On a reference to the registrar, it
is not incumbent on a party to bring
in a formal state of facts, if it is not
required by the registrar. Ex parte
Smythies, re Southall, 4 Deac. 110;
S. C. Mont: & C. 346, 656.
On such reference the affidavits
filed in support of the petition are
receivable by the registrar in evi-
dence; and he is not bound to exa-
mine the parties viva voce. Ibid. ;
4.
Deac. 112.
On a reference to the registrar to
tax the costs of an action brought by
assignees, he may tax the costs of an
application to this Court for an Order
to substitute another petitioning cre-
ditor's debt, for the purpose of en-
abling the assignees to recover in such
action. Ibid.; 4 Deac. 114.
A. accepted four bills for the ac-
commodation of B., which B. in-
dorsed, and deposited with his bank-
ers, to secure any floating balance.
B. became bankrupt; when the bank-
ers proved for a balance greatly ex-
ceeding the amount of the bills,
excepting in their proof these bills,
with others, as securities; and they
afterwards received a dividend of 2s.
in the pound on the amount of their
proof. The bills were subsequently
paid in full by A. Held, that A. had
a right to call on the bankers to re-
fund the amount of the dividend of
2s. on the amount of the bills. Ex
parte Holmes, re Garner, 4 Deac. 82;
S. C. Mont. & C. 301; reversing
Ex parte Holmes, 3 Deac. 662.
RELATION TO ACT OF
BANKRUPTCY.
A bankrupt having, within two
months before the fiat, deposited
chattels by way of pledge, in consi-
deration of an advance of money :
Held, that the transaction, though
bona fide, and without notice of an
act of bankruptcy, was not protected
by sect. 82 of 6 Geo. 4. c. 16; and
that the assignees might recover in
trover. Fearnley v. Wright, 6 Bing.
N. C. 446; S. C. 6 Scott, 813.
But now by 2 & 3 Vict. c. 29., all
contracts, dealings, and transactions,
by and with any bankrupt, really and
bona fide made, and entered into be-
fore the date and issuing of the fiat
against him, and all executions and
attachments against the lands and
tenements, or goods and chattels of
such bankrupt, bona fide executed or
levied before the date and issuing of
the fiat, shall be deemed to be valid,
notwithstanding any prior act of
bankruptcy by such act of bank-
ruptcy committed; provided the per-
son or persons so dealing with such
bankrupt, or at whose suit, or on
whose account such execution or at-
tachment shall have issued, had not
at the time of such contract, dealing,
or transaction, or at the time of exe-
cuting or levying such execution or
attachment, notice of any prior act of
bankruptcy by him committed; pro-
vided, also, that nothing therein con-
tained shall be deemed or taken to
give validity to any payment made
by any bankrupt, being a fraudulent
preference of any creditor, or to any
execution founded on a judgment on
a warrant of attorney, or cognovit,
given by any bankrupt by way of
such fraudulent preference.
One of the deputy registrars, having
resigned his office and taken the be-
nefit of the Insolvent Act, applied to
the Court of Review to order the ac-
countant in bankruptcy to pay him the
balance of salary due to him, the as-
signee under the insolvency having re-
fused to receive it; the Court declin-
ed making any order; but the Lord
Chancellor afterwards granted the
application. Ex parte Bousfield, 4
Deac. 45; S. C. Mont. & C. 41.
The registrar of the Commissioner
of Bankrupts' Court is an officer of
the Court of Chancery, and, as such,
entitled to privilege from arrest under
a ca. sa. Re Collins, 1 Sausse &
Scully (Irish), 73.
But semble, that the Court will dis-
countenance applications for such
protection of privilege on the part of
its officers. Ibid.
REPUTED OWNERSHIP.
And see EQUITABLE MORTGAGE.
The plaintiff, at the recommenda-
tion of B., sent goods to a dyer, who
was told by plaintiff's son that B.
would give directions about them;
B. called and gave directions; and
afterwards became bankrupt. Held,
in an action of trover for these goods
brought by the plaintiff against B.'s
by B. were admissible in evidence for
assignees, that the directions given
the assignees. Sharpe v. Newsholme,
5 Bing. N.C. 713; S. C. 8 Scott, 21.
A., on behalf of the owner of a
ship, entered into a charter-party
with B., by which B. agreed to pay
to A., on the owner's behalf, a cer-
taim sum for freight. The owner
afterwards assigned all the freight
accruing under the charter-party to
C., as a security for a debt; and C.
gave notice of the assignment to A.,
but not to B. The owner having
subsequently become bankrupt, it
was held, that the arrears of freight
were not in his order and disposition
at the time of his bankruptcy. Gard-
ner v. Lachlan, 4 Myl. & C. 129.
Where a trader assigns a debt, the
only person to whom notice of the
asignment need be given, in order to
vest a good equitable title in the as-
signee, is the party from whom the
trader was to have received payment
of the money,-in other words, the
party holding the property at the
order and disposition of the trader.
Ibid.
(When Bankruptcy amounts to.)
H., a manufacturer, had been ac-
customed to consign goods, by the
agency of O. & Co., commission mer-
chants, to houses in America for sale
on H.'s account. O. & Co. made ad-
vances to H. on the consignments,
received the proceeds as his agents,
and accounted to him, repaying them-
selves their commission, advances,
and other charges. In 1831, H.,
being indebted to O. & Co. for such
advances and charges, and likewise
owing 5000l. to his own bankers,
wrote to O. & Co., authorizing them,
after paying themselves their balance
out of the net proceeds of H.'s ship-
ments down to that date, to pay R.
& Co. the bankers half the remainder
of such proceeds; so that the payment
should not exceed 5000l. O. & Co.
thereupon wrote to R. & Co., stating
that they, agreeably to H.'s authority,
engaged to pay R. & Co. (after liqui-
dating their own balance) a propor-
tion of the remaining proceeds &c.
(as in H.'s letter) in consideration of
R. & Co. guaranteeing O. & Co. from
claims by any other party, in conse-
quence of such payment. R. & Co.
then wrote to O. & Co., that, under-
standing from H. that O. & Co. had
agreed to pay any surplus, balance,
&c. (as in H.'s letter) they, R. & Co.
agreed to guarantee O. & Co. against
such other claims. A few days be-
fore this correspondence, H. had
transmitted to O. & Co. a letter of
authority resembling that afterwards
sent, and had seen a draft of a letter
from them to R. & Co., like that
afterwards sent by O. & Co. to R. &
Co., claiming a guarantee as above;
but this first authority was revoked,
and never acted upon. In 1833 H.
became bankrupt. The assignees
gave O. & Co. notice, not to make
any payments out of H.'s effects, ex-
cept to them. Afterwards O. & Co.
received proceeds of sales from the
houses abroad, and paid them over
to R. & Co., according to the autho-
rity given by H. The assignees sued
O. & Co. for the amount, as money
had and received to their use. Held,
that the transaction between H., O. &
Co. and R. & Co. was either a valid
appropriation, or equitable assign-
ment of funds, to the amount of
5000l., in favour of R. & Co., and
was not revoked by H.'s bankruptcy.
Hutchinson v. Heyworth, 9 Adol. &
E. 375; S. C. 1 Per. & D. 266.
And see FRAUDulent Sale.
Although the Insolvent Debtors'
Act, 7 Geo. 4. c. 57. s. 20., directs the
assignees to sell the insolvent's real es-
tate by auction, yet if they have tried
to sell them by auction and failed, a
sale by private contract will be good.
Mather v. Priestman, 9 Sim. 352.
Where the bankrupt had been em-
ployed as a broker by the petitioners
to sell a parcel of goods, and secretly
agreed with the buyer to share the
profit or loss of the transaction, in
lieu of brokerage; and part of the
goods remained in the bankrupt's
hands at the time of his bankruptcy;
Held, that the transaction was frau-
dulent, as against the petitioners, and
the sale void; and that the assignees
were bound to deliver up to the pe-
titioners the remaining portion of the
goods. Ex parte Huth, re Pemberton,
4 Dea. 294; S. C. Mont. & C. 667.
SCIRE FACIAS.
See ACTIONS.
SECURITY FOR COSTS.
See COSTS.
(Unliquidated Damages.)
Declaration by assignees of R., a
bankrupt, stated that defendant, in
consideration that R. would sell and
deliver to him sugars at a certain
rate and price, agreed to pay him for
the same, prompt two months, or an
acceptance of seventy days, if re-
quired; that the goods were delivered
to and received by the defendant,
before the bankruptcy, on the terms
aforesaid, but he did not, though re-
quired before the bankruptcy, pay
then or since by an acceptance, nor
did he otherwise pay; whereby R.,
before his bankruptcy, lost the use
and benefit of such acceptance, and
the benefit which would have accrued
to him from having it discounted
and raising money on it for his use
in the way of his trade, and was put
to loss and inconvenience by not
having such acceptance to negociate;
and his estate applicable to the payment
of his just debts was, by reason of the
non-payment for the goods in manner
aforesaid, diminished in value, to the
damage of the assignees and creditors.
Plea, set-off for a debt due from R.
before his bankruptcy. Demurrer.
Held, that the concluding averments
of the declaration did not show a
special damage to the plaintiffs, but
only a commom pecuniary loss: that
the case appearing on the declaration
was one of mutual credit, within the
stat. 6 Geo. 4. c. 16. s. 50., and that
a set-off might be pleaded. Groom
v. West, 8 Adol. & E. 758; S. C. 1
Per. & D. 19.
(Between Partners.)
Upon a dissolution of partnership,
the defendant agreed to pay his co-
partners 68171. 9s. 8d., as his share
of the liabilities of the firm, they
taking the effects and assets, and un-
dertaking to pay a debt of 51,8917.
12s. due from the firm to H. After the
dissolution, they became bankrupts,
and never paid H. Held, that in an
action by their assignees for the
68177. 9s. 8d., the defendant could
not set off their undertaking to pay
the 51,8917. 12s. to H. Abbott v.
Hicks, 5 Bing. N. C. 378; S. C. 7
Scott, 715.
(In Actions by Assignees.)
To an action by assignees for the
price of a phaeton, for which the de-
fendant had agreed to pay ready
money, defendant pleaded a set-off,
in respect of a bill of exchange drawn
by H., accepted by the bankrupt, and
indorsed by H. to the defendant.
Plaintiffs replied, that after the bill
was dishonoured, H. indorsed it to
defendant without consideration, in
trust that defendant should purchase
the phaeton of the bankrupt, hand it
over to H., and fraudulently attempt
te set off the bill against the price of
the phaeton. Held, a sufficient answer
to the claim of set-off. Lackington
v. Coombes, 6 Bing. N. C. 71; S. C.
8 Scott, 312.
(Of Debt against a Legacy.)
T. B. was indebted to C. B., his
sister, in the sum of 18781. He be-
came bankrupt, and shortly after his
bankruptcy C. B. made her will,
whereby she gave legacies of 5002.
and 2000l. to her executors, in trust
to pay the interest thereof (as to the
5001.) after the decease of her mother,
to T. B. for his life, without power
of anticipation, and free from his
debts; and after his decease, to pay
the principal to such persons as he
should appoint; and in default of ap-
pointment, to his executors and ad-
ministrators for his and their own
use and benefit. T. B. died, without
having obtained his certificate, and
without having attempted to make
any appointment. Held, that the
executors of the testatrix had no
right to set off the debt due from T.B.
to the testatrix against the legacies,
but that the assignee of T. B. was en-
titled to so much of the legacies as
the assets were sufficient to pay.
Cherry v. Boultbee, 2 Keen, 319.
SHARES IN JOINT STOCK
COMPANY.
See EQUITABLE MORTGAGE.
In an action against a sheriff for a
false return of nulla bona to a writ of
fieri facias, in which the question is,
whether the goods of the debtor had
passed to his assignees under his
bankruptcy, the defendant need not
put in the deposition of the petition-
ing creditor, to show what the peti-
tioning creditor's debt was; nor is
the defendant limited to the debt,
only, which is stated in the deposi-
tion of the petitioning creditor. Birt
v. Stephenson, 8 Car. & P. 741.
The stat. 2 & 3 Vict. c. 29. has a
retrospective operation, so as to pro-
tect the sheriff from liability in re-
spect of a bona fide execution levied
on the goods of a bankrupt, without
notice of the act of bankruptcy,
where the seizure and sale took place,
and the fiat issued, before the pass-
ing of the act, but the assignees were
not appointed until afterwards. Nel-
strop v. Scarisbrick, 6 Mee. & W.
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