under these peculiar circumstances suf- ficient. Ex parte Peppercorn. Page 487 Receiving deposits as vendor's agent. See Sale.
Particular, Meaning of. See Insurance, I.
Under Lands Clauses Consolidation Act, s. 68. See Arbitration, II.
Divertissement. See Stage.
I. Under stat. 12 & 13 Vict. c. 106, s. 114, which enacts that the petitioning creditor shall at his own costs file and prosecute his petition until the choice of assignees, the petitioning creditor is per- sonally liable to the messenger of the Court of Bankruptcy for his fees and expenses incurred in taking possession of the bankrupts' estate up to that period. Stubbs v. Horn. Page 89
II. After the choice of assignees the trade assignee is liable for the messen- ger's subsequent costs and expenses, if there is anything to show that the messenger has acted under his express directions or from which an express em- ployment by him may be legitimately inferred.
c. 106, s. 112, by which a bankrupt after adjudication is protected from arrest "by any creditor," extend only to those creditors whose debts accrued previous to the bankruptcy. Phillips and Another v. Poland. Page 235
V. Therefore where a bankrupt while privileged under a protection order, and before his final examination, was arrested at his residence in respect of debts in- curred since his bankruptcy: Held, that the arrest was valid. Ibid.
VI. A composition deed contained a clause by which the trustees might re- quire any person, claiming to be a cre- ditor of the debtor, to verify his debt or claim "by statutory declaration, proved before the commissioners of bankruptcy or otherwise, as the said trustee or trus- tees might think fit." Held (reversing the judgment of the Court of Common Pleas), that the clause had not the effect of depriving the creditor who failed to produce proof to the satisfaction of the trustee of all benefit under the deed, and that it was reasonable. Quære, 1. Whether a court of law can declare a provision which applies equally to all classes of creditors, and which the statut- able majority of the creditors have thought fit to adopt, void on the ground that in the opinion of the court it is un- reasonable. 2. As to the soundness of the decision in Leigh v. Pendlebury, 15 C. B., N. S. 815. Coles v. Turner. Page 386
VII. The following clauses, on which the court below did not adjudicate, were held not to be unreasonable, on the ground that they were matters which might fairly be left to the discretion of the trustees :-
1. A clause following a power of sale given to the trustees in respect of the personal and real estate of the debtor, conferring upon them power in their discretion to postpone the sale of all or any part thereof, and to lease such unsold portion, either from year to year or for a term of years, for such rent as they might think fit; and to give credit for the whole or any part of the purchase- money, either with or without taking security for the same.
2. A proviso giving the trustees full discretion to pay dividends at such place and in such manner as they should think fit.
3. A clause authorizing the trustees to give time and to compound for the payment of debts due to the debtor, and to abandon such as they should consider bad.
4. A clause relating to the valuation of securities held by secured cre- ditors, that such value should be agreed upon between the creditor and trustees; or, in case of dispute, should be ascertained by two im- partial valuers, one to be chosen by the creditor, and the other by the trustees, or by an umpire to be named by such valuers before pro- ceeding to the valuation. Ibid.
VIII. To a declaration on the com- mon counts the Defendant pleaded a composition deed under stat. 24 & 25 Vict. c. 134, s. 192, setting it out ver- batim. The deed purported to have been made on the 14th November, 1865, between the several persons whose names were subscribed and seals affixed in a schedule, being creditors of the debtor, on behalf of themselves and all and every other the creditors of the debtor of the first part, and the debtor of the second part; and recited that the debtor was indebted, &c., and had agreed to pay a composition of 2s. in the pound, such composition to be paid to all and every the creditors of the debtor, whether executing the deed or not, on the 21st November inst., and witnessed that in pursuance of the said agreement, and in consideration of the payment of such composition to the said several creditors, the parties of the first part accepted the composition in satisfaction of their debts and released the debtor; and it was lastly agreed that those presents were intended to operate as a deed of compo- sition within the provisions of the Bank- ruptcy Act, 1861, and that so soon as the statutory majority should have exe- cuted or in writing assented to it, it was intended that it should be registered under the 192nd section, in order that the debtor might obtain the protection of the court as provided by the 198th section. After the usual averments in
respect of the assent to the deed of the statutory majority, its attestation and re- gistration, the plea concluded by alleging, that on the said 21st November, 1865, being after action, the Defendant was ready and willing, and then tendered and offered to pay to the Plaintiff the composition, and that he refused to re- ceive it; readiness and willingness to pay it, and that the Defendant brought it into court. Held, on demurrer :
1. That the plea was good, and stated a defence arising after action within the meaning of stat. 15 & 16 Vict. c. 76, s. 68, and that no formal commencement in the case of such plea is necessary.
2. That if the defence had been so framed as to embarrass the Plaintiff he should have applied to a judge at chambers to strike out or amend the plea; but that such matter is no ground for demurrer.
3. That the deed was good and the provisions of it reasonable, both in respect of the remedy of the cre- ditors upon the deed, and the way in which the composition was se- cured to them.
4. That the recital of the agreement
by the debtor to pay the composi- tion amounted to a covenant. 5. That it was competent to any cre- ditor to sue upon the deed. 6. That there was nothing unreason- able in the provision that the com- position should be payable within twenty-eight days from the execu- tion of the deed, although stat. 24 & 25 Vict. c. 134, s. 192, cl. 4, allows that number of days for re- gistration. Brooks v. Jennings. Page 414
IX. In pleading in bar a deed of in- spectorship under stat. 24 & 25 Vict. c. 134, s. 192, it is sufficient, without set- ting out the deed at length, to aver that it is in all respects an inspectorship deed within the true intent and meaning of the statute, and give a general descrip- tion of it. Corner and Another v. Sweet.
X. To a declaration on the common counts the Defendant pleaded that he being a debtor within the meaning of the Bankruptcy Act, 1861, a deed was made
between himself of the first part, certain inspectors of the second part, and his creditors of the third part; that the deed related to his debts and liabilities and his release therefrom, and the distribu- tion, inspection, management and wind- ing-up of his estate, and was in all respects an inspectorship deed within the true intent, meaning and provisions of the Bankruptcy Act, 1861; that by the deed it was provided and declared that if and when a composition of 108. in the pound should have been paid to the creditors, or if and when (though that sum might not have been paid) the inspectors should certify that the estate had been fully administered, or if and when they should certify that the debtor had made a certain conveyance mentioned in the deed, which certificate they were bound to give immediately upon the conveyance being made, then and immediately upon such composition being paid, or upon either of the said certificates being given, the debtor should be absolutely released, and the deed should thereupon operate and be pleadable as a release as fully as an order of discharge in bankruptcy; that whereas it was intended that the deed should be accepted by the creditors in lieu of their debts, and whereas it was essential to the interests of the creditors, and for the better realization of the estate, that the debtor should not be harassed by any proceedings thereafter to be commenced by the creditors, it was by the deed declared and agreed that if any of the creditors should, whilst the deed was in force, commence any action in respect of his debt, the deed should operate as an order of discharge under the Bankruptcy Act, 1861, and the said declaration and agreement might be pleaded in bar of or as a defence to such action in like manner as an order of discharge under the Bank- ruptcy Act, 1861. It was then averred in the usual way that a majority in number, representing three-fourths in value of creditors whose debts respec- tively amounted to 107. and upwards, assented to the deed in writing; that the Defendant and the inspectors ex- ecuted it; that the execution was at- tested, and that the deed having been stamped was duly registered, and that
with it the statutory affidavit was de- livered to the chief registrar; that all conditions had happened, &c., to make it binding on all the creditors as if they had been parties to it; that the Plain- tiffs were creditors, and the claim in the declaration a debt within the meaning of the deed; that the deed was in force, and that by reason of the premises the Defendant was entitled to plead it in bar to the action. Held, on demurrer :
1. That the deed was properly plead-
ed, and was to be taken to be a valid deed in accordance with the provisions of the Bankruptcy Act,
2. That on the authority of Gibbons v. Vouillon, 8 C. B., N. S. 483, the declaration contained in the deed, that if any creditor should sue for his debt such declaration might be pleaded in bar, afforded a good answer to the action. Ibid.
XI. The certificate of appointment of a creditors' assignee, under stat. 24 & 25 Vict. c. 134, s. 123, is a record of the Court of Bankruptcy, and conclusive evidence of the appointment; and may be used as such in an action by the as- signee, though it were signed and sealed after such action was commenced. Kelly v. Morray. Page 684
XII. The Plaintiff, being the Defen- dant in a chancery suit, was ordered by the Master of the Rolls to pay certain monies, which he neglected to do; and he was subsequently adjudicated bank- rupt, and obtained a protection order. An attachment having issued out of the Court of Chancery against him for dis- obeying its order, the sheriff's officer, to whom the warrant for levying execution of the attachment was directed, arrested him, and, notwithstanding that he there- upon produced his protection and de- manded to be discharged, kept him in custody longer than was necessary for obtaining a copy of the protection, and until on the same day he had lodged him in the sheriff's prison, from whence be was unable to procure his discharge for more than a month. Held :-
1. That the arrest upon an attachment for contempt of an order of the Court of Chancery for payment of
money was an arrest for debt within | the meaning of stat. 12 & 13 Vict. c. 106, s. 113.
2. That as the officer had detained the bankrupt longer than was necessary for obtaining a copy of the protec- tion, though not for an entire day, he was liable under that section to a penalty of 5l. for one day's de- tention, and for no more.
3. That after the bankrupt had been lodged in the prison, the subsequent detention was not the act of the officer. Lees v. Newton. Page 734
BILL OF EXCHANGE.
I. A bill of exchange was drawn in England payable to the drawer's order, directed to and accepted by the drawee in France, payable in France, and was indorsed by the drawer in blank and de- livered to the Defendant in England, and by him indorsed in blank and delivered to the Plaintiff in England, who in- dorsed and delivered it to one B. in France, where it was duly presented and dishonoured. Held, that, in an action on the bill brought in England against an indorser indorsing in England, notice of dishonour good according to the law of France was due notice of dis- honour according to the law of England. Hirschfield v. Smith.
II. The law of France requires the indorsement of a bill of exchange to be
special, and to state a date and con- sideration; and after this bill had been accepted and indorsed to the Plaintiff, he altered it by turning the indorsements in blank of the drawer and the defendant into special indorsements, with a state- ment of a date and consideration; and beyond this, in the special indorsement of the drawer to the Plaintiff, he inserted the rate of exchange according to which payment was to be made, and there was placed on the face of the bill a super- scription of the same words, purporting to make them part of the acceptor's cou- tract, to which the special indorsement of the drawer was made to refer by the words ut retro therein inserted. Held:- 1. That the alterations rendered the bill void.
2. Semble, that the bill would not have been rendered void by the alterations made by the Plaintiff if they had not gone beyond the turn- ing of the indorsements in blank into special indorsements according to the requirements of the law of France. Ibid.
III. A bill of exchange, purporting to be drawn by C., was presented to S. for acceptance by P., the indorsee. S., having stopped payment, wrote to the Plaintiffs through P., who presented the bill, saying that the Defendant would intervene and accept on behalf of the drawer, and that they presumed the Plaintiffs would discount the bill on Defendant's signature being attached. The Defendant having accepted for the honour of the drawer, the money was advanced. The bill afterwards proved to have been forged. Held:-
1. That the Defendant was liable on his acceptance, as he was estopped from disputing that the bill was a genuine instrument.
2. Semble, that this was, in effect, a bill payable to bearer. Phillips and Another v. Im Thurm. Page 499
IV. A railway company incorporated to make a railway under a special Act of Parliament, with which the general Railway Acts are incorporated, is not empowered, in the absence of express authority, to accept bills of exchange.
As to shipowner's lien on goods during currency of bill given for freight. See Shipping, VI.
Freight made payable by, "as per char- ter-party." See Shipping, VIII. Shipowner's duty where importer fails to take delivery at time expressed in. See Shipping, I.
Consignor's rights against shipowners on re-indorsement to him after a wrongful delivery. See Shipping, III. Naming of person, as both shipper and consignee in, not conclusive evidence of an insurable interest. See Insurance, II.
Exceptions in, of barratry and perils of the seas. See Shipping, II.
Statute 18 & 19 Vict. c. 111. See Ship- ping, III., IV.
A company incorporated by stat. 25 & 26 Vict. c. 89, under the name of the Glucose Sugar and Colouring Company (Limited), and having for its object, inter alia, the manufacture of Glucose sugar, gave a bill of sale to the Plain- tiff as security for a debt due for plant bought by the company for the purpose of its trade. The instrument stated at its conclusion, that in witness thereof the company had thereunto affixed their common seal. One of the articles of association provided that the directors might make regulations for the use of the seal; and, although there was no resolution of the company in that re- spect, it was stated by the secretary to be the practice to affix the seal in the presence of the board, and for two di- rectors and the secretary to attest the sealing; and under the seal two of the
directors signed their names, describing themselves as directors, and the secre- tary countersigned his name, describing himself as secretary. The affidavit filed with the bill of sale, as required by stat. 17 & 18 Vict. c. 36, s. 1, and made by the secretary of the company, mentioned the registered name of the company, and the place where its principal office was situate, and gave no other description of its occupation. Held:-
1. That as the company was a trading company it was within its province to give the bill of sale.
2. That the description contained in the affidavit of the registered name of the company and its principal office was a sufficient description of its "residence and occupation," within that act.
3. (Byles, J., dubitante,) that the two directors had signed merely as directors joining in the execution, and not as attesting witnesses; and therefore that it was not necessary to give a description of their resi dence and occupation in the affidavit. Shears v. Jacobs. Page 492
Indorsement in, of bill of lading. See Shipping, III., IV.
Corruption of. See Descent.
Employed to land cargo. See Insur- ance, V., VI.
I. To a declaration on a bond reciting that one S. was appointed collector of poor rates and of sewers and general rates, that he might be re-appointed collector of all or some or one of the said rates, and that the Defendants were sureties, the condition being, that if S. should effectually perform the duties and account for the monies "of the
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