plaintiff or such of the defendants as shall so redeem will be entitled to a charge upon the said mortgaged hereditaments for the amount of principal, interest, and costs, and costs, charges, and expenses which they shall so pay in redemption of the said hereditaments, and also for their costs of this cause, such costs to be

taxed by the taxing master, and, in case the plaintiff shall *712 redeem, for what she shall pay to the * defendants Charles Brown and William Dray for their costs as hereinbefore directed; and do declare that, in the event of the said hereditaments being so redeemed by the plaintiff or by the said last-named defendants, or any of them, the equity of redemption of the said mortgaged hereditaments is in the hands of the plaintiff or such of the defendants so redeeming as aforesaid, to be subject and liable to such trusts and limitations as are declared and limited by the will of John Pawley, in the pleadings mentioned, concerning the same; and any of the parties interested are to be at liberty to apply to this Court as they may be advised." —Reg. Lib. 1863, B. 2698.

[540]

AN INDEX

ΤΟ

THE PRINCIPAL MATTERS

CONTAINED IN THIS VOLUME.

ABATEMENT. See DISMISSAL OF BILL, 1.

ACCOUNTANT.

The office of the chief clerk's certificate is to find facts and results for the guidance of the Court on further consideration, and it is irregular for the chief clerk to refer the whole case to an accountant and to adopt his report as part of the certificate.

A claim by one partner for interest on capital in the partnership business disallowed under the circumstances of the case. · Hill v. King, 418. ACCOUNTS. See ARBITRATION, 2. PARTNERSHIP, 2.

AGREEMENT. See BILL OF SALE. RAILWAY COMPANY. SPECIFIC PERFORMANCE. VENDOR AND PURCHASER, 1.

ALLOWANCE.

1. A deed for the benefit of creditors * operating under the Bankruptcy *714 Act, 1861, § 192, is to be looked upon in the light of a contract

between the debtor and his creditors, and stipulations not made by the parties themselves cannot be imported into it by the Court.

Therefore, if it is intended that an allowance shall be made to the debtor out of the net produce of the realization of his estate in proportion to the amount of dividends yielded by it, a stipulation to that effect must be inserted in the deed, and cannot be imported into it under the Bankrupt Law Consolidation Act, 1849, § 195, by any incorporation with the deed of the provisions of the Bankruptcy Act, 1861, § 197. To obtain an allowance under the 195th section of the Act of 1849, a bankrupt must not only have a sufficient estate, but must also have obtained his certificate. Ex parte Gibbins, In re Gibbins's Trust-deed, 258. 2. The power given to the Court of Bankruptcy by the Bankrupt Law Con

solidation Act, 1849, § 194, of making an allowance to a bankrupt out of his estate for the support of himself and his family prior to his passing his last examination, still exists, subject only to be displaced by the exercise by a majority of creditors present at the first meeting after adjudication of the controlling power given by the Bankruptcy Act, 1861, § 109.- Ex parte Ellerton, In re Leech, 255. AMENDING BILL. See LANDS CLAUSES ACT, 2. AMENDMENT. See CORPORATION.

"AND" FOR "OR." See WILL, 4.

ANNUITY.

A testator bequeathed leasehold property in trust to receive the rents, and after payment of outgoings and interest on money secured upon the property to pay an annuity to the testator's daughter, and in case of the daughter's death, leaving children, in trust to continue the annuity for the benefit of the children, and upon the attainment of majority by the youngest child to raise a gross sum for the children by sale or mortgage of the property; and upon further trust during the daughter's life, and until the attainment of majority by her youngest child, if she had any, to pay the residue of the rents, after payment of outgoings and interest and the annuity, to the testator's son; and after the daughter's death without children or after the attainment of majority by the youngest child, if any, and the raising and payment of the gross sum above mentioned, and after the performance or failure of the antecedent trusts, to assign, transfer, and set over all the property, or such part thereof as should remain undisposed of, to the testator's son: Held, that the annuity was a charge on the corpus of the property, and not upon the rents and profits only. - Phillips v. Gutteridge, 332.

* 715

**

ANNULLING.

1. An application to annul an adjudication of bankruptcy made by a bankrupt, whether before or after the time has elapsed for showing cause against the adjudication, under the Bankrupt Law Consolidation Act, 1849 (12 & 13 Vict. c. 106), § 104, is an appeal from the order of adjudication, and is properly made by way of motion to the Court of appeal at any time within the limit of two months specified in the 233d section of the Act, as amended by the Bankruptcy Act, 1854 (17 & 18 Vict. c. 119). § 24.

Circumstances under which the Court of appeal allows new evidence to be adduced. · Ex parte Miller, In re Miller, 395.

2. An appeal by the bankrupt from a refusal of a commissioner to annul an adjudication of bankruptcy obtained in England by residents in Scotland, as petitioning creditors, against a trader whose trade was wholly in Scotland, was directed to stand over, with liberty to the bankrupt to bring an action to try the validity of the adjudication. On the failure of the petitioning creditors to appear to the action within a time limited by the Court for the purpose, the Court annulled the adjudication. Pending the proceedings the goods of the appellant seized by the messenger

had been sold by arrangement: Held, that the official assignee was entitled to deduct from moneys received by him from the sale moneys expended in warehousing and selling the goods, but not his costs of proceedings in Court; the Court directing that these should be paid by the petitioning creditors, who, like the official assignee, were respondents to the petition, and ordering that the petitioning creditors should pay to the bankrupt the moneys to be deducted by the official assignee. Ex parte Wollheim, In re Wollheim, 389.

See ARRANGING Debtor, 10.

ANSWER. See SUFFICIENCY.

APPEAL.

1. The Master of the Rolls declined to hear personally except in Court a matter arising in Chambers, upon which one of the parties desired a hearing before the Judge personally; objecting, however, to a personal hearing elsewhere than in Chambers, on the ground of expense. Held, to be a case in which the Court of appeal would not interfere with the discretion of the Master of the Rolls. In re The Agriculturist Cattle Insurance Company, 425.

2. An appeal by a person not a party to the record, but who appears

*without filing a supplemental bill in order to save expense, *716 allowed to be set down for hearing. — Nickisson v. Cockill, 622. 3. Where the circumstances of the case make it expedient, the Court will require security from a person entitled to receive costs under a decree to refund them in the event of an appeal from the decree proving successful, or will otherwise provide for their being refunded in that event, as by ordering their interim payment into Court. - Gibbs v. Daniel, 479. 4. The twenty-one days from the date of a decision or order of the Court of Bankruptcy, within which, according to the Bankrupt Law Consolidation Act, 1849 (12 & 13 Vict. c. 106), § 12, an appeal from such decision or order must be entered, date from the day when the decision or order sought to be appealed from is pronounced, and not from that on which it is drawn up, although the latter date appears on the order. Ex parte The Dudley and West Bromwich Banking Company, In re Hopkins, 456.

See ANNULLING, 1. COSTS. DISMISSAL OF BILL, 2.

ARBITRATION.

1. A company having given notice to take a leasehold hotel belonging to and occupied by the plaintiff, it was referred to arbitration to ascertain the value of the hotel and premises and the damages sustained or to be sustained by the plaintiff by reason of the company's works, and the amount of compensation to be paid by the company to the plaintiff in respect thereof. The arbitrator awarded a sum to the plaintiff "as the compensation to be paid by the company to him for all his interest of whatever nature in the above leasehold." Held, that it was impossible to say, with certainty, whether the arbitrator intended or not to include the damages in this award, and that the award was too uncertain

for the Court to act upon, and that the plaintiff's bill for specific performance of it had rightly been dismissed, though the plaintiff offered to waive all claims for damages beyond the award. Wakefield v. The Llanelly Railway and Dock Company, 11.

2. An arbitrator who, in making his award as to certain disputed questions of account, was to have regard to the principles of taking the accounts shown in certain accounts prepared by public accountants, submitted the written statements of claims made by either disputant to such accountants for their report thereon, upon receiving which he forthwith made his own award in accordance therewith and in the absence of the parties: Held, that his award must be set aside without prejudice to any question, first because the report of the accountants must be considered as evidence on which either party had a right to be *heard, and that the issue of the award was made with undue haste; and, secondly, because the arbitrator had too far delegated his own authority to the accountants. - In re The Eastern Counties Railway Company and The Eastern Union Railway Company's Arbitration. The Eastern Counties Railway Company v. The Eastern Union Railway Company, 610.

*717

ARRANGING DEBTOR.

1. A trust-deed for the benefit of creditors intended to be executed by debtors in business together as copartners, and to be brought within the provisions of the Bankruptcy Act, 1861, § 192, is properly framed when its terms embrace all possible estate and property which not only does but also may or might belong to the partners jointly or to either of them separately.

The non-existence in point of fact of any separate estate of either debtor is no objection to the validity under the Bankruptcy Act, 1861, § 192, of a trust-deed so framed, even as against a non-assentient separate creditor.

Semble, that in computing the statutory majority of assenting creditors to a deed under the Bankruptcy Act, 1861, § 192, executed by debtors in trade in copartnership, the separate creditors are not to be consulted separately in respect of the separate estate, but that the whole body of the creditors is to deliberate and decide together, and that separate creditors might constitute a majority even if there were no separate Ex parte Oldfield, In re Oldfield, 250.

estate.

2. To the validity, under the Bankruptcy Act, 1861, § 192, of a composition deed executed by a single member of a dissolved firm after the dissolution, objection was taken on the part of creditors of the firm, on the ground that the joint creditors were insufficiently represented in the computation of the majority of assenting creditors required by the statute. Held, that the objection could not be entertained in the absence of evidence showing the existence of joint estate at the date of the execution of the deed, and that the onus lay upon the objectors to produce such evidence.

An assignment of a debtor's estate and effects is not necessary for the valid