Page images

against them and their partners Saverio Castelli and 1852. Giovanni Baptista Giustiniani. Adjudications had been

Ex parte made on all these petitions, but the validity of the adju- BRAGGIOTTI. dication upon the joint petition, as regarded Messrs. Saverio Castelli & Giustiniani, was disputed before the Commissioner and on appeal before their Lordships, who directed the appeal to stand over, with liberty to bring an action (a).

The action was brought immediately after the date of the order.

The Petitioners had filed their balance sheets, and on the 12th of July 1852 they passed their last examination, and the Commissioner appointed the 14th of September 1852 for a public sitting for the allowance of their certificates.


The action brought by Saverio Castelli and Giovanni Baptista Giustiniani, to try the validity of the adjudication of the 8th of November 1851, came to be tried on the 9th of July 1832, when a verdict was taken for the plaintiffs, subject to the opinion of the said Court on a special verdict.

At the meeting on the 14th of September 1852 the petitioning creditors under the joint adjudication appeared to oppose the granting of a certificate to the Petitioner Frank Castelli, and the Commissioner adjourned the consideration of Frank Castelli's certificate until the 8th of December 1852, upon the ground that he would not judge of the objections thereto until after the validity of the adjudication of the 8th of November 1851 should be determined. On the same day the Commissioner also adjourned the consideration of the Petitioner

Braggiotti's (a) See Ex parte Castelli, 1 De G. Mac. & G. 437.


Braggiotti's certificate, which was not opposed until the 8th of December 1852.


On the 8th of December 1852 the Petitioner and the petitioning creditors again appeared before the Commissioner, and submitted that at all events the application of Mr. Braggiotti, being unopposed, ought to be granted. The Commissioner, however, ordered and adjudged that the hearing for the allowance of both certificates should be adjourned till the last day of Trinity Term 1853, with liberty to apply for an earlier sitting, if the petition of appeal pending before their Lordships against the joint adjudication should be decided before such adjournment day. Against these orders of adjournment the Petitioners appealed.

Mr. Rolt, for the Appellant Mr. Braygiotti.

Mr. Cairns, for the Appellant Mr. Frank Castelli.

Mr. Russell, for the creditors opposing the certificate of Mr. F. Castelli.

Their LORDSHIPS made an order on Mr. Braggiotti's petition, granting him a certificate of the first class, on his undertaking to abide by such order as the Court might make on the joint petition for adjudication.

On Mr. Frank Castelli's petition their Lordships made an order, declaring that the pendency of the action, and the uncertainty whether Saverio Castelli and Giovanni Baptista Giustiniani were or were not legally bankrupts, did not form sufficient ground upon which the investigation or determination of the question, whether the Petitioner Mr. Frank Castelli was or not entitled to his certificate, should be delayed or adjourned; and with that declaration their Lordships referred it back to the Commissioner to determine the right of the Petitioner to his certificate on the materials which existed.










1. An administrator of an intestate

died in 1817 indebted to a large
amount in respect of his receipts as
administrator, but leaving sufficient
personal estate to pay this amount,
and also leaving freehold estates.
In the same year a suit was insti.
tuted for the administration of his
personal estate, and in 1832, it ap-
peared from the report in that suit,
that his personal estate had been mis-
applied, and that his executor had
become bankrupt. Thereupon, and
in the same year (1832), an ad-
ministratrix de bonis non of the in-
testate, instituted a suit against the
administrator's heir and the sureties,
in the usual administration bond,

and against the representatives of
the Archbishop (who had died),
praying to have the benefit of the
bond, and to charge by means of it
the administrator's freehold estates.
No decree was made in this suit,
the Plaintiff having married in
1838, and having died in 1847,
without the suit having ever been
revived. In 1848, another of the
next of kin, who had been a Defen-
dant to the suit of 1832, took out
administration de bonis non of the
intestate, and filed a bill of revivor
and supplement to have the benefit
of the suit of 1832.

Held, that the suit of 1832 must
be considered as having been aban-
doned, and that the suit of 1848
must be considered an original suit,
and as such barred by length of
time and laches.

Quære. Whether thecircumstance
of the administrator dying largely
indebted to the intestate's estate


was a breach of condition of the

before the dissolution of the Com-

pany, although the dissolution took
Quære. Whether the suit of 1832

place long before the end of the
was in its nature one which it was year for which the premium was
competent for the Plaintiff in that

paid ; but that no proof could be
of 1818 to revive.

admitted for any premium the
Quære. Whether either suit could time for payment of which had not
be maintained upon the bond, the arrived when the Company was
ordinary's personal representative dissolved. Atkinson v. Gylby,
not having declined to lend his

name in an action. Bolton v. Pow-

See also SOLICITOR, 1, 3.


2. An Insurance Company lent money
on the security of a bond given by

three obligors to two of the direct-

ors and of a policy effected with
the Company by one of the obligors

on his own life, and deposited as a

collateral security. By the terms
of the policy the insurance money
was charged on funds and property

of the Company only. The con-

See WILL, 7, 8, 9.
dition of the bond was for payment
of the money lent, with interest,

and of the premiums upon the

The title of an assignee for value of
policy. The Insurance Company

an equitable interest is not affected
was dissolved, their funds distri-

by a previous insolvency of the as-
buted, and their business trans-
ferred to another Company, to

signor, the assignee having no no-

tice of that insolvency.
whom the obligees assigned the

The effect of the Act 7 Geo. IV.
bond. One of the obligors who

c. 57, is to vest in the assignee in
had not effected the insurance

insolvency all the property of the
having died, and the policy having

insolvent, but subject to all equities
become forfeited for nonpayment

to which it would be liable in the
of the premiums, the assignees of

hands of the insolvent. In re At-
the bond debt sought to prove in


the Master's office, under a decree
for the administration of the estate
of the deceased obligor. Held,
that the proof ought to be admit-

ted to the extent of an unpaid A receiver of an estate, who had a
premium, which became payable private account at his bankers',



opened another there, under the creditors could not receive divi-
name of the estate, under such dends from the separate estate until
circumstances as to inform the all the separate creditors were paid
bankers that the money which in full, although it did not appear
would be paid in to that account that after payment of costs any
would belong to the owner of the part of the 131. would remain for
estate. The receiver drew distribution. Ex parte Kennedy, 228
cheque on the estate account and 4. Where bankers continued to trade
paid it into his private account. for two years after they were hope-
Held, that the bankers were liable lessly insolvent, Held, that their
to repay the amount to the owner certificates had been properly re-
of the estate. Bodenham v. Hos- fused; but by the consent of the

903 assignees, and of the creditors op-

posing the certificate, protection
1. In a case in which, under the Bank- was granted to them.
rupt Law Consolidation Act, the

If bankers continue to receive
Commissioner had jurisdiction to deposits, knowing that if the busi-
make an order, the Court declined ness were wound up they could not
interfering in the first instance. pay 58. in the pound, that is a trad-
Ex parte Cheetham,

223 ing which is utterly unjustifiable.
2. Where a case is established of a Semble, that the effects of the

trader having bought goods on misconduct of a banker are such as
credit, with the intent of raising to distinguish his case from that of
money by pledging them, the Court other traders upon an application
will visit such conduct with the

for a certificate. Ex parte Rufford,
utmost severity; and the circum-

stance of goods which had been 5. A partner in a firm of two solici-
purchased on credit having been tors received monies belonging to
pledged the next day by the bank- the sister of the other, for the pur-
rupts is one open to suspicion. pose of investment, and in a few

Where, however, that circum- instances without any specific se-
stance was explained by uncontra- curity having been arranged. The
dicted evidence, showing that the usual charges of an attorney or
goods had been purchased in the solicitor were alone made


ordinary course of business, and had transactions. Held, that this did
been pledged by reason of a sudden not amount to trading as a scrive-
pressure requiring money to be
raised forthwith, the Court allowed Uncontradicted general evidence
the bankrupts' certificates. Ex of a course of dealing amounting to
parte Martyn,

225 scrivening is sufficient to warrant
3. Where there was joint estate to the an adjudication without proof of
amount of 131., Held, that the joint specific acts. Ex parte Dufaur, 246

6. Where


« PreviousContinue »