ORDER AND DISPOSITION-A solicitor was a share- holder in and joint-secretary of a railway com- pany. He deposited the certificates of his shares with a client by way of equitable mortgage, with a memorandum accompanying the deposit to secure money lent. No notice of the trans- action was given to the company other than might be inferred from the facts of the mortgagor being secretary, and of his being solicitor for the mortgagee. It was held, (reversing a deci- sion of one of the Commissioners) first, that the shares were chattels within the meaning of the 125th section of the Bankrupt Law Consoli- dation Act (12 & 13 Vict. c. 106); secondly, that if a valid equitable mortgage can be made of railway shares, notice is necessary in the same way as in the case of other choses in action; thirdly, that the knowledge of the transaction by the mortgagor as secretary was not notice to the company within the meaning of the Companies Clauses Consolidation Act (8 Vict. c. 16); fourth- ly, that the duty of the mortgagor as solicitor to the mortgagee to give proper notice was imma- terial against the assignees, for that the shares were in the order and disposition of the bankrupt. Quare-whether there can be an effectual mort- gage of railway shares without transfer? parte Boulton, in re Sketchley, 45
Owners of a cotton-mill, fixtures, and steam- engine, demised the whole together to lessees for a term of years. The lessees covenanted to keep upon the premises, as a security for the rent, machinery for cotton spinning of the full value of 3,000l. at the least; also not to assign or underlet without the leave of the lessors. There was a clause of re-entry if the rent should be in arrear, or on breach or non-performance of the covenants, or if the lessees should become bankrupt or insolvent, or assign their estate and effects for the benefit of creditors. One of the lessees died, and the survivor became bankrupt, and an official assignee was appointed. No rent was due. The value of the machinery was less than 3,000l. The official assignee took possession of the mill, engine, and machinery, and was about to remove and sell the latter when the lessors interposed; and it was arranged that a special case should be submitted to the Court, the lessors being plaintiffs, and the official assignee the defendant. It was held that the machinery was in the order and disposition of the bankrupt, the surviving lessee, and in his reputed ownership, with the consent of the true owner, the lessors, and that, therefore, the offi- cial assignee, the defendant, was entitled to remove it. In re Wallworth. Shuttleworth v. Hernaman, 61
And see Bartlett v. Bartlett, ante, Chanc. 577; Day v. Day, ante, Chanc. 585; and Raw- bone's Will, ante, Chanc. 588
PRACTICE-A firm at Buenos Ayres drew five bills on a firm at Liverpool, who accepted them, and they were indorsed for value by the Buenos Ayres
firm to another firm there; the drawers agreeing, at the same time, to remit to the Liverpool firm to meet the bills when due, and their broker asserting that the drawing and the accepting firms were distinct. Bills were remitted to the Liverpool firm to meet the five bills; and that firm became bankrupt on the petition of the partners. The firm to whom the bills were in- dorsed applied under the bankruptcy for a declaration that they were entitled to a specific lien on the bills remitted; but one of the Com- missioners dismissed their petition. After the dismissal, fresh evidence was discovered; but as the twenty-one days, allowed by the 12th section of the Bankrupt Law Consolidation Act, 12 & 13 Vict. c. 106, had expired, the Commissioner said that the rehearing was an indulgence, which indulgence he refused to grant on account of delay. On appeal from both decisions, it was held, that although the twenty-one days had expired, the Court was not precluded from hear- ing the case upon its merits on the whole evi- dence, considering the domicil of the parties; secondly (overruling the judgment of the Com- missioner), that the remitted bills were speci- fically applicable to cover the five bills; and, thirdly, that the question involved the law of England only; and the fact of the Buenos Ayres drawing firm and the Liverpool accepting firm being identical or not, was immaterial. Ex parte Imbert, in re Latham, 65
PROOF OF DEBT-A. and B. became, the former as principal and the latter as surety, liable to pay a stated sum. A. became bankrupt, and B. on a subsequent day paid the principal money and interest due up to the day of payment. The surety subsequently made his will and died four years afterwards, when his will was proved, and his executors administered his estate upon the supposition that the proof was good. More than two years later it was discovered that the proof should have been for interest only up to the date of the bankruptcy, and not up to the time of payment. Application to reduce the proof was held too late. Ex parte Sanderson, in re Alex- ander, 26
A trader entered into a contract to deliver goods at a stated time at a specified price. He performed part of the contract, but before the time or times for the performance of the re- mainder he petitioned under the 211th and sub- sequent sections of the Bankrupt Law Consoli- dation Act (12 & 13 Vict. c. 106.), but no arrangement being effected, he was adjudicated bankrupt on that petition. In the account of debts filed, he inserted a sum as due from him for loss on the unfulfilled parts of the contract. A proof was tendered by the purchaser of the goods, for the amount (less than that specified by the bankrupt) of the loss by reason of the non- delivery of the goods. One of the Commissioners allowed the proof for the sum claimed. Upon appeal it was held, that the original petition for arrangement created a valid act of bankruptcy under the 76th section of the statute; that the bankruptcy did not relate back to the presents-
tion of that petition; and that the admission of the debt by the bankrupt in his account was evidence of a debt as against the assignees, and the purchaser was entitled to prove for the amount he claimed. Ex parte Harrison, in re Lawford, 30
The holder of a bill of exchange received from the drawers payments in respect of it amounting to nearly 158. in the pound. The acceptor afterwards became bankrupt, and upon the holder tendering a proof against the estate for the full amount of the bill and interest in arrear, the proof was cut down to the amount of principal money due at the time of the proof, and the decision was affirmed, with costs. Ex parte Taylor, in re Houghton, 58
A. and B. who had been partners as solicitors, renewed the partnership for their joint lives, and in the agreement it was stipulated that upon the death of either, the survivor should during his life and the life of the widow of the deceased partner, pay to the appointee of the deceased partner either an annuity of 2001. or one-fourth of the profits of the business, at the election of the surviving partner. A, by settlement on his marriage, appointed in favour of his intended wife, who became his widow. The partnership continued till the death of A. in 1851, and B. carried on the business till his bankruptcy in 1856. At the death of A. the firm was greatly in debt, and the debts B. paid off, but he did not pay the widow either the annuity or any share of the profits, nor make any election. The widow claimed to prove under the bank- ruptcy, but her proof was rejected. It was held,
on appeal, that the assignees had still the power of election, and they having elected to pay one- fourth of the profits, the debts of the old firm must be set off against the profits, and that for the purposes of the proof, the business must under the articles be considered, not as a new, but a continuing business, and its debts be dis- charged before any profits could be divided. Ex parte Harper, in re Parry Jones, 74
RECEIVER-A banking company was ordered to be wound up, and was afterwards adjudicated bankrupt. Some of the creditors petitioned that an application might be directed to be made to the Court of Chancery, for the appointment of a receiver under 7 & 8 Vict. c. 111. s. 20, to receive such sums of money as might be found necessary and proper for the purpose of paying all the debts and liabilities of the company, and the costs of winding up and finally settling the affairs of the company. It not having been found what sums would be necessary for the purpose, it was held that the Court could not interfere under this section, even if the section was not repealed by the Winding-up Acts. Ex parte Shore, in re the Royal British Bank, 17
SHARES. See Order and Disposition.
STATUTE 7 & 8 Vict. c. 111, 1
11 & 12 Vict. c. 45, 1
WINDING-UP ACTS. See Act of Bankruptcy. Re- ceiver.
Courts of Chancery.—Page 644, line 25 of the second column, for "Ibid” read 2 Jac. & W. Also, page 645, line 16 of the first column, for "bill" read plea.
Bending v. Bending, 469
Bendyshe, in re, 814
Bentinck v. Norfolk Estuary Co., 404 Benwell v. Inns, 663
Berwick, Mayor, &c. of, v. Murray, 201
Bessant v. Noble, 236
Betts v. Menzies, 528
Beyer v. Adams, 841
Bissett v. Burgess, 697 Blagrave v. Routh, 86 Blunt v. Lack, 148
Bodmin United Mines, in re, 570 Bone, ex parte, 665
Booth v. Alington, 138
v., (Law J. Rep. 1858)
Bosworthon Mining Co., in re, 612
Boyd, ex parte, 737
Bradberry v. Brooke, 74
Brandling v. Plummer, 326
Brett v. Beckwith, 130
NEW SERIES, XXVI.-INDEX. Chanc. & Bankr.
British Empire Shipping Co. v. Somes, 759 British Sugar Refining Co., in re, 369 Broadbent v. Imperial Gaslight Co., 276 Brocas v. Lloyd, 758
Brooker's Estate, in re, 411
v. Brooker, 411
Browne v. Browne, 635 Bryan v. Mansion, 510 Bugden v. South, 425 Bunn, ex parte, 614
Burry Port Co. v. Bowser, 319 Burton v. Powers, 330
Campbell v. Corley, 865
Cannock v. Jauncey, (Law J. Rep. 1858) Carl, Robert, v. Frantzius, ex parte, 797 Carter v. Carter, (Law J. Rep. 1858)
v. Cropley, 246 v. Green, 845 v. Haswell, 576 v. Ingilby, 654
Cast v. Poyser, 93, 353 Chadwick v. Holt, 76
Childers v. Childers, 643, 743
Clavering v. Ellison, 335
Clegg v. Edmondson, 673 Clulow's Will, in re, 513
Cocks v. Gray, 607
Colclough v. Boyse, (House of Lords), 256 Collingwood v. Row, 649
Colyer v. Finch, (House of Lords), 65 Corley v. Stafford, 865 Cox v. Bishop, 389 Cranley v. Dixon, 529 Creaton v. Creaton, 266 Crook v. Whitley, 350 Crowther v. Crowther, 702
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