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For impeding the Service of a Subpoena—(Continued.)
& je plaintiff, and thereby impedes the service of a subpæna, is liable to an
attachment. Clements v. Williams, 814.
Jurisdiction of the Court over Acts of.
1. The court will not entertain a motion touching the conduct of
an attorney, unless it appears upon affidavit that he is an attorney of
the court, or that the transaction arises, in part at least, out of a
cause before the court: nor will the court exercise its summary juris-
\, ,* diction over an officer, unless in the case of a palpable fraud. In re
*1, Lord, 131.
poc, mua b 2. The plaintiff's attornies, having ceased to act for him, and be-
come attornies for the defendant, fraudulently procured the sheriff to
return on a fi. fa. a sum larger than that actually levied and accounted
f 193Wigg for to the plaintiff. The court (at the expense of the attornies) or-
to by sidered the return to be amended according to the fact. Green v.
Delivery of signed Bill.
Act of Bankruptcy.
(bustio'))--)..i to por
Jour Deperting from the Dwelling-house--( Continued.) sleeps
obo -5410916bb-, absent during the whole of that and the following day. A wit-
ness proved that P. called on the day in question at her brother's
house in London; that he expressed to her an apprehension of
being sent to the Fleet, and stated that he was in no hurry to
vlul, ai pot get home, and would not go very early, as he had creditors who
s would lay hold of him; and that he did not leave till after dark.
The jury, were told, that, if they believed the statement made by
the witness, P,on that occasion committed an act of bankruptcy:
they said they did believe the witness, but they did not think P.
spoke with bona fides:- Held, that P. had committed an act of
bankruptcy, Johnston y. Woolf, 372.
!!! Fraudulent Preference, in Contemplation of Bankruptcy.
2. In order to constitute a fraudulent preference, so as to
avoid a payment made by a trader, it must be a voluntary pre-
ference and made in actual contemplation of bankruptcy: it is
not enough to shew that the party was in such a state of insol-
vency and embarrassment as to render bankruptcy a probable
event. Atkinson v. Brindall, 369. 11
3. F. & S., traders in partnership, being in insolvent circum-
stances, entered into a deed of composition with their joint
creditors whereby they engaged to pay them. 4s. 6d. in the
pound upon the amount of ther respective debts, by three in-
stalments, F. & S. retaining possession of the stock in trade,
and the creditors engaging to release them on payment of the
last instalment. By the same deed F. assigned to the trustees a
policy of assurance upon his life (which constituted his entire
separate property), in trust to pay out of the proceeds the
balance of the debts due to the joint creditors, and the surplus
if any to his F.'s personal representatives. Two years after the
date of the assignment a fiat issued against F. In an action
brought by the assignees under the fiat against the trustees
named in the deed, to recover the policy, S., who was called as
a witness, stated that at the time of the execution of the deed his
partner and himself entertained hopes of retrieving themselves :
-Held, that the assignment of the policy under the circumstan-
ces did not constitute an act of bankruptcy:---Held, also, that it
was properly left to the jury to say whether the deed was honestly
and bona fide entered into for the purpose of enabling F. & S.
to continue to carry on their trade, or with intent to defeat or
delay any particular class of creditors; or whether the deed was
voluntary and a fraudulent preference given by F. to the joint
Proof of Debts-(Continued.)
* '\'; \ ,
expressly covenants in case of the default of the grantor, are not
IA proveable under a fiat against the suréty, where such instalments do
e'r'1516 not become due until after the bankruptcy of the surety. Thompson
in fe 100v. Thompson, 266.-49147", vil forts , 110kw (13., if
Rights and Liabilities of Assignees. ':s 3 OJ $!! so dass and
mo. 15. A commission of bankrupt issued against the plaintiff in July,
1824, 'under which he was declared a bankrupt. "At the time of
voi sbl11 issuing the commission' the plaintiff' was not indebted to the petition-
sting creditor in the sum of 1001.; and the plaintiff disputed the vali-
Trill'e 'dity of the commission on that ground. In January, 1831, the plain-
#0391991 tiff applied to one of the commissioners of the court of Bankruptcy to
appoint an official assignee under the commission, as well for the
purpose of investigating the petitioning creditor's debt as for the pur-
of El or pose of taking care of the property of the estate. The defendant
2401 74* Was accordingly appointed official assignee for the purpose aforesaid,
: but he never received any notice that the plaintiff disputed the com-
locuss mission, or that he (the defendant) was appointed for any special
purpose :--Held, that the fact of the plaintiff having himself put the
commissioner in motion, and thereby caused the appointment of an
- n11. 1!", official assignee, did not estop him from suing the defendant for
money received by him as assignee. Munk v. Clark, 475.
6. The defendant having in his possession a lease belonging to one S.,
which had been deposited with him as a security for monies advanced
2760by him to S., and upon which he claimed a lien for costs against S.
out to 11 and also as against the assignee appointed under a commission of
15 bankrupt issued against S. in 1830, concurred with the assignee in
the sale of the lease, and received from him, in satisfaction of his de-
mand, the amount of the purchase money, and also received with the
assent of the assignee certain sums due for rent of the premises &c.
The sale took place after the defendant, as solicitor to the assignee,
had notice that a petition to supersede the commission, on the ground
..,"1? of the insufficiency of the petitioning creditor's debt, was pending.
"Bil . In January, 1832, the commission against S. was superseded, and in
chib : March a second fiat issued against him :-Held, that the assignees
it'sd.; i under the last-mentioned fiat were entitled to recover from the de-
-1.*, ; fendant the several sums so received by him from or with the assent
· or under the authority of the assignee under the superseded commis-
sion. Clark v. Gilbert, 520.
7. To a count in debt by the assignees of a bankrupt for money had
and received by the defendant to the use of the plaintiffs as assignees
(not stating whether received before or since the bankruptcy), the de-
fendant pleaded a set-off for money due to him on an account stated
with the bankrupt before the bankruptcy :-Held, that the plea was
bad, for that it did not shew that the debts were mutual. Groom v.
Appropriation of Funds.
8. Although the money first received under a fat is by the statute
required to be appropriated in discharge of the expenses incurred by
the petitioning creditor, yet, where he assents to a different appropri-
ation, he is estopped from afterwards "contending that the directions
of the act have not been complied with Hornidge v, Eyland, 357.
And see TROVER.
BILLS OF EXCHANGE AND PROMISSORY NOTES.
Acceptance in Blank.
1. The defendant wrote his name (in the usual form of an accep-
tance) on blank stamped papers, and delivered them to one H. One
C. afterwards put his name to the blanks as drawer and indorser;
and they were then filled up by a stranger as bills of exchange for
the payment of 500l. each:–Held, that the acceptor was estopped
from saying that the drawing and indorsing of the bills was irregular.
Schultz y. Astley, 815.
Drawn in a fictitious Name.
2. A bill of exchange was drawn and indorsed T. W., by a person
whose real name was T. W.R. There was no evidence to shew that
this individual had any intention to pass himself off for a different
person of the name of T, W., or of an intention to defraud any person
of that name, or any other person :—Held, no ground for treating the
bill as a forgery, or for holding the bill void on that account. Schultz
v. Astley, 815.
Not payable " to Order.”
3. The defendant indorsed and delivered to the plaintiffs, in pay-
ment of goods, a promissory note made by one H. payable to R. & W.
(without the words “or order"), and indorsed by R. & W. to K., and
by K. to the plaintiff. The note being dishonored by the maker:-
Held, that the plaintiffs were entitled to sue the defendant for the
original consideration, notwithstanding no notice of the dishonor had
been given-the instrument not being negotiable. Plimley v. West-
Administering Oaths, fc.
A British consul has power by the 6 Geo. 4, c. 87, s. 20, to certify
as to the handwriting and authority of the party before whom is sworn
the affidavit verifying the certificate of the taking of an acknowledg-
ment of a married woman (abroad) under the 3 & 4 Will. 4, c. 74.
In re Barber, 436.
Action against for the Loss of a Parcel.
In an action against coach proprietors for the loss of a parcel con-
Til fryser', ITI 718
taining cash and notes, it appeared that the parcel had arrived at the
1912 us defendants' coachtoffice in August, 1834, and was there lost; that,
pod boutinnin June, 1835, a poster, who was in the employ of the defendants at
1To afeje, s the time of the loss was sent by a guest at the hotel in the yard in
-180189 11ib which the office was situate with a 5l. note and five sovereigns to get
SCE ,bur, a 101., note in exchange for them; that the porter procured a 101. note
at a shop in the neighbourhood, and gave a 101. note to the guest,
which note proved to be one that had been contained in the lost par-
cel, and which the person from whom the porter was supposed to
have procured it stated that he thought was not the same note he had
9110) 11 given them, Upon an issue as to whether or not the parcel was lost
iltzeku 1 through the felonious act of the defendants' servant, the jury having
found for the plaintiff, the court refused to grant a new trial; the de-
fendants not having called the porter, Boyce v. Chapman, 365.
For malicious criminal charge.
1. In an action for maliciously and without reasonable or probable
cause charging the plaintiff with felony before à magistrate, it ap-
I) * 9 "
peared that the plaintiff had lived in the service of the defendant,
and on being discharged took away with her a trunk and bag, the
property of the defendant; that, on the following day, the defendant
wrote to desire the plaintiff to return those articles, and stating that
unless she did so he would on the Monday following cause her to be
apprehended; that the letter being, in consequence of the plaintiff's
absence, unanswered, the defendant obtained a warrant for the ap-
prehension of the plaintiff, and carried her before a magistrate, who
dismissed her, the defendant declining to press the charge. The
judge before whom the cause was tried left it to the jury to say whe-
ther or not the defendant had reasonable or probable cause for ap-
prehending the plaintiff, and whether he was actuated by malice or
not:Held, that this direction was proper, and that the judge was
not bound to take upon himself to decide as to whether or not there
was reasonable or probable cause--it being a mixed question of law
and fact. Macdonald v. Rooke, 359.
For maliciously outlawing the plaintif
2. In an action on the case for maliciously and without reasonable or
probable cause procuring the plaintiff to be outlawed, the declaration
stated that the plaintiff was not in anywise subject or liable to be
outlawed at the suit of the defendant; that the defendant made an
affidavit of debt whereby he deposed that the plaintiff was indebted to
him in 3550l.; and that the plaintiff
, upon the prosecution of the de-
fendant, under colour and pretence of owing the said sum of 3550l.,
was declared an outlaw: assigning for special damage, that the plain-
tiff was put to costs in and about reversing the outlawry. The existence
of the alleged debt (the non-existence of which was the only grava-