sons,  with  a  deelaration  that  agtandson, 
then  an  ml^nt,  should  be  admitted  into  the  firm  on 
attaining  ^w«nty-oiie,  or  $n  defottU  thereof  that  the 
sons,  or  the  survivor  of  them,  should  pay  the  grand^ 
son  1,0(M<,  on  his  attaining  twenty-one.  On  the 
bankriiptcy  of  the  ranrrving  son  before  the  grandson 
attamed  twenty-one:— Held,  that  there  was  a  tight 
of  proof  for  the  1,00011  as  a  contingent  debt.  Ex 
parte  Megarey  re  itegarty,  1  De  Gev,  197. 

A  vendor  of  cotton  in  Aroeriooy  by  direction  of 
the  purchasers  in  England,  ships  the  cotton  on 
board  a  vessel  betonging  to  the  latter.  The  pur- 
ebasera  become  bankrupt,  and  afterwards  the  vessel 
arrives  9n  England  end  is  taken  possession  of  by  a 
mortgagee  in  right  ofhit  mortgage.  The  mortgagee 
happens  to  be  a  partner -in  a  firm,  who  are  the  agents 
of  the'  Vendor,  and  upon  a  notios  fiNmi  them  MxA* 
log  a  >ight  to  stop  the  cotton  la  fraasMi,  be  permits 
fliem  to  take  nossession  of  it  They  sell  it  at  i, 
loss,  said  gfve  tneSr  principal  credit  in  his  accomit 
for  the  proceeds.  The  vendor  becomes  bankrtipt^ 
An  action  of  trover  for  the  cotton  is  commented 
against  the  mortgagee  by  the  purchasers'  assignees 
and  is  compromise,  upon  the  terms  of  the  pur* 
chasers'  asisignees  proving  against  the  estate  of  the 
vendor  for  the  amount  of  the  proceeds,  for  the  be^ 
nefit  of  the  mortgagee,  the  latter  agreeing,  in  tite 
event  of  no  dividend  being  paid  by  a  certain  datr, 
that  judgment  for  the  full  amount  of  the  pvoeeeds 
ilioald  be  entered  up  against  him  in  the  action. 
Proof  is  made  accordingly,  but  no  dividend  paid, 
and  the  mortgagee  pays  the  foil  amount  of  the  pro- 
ceeds of  the  sale  to  the  purchasers*  assignees.  ![%e 
vendor's  assignees  then  tender  a  proof  for  the 
original  price  of  the  cotton  against  the  estate  of 
fhe  purchasers.  Held,  that  the  proof  ought  to  be 
admitted  for  the  fuH  amount  Et  parte  Molipietat 
re  Jfmmberston,  I  De  Oex,  121. 

By  the  custom  of  the  tea  trade,  when  teas  are  sold 
at  a  given  prompt  or  future  day  of  payment,  the 
buyer  pays  a  deposit  in  part  payment  of  the  purchase* 
money,  and  the  vendor  retains  the  teas  or  warrants 
wpi  counting  them,  tmtfl  the  day  of  prompt;  when  if 
be  fails  to  pay  the  balance  of  ^e  purchase-money, 
the  vendor  is  at  liberty  to  re^sell  the  teas  and  to 
charge  the  purchaser  with  any  deficiency,  together 
with  interest  from  the  prompt  day,  warehouse 
rent,  ftc. : — Held,  that  where  the  vendee  became 
bankrupt,  before  the  day  of  prompt,  and  the  assig- 
nees refused  to  take  the  teas,  or  pay  the  balance  of 


(hti  pHt^hirse^teoiifey,  tHe  vtoiiddr  tnlg^t  T«s<^  tbi^nt, 
avud  pi«ove  for  the  amonnt  of  the  defloiendy.  Ba 
parte  Mefatt  re  Taie,  1  M.  D.  ft  D.  282. 

A  debtor  in  1831,  agreed  with  his  creditor  to 
pay  him  a  composition  of  5«.  in  the  pound  upon  the 
amoubt  of  his  debt,  by  instalments.  The  firat  in- 
stalMfntwao  paid,  when  the  creditor  agreed  to  giv^ 
tlie  debtot  k  release  in  full)  on  his  paying  the  balance 
of  Ihe  ctHnpOdtfon.  The'  debtor  made  defkoH  iti 
payment  Of  tbe*baleno^;-bttfc,ln  Febmary,  18119, 
bemg  pressed  fhr 'the  payMent  of  the  demand  if 
the  treditor,  he  ttiide  a  payment  of  UWJL  in  patt 
ki  the  balance  tif  ^le  eOmposMon,  and  wquiVedil 
receipt  asfo^  a  composite  of  0i.  in  the  pound  npoH 
the  balance  Of  account  oirittg  byblm.  The  cfredito^ 
acknowiedged  the  payment  of  the  1001.,  but  decUnie^ 
signing  a  receipt  in  thisfoMn.  In  September  1 899, 
fhe  debtor  became  bankmptt^-rHeld,  ibat  th^ 
agreement  for  die-  oompositfion  did  not  preohidte'  tho 
creditor  from  proving  for  the  bsftsnoeof  the  oHginM 
debt,  and  t!hat  it  was  not  barred  by  tbe  Statute' of 
limitations.  Bt  parte  Batee&n  te  Wftihertpoen,  '4 
M.  D.  ft  D:  289. 

Where  an  order  directs  that  all  proceedings  Bad] 
and  taken  nndera  siErpsrrate  fiat,  shall  betransforM 
to,  and  incorporated  with,  the  proceediogti  under  4t 
joint  one,  the  eommission^rs  are  bound  to  admit 
the  prooft  as  they  stand  tmder  the  separate 'fiat|' 
and  camiot  foaist  on  a  creditor  dedaoting  flie 
amount  of  a  dividend  received  by  bim  under  fhe 
aeperate  fiat,  and  proving  only  for  the  baaanceof 
his  debt  under  the  joint  nat  Ex  parH  Baktf&u  'f^ 
Haddon,  1  M.  D.  ft  D.  50«. 

A  partnership  firm  mortgage  part  of  the  joint 
estate  toaeoure  a  joint  debt,  and  by  tfa»  mortgage 
^feed  covenant  jointly  and  sevehdly  for  payment  of 
the  debtt — ^Hdd,  t^at  on  their  baafcmptey' tlM 
mottgagee  migiit  prove  the  whole  debt  against  eadb 
separate  estate,  without  giving  up  his  aeoiirlhr. 
Exparte  Shepherd  re  Pimmmer,  2  M.  D.  ft  J>,  204( 

1  Pn."  SB, 

The  petitioners  being  equitable  mortgagees  of 
certain  property  of  the  bankrupt's,  obtained  the 
nsoal  oixler  for  the  sale  of  the  property  with  liberty 
to  Md,  and  to  prove  for  any  deile!«mcy.  They  alsd 
held  the  joint  and  several  bonds  of  the  baaAmpt 
for  the  payment  Of  the  moftgage  money:  The 
petitioners  obtained  the  usual  order  in  the'  ease  of 
an  equitable  mortgage,  with  liberty  to  bid  and  profe 
for  any  deficiency,  and  the  estate  waK  sold  to  One 
of  the  petitioners  for  a  sum  amountiag  nearly  to 
the  Whole  debtt^-Held,  that  the  pefitioners  coulcl 
not,  under  these  circumstances,  prove  against'  the 
separate  estates  on  tbe  bonds  for  thefnil  amount  of 
the  debt,  but  only  for  the  deficiency  unsatisfied  'by^ 
the  proceeds  of  the  sale.    Ex  parte  Rtynal  re  tfye, 

2  M.  D.  ft  D.  037. 

A  trustee  under  a  will,  permits  the  trust  fimd  at 
the  monies  are,  from  time  to  time,  l«aliaed  to  bo 
naad  into  the  hands  of  certain  bankers  who-  have 
knowledge  of  the  trusts.  One  of  the  pattnen,  witli« 
out  the  assent  of  the  trustee,  deals  with  a  portion  of 
the  fund  by  investing  it  on  mortgage  !--Beldt  that 
the  bankers  were  not  jointly  and  separately  liable  ittr 
the  character  of  the  trustee,  but  that  they  only 
incurred  a  liability  as  between  banker  and  customer, 
and  that  on  the  bankruptcy  of  the  bankers,  ^a 
trustee  could  only  prove  against  their  join  testato 


88 


BANKRUPTCY— (MuTfTAL  Cnxpn  ahb  Skt-Off). 


for  nidi  InUaiee  u  wis  In  their  hands  at  the  time 
of  the  bankroptey.  Bx  parte  Burton  re  Biddmipk^ 
S  M.  D.  &  D.  864. 

SemMe,  that  the  sam  laid  oot  on  mortgige  must 
be  considered  as  in  their  hands  at  the  time  of  the 
hankinptcy,  although  the  mortgage  itself  might 
enure  for  the  benefit  of  the  oethd  qme  inut,    IbiX 

Executors  psy*  the  l^acies  bequeathed  to  in- 
lants  to  their  father,  who  iuTests  them  on  colonial 
seenritiee,  and  makes  large  profits,  and  becomes 
bankrupt : — Held,  that  the  legatees  were  entitled 
to  have  proof  made  upon  the  whole  amount  of  the 
profits.  Ex  parte  Mmtt^lorereMont^iaref  I  De  Gex, 
174. 

(tt)  Expunging. 

It  is  not  a  necessary  consequence  of  an  order  to 
expunge  a  proof  that  the  party  mnst  refund  any 
dividends  received  upon  it.  filjr  parte  WUeem  re 
Bentleyy  1  M.D.  &  D.  686. 

The  Court  will  entertain  the  application  of  a 
single  creditor  to  expunge  a  proof.  Ex  parte  Broadleif 
re  Pitcher t  11  Law  J.  Bep.  (n.s.)  Bankr.  28;  2 
M.  D.  &  D.  524. 

The  Commissioners  have  no  jurisdiction  to  ex- 
punge a  proof  which  has  been  placed  on  the  pro- 
ceedings, in  pursuance  of  an  oider  of  the  Court  of 
Review,  ana  can  only  expunge  a  proof  on  the 
ground  that  the  debt  is  not  due.  And  it  is  irregular 
for  them  to  state  as  a  ground  for  expunging,  that 
the  bankrupt's  liability  has  been  discha^^  Ex 
parte  WMtuferth  re  Mayor,  2  M.  D.  &  D.  164. 

Csse  where,  under  the  circumstances,  the  Court 
held,  that  there  was  no  legal  partnership  between 
the  bankrupt  and  a  creditor,  and  refused  to  ex* 
punge  his  proof.  Ex  parte  Turqwmd  re  Vander^ 
plank,  11  Law  J.  Rep.  (n.8.)  Bankr.  1 ;  2  M.  D.  &D. 
889. 

A  proof  will  not  be  ordered  to  be  expung^ 
merely  because  the  instrument  on  which  the  proof 
was  made  required  a  stamp.  Ex  parte  Bfrem  re 
Byrem,  8  M.  b.  &  D.  88. 

{w)  Reeioringt 

A  bill  of  exchange  was  given  bv  a  bankrupt  to  a 
creditor,  in  considnatlon  of  an  advance  of  money, 
made  more  than  six  ysars  before  the  bill  was  given, 
five  years  after  the  proof  was  made,  and  dividends 
had  been  received  upon  it  The  commissioners 
ordered  the  proof  to  oe  expunged  on  the  ground 
that  the  bill  was  not  suoh  en  aoknowledgment,  in 
writing,  of  the  debt  as  took  the  caae  out  of  the 
Nlatute  of  Jilniltaiion«i--H6ldf  that  the  bill  was 
aufflcient  for  that  purpose,  and  oonasquently  that 
the  proof  muNt  be  restored,  Ka  parte  Wikon  re 
Ihnthy.X  M.  O.lf  J).  8110. 

Whore  the  bankrupt  bad  absconded  to  Amerioa, 
and  the  oommlMloners  had  expungod  the  proof  of 
a  debt,  rulyltig  ohl«fly  on  the  evidence  aflbrded  by 
the  sntrlsR  In  the  baiiknipt'a  books,  the  proof  waa 
ordered  to  bo  rentoredi  as  avidettee  of  this  desorin- 
tUtn  ouicht  not  to  have  pountervalled  the  oath  of  tlie 
nrtUloner.    Km  parte  Befer  re  Byren,  1  M.  D.  &  D. 

(4)  Kl^vtiim, 

A  Joint  and  iiepnrnte  creditor,  who  has  proved 
egAlii»t  the  Joint  vstftiV)  not  porniiUed,  without 


special  grounds,  to 

prove  against  the  separate  estates 

re  RMuon,  2  M.  D.  &  D.812. 


ExparUDixem 


(y)  Evidence  and  Practice. 

A  judgment  creditor  need  not  produce  an  office 
copy  of  the  judgment,  as  a  proof  of  lus  debt,  when 
he  elects  to  go  in  under  the  bankroptey,  to  make 
his  proof  as  for  a  simple  oontraet  debt  Kx  parte 
SpiUerre  Wartere,  10  Law  J.  Rep.  (na)  Bankr.  48 ; 
2M.D.&D.43. 

The  Court  will  not,  in  the  absence  of  evidence, 
assume  that  a  Commissioner,  in  rojeedng  a  proof, 
stated  his  reasons.  Ex  parte  Mndie  re  Jamee^  11 
Law  J.  Rep.  (v.8.)  Bankr.  18;  2  M.  D.  &  D.  490. 

Where  a  creditor,  through  inadvertenoe,  omits 
to  prove  at  the  final  dividend  meeting,  the  Court 
will  allow  him  to  call  a  fresh  meeting  for  that  pur- 
pote  at  his  own  costs,  and  will  rescind  the  fmner 
dividend,  so,  however,  as  not  to  disturb  any  pay- 
ments made  to  the  creditors  who  have  dready 
receivedit  £r  parte  iX^boortA  re  jaeOmtf,  8  M.  D. 
&  D.  ^Z. 

Where  a  oroditor  has  omitted  to  prove  his  debt 
until  after  a  dividend  has  been  dedaied  and  is  in 
course  of  payment,  the  Court  will  not  permit  him 
to  prove  so  as  to  interfere  with  the  amount  of  the 
dividend  payable^  on  the  proof  of  the  other  creditors. 
ExparU  MPCkeanereM^Cheane,  1  M.  D.  &  D.  828. 

(L)  Mutual  C&edit  and  Set-off. 

To  a  declaration  in  assumpsit,  by  the  aesignees 
of  a  bankrupt,  for  goods  sold  and  delivered,  by  a 
bankrupt,  the  defendant  pleaded  by  way  of  seWoff, 
that  before  notice  of  any  act  of  bankruptey,  and 
before  the  issuing  of  the  fiat,  and  before  action 
brought,  the  defendant  gave  credit  to  the  bankrupt, 
by  accepting  certain  bills  of  exchange  for  his  ao- 
commodation,  and  at  his  request,  without  any  eon- 
aideration  or  valncy  which  said  bills  were  before 
notice  of  the  bankruptcy  negotiated  by  the  bank* 
rupt,  for  his  own  use  and  benefit;  that  &e  credit 
so  given  was  likely  to  end  in  debts  firom  the  bank* 
rupt  to  the  defendant ;  and  that,  afterwards,  before 
the  commencement  of  the  action,  the  defendant 
paid  the  said  bills.  On  special  demurrer,  on  the 
ground  that  no  mutual  credit  was  shewn, — ^Held,  a 
good  set-off,  under  the  6  Geo.  4.  c.  10.  s.  80. 

Held,  also,  that  the  assignees  oould  not  reply  a 
fhiudulent  delivery  of  the  goods.  BueteU  t.  BeU, 
10  Law  J.  Rep.  (n.8.)  £xeh.  800;  8  M.  &  W. 
277 ;  1  Dowl.  P.C.  (h.8.)  107. 

The  defendants,  who  were  bankers,  hadt  Pre- 
viously to  the  24th  of  October  1842,  discounted  UUs 
to  a  large  amount  for  certain  eustomere,  who  became 
bankrupts  on  that  day,  at  which  time  the  defen- 
dants had  in  their  hands  a  balance  of  1791. 19s.  1  Id. 
belonging  to  them.  The  bills  were  indorsed  by  the 
bankrapts  in  blank,  and  two  of  them  were  paid  by 
the  aocepton  before  the  bankruptcy ;  the  othen» 
for  exceeding  in  amount  the  sum  of  179^  19s.  lldL, 
did  not  become  due  until  the  18th  of  November^ 
and  other  subsequent  days.  The  action,  which 
waa  for  money  lent,  8ec,  was  commenced  on  the 
2nd  of  November  1842,  and  on  the  8th  of  the  saaw 
month  the  defendants  proved  against  the  bankrupts* 
ealAto  the  whole  of  the  bills,  except  the  two  whiek 
had  been  paid,  deducting  the  balance  of  1792. 1!^ 


BANKRUPTCY— (AssioKSM). 


89 


UdL:— Held,  Uut  the  defendants,  m  indorsees  of 
the  hiUsy  were  entitled  to  set  them  off  in  the  present 
tetion.  AUagtr  v.  Curru,  13  Law  J.  Rep.  (n.s.) 
£xch.203;  12M.&W.751. 

Aasitmpsit  by  assignees  of  T,  a  bankrupt,  for 
money  had  and  received  to  the  use  of  the  assignees. 
Plea,  that  before  any  notice  of  any  act  of  bank- 
mptcyt  the  defendant  gave  credit  to  T  by  accept- 
ing for  his  accommodation  a  bill  of  exchange, 
drawn  by  T  on  the  defendant,  which  before  any 
notice  of  his  bankmptoy  T  negotiated ;  that  the 
credit  so  given  by  defendant  was  extremely  likely 
to  end  in  a  debt  from  T  to  deiSendant ;  that  after- 
wards and  bofore  the  commencement  of  the  action, 
the  defendant  paid  the  amount  of  the  bill  to  the 
holders,  whereby  T  became  indebted  to  the  de- 
fendant for  the  amount  of  the  bill.  The  plea  then 
alleged,  that  before  the  defendant  had  notice  of  any 
act  of  bankruptcy,  and  before  the  issuing  of  any 
fiat  against  the  said  T,  and  before  the  commence- 
ment of  this  action,  T  delivered  to  the  defendant 
two  bills  of  exchange,  accepted  by  M  &  R,  in  order 
that  the  defendant  might  receive  the  amounts 
thereof  for  the  use  of  T ;  that  after  the  bankruptcy, 
bat  before  the  issuing  of  any  fiat,  the  defendant 
received  die  amounts  of  the  bills,  and  was  ready 
and  willing  to  set  off  the  two  sums  against  each 
other.  On  special  demurrer  to  the  plea, — Held, 
fint,  that  the  declaration  was  conrect  m  laying  the 
money  to  have  been  received  to  the  use  of  the 
pltintifis  as  assignees.  Secondly,  that  the  plea 
shewed  snch  a  mutual  credit  between  the  bankrupt 
snd  the  d^endant,  as  entitled  the  defendant  to  the 
set-off  under  6  Oea  4.  c  16.  s.  60,  notwithstand- 
ing that  the  action  was  for  money  received  to  the 
use  of  the  assignees.  Thirdly,  that  the  plea  was 
not  therefivre  bad,  as  it  was  not  an  argumentative 
denial  that  the  money  was  received  by  the  defendant 
to  the  use  of  thepla]nti£&  as  assignees.  Bittiesi^m 
V.  Tmmit,  14  Law  J.  Rep.  (n.8.)  C.P.  117;  2 
DowL  &  L.  P.C.  817. 

One  of  two  assignees  not  allowed  to  set  off  his 
ewa  debt  against  the  amount  of  a  dividend  pay- 
able to  a  cxeditor  under  the  fiat,  although  he  swore 
that  the  creditor  had  agreed  to  allow  such  set-off. 
EspmU  Baikff  re  Howarih,  1  M.  D.  &  D.  263. 

A,  in  consideration  of  an  advance  of  5001.  frcMn 
B,  a  country  banker,  gave  h  a  promissory 
note  for  that  sum.  B  deposited  this  note  and 
oth«r  securities  with  C,  his  London  banker,  to 
■ecure  a  debt  due  to  him.  B  became  bankrupt. 
At  the  time  of  B's  bankruptcy,  A  bad  notes  of  B's 
bank,  to  the  amount  of  58  R  The  value  of  the 
•eeorities  held  by  0  were  more  than  sufiScient  to 
Kpay  him  the  debt  due  to  him  from  B: — Held, 
that  A  was  entitled  to  set  off  the  amount  of  notes  in 
his  possession  against  the  sum  due  on  the  promis- 
sory note,  and  was  entitled  to  a  lien,  in  respect  of 
tins  right,  on  the  surplus  securities  In  C's  hands, 
without  prejudice  to  the  rights  of  other  persons 
standing  in  the  same  situation  with  himself.  Ex 
pvi9  Staddou  re  Wue,  12  Law  J.  Rep.  (n.s.)  Bankr. 
39;  3M.D.&D.256. 

^  Commissioners  are  empowered  by  an  act  of  parr 
Uamsnt  to  levy  rates  and  duties  on  vessels  entering 
a  harbour,  and  alao  tolls  on  vessels  navigating  a 
river  communicating  with  the  harbour,  and  they 
ue  required  to  apply  the  rates  and  duties  in  the 

DiOEST,  1840—1845. 


improvement  of  the  harbour,  and  the  tolls  in  the 
improvement  of  the  river.  They  deposit  the  monies 
received  by  them  with  one  of  their  number,  who 
is  a  banker,  and  acts  as  treasurer,  and  the  accounts 
and  drafts  relating  to  tlie  harbour  snd  river  are 
separated  and  distinguished  from  each  other.  The 
banker  having  failed, — Held,  that  a  debt  due  from 
him  on  one  account  might  be  set  off  asainst  a  debt 
due  to  him  on  the  other,  and  that  the  assignees 
might  be  restrained  from  proceeding  against  the 
oonunissioners  to  recover  the  latter  debt,  although 
the  set-off  would  furnish  a  good  legal  defence.  Eg 
parte  Pearce  re  Latigmead,  2  M.  D.  &  D.  142. 

The  defendants  being  indebted  for  money  lent 
to  them  by  their  bsnkers,  who  afterwards  became 
bankrupts,  received  from  their  customers  on  the 
day  of  the  bankers*  stopping  payment,  but  without 
notice  of  an  act  of  bankruptcy,  certain  6L  notes  of 
the  bankrupts,  in  part  payment  of  sntecedent  debts, 
on  condition  of  debitinff  themselves  with  so  much 
only  as  they  should  receive  from  the  assignees  upon 
the  notes.  They  also  received  from  other  parties 
other  61.  notes  of  the  bankrupts,  for  which  they  were 
to  pay  so  much  only  as  they  should  receive  from 
the  assignees  for  snch  notes.  An  action  for  money 
lent  having  been  brought  by  the  assignees  of  the 
bankrupts  sgainst  the  defendants : — Held,  that  the 
defendants  had  a  beneficial  interest  in  the  first  de- 
scription of  notes,  and  might  therefore  set  them  ofl^ 
but  that  they  could  not  set  off  the  second  description 
of  notes,  as  they  held  them  merely  as  trustees  for 
others.  Forster  v.  fViUon,  18  Law  J.  Rep.  (k.s.) 
Exeh.  209;  12  M.  &  W.  191. 

(M)  ASSIOMEES. 

(a)  Choice  tf. 

Meetings  for  the  purpose  of  choosing  assignees, 
although  no  assignees  may  be  chosen,  are  meetings 
*'for  die  choice  of  assignees"  within  the  meaning  of 
the  1  &  2  Will  4.  C.56.  Ex  parte  MiUer  re  MUler, 
14  Law  J.  Rep.  (n.s.)  Bankr.  25;  1  De  Gex,  144. 

Petition  by  a  bankrupt  for  a  new  choice  of  assig- 
nees, upon  the  ground  that  the  administration  of 
his  estate  waa  delayed,  from  the  two  assignees  not 
agreeing  together  in  the  appointment  of  a  solicitor, 
and  the  proeeedings  being  impoundeds — Held,  that* 
it  appearing  to  the  Court  that  the  bankrupt  and  one 
of  the  assignees  were  colluding  in  the  petition,  for 
the  purpose  of  having  a  solicitor  appointed,  who 
had  been  already  removed  from  being  solicitor  to 
the  fiat,  the  banlmipt  was  not  entitled  to  the  prayer 
of  his  petition. 

Semble,  a  bankrupt  whose  estate  is  not  likely  to 
pay  1<.  in  the  pound  may  have  a  loctu  standi  in  a 
petition  for  a  new  choice  of  assignees.  Ex  parte 
Oakee  re  Oakes,  10  Law  J.  Rep.  (n.s.)  Bankr.  66; 
2  M.  D.  &  D.  60. 

Where  an  assignee  had  sold  his  debt  to  a  creditor 
who  was  adverse  to  the  fiat,  and  was  ordered  to  be 
removed,  and  a  new  one  chosen  in  his  room,  he 
was  restrained  from  voting  in  the  choice  of  the  new 
assignee.  Ex  parte  Stagg  re  Burton,  2  M.  D.  &  D. 
186. 

The  commissioners  have  no  authority  to  prevent 
a  creditor,  who  may  have  an  interest  adverse  to  the 
rest  of  the  creditors,  from  voting  in  the  choice  of 
asMgnees,  under  6  Geo.  4.  c  16.  s.  61.    Ex  parte 

N 


^ 


9a 


BA»KWJrrCT(M.(A»WKW>^ 


.  1  CAbe  when  th«  Court  aliUiWed  tbe  hrolher  of  ft 
liUiatfe  tty  pfecnre  tndvota  i*  dwobeioe  ^f  Bseignoeft 
iBor.  ^orie  dyUakt  tm  Fwringdon,  U  L4«r  J.  Jkpt 
<m:s.)  Bankr*  81^ 

'.  The  puUie  officer  W  &  banking  ooBipMy  miiy 
'vwte  by  attofeney  on  b^baif  W  tb»  oompany  al'thf 
shoioe  of  Aasigneea.    Bit  jmrie- Jckroifd  re  Jitm^o^ 

-  It  is  a  good  piActice  bet  to  ratify  the  cboicp  of 
anigneest  unioM  thapeiaoiifl.choaen  are  praMOiaod 
*o0q>t  the  trutt}  but  iemblti,  a  departure  from  tbia 
praetice  doesnet  invalidate  the  appointment.  Ibid, 
i  The  oommlssioDen^  vpen  improper  gnmads,  re* 
^ecteda  proof  by  A  csteditor,  of  a  debt  Uueger  is 
ahramit  timn^ali' the  otbet  debts  of  the  bai&mpt» 
ihe  'direct  of  the  aolidtar'B  oppoiitioa  to  the  proof 
beiflig  to'pvevept  the  orediterToting  In  the  oboioe 
of  aa8ignee»:-^HeId)  Uiat  the  eboiee  8boitl4  be 
Taeatedy  aod  that  the  cnditars  abould  make  *  new 
vJsoioe.  Spilier  im  WaUers,  10  Law  J.  Hep,  (tui.) 
3ankr.  48 ;  2  M.  D.  &  D.  48. 

'  A»  B|  C,  B^  add  E  *weTe  traetef  s  of  a  tod,  of  which 
£  Tcoeived  and  appropriated  the  ineomew  £  was  ttt* 
tstwwds'ibaBdl  a  bankntpt.  Undec  an  order  of  the 
CwiTti  A,  B,adid  C  prersd  a  debt  against  the  estate 
of  £  in  leepeefc  of  the  sum  so  appropriated  by  him. 
At  a  meeting  of  eiedttora  at  which  A,  B,  C,  and  D 
islane  w«re  ptteeent^  A^  B,  and  C  eksated  O  to  be  the 
Areditl)ni'' asaigBee.  On  a  petition  ofthe  baAhtilpt^-^ 
Hdd,  that  A,  B>  sad  C  ivece  not  credlton  entiitled 
to  vote  for  assigrnees,  and  that  tlieir  e^oice  must  be 
•et  aside.  Ex  parte  Mowt  re  /2o«W|14  Law  J.  Rep. 
<N.B.)  Banhr.  17  ;  1  De  Gem,  111. 

Where  the  credltois  choose  their  aBsignees^  and 
the  connaiBstonerg  rejeot  one,  there  must  be  a  new 
chetee.  ^  p<w^  Wiigm  re  Whitehnd,  1 1£  D.  &  ]>. 
fid4. 

A  oonrpiomise  of  a  eontest  for  the  ehoiee  of 
•aseignees  by  which  t]ie  business  of  the  bankmptoy 
was  dif  ided  between  two  distinct  £cms  of  solicitors, 
who  were  to  be  joindy  appoiaited  aolidtors  to  the  fiat, 
adrongly  disapproved  of  by  the  Cowrt  £r  parte 
Turner  re  Martin,  3  M.  D.  &  D.  523. 

(b)  Duties^  Jiight*,  and  Liabilities, 

The  Court  aiQ  only  sanction  a  compromise  made 
by  the  assignees  with  a  claimant  against  die  bank- 
rapt's  eaiate  subject  to  the  appmbation  of  the  com- 
mfsmoner*    Jfnre  Mcrthan,  8  hLD.&B.  448. 

A  being  indebted  to  B,  absconds  to  Ameriea, 
upon  which  B  sends  out  a  power  of  attorn^  to  an 
agent  there,  to  recorer  from  A  what  moswy  he  can. 
B,  hearing  of  a  similar  proceeding  by  another  ore- 
fNtor,  sues  out  a  flat  agaiast  A,  aiui  i*  chosen  one 
of  hib  assignees,  and  afterwards  B^s  agent  in  Ame* 
rioa  obtains  a  sum  of  money  £rom  A,  and  remitB  it 
to  B  ill  England  i-'^Held,  that  this  money  was  re- 
ceiired  by  B  iu  his  eharacter  of  assignee^  and  that 
B,  having  himself  become  bankrupt^  mighty  under 
the  «  Geo;  4^  c.  16.  s.  10i5,  be  ebuged  with  the 
amount^  together  with^intewst  at  6k  per  eenl,ino^ 
wilhsundfng  he  had  obtained  his  oertificade.  Bx 
parte  Ralph  re  Marmaduke,  8  M'.  D.  &d>.  381^ 

If  a  sheriff  selxe  goods  under  a  writ  of  jL  fa.  vtpon 
a  judgment  fovnded  upoft  a  wmnunt  of  attorney, 
iuoh  writ  beoomea  void  by  the  iosnuig  of  a  fiat 


Hgshist'l^  debtor  *beib«a  .tba  ial^';  Jini  a&db  ease 
tveeution  creditors  in  adTeiae  aciionsf ■  wbo9o  ^nai 
have  been  lodged  with  the  sheriff  before  the  wsMug 
of  the  fiat,  take  Id  priority  to  the  assignees  of  the 
bankrupt  Oraham  v.  Witherhy^  and  Graham  v. 
Lynee,  14  Law  J.  Rep.  (aa.>aB.  890. 

Wiibeve  the  oommisflkMiers  at  a  meeting  to  a^dit 
the  accounts  of  the  assigoeea  and  deolare  a  diwi* 
dend,  fouud  a  certaiu  sum  |to  bo  in  tbe>iaDda  of  tbt 
assignees,  and  declared  a  dividend  accordingly: 
$embk,  that*  each  of  the  asaigBtea  is  tiable  for  Uie 

Stymont  of  the  dividend,  although  the  ^riodpsl 
nd  foe  that  puypose  bad  been  neeiyod  by^  aid 
was  then  in  the  hwidsiof  only. one  of  the  asa^oM 
If  an  assitEnoe  objects  to  be- so  ehai^ged  with  moDey 
ia  the  hands  of  hw  co^assignee^  be  should  state  lus 
oigeotioii  to  the  oonimiaaioi»^  at  the  audity  and  net 
He  by  until  a  petition  is  presented  lor  the  payment 
pf  the  dividrad.  Em  parte  Ridky  re  Kimght^  8  JL 
P.&D.418. 

Inquiry  direotod  aa  to  the  oonduet  of  an  aasicipes 
iu  seUiBg  a  jrereraionary  iiiterest  of.  the  bauknpti 
and  aa  to  his  diligence  in  endeavouring  to  recover 
oertain  debts*  -  M»  parU  Biff  em  re  Byrrnm^  8  M.  IX 

(c)  ATtowanice  iff  Costs.  ' 

,  •  Aasagneea  are  entitled  to  have  tbo  diroction  of 
the  Court,  with  regard  to  therightsof  p«i(ieaolaii» 
ing  to  be  equitable  mortgagees  of  property  of  tbs 
bankrupt;  and  are,  therefore,  enticed  to  their  ossti 
out  of  the  mortgaged  estate,  although  they  bars 
-been  requested  to  ooneuc  in  a  sale  witkont  a  peti* 
tion  being  presented.  Ex  parte  Steveua  re  Bmrgm, 
3M.D.&D.  817. 

A  provisional  assignee^  who  iaraade  a  defimdaat 
to  a  foredoBure  suit«  ia  not  entitled  te  hare  his  cosls 
from  the  plaintiff  even  though  be  disclaims  by* his 
answer,  and  has  bo  aeaeta  of  the  insohvaf  s  estste 
in  his  handa  Apfdebf  v.  Duke,  18  £jaw  /.  fiep. 
(k.s.)  Oh.  9  ;  1  Ph.  278  3  affirming  s.  ell  Law  J. 
Rep.  (x.a.)  Ch.  104;  1  Hare,308. 

An  official  assignee  who  is  made  a  de£nidSBt  ti  a 
foreolosure  sidt,  is -not  enticed  to  ha<r»  his  casts 
£tNn  the  plaintifl^  even  though  by  hia  answer  he 
claimed  no  isiterest  eaoept  aa  assignee^  asid  dia- 
claimed  at  the  hearing,  aad  has  no  assets  of  tlie 
.badkruptrs  estate  in  his  hands,  dark  v.  WOmi, 
18  Law  J.  Rep.  (k.s.)  Ch.  10 ;  1  Ph.  276  3  rBVeniaf 
s.  c.  11  Law  J.  Repi  <v.8.}  Gh.  16;  1  Y.  A:CoI. 
ac.  88. 

Petition  ptaying  for  liberty  to  prove  a  debt  sganst 
the  estate  of  a  faankmpt^  on  behalf  of  a  perasa  of 
unsound  mind ^-^fi eld,  that  the  assignees  were  net 
entitled  to  get  dieir  costs  of  the  petition  firom  tbe 
petitionee,  J^  parte  BueknaU  re  Biekien,  12  Law  J. 
Hep.  (ir.8.)  Banks.  42. 

Petition  by  an  executor,  who  had  become  bsnk- 
xtipt,  for  liberty  to  prove  a  deibt  sgaonat  his  eon 
estate,  in  the:oharactef  of  execatorc— ^Hdd,  tbst 
the  assignees  were  not  entitled  to  get  their  costs  of 
the  petition  from  the  petitioner.  Bx  parte  JSaoOfUm 
re  Ua^dy  12  Law  J.  Aep.  (v«&)  Bai^.  87. 

'  An  executer  appropriated  a  fegany,  which  he  held 
in  trust,^  snd  became  bsnkiupt  A  petitteu  wss 
prdsented  by  the  eeettd  pie  trattef  §&e  liberty  ts 
prove  tiie  amount  of  tho^  legacy  against  the  eritste 
of  the  bankrupt :— Held,  that  the  assignees  -wert 


BANKRUFrcl^tA0»roil]!BB}. 


91 


utk  nIfMMto  gettlke4r  costs  df  thd  jpetftioit  IVrai 
tte  {Mitioiierft.  BtparU  O^U  r«  Netman,  VI  Law 
J.  tUp^  (IV.S.)  Batikr.  87. 

(d)  AcHonf  and  Suits, 
[S«ft  BtliLS  OF  £scaAiC0B«] 

Piovisioiis  ittftde  for  enabling  assignees  sf  one 
member  of  •  pattnenbip  to  sne  ^*  debtors  of  the 
irm,  by  5  &  #  Vict,  c  122.  s.  31 ;  20  Law  J.  Stat. 
App.  xiii. 

A  debtor  to  a  banknipt,  wben  sued  by  the  assigneea 
withift  tke  tittle  allowed  for  the  banktupt  to  diapute 
the  fiAf,  empowtfred  te  pay  the  debt  Into  eonr^  by 
6  A6Viet  o.  12S.  a.  26  ;  20  Law  J.  Stkt  App.  xiiL 

Where  ic  appeared  at  the  trial,  that  alter  bmk* 
raptey,  eighty-five  bandies  of  yam,  of  the  talue  of 
114^,  had  been  deBr^red  by  the  banktnpt  to  the  dO- 
fradaott,  B9  they  alleged,  to  meet  an  acoommodation 
bill  whieh<difcy  were  Aoot  to  gWe  the  baoktupt {  and 
the  goods  were  accompanied  by  an  invoice, 'which 
tfirtid  them  to  be  Am^M  by  l3ie  dofendaou  of  the 
bsnkrapt:— Held,  nndef  these  dretimstaoees,  that 
the  asoigneoo  Might  waiye  the  tort,  and  bring  at- 
rampeit  for  goods  ooM  and  ^eliv^red.  Ruwb^U  t. 
BtU,  10  M.  &  W.  340. 

A  contract  between  a  railway  company  and  a 
bnilder  contained  a  clause,  that  in  case  the  builder 
shoald  bccN>iii0  fnsohieDl  or  be  deolared  banknipt, 
&ouy«r  aboald  ^m  any  other  canuie,  independent 
of  the  act  of  the  company,  bo  prevented  from  coot- 
timiiiq^  his  oontrftet,  it  should  be  lawful  for  the 
coBpsny  to  give  him  a  notice  in  writing,  requirfing 
hhn  to  pvooesd ;  andthat  in  caae  the  btSder  should 
kn  seven  dajrs  after  soeh  notice  f^ven,  make  defittdl 
in  proceeding,  it  should  be  lawful  for  the  company 
ta  employ  otiior '  workmen  t  and  that  all  the  tools 
«id  materials  then  dciivsred  for  the  purpose  of  the 
worfca  thereby  oontractsd  for,  and  then  being  on  o^ 
about  the  site  of  the  said  woiks,  shonld,  upon  saoh 
defiiaft  as  afofeesaid,  become  and  be  in  all  respedis 
Ooaadeted  aa  die  absolute  property  of  the  oom«- 
pany."  Notice  was  given  to  Uie  builder  on  the 
lithflf  April  On  the  17th  be  beeame  bankrupt. 
On  the  IStlir  Ao  compnny  entered  on  the  woikss*^ 
Held,  that  the  assignees  were  entitled  to  recoyek* 
the  took  and.  materials  which  wete  on  the  works  on 
the  17th,  ia  tiovec  against  the  oosopany.'  Roaeh  v. 
tte  Gnat  WnUm  RtAkamy  Company ^  10  Law  J.  Bep. 
<M.s.)  Q:a  89. 

The  owner  ef  a  houso,  after  mortgaging  it  in  fee, 
continued  in  possession,  and  let  it  as  a  ready-foH- 
aidwd  hoaae  to>tiio  delBDdant  He  alketwards  be- 
eame bankrupt,  and  then,  with  the  assent  of  his 
assigneea,  let  the  honse  ready  flirniihed  to  the  do- 
fondant,  by  the  week,  whoy  after  three  weeks'  oeon* 
paftion,  lipcesved  notiee  from,  the  mortgagee  to  pay 
the  rent  to  him : — Held,  in  an  aetioii  by  the  assignoss 
of  the  faaiikropt,  for  use  and  oooupatien  of  the 
house  and  fiiniitnm}  that  they  were  entitled  to 
leoover  for  the  fomitnrs  i  the  rent  of  the  house  and 
fomitnre  nright  bo  apportioned,  or,  if  not,  that  the 
joiy  nd^t  infc^  on  the  notice  by  the  mortgagee,  a 
new  agreement  by  the  tenant  to  take  the  house  A^ 
the  mortgagee  at  a  tfeasonaUo  rent,  and  to  pay  the 
assignees  of  ttee  ba^mpt  mortgagor  a  roasonahle 
eempensation  for  the  use  o£  the  fiuniture*  Bahun 
M^MathamyU  Law  J.  Rep.  (ii.ai)£xoh.M ;  8  M. 
*W.M7,     . 


1^0-  an  aetSoQ  of  trowi  by  ^tll«  asrfgiieos  4>f  0 
H  and  W  L,  bankrupts,  against  the  thoriiF,  thto 
defendant  pleaded  that  oMo  0^  H  and  one  W  L, 
traders,  being  indebted  to  O  S  and  W  S^.  the 
ktlsr  sued  out  Ajkfit,  against  the  adid  Gh  H  antt 
W  L,  which  was  delivered  to  the  ddfendant^  ns  ahe^ 
riff,  to  be  eieoutedi  that  the  shctiff,  after  ^the  said 
G  H  and  W  L  beossse  baaknipt  as  afonsaid,  and 
before  the  flat,  took  the  goods  and  lofied  tho  amount 
by  sale ;  that  afterwards  a  fiat  isaacd  agaiast  tUs 
said  bankrupts,  nndA  which  the.  plaintifls  Were 
appointsd  asfignses,  and,  as  snoh  assignees,  beoano 
ondtled  to  the  possesaton  of  tho  sakL  goods;  loiWeft 
poueisimt  ft  the  po$9etakm  qf  Me  jdMsI^  osioufgK 
nees  fi»  the  dmhrathn  memHouod^  Tho  plertihen 
averred  that  t&o  creditors  had  not,  at  the-  titoe  of 
exeottting  tlio  writ,  notice  of  any  prior  not  of  banhv 
mptcy  t — Held,  firat^  that  this  defhiee  might  be 
given  in  evidence,  either  under  tiie  plea  of  not  pos<> 
sessed,  or  not  guilty.  Secondly,  that  the  plea  waa 
not  an  argumentative  plea  of  not  possessed,  as  it 
admitted  the  assignees'  right  by  relatfon  to  the 
possession  of  the  goods  at  the  time  of  the  exeoutioa: 
qmiHttf  whether  the  plea  amounted  to  an  argumen- 
tative debial  of  the  HOi  of  theipUdntiA.  Thirdly, 
that  it  soffioiently  appeared  diat  tho  persons  dst- 
acribed  in  tho  plea  as  tiaders  and  baxanxpts  wei^ 
the  same  as  theeo  mentioned  in  tlie  deelaraCon. 
Fonr^y,  that  it  was  imneoessaiy  to  arrer  that  the 
seizure  or  the  flat  was  sufosAquent  to  the  passing  of 
2  &  3  Viet,  c  2a  Unntm  v.  Si,  QMndim,  12  Law  J. 
Rep..(N.&)  Exch.  200;  11  M;  &  W.  277i  2Dowl. 
F.C.  (H.8.)  7M. 

Where  the  parties^  striking  a  docket  and  issoing  a 
fiat  took  from  tho  bankrupt  a  piroiniasoiy  note  for  a 
greater  aoMmnt  in  tho  pound  than  the  other  oKdi- 
tovs,  with  a  view  to  a  oompositien  deed,  which  nOte 
maS'aCleiwardapaid,  and  n*  proceediagav  taken  On 
the  fiat: — Held,  that  although  the  case  fell  withitt 
the  6th  section  of  6'€4o.-4.  o.  1-6,  and  snoh  aeculdty, 
and  die  whole  debt  of  the  orodfitormightbe  foorfoited 
under  the  baidDUpt  hiw%  yet,  .aa  the  sttma  paid  on 
the  note  oould  not  have  been  'rvcoitsred'  by  the 
bankrupt  himself,  who  was  a  party  to  the  agreemoat, 
they  could  not  be  reeovextfd  ita  an  aetldn  by  assig- 
nees appointed  under  a  con(tmis8ion  issued  on  a 
subsequent  act  of  bankruptcy.  Belcher  v.  Sam- 
donu,  13  Law  J.  Rep.  (ma>  Q..B.  207. 

In  an  notion  o£  trover  by  the  assignees, jof  a 
trader,  to  recover  the  value,  of  property  seized  by 
the  creditor  under  a  bill  olaak,  it  was  oetttonded, 
that  even  if  the  bill  of  sale  wel!«  Hot  itself  aa  a^  of 
bankmptey,  yet  the  debt  which  it  was  given  to 
secure  had  faeeii  discharged  by  aabeoquent  pav- 
ments  by  the  tnder  prior  to  the  seiaura  The 
assignees  recovered  in  tho  action  of  tfover,  on  the 
ground,  that  the  bill  of  sale  axaa  an  act  of  bank- 
ruptcy i->*Held,  that,  io  an  action  for  money  had 
and  received!  brought  by  thei  assignees  to  recover 
the  sums  paid  to  tiM  eredilor  by  the  bankrupt,  a(W 
the  execution  of  die  bill  of  sale,  they  were,  not 
eaioppsd  frem  denying  that  the  sums  so  paid  bsd 
been  legally  appropriated  in  difwbarge  of  the  origi- 
nal debt  Idndon  v.  Sbarpt^  13  Law  J.  Rep.  (n.s.) 
C.P.  67  %  7  So.  («.&.)  73a 

Defondants,  oreditora  of  a  bankrupt,  halving  ^fter 
tho  act  o£  bankmptey  and  heforo  the  fiatt  seised  hie 
goods  .uqdor  a  /.  /d.^  &e    assignees  aftervurds 


90 


BANKAUrrcV^(A9TO9rw)^ 


!  CMe  whd»  thd  Court  aUoired  tibe  hroiher  of  a 
lunatic  to  pMwe  a&dVote  ii^  tfae  oheioe  ^f  ftsaigneea 
iBar  ^urTf  .^ylui*  nt  Farriugdm,  1 1  Law  J.  Jbtpt 
(m.».)  BAnkr.  81. 

'.  The  paUk  officer  «r  &  banking  ooBipatty  may 
■vote  by  atMcney  on  biAttU'  al  tha  QOm|pany  atitba 
ofaoioe  af  aasigneea.    Em  fmrU-Aekroyd  rt  Mutmte, 

It  ia  a  good  pjoactice  not  to  ratify  tha  oboicp  of 
aasigneea,  uiUeas  thapenona  ahoaan  are  prcaentand 
Jioaapt  the  tniat  \  but  $emhle^  a  departure  from  tbia 
pntetioadaeanatinvairdatatbeappotntment  Ibid, 

The  oamdilssiaBaia^  apan  iaopropar  gvouads,  re* 
peeled  a  proaf  by  a  cffeditor»  af  a  debt  laager  in 
amaaotthan  all -the  otber  debts  of  the  bai^rup^ 
ibe  object  of  the  aalicatar'a  opposition  to  the  proof 
beiag  to*pievesit  the  oredxtacToting  in  the  oboioc 
of  aa8igneea:^**-Ha1d,  ^at  tbe  eboiee  8bou)4  be 
■raeatedyaBd^  that  the  cmdttora  abould make*  new 
«hDioe.  SpiUer  rt  Walfers,  10  Law  J<  Hetp.  (Kj.) 
3ankn  48 ;  2  M.  D.  &  B.  48. 

-  A,  B,  G,  D,  and  £  nrere  troatef  a  af  a  £inid«  of  vhicb 
£  received  and  appropriated  the  income^  £  was  ar» 
terwaffda'fouBdl  a  bankrupt.  <  Under  an  order  of  the 
CcBitj  A,  fi«attd  C  pravad.  a  debt  against  the  estate 
af  £  in  reapect  of  the  anm  so  appropriated  by  him. 
At  a  meeting  of  ereditoira  at  whieb  A,  B,  C,  and  D 
alans  anare  pveeent)  A^  B,  and  Celaated  1>  to  be  .the 
^edLtbiH"  asaignea.  On  a  petitidn  of  the  haAkropt^ — 
HcM,  that  A,  B{  and  C  Mere  not  erediton  entitled 
to  vote  for  assignees,  and  that  their  e^oica  must  be 
act  aside,  jfilar  parte  Raw$  n  Bove,!^  Law  J.  Rep. 
<ii.a.)  Bankr.  17  ;  I  Be  Oeta,  111. 

Wheia  the  creditora  ohoosa  their  aaaigneas^  and 
tbe  conmiiaaionera  -reject  one^  there  muat  be  a  new 
«hoiea.  Ex  parU  irii$imre  fFhitBhtad^  1  M.  D.  &  D. 
£84. 

A  coiarpromiBe  of  a  contest  for  the  choice  of 
•asaigneea  by  wbsch  t&e  buaineas  of  tbe  banktnptoy 
was  divided  between  two  diathnet  fimw  af  aoixoitors, 
who  were  to  be  jointiy  appointed  aolieiters  to  the  fiat, 
strongly  diaapproved  of  by  the  Gonrt  &x  ptartB 
Turner  re  Martin^  3  M.  B.  &  D.  523. 

(J))  Duties^  Jlighiet  (^nd  Liabilities, 

The  Court  will  only  suiction  a  compromise  made 
by' the  aasignoes  with  a  claimant  againat  the  bank- 
t^pt'a  estate  aabject  to  the  appiX)bation  of  tiia  oom»- 
mlsaiower.    In  re  Mcnhan^  8  M.  Dw  &  D.  446. 

A  being' indebted  to  B,  abaoonda  to  America, 
upon  which  B  sends  ont  a  power  of  attorney  to  an 
agent  there,  tOTeco<rer  from'  A  what  moaey  he  can. 
B,  healing  of  a  aimllaT  piocseding  by  another  ora- 
^tor,  snee  out  a  fiat  against  A,  and  is  chosen  one 
of  hib  asaigneea,  and  afterwards  B-a  agent  in  Ame^ 
rioa  obtains  a  aum  of  money  from  A,  and  renuts  it 
to  B  in  England  i*^Hald,  that  thia<  money  was  re- 
ceived  by^B  in  his  abaraeter  af  aasigueie)  and  that 
B,  having 'himself  became  ibankrapt^  might,  under 
the  ^  Geo;  ^  c-  IBi's.  lOiS,  be  ebajfged  rwith  the 
amonnt^  together  wi4!hintei«8t  at  Hi'^tn  eettt^inot- 
witfastandfng  be  had  obtained  his  certificate.  Etc 
parte  Ralph  re  Marmadukey  8  M:  B.  ft-D.  331j 

If  a  sheriff  seize  gt^ods  nndea  a  writ  of  >L  fa,  Mpon 
a  judgment  fomld^'npCn  a  warrant  of  attorney, 
such  writ  beoaasea  void  by  the  iasoing  of  a  fiat 


agahist  $ka  debtor  •before  tba  «alat  Jni  atieb  ^imB 
a««eution  oradiloia  in  ad?eiaa  actiona*  wboia  write 
hare  been  lodged  with  thedienffbeforatbe  iaaalng 
of  the  fiat,  take  in  priority  to  the  assignees  of  the 
banknipt  Oraham  v.  Witherby^  and  Graham  v. 
Lynett  14  Law  J.  Rep.  (i!i.a.>  Q.B.  MO. 

Wiketa  the  commisaioiiera  at  a  rofeting  lo  aaidit 
the  acoounts  of  the  asaigoeea  and  dealaae  a  divi^ 
dead,  fo»ad  a  certain  aim  to  he  in  tbehanda  of  tbe 
assignees,  and  declared  a  diiridend  accordingly': 
umifle,  that*  each  of  tbe  aaaigaeea  ia  liable  far  the 
fpynient  of  tbe  dividend,  altbotigh  tbe  yrinoipal 
fund  for  that  pnvpose  bad  been,  raaaivad  by  and 
waa  then  in  the  hands  lof  only  one  af  the  aeaignee^ 
If  an  assignee  objects  to  beso  chai;ged  witlk  nsapqr 
in  tba  bands  of  bia  co^asaignee,  be  ahould