BANKRUPT.

734

1. A payment of a partnership debt made by a partner who has committed an act of bankruptcy, to a creditor who has notice thereof, is not protected by s. 82, of 6 G. 4, c. 16. Craven and Others, Assignees of W. and B. Alred, Bankrupts, v. Edmondson. 2. Where a lessee becomes bankrupt, a surety joined in the lease with him is liable to the lessor for breaches of covenant occurring between the date of the commission and the delivery up of the lease by the lessee under 6 G. 4, c. 16, s. 75. Tuck and Others, Executors of Gibbons, v. Fyson. 321

3. 1. A bill of exchange is a chattel within the meaning of 6 G. 4, c. 16, s. 3, the fraudulent delivery or transfer of which will constitute an act of bankruptcy.

2. Closing the doors and shutters of a bank is a beginning to keep house," although the banker be not domiciled at the bank. Cumming and Others, Assignees of Cavanagh and Others, Bankrupts, v. Baily.

363

498

4. Where an uncertificated bankrupt, in order to try the validity of his commission, held his assignee to bail in an action for money had and received, the Court discharged the assignee upon filing common bail. Chambers v. Bernasconi and Another. 5. An execution on a final judgment following a judgment by nil dicit. held to be within the proviso of s. 108, 6 G. 4, c. 16, although there was no concert between the parties, and the judgment was obtained before the act came into operation. Cuming and Another, Assignees of Heale, a Bankrupt, v. Welsford and Others.

502 6. Under 6 G. 4, c. 16, s. 5, an act of bankruptcy, by lying in prison twenty-one days, does not relate to the first day of imprisonment. Moser and Another, Assignees, &c. v. Newman and Boole.

556 7. Where the defendant obtained his certificate as a bankrupt after issue, and before judg. ment, the Court refused, after judgment, to enter an exoneretur on the bail-piece. Humphreys v. Knight.

569

8. A bankrupt who obtained his certificate after issue, and before judgment, having, after judgment, been rendered in discharge of his bail, was held entitled to be liberated on a summary application, although he had not pleaded his certificate puis darrein continuar.ce. Same case.

572

9. The proceedings under a commission of bankruptcy sued out in 1822, were not enrolled till after the repeal of the 5 G. 2, c. 30, in 1825: Held, that they were not admissible in evidence, the 6 G. 4, c. 16, not applying to the enrolment of proceedings under commissions anterior to the act. Kay, Assignee of Sherwin, v. Goodwin.

576

10. After a secret act of bankruptcy by P., defendant accepted a bill of exchange for him for 981. at three months, which P. paid to a creditor standing by: later, in the course of the same day, P. agreed to sell defendant four horses as security for 701. of the 981. The horses were subsequently delivered to the defendant, who paid the 981. bill when it became due: Held, that the transaction was not protected by the eighty-second section of 6 G. 4, c. 16. Carter, Assignee of Peer, a Bankrupt, v. Breton.

617 11. A right of entry vested in husband and wife VOL. XIX.-46

The master of the barge deviated unnecessarily from the usual course, and during the deviation a tempest wetted the lime, and the barge taking fire thereby, the whole was lost:

Held, that the defendant was liable, and the cause of loss sufficiently proximate to entitle plaintiff to recover under a declaration alleging the defendant's undertaking to carry the lime without unnecessary deviation, and averring a loss by unnecessary deviation. Davis v. Garrett.

716

The

Plaintiff received a parcel from G. to book for London at the office of defendants, common carriers. Plaintiff, instead of obeying his instructions, put the parcel into his bag, intending to take it to London himself. defendants having lost the bag, Held, that the plaintiff could not recover damages from them in respect of the parcel. Miles v. Cattle and Another. 743

In an action on the case, defendant gave a cognovit for 2001., with a defeasance conditioned for the performance of various matters by a given time, and performed the matters (in part at least) within two months after the time stipulated. Plaintiff having issued execution on the cognovit, the Court referred it to the prothonotary, to see how much, if any. thing, ought to be paid to the plaintiff. Char: rington v. Laing.

242 2. One of two who had been partners, having, after the partnership was dissolved, given in an action against the two a cognovit for debt and costs as between attorney and client, without the knowledge of his codefendant, the Court set the judgment aside. Rathbone v. J. and D. Drakeford.

CONDITION PRECEDENT.

See ACCORD AND SATISFACTION.

COSTS.

See PRACTICE, 1. ATTORNEY, 3.

375

1. Defendant was arrested for 3271.; he tendered 2501., but did not pay it into Court. An arbitrator, to whom the cause was referred, awarded the plaintiff only 2501.: Held, not a case to entitle defendant to costs for a malicious and vexatious arrest. Sherwood v. Tayler. 280 2. One of several defendants in an action of debt, having pleaded bankruptcy, plaintiff entered a nolle prosequi as to him: Held, that such defendant was not entitled to his costs under 8 Eliz. c. 2, although before plea the plaintiff was apprised of the bankruptcy. Booth and Another v. Middlecoat and Others. 445

3. D. having given a cognovit for 3571., mortgaged certain premises as a security for the payment of that sum, and the costs of the judgment, and all other costs and charges whatsoever attending the same.

The mortgagee having levied execution, her right to the goods seized was disputed in an action at the suit of certain persons, who claimed to be assignees of D. under a bankruptcy. The mortgagee failed upon a first trial, but succeeded in a second, D. proving not to be bankrupt :

Held, that the mortgagee could not claim from D. the costs of this action, as costs or charges attending the judgment confessed by D.

2. D. having stated at the execution that certain goods levied were not his property, and the sheriff having, by inquisition, ascertained that they were, the mortgagee was holden entitled to claim of D. the costs of the inquisition, if she had paid them to the sheriff. Doe d. Holt and Others v. Roe. 447

4. Defendant having been arrested for 11231., when the plaintiffs had the means of knowing that only 7151. was due, was held entitled to his costs under 43 G. 3, c. 46, although the accounts between plaintiffs and defendant were somewhat complex. Forster and Another v. Weston.

5.

527

In an action on the case for a malicious prosecution, per quod plaintiff was falsely imprisoned, one of several defendants obtaining a verdict, is not entitled to his costs under 8 & 9 W. 3, c. 11, if a verdict pass against the others. Murray v. Nichols and Others. 530 6. Where there are several defendants who obtain a verdict generally, the costs of all must be taxed at the same time, although they defend separately. Smith and Others, Assignees of Cook, v. Campbell and Others.

1.

2.

COVENANT.

637

A covenant with a lessor of premises in a parish, to indemnify the parish against any paupers which the covenanter may cause to be settled in it, is valid. Walsh, Bart., and Another, Executors of Sir H. Strachey, V. Fussell.

163

A covenant not to sue upon a bond during the life of the obligor, and that if any per son to whom the obligee should assign the bond should recover the principal, the obligee would pay the obligor, during his life, interest on the amount recovered: Held, no bar to an action by an assignee of the bond in the name of the obligee. Morley v. Frear. 547 3. Where a lease of an undivided third part of certain mines contained a recital of an agree ment made by the lessee with the lessor, and the owners of the other two thirds, for pulling down an old smelting mill, and building another of larger dimensions, upon a waste near the mines, and the lease contained a covenant to keep such new mill in repair, and so leave it at the expiration of the term, but did not contain a covenant to build it: Held, that such a covenant was to be implied, and that the lessor of the one third might sue upon it in respect of his interest.

The lease contained a demise of all mines and minerals then opened or discovered, or which might during the term be opened or discovered, in or under certain moors and waste lands; and also all smelting mills then standing upon the said lands, with full liberty to sink shafts there, and to build thereon any mills or other buildings requisite for working the mines, habendum the said demised premises, with the appurtenances, for twenty; one years. The lessor afterwards granted his reversion of and in the said demised premises, with the appurtenances, to G. B., who, by will, devised the same to the plaintiffs: Held, that the covenant to build the new smelting mill tended to the support and maintenance of the thing demised, and that the assignee of the reversion might therefore sue upon it. Easterby v. Sampson and An

other.

645 4. Tenant for life, remainder over, by indenture demises to lessee, his executors, &c., for fifteen years, without any express covenant for quiet enjoyment; lessee is evicted by remainder-man after death of tenant for life, and before expiration of the fifteen years: Held, that lessee cannot maintain covenant

1. By an agreement between defendants and their creditors, all defendants' stock in trade was placed in the hands of trustees for the benefit of the creditors, and defendants were to execute to the trustees a conveyance of all their estate, in which deed were to be inserted all other usual clauses. The trustees carried on defendants' business, and paid the creditors 10s. in the pound; they then tendered for execution by defendants a conveyance of all their estate containing a clause of release, which the defendants objected to as insufficient, and refused to execute the conveyance: the instrument not having been executed by all the creditors, a meeting at which the defendants were called on to execute was adjourned, that the signature of every creditor might be obtained:

Held, that plaintiffs, who, as creditors, were parties to the above agreement, could not sue for their original debt, at least, till the conveyance, such as it was, had been executed by all the creditors, and refused by the defendants. Tatlock and Others v. Smith and Others.

339

2. Defendant drew bills as surety for the acceptor C. H., and it was provided by a deed, to which plaintiff, the holder of the bills, as well as the defendant, was a party, that he should not sue defendant on the bills till C. H.'s effects should have been sold, and the proceeds applied in discharge of the bills.

C. H.'s effects were seized and sold under a commission of bankruptcy, the trustee to whom they had been conveyed by the deed in question having, with the knowledge and assent of the defendant, omitted to take possession of them in time:

Held, that the plaintiff was not barred from suing the defendant on the bills. Lancaster and Another v. Harrison. 726

DEMISE.

See LANDLORD AND TENANT, 2.

'DEVISE.

1. Devise of testator's freehold messuages, stock in the funds, money and debts, and all shares or property which he might be possessed of or entitled to, to trustees and their executors, in trust for testator's wife and children, &c.

Codicil devising testator's copyhold to his wife till the expiration of certain leases, and after that to be sold, and the money to be placed in the funds for the benefit of testator's children, as directed in the will:

Held, that the trustees took no interest in the copyhold, and that the wife's interest terminated on the expiration of the leases. Chapman v. Prickett.

602

2. Testator, after bequeathing pecuniary lega cies to his children, devised to his widow the

of England or otherwise, and also a freehold house in S., a freehold estate in R., a copyhold estate in B., and a leasehold estate in A., with all right and title to the same: Held, that the widow took a fee in the freehold, and a customary fee in the copyhold. Sharp v. Sharp. 630

DISCHARGE.

See INSOLVENT, 2.

DISTRESS.

See LANDLORD AND TENANT, 1, 7.

DOWER.

Adultery is a bar to dower, although committed after the husband and wife have separated by mutual consent. Hethrington v. Graham.

1.

2.

1.

EJECTMENT.

See PRACTICE, 13, 23.

135

In favour of a defendant in ejectment, who showed no title to the premises sought to be recovered, the Court would not presume a surrender of a mortgage term to the owner of the inheritance, from the circumstance, that, in 1802, the Court of Chancery had decreed a sale of the mortgaged property for the payment of the money borrowed, and that some sales had taken place under the decree: But the defendant had not purchased the land in question under the decree, and there was no evidence of any further proceedings in Chancery. Doe dem. Hammond and Others v. Cooke and Another.

2. In an action on the case for a malicious prosecution, the plaintiff is to give primâ facie evidence of want of probable cause, which the defendant may rebut, if he can, by showing the existence of probable cause.

Defendant presented two bills for perjury against the plaintiff, but did not appear himself before the grand jury, and the bills were ignored.

He presented a third, and on his own testimony the bill was found. This prosecution he kept suspended for three years, till plaintiff taking the record down to trial, and the defendant declining to appear as a witness, although in court, and called on, plaintiff was acquitted:

Held, sufficient primâ facie evidence of want of probable cause. Willans v. Taylor.

183

elapsed, nor by want of notice of the applications made to his son. Goring v. Ed.

monds.

94

2. "I agree to be security to you for J. C., late in the employ of J. P., for whatever you may intrust him with while in your employ, to the amount of 501.:" Held, that the consideration for the guarantee sufficiently ap peared. Newbury v. Armstrong. 201

3. I do hereby agree to guaranty the payment of goods to be delivered in umbrellas and parasols to J. and E. A. S., according to the custom of their trading with you, in the sum of 2001. Held, a continuing guarantee. Hargreave v. Smee.

244 4. I hereby agree to be answerable to K. for the amount of five sacks of flour, to be delivered to T., payable in one month.

Nov. 18.

T. G."

Held to be a guarantee for flour, not exceeding five sacks delivered at one time, and not a continuing guarantee for parcels delivered at various subsequent periods, though not exceeding in the whole five sacks. Kay v. Groves. 276

INDEMNITY.

See PRACTICE, 18.

INSOLVENT.

See EVIDENCE, 4. TRESPASS, 1. PRACTICE, 15. 1. A payment by an insolvent to a creditor, within three months before the insolvent's imprisonment, is void under 7 G. 4, c. 57, s. 32, although the word pay is not employed in that section. Herbert, Assignee of Knight, v. Wilcox.

291

203 2. An insolvent is not exonerated from damages unascertained at the time of his discharge, although the action in which they are sought to be recovered was commenced, and judgment by default suffered, prior to his first imprisonment. Wilmer v. White. 3. A warrant of attorney given to a particular creditor by one who at the time intends to take the benefit of the insolvent debtors' act, is a charge on property or a transfer of it by assignment within the thirty-second section of 7 G. 4, c. 57. Sharpe and Another, Assignees of Harris, an Insolvent, v. Thomas.

416

4. The sixteenth section of the 7 G. 4, c. 57, which declares that it shall be lawful for the provisional assignee of the insolvent debtors' court to sue in his own name for the effects of insolvents, if the court shall so order, is only affirmative of the provisional assignee's right, and he may sue with or without such order. Dance, provisional Assignee of Shepherd, an Insolvent, v. Wyatt.

486 5. A prisoner in custody for debts exceeding 3001. is liable to be brought up under the compulsory clause of the Lords' Act. Womersley v. Bousfield.

INTEREST.

801

A

JOINT STOCK COMPANY.

prospectus was issued for a distillery company with a capital of 600,000l. and 12,000 shares, and to be conducted pursuant to the terms of a deed to be drawn up. All persons who did not execute the deed within 30 days after it was ready, were to forfeit all interest in the concern. No more than 7500 shares were ever allotted; only 2300 persons paid the first deposit; only 1106, the second, and only 65 signed the deed; and the directors, after the time for paying the second instalment had elapsed, advertised that persons who had omitted to pay had forfeited their interest in the concern.

Held, that an application for shares, and payment of the first deposit, did not constitute a partner one who had not otherwise interfered in the concern, and that the insertion of his name by the secretary of the company in a book containing a list of subscribers was not a holding out as partner. Fox v. Clifton and Others. 776

JUDGMENT.

See PRACTICE, 17.

LANDLORD AND TENANT.

1. It was stated in a special verdict, that, by an indenture, A. demised to B. all that wharf next the river Thames described by abutments, together with all ways, paths, passages, easements, profits, commodities, and appurtenances whatsoever to the said wharf belonging; and that by the indenture the exclusive use of the land of the river Thames opposite to and in front of the wharf, between high and low water mark, as well when covered with water, as dry, for the accommodation of the tenants of the wharf, was demised as appurtenant to the wharf, but that the land itself between high and low water mark was not demised:

2.

Held, to amount to an actual demise.

2. Use and occupation lies for constructive as well as actual occupation. Pinero, one, &c. v. Judson and Another.

206

437

3. A pump erected by a tenant during his term, and slightly affixed to the freehold, is removable as a tenant's fixture. Grymes v. Boweren. 4. A landlord, who seizes his tenant's goods under an execution, the proceeds of which he is obliged to refund to the assignees of the tenant under 7 G. 4, c. 57, s. 34, cannot retain against the assignees the amount of a year's rent under the 8 Ann. c. 14, s. 1. Taylor and Another, Assignees, &c. v. Lan

yon.

536