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C. 4 Moo. and Payne, 820). But now, by the 14 & 15 Vic. c. 25, it is enacted that on the determination of leases or tenancies under a tenant for life, or for other uncertain interests, instead of claims for emblements the tenant shall continue to hold and occupy the lands, &c., until the expiration of the then current year of his tenancy, and shall then quit. The tenant must pay rent for such period of occupancy to the succeeding landlord or

owner.

The statute evidently intends to provide only for tenancies where there may be emblements; indeed it is intituled "An Act to Improve the Law of Landlord and Tenant in relation to Emblements, to growing crops seized in execution, and to agricultural tenant's fixtures."

VI. Jointure and dower.-Dower is that estate which the law gives the widow for her life in the third part of her husband's lands and tenements. Jointure is where the husband has made a competent provision for the wife, by giving her a life estate, at` least, in lands and tenements, to take effect presently after his death, by which she is for ever precluded from claiming her dower (1 Steph. Com. c. 4; Co. Litt. 36 a, 208 a).

VII. Surrender of lease for renewal after grant of underlease.-By the 4 Geo. 2, c. 28, s. 6, where a lease, out of which other leases have been derived by way of underlease, is surrendered, it is not necessary that the underlessees should join, as by the effect of that statute the rent and covenants still remain: the new lease is to be good and valid without any surrender of underleases, and such underleases are to continue of equal force as if the original lease had continued (see Burt. pp. 716 n, 1062; Watk. by Merrifield, 513).

VIII. Proving executor, dying in lifetime of renouncing executor.-The personal representative of D. would be the proper party to assign the term if he appointed an executor; otherwise administration de bonis non of the original testator should be taken out (see Harrison v. Harrison, 10 Jurist, 273; Venables v. East India Company, 12 Jur. 855; where the executor's right is reserved, see Cummins v. Cummins, 3 Jones and Lat. 64; 12 Jur. Dig. 90).

IX. Mortgagee dead, payment of money and reconveyance.—A mortgage, whilst redeemable, is personal assets in equity; therefore, where a mortgagee in fee dies, his heir or devisee will be a trustee for the executor. Thus the personal representative really becomes entitled to the land mortgaged, as well as to the money. However, in order to get the legal estate out of the heir or devisee of the mortgagee, it will be necessary, if the heir or devisee is unable or unwilling to join the executors of the mortgagee in executing a reconveyance of the mortgaged estate,

that proceedings should be taken under the Trustee Acts, 1850, 1852 (see 1 Chron. xxxiv.).

X. Registry of deeds, delay.-Deeds should be registered immediately, as by delay in so doing a subsequent purchaser, without notice, registering his deed first will be entitled to priority (Sugden's Vend. ch. 16, s. 5; Shepp. Touchst. 116, note by Atherley; 1 Chron. 19—21).

XI. Title deeds in strangers' hands, expenses of examination. The title deeds must be produced for examination at the vendor's known place of residence, or on or in the immediate vicinity of the estate, or in London; though the conditions of sale usually stipulate that the deeds shall be inspected at the vendor's solicitor's place of busines, if he has them in his possession. If the deeds are in the hands of a third party, who will not part with the possession of them, the purchaser's solicitor must attend such third party; the expense of the journey, however, in the absence of stipulations to the contrary, will have to be paid by the vendor, as the additional expense thereby occasioned (1 Sugd. Vend. and Purch. 448, 11th edit.'; 2 Law Stud. Mag. N. S. Supp. p. 42; Dart's Vend. 225, 2nd edit.; 1 Jarm. Convey. by Sweet, 99.

XII. Remainders and reversions.-The difference between a remainder and a reversion is, that a remainder is something limited over to a third person on the creation of an estate less than that which the grantor has, whilst a reversion is that part which remains in the grantor himself, on such a grant of a less estate (2 Black. Com. 175; Co. Litt. 22b; Watk. Princ. Conv. ch. 16; Noy's Dial. p. 12; Burton's Comp. pl. 28, 29, 30).

XIII. Bond by two persons not being partners.— Where two persons, not being partners, are to give their bond to a third person for the payment of a certain sum of money, and it is wished that in the event of the death of one of the obligors, the obligee should have a legal claim upon the deceased obligor's personal representative, the obligation should be several, or joint and several, and not joint merely. For it is holden that in the case of a joint contract by several persons, if one of the parties die, his executor or administrator is at law discharged from all liability, and the survivor or survivors alone can be sued (2 Williams's Executors, 1239, 2nd edit.; Godson v. Good, 2 Marsh. 300; S. C. 6 Taunt. 594; Hamond v. Jethro, 2 Brownlow, 99; 6 Beav. 185; Osborne v. Crosbern, 1 Siderf. 238; Calder v. Rutherford, 3 Brod. and Bing. 302). And in equity the bond cannot be proved, as such, against the assets of the deceased obligor (Richardson v. Horton, 6 Beav. 185; 2 Williams's Executors, 1486, 4th edit.). But if the contract be several, or joint and several, the executor.of the deceased contractor may

be sued at law in a separate action (2 Williams's Executors, 1240, 2nd edit.; May v. Woodward, Freem. 248; Hall v. Huffan, 2 Levinz, 228; 3 Merivale, 619).

XIV. Joint bond by partners.-At law, the representatives of a deceased partner are not liable to the joint engagements of the firm, whether contracted by bond, bill, note, or otherwise; but all actions thereon must be brought against the surviving partner or partners alone (Litt. Ten. ss. 281, 282, notes). In equity, however, a partnership debt. constitutes the several contract of each partner, consequently the joint creditors have a claim upon the assets of every deceased partner for their respective demands (Lane v. Williams, 2 Vernon, 277, 292; Bishop v. Church, 3 Atkyns, 261; Devaynes v. Noble, Sleech's case, 1 Meriv. 563). This equity arises incidentally from the right among the partners themselves to have the assets of the deceased partner applied in discharge of the joint obligations. But the principle, it has been said (Sumner v. Powell, 2 Meriv. 30; 3 Jarman's Convey. by Sweet; 287), extends only to debts contracted by the partners in the course of their joint trade, and not to engagements entered into by them aliunde. But in a more recent case (Thorpe v. Jackson, 2 You. and Coll. 553), the restriction of such principle to mere mercantile transactions has been denied (3 Jarman's Convey. by Sweet, 276, 284; 7 Id. 49, 50). It was formerly considered that in order to entitle a joint creditor to come upon the personal representatives of a deceased partner, it should be shown that the surviving partner was insolvent (see 2 Williams on Executors, 1240, 2nd edit. p. 1489, 4th edit.; 1 Meriv. 530; 3 Id. 619; 2 Russ. and Myl. 495; Wilkinson v. Henderson, 1 Myl. and Ke. 582). But it is now (according to the last edition of Williams on Executors, pp. 1483 -1486) the general opinion that the joint creditor may resort to the assets of the deceased partner in the first instance.

XV. One joint obligor a guarantee.-If one of two joint obligors be merely a guarantee for the other, he should take a counter-bond for his security, or, according to the circumstances of the case, a warrant of attorney to enter up judgment.

EQUITY (ante, p. 5 ).

I. Equity jurisdiction.-Some of the ordinary cases in which the Court of Chancery exercises jurisdiction, as distinguished from the courts of law, are as follow:-Enforcing the specific performance of agreements; administering assets for the benefit of creditors or legatees; winding-up partnership accounts; granting injunctions to prevent irreparable mischief, where the machinery of the common law

courts would not suffice (3 Law Chron. 159); enforcing trusts; relieving against penalties and forfeitures; the protection of infants and lunatics, and their property; enforcing the rights of mortgagors and mortgagees; superintending charities; appointment of new trustees; relieving against frauds, accidents, and mistakes, where there is not a clear remedy at law; preserving testimony; enforcing election and satisfaction, &c. (3 Black. Com. 47-56, 426, et seq.; 1 Story's Jurispr. c. 1; Bacon's Abr. "Courts of Chancery:" Key, div. "Equity," p. 1-8).

II. Redeeming mortgage, how, and time.-Where a mortgagee enters into possession of the mortgaged property, if the mortgagor desires to redeem him, he should file a claim or a bill for redemption. This must be done within twenty years from the time of the mortgagee's entering into possession, or making an acknowledgment of the mortgagor's title, &c. (3 & 4 Will. 4, c. 27, s. 28; Princ. Eq. 296; Baker v. Wetton, 14 Sim. 426; Key, div. "Equity," pp. 32, 33).

III. Infant or lunatic trustee.—Where a legal estate is outstanding in an infant or person of unsound mind, as a trustee, the legal estate may be got in under the Trustee Acts, 1850 and 1852, by presenting a petition to the Lord Chancellor or Lords Justices in the case of a lunatic, or to the Court of Chancery, in the case of the infant, whereupon an order will be made either after or without a reference (15 Jur. 69, 187) for an order vesting the legal estate, or directing some person to convey it. The effect of the order is the same as if the trustee had been sane, or of age, and had conveyed to the purport of the order. The order is conclusive evidence of the trustee's incapacity (13 & 14 Vic. c. 60, ss. 3, 7, 44; 3 Law Chron. 126, 128; 1 Id. 303).

IV. Sales and leases of settled estates.-The 19 & 20 Vic. c. 120, is the act authorising a sale or lease of settled estates without a special application to Parliament, though there be no power of sale or leasing in the settlement (see 3 Law Chron. pp. 105, 111, 169, 209, 214, 286).

V. Sales and leases of settled estates.-The circumstances in which the Court of Chancery is, by the 19 & 20 Vic. c. 120, authorised to exercise jurisdiction, are the following: Where leases or sales of the settled estates would be proper and consistent, with a due regard to the interests of all parties entitled under the settlement. Power is also given to the court to grant leases where it is deemed expedient that persons in possession of land, for certain limited interests, should have power to grant agricultural or occupation leases at rack rent. The application to the court is by petition, after the presentation of which directions are given in chambers as to ad

vertisements; any person may apply to the court by motion for leave to oppose the application (3 Law Chron. 105, 169).

VI. Evidence, how adduced. The practice of taking evidence in equity by interrogatories is abolished, except that the court may order any particular witness or witnesses to be so examined. In the absence of such direction the evidence is taken either by affidavits or by oral examination before examiners (15 & 16 Vic. c. 86, ss. 28, 29). Since this act, the orders of the 13th of January, 1855, have directed that when issue is joined, the plaintiffs and defendants respectively shall be at liberty to verify their respective cases, either wholly or partially by affidavits, or wholly or partially by the oral examination of witnesses, without any notice being given (see 1 Law Chron, 337, 338; 2 Id. 372, 392).

VII. Affidavit, knowledge and information.—Affidavits must distinguish facts within the knowledge of the deponent from those by information; the means of knowledge, or source of information, should be stated (Order of 13 Jan., 1855, pl. 8, stated in 1 Law Chron. p. 338).

VIII. Answer without interrogatories.— Where a defendant is not required to answer a bill, he may, nevertheless, put in an answer, but this must be done within twelve days after appearance, excluding the day of appearance (15 & 16 Vic. c. 86, s. 13; 11th Ord. of May, 1845; 16th Id., Art. 10).

IX. Defendant not interrogated and not answering. -Where a defendant not interrogated does not put in a voluntary answer, he is to be considered as having traversed the case made by the plaintiff's bill (15 & 16 Vic. c. 86, s. 26; Heath v. Lewis, 2 Week. Rep. 488). As the defendant is to be considered as having denied the allegations in the bill, the plaintiff must, of course, be prepared on the hearing to support his case by evidence, so that he loses the benefit of any admissions which the defendant might have made by his answer.

X. Feme covert, equity to settlement-Amount.— Where less than the principal sum of £200, or less than the annual sum of £10, is payable to a married woman out of a fund under the control of the Court of Chancery, her consent to its payment to her husband will be dispensed with; in other words, she has in such cases no right to elect whether the amount shall be paid to her husband or be made the subject of settlement (see further, 3 Law Chron. pp. 34, 39, 136, 285, 286). Though the above is the rule stated in the text-books, yet in one case the Master of the Rolls ordered a settlement on the wife where the fund was less than £200-being, in fact, £140 onlybut there was the special circumstance that the husband had deserted the wife (Cutler's Trusts,

15 Jur. 911; overruling Foden v. Finney, 4 Russ. 428).

XI. Feme covert, money paid to husband, proceedings. Where a married woman is entitled to money out of a fund in court, she must, if in town, appear in court to be examined by the judge apart from her husband; if in the country, and she is unwilling to come to town, an order on petition or motion must be obtained for such examination before commissioners. The examination is taken down and signed by the married woman and the commissioners; and on applying to have the money paid out, the signatures. of the parties must be verified (1 Newland's Prac. 383, 384; 1 Daniell, 95, 2nd edit.; 1 Ves. and Beam. 507).

XII. Indemnity to executor without suit.-By the 13 & 14 Vic. c. 35 (Sir George Turner's Act) the executors or administrators of a deceased person may obtain an order, on motion or petition of course, to refer it to one of the masters of the court to take an account of the debts and liabilities affecting the personal estate of such deceased party, and to report thereon. When the debts and present liabilities reported are paid, and the contingent liabilities reported are provided for by appropriation of sufficient moneys to answer such liabilities, the executors or administrators are protected as under a decree obtained on a regular administration suit (see 2 Law Stud. Mag. N. S. pp. 230, 231).

XIII. Appointment of guardian by father.-A father may appoint a guardian to his children by his will duly executed or by deed. The powers and duties of such guardian extend to the custody of the persons of the children, to the management and receipt of the rents, &c., of the real estate and of the personal estate (2 Steph. Com. 304, note, 3rd edit.).

XIV. Guardian, appointment in Chancery.Where no guardian has been appointed to an infant, formerly a petition might have been presented to the Court of Chancery, but now an application may be made at chambers for the appointment of guardian, and the allowance of a proper maintenance (Whitworth, 515; re Christie, 9 Sim. 643).

XV. Trustees, relief in a summary manner.―The 10 & 11 Vic. c. 96 (amended by the 12 & 13 Vic. c. 74, and regulated by the order of the 10th of June, 1848), enables trustees (including executors and administrators) having in their hands any trust moneys, on filing an affidavit entitled in the matter of the trust, and containing the particulars mentioned in the orders, to pay the money, with the privity of the Accountant-General in Chancery, into the Bank of England to the account of the Accountant-General in the matter of the particular trust. The same power is given to transfer or deposit annuities, or stocks standing in the trustees' names in the books

of the Bank of England, the East India Company, South Sea Company, or any Government or Parliamentary securities standing in such trustees' names, or in the names of any deceased person of whom they shall be the personal representatives. Where there are several trustees, the major part of them may proceed under the act. So soon as the payment, transfer, or deposit is made, notice thereof is to be given to the parties named in the affidavit, as being interested in, or entitled to, the fund. The parties entitled may apply by petition (on notice to the trustees) respecting the investment, payment out, or distribution, &c., of the fund. The judge may, where it shall appear that the trust funds cannot be otherwise safely distributed, order the institution of a suit or suits. The receipt by the proper officers for the cash, or of the transfer or deposit, is a sufficient discharge to the trustee for the money so paid, or the stock or securities so deposited or transferred (see Princ. Eq. 281, 282; 2 Chron. 161, 300, 373; 3 Id. 184, 286, 317; 12 Jur. pt. 2, p. 241, 249, 345; 14 Jur. 52). Where the trust fund is paid into court, a bill cannot be filed by a cestui que trust: he must petition (Goode v. West, 15 Jur. 1025).

BANKRUPTCY (ante, p. 6).

I. Principle of bankruptcy law's Relief.- The principle of the bankruptcy laws is to compel the dishonest, and enable the honest trader, who is not able to pay all his creditors, to give up his property for equal distribution (with certain privileged exceptions) among his creditors, instead of allowing any individual creditor to proceed to obtain payment of his demand, without reference to there being sufficient for the other creditors; and upon such bankruptcy to discharge the debtor, both in body and estate, from all his debts, and so enable him to begin the world again without any incumbrance.

II. Requisites of bankruptcy.—In order to constitute a bankruptcy, there must be (1) a trading; (2) an act of bankruptcy; (3) a petitioning creditor's debt to a sufficient amount, unless where the trader himself petitions (2 Chron. 213).

III.—Traders, who.-The Bankruptcy Consolidation Act contains an enumeration of traders liable to become bankrupt (see Key, div. "Bankruptcy," 18); but besides these, the following traders have been deemed by the courts to be liable to become bankrupts namely, bakers, distillers, fishermen, goldsmiths, lodging-house keepers, milkmen, newsmen, scavengers, shoemakers, tailors, &c. (see Mont and Ayrt. Bankr. Pract. ch. 1; Comyns' Dig. tit. Bankrupt). These trades not being enumerated in the statute, there must, in order to support an adjudication, be proof of a buying and selling. There must, in such cases, be sufficient evidence to support

the inference of an intention to deal generally; but the quantum of the dealing is immaterial (see Henley's Bankr. Law, p. 3, 3rd edit). A few illustrations will make this clearer. If a man buy horses to sell again, with a view to profit, he is liable to be a bankrupt; but if he sell only such as he bred and reared himself, he is not (Exp. Gibbs, 2 Rose, 38; Wright v. Bird, 1 Price, 20). If a butcher buy sheep or cattle, kill and sell them, with a view to profit, he is liable to be a bankrupt; but if he kill and sell only such as he bred and reared himself, he is not (Dally v. Smith, 4 Burr. 2148). If a fisherman be in the habit of purchasing fish from others to sell again, with a view to profit, he is liable to be a bankrupt; but if he sell only such fish as have been caught by him, he is not (Heaney v. Birch, 3 Camp. 233). Persons who purchase coals to sell again, with a view to profit, are liable to be made bankrupts; but if they sell only such as they procure from their own mines, they are not (Port v. Turton, 2 Wilson, 169). So if a person who owns or rents a mine, work it, and sell the ore, &c., he is not thereby subject to the bankrupt laws; for although he sells, he does not buy; &c., same of a person who sells stones taken from his own quarry (Exp. Gardner, 1 Rose, 377; S. C. 1 Ves. and Beam. 45). If a man buy milk to sell it again, with a view to profit, he is liable to be a bankrupt; but if he sell the milk only which he procures from his own cows, even although he occasionally sells the cows when they are no longer fit for that purpose, he is not (Carter v. Dean, 1 Swanst. 64; see exp. Dering, 1 De Gex. 398). So if a man buy cheese or cider, to sell again, with a view to profit, he is liable to be a bankrupt; but if he sell only the cheese which he has made from the milk of his own cows, or the cider which he makes from the fruit of his own trees, he is not (i Term Rep. 34). So, buying and selling Government stock, or other public stocks or securities, does not render a man liable to be made a bankrupt, because they are not "goods or commodities" within the meaning of this clause of the statute (Colt v. Netterville, 2 P. Will, 308). Nor will the buying and selling land, or any interest therein, make a man liable to be a bankrupt, for the same reason (see Port v. Turton, 2 Wilson, 169). Where a professor of music published a book incidental to his profession on his own account, it was held not to constitute him a trader (re Whittle, 18 Law Times, 10).

IV. Traders, principles. The principle which determines whether a person is a trader within the meaning of the Bankrupt Acts, in respect of the extent of his trading, is his intention or not to deal generally, and not the extent or quantity of his dealings. For though, in general, one single act of buying and selling will not make a man such a

trader, without proof of his intention to continue such a course of dealing, yet trading, in a very small degree, will sustain a fiat, if there is an intention to deal generally (2 Black. Com. 476; exp. Lavender, 4 Deac. and Ch. 484; exp. Moule, 14 Ves. 602; Doe v. Lawrence, 2 Car. and Pay. 135). Lord Henley (Henley's Bankr. p. 3, 3rd edit.), says: "The general description of a trader cannot be satisfied without there being both a buying and selling; which it is said are implied from the words using the trade of merchandise;' a merchant being so denominated from his being a buyer to sell again. It is now settled, in opposition to the early decisions, that the quantum of the dealing is immateral. If there be sufficient evidence to support the inference of an intention to deal generally, a very small degree of actual trading will be sufficient."

V. & VI. Acts of bankruptcy, voluntary and passive; intention or not to defeat, &c., creditors.-There is, in point of fact, no distinction made in the law between acts of bankruptcy voluntary and such as are passive. It was formerly considered a voluntary act of bankruptcy to file a duly attested declaration of insolvency (3 Jur. N. S. 550). So, the filing a petition for an arrangement. The following (among others) may also be considered voluntary—namely, 1, a trader's departing from his dwelling-house, or the realm, or otherwise absenting himself; 2, his beginning to keep house or remaining abroad; 3, procuring or suffering himself to be arrested, or taken in execution; 5, making a fraudulent conveyance, gift, &c., of his lands, goods, or chattels.

The pre

ceding acts must be done with intent to defeat or delay creditors (2 Steph. Com. 139, 2nd edit.); but the following do not depend upon proof of intention: 6, so, lying in prison for twenty-one days or escaping or filing a petition in the Insolvent Debtors' Court, or making a private arrangement with the petitioning creditor after docket struck, are acts of bankruptcy. The principal act of bankruptcy of a passive nature arises from the debtor not paying, &c., after being summoned in the Court of Bankruptcy to make payment or give security, &c.

VII. Bankruptcy of member of Parliament.- A member of Parliament may, after service of summons and default as hereafter mentioned, be bankrupt, and the proceedings after such default may be the same as against any other bankrupt, except that he cannot be imprisoned during the time of privilege, except in cases made a felony or misdemeanor by the bankrupt laws (12 & 13 Vic. c. 106, ss. 66; 1 Atk. 197; Mont. and Ayrt. Prac. 507). It is an act of bankruptcy in a member of Parliament, being a trader, if, on being served with a summons in an action for the recovery of a debt (verified by affidavit duly filed) of such amount as shall be suffi

cient to support a petition for adjudication, he do not, within one calendar month, pay, secure, or compound for such debt, or enter into a bond with two sureties for payment of the debt and costs (if recovered), and within one month after service of the summons enter an appearance.

VIII. Facts and steps prior to petitioning for adjudication.-Before a creditor files a petition for adjudication, his solicitor should satisfy himself on the following points:-1, that no previous petition has been filed, or if filed, that it has not been acted on within seventeen days or any enlarged time (sec. 96); 2, that the debtor is not an uncertified bankrupt; 3, that the person against whom the petition for adjudication is proposed to be issued is a trader within the meaning of the bankrupt laws; 4, that an act of bankruptcy has been committed; 5, that the debt owing to the petitioning creditor is, in nature and amount, sufficient to support the petition.

IX. Joint-stock company, adjudication against.-In order to obtain an adjudication of bankruptcy against a joint-stock company, a creditor not having a judgment, &c., must (7 & 8 Vic. c. 111, s. 7) file an affidavit of debt, of a proper amount, in a court of law, and sue out a writ of summons, which must be served on the chief clerk, &c., of the company. If the company do not, within one calendar month, pay, &c., such debt, or make it appear to a judge that it is their intention to defend the action upon the merits, and enter an appearance accordingly, the company will be deemed to have committed an act of bankruptcy (see exp. Gillett, 28 Law Tim. Rep. 68, 53; 3 Law Chron. 187, 193, 254, 267, 333). By ss. 5 and 6, creditors having a judgment or decree, &c., may serve a fourteen days' notice requiring payment. So by s. 4, the company itself may resolve that it is unable to meet its engagements, and that shall be an act of bankruptcy.

X. Petitioning creditor, affidavit.-The petitioning creditor does not make any affidavit of debt, but he verifies by affidavit in general terms the allegations of his petition, and among these allegations is one that the bankrupt is indebted to him in a certain amount: no particulars of the debt are necessary to be stated (1 Law Chron. p. 322).

XI. Proof of debts.-Creditors living near the court prove their debts by oath before the commissioner (or registrar for that purpose appointed). If a creditor live remote from the place of the meeting of the commissioners, he may prove by affidavit, sworn before a person authorised to administer an oath in bankruptcy matters. It has been held that though the 164th section of the Consolidation Act does not provide for proof by affidavit, and there is no express provision in the act dispensing with

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