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1852.

Ex parte

against them and their partners Saverio Castelli and Giovanni Baptista Giustiniani. Adjudications had been 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 on to be tried on the 9th of July 1852, 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.

1852.

Ex parte BRAGGIOTTI.

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. Braggiotti.

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.

AN

INDEX

ΤΟ

THE PRINCIPAL MATTERS

CONTAINED IN THIS VOLUME.

ACCOUNT.

See PRINCIPAL AND AGENT.

ADMINISTRATION OF
ASSETS.

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 the circumstance
of the administrator dying largely
indebted to the intestate's estate

was

was a breach of condition of the
bond.

Quære. Whether the suit of 1832
was in its nature one which it was
competent for the Plaintiff in that
of 1848 to revive.

Quare. Whether either suit could
be maintained upon the bond, the
ordinary's personal representative
not having declined to lend his
name in an action. Bolton v. Pow-
ell,
1
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-
dition of the bond was for payment
of the money lent, with interest,
and of the premiums upon
policy. The Insurance Company
was dissolved, their funds distri-
buted, and their business trans-
ferred to another Company, to
whom the obligees assigned the
bond. One of the obligors who
had not effected the insurance
having died, and the policy having
become forfeited for nonpayment
of the premiums, the assignees of
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-

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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

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1. In a case in which, under the Bank-
rupt Law Consolidation Act, the
Commissioner had jurisdiction to
make an order, the Court declined
interfering in the first instance.
Ex parte Cheetham,

223
2. Where a case is established of a
trader having bought goods on
credit, with the intent of raising
money by pledging them, the Court
will visit such conduct with the
utmost severity; and the circum-
stance of goods which had been 5.
purchased on credit having been
pledged the next day by the bank-
rupts is one open to suspicion.

Where, however, that circum-
stance was explained by uncontra-
dicted evidence, showing that the
goods had been purchased in the
ordinary course of business, and had
been pledged by reason of a sudden
pressure requiring money to be
raised forthwith, the Court allowed
the bankrupts' certificates. Ex
parte Martyn,

225

3. Where there was joint estate to the
amount of 131., Held, that the joint

creditors could not receive divi-
dends from the separate estate until
all the separate creditors were paid
in full, although it did not appear
that after payment of costs any
part of the 131. would remain for
distribution. Ex parte Kennedy, 228
Where bankers continued to trade
for two years after they were hope-
lessly insolvent, Held, that their
certificates had been properly re-
fused; but by the consent of the
assignees, and of the creditors op-
posing the certificate, protection
was granted to them.

If bankers continue to receive
deposits, knowing that if the busi-
ness were wound up they could not
pay 58. in the pound, that is a trad-
ing which is utterly unjustifiable.

Semble, that the effects of the
misconduct of a banker are such as
to distinguish his case from that of
other traders upon an application
for a certificate. Ex parte Rufford,

234

A partner in a firm of two solici-
tors received monies belonging to
the sister of the other, for the pur-
pose of investment, and in a few
instances without any specific se-
curity having been arranged. The
usual charges of an attorney or
solicitor were alone made upon the
transactions. Held, that this did
not amount to trading as a scrive-

ner.

Uncontradicted general evidence
of a course of dealing amounting to
scrivening is sufficient to warrant
an adjudication without proof of
specific acts. Ex parte Dufaur, 246
6. Where

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