Cases in Bankruptcy

Ship to prosecute his Voyage, a
Person making that Advance is
entitled to a Lien on the Ship,
without an Instrument of Hypo-
thecation. Ex parte Halkett.

Page 194

4. But Bills of Exchange drawn by

the Master upon the Owner in Fa-

vour of a Person advancing Mo-

ney for the Ship, and not pur-

porting on the Face of them to

be drawn for the Purposes of the

Ship, are primâ facie Evidence

against an Hypothecation. Ex

parte Halkett.

229

arrested one of the other two, un-
der whose Commission they had
not proved. Held that he was
not entitled to be discharged out
of Custody. Young v. Hunter.
Page 120

2. A Person to whom several Debts

were due from a Bankrupt, arising

out of separate Sales of Goods,

proved some of the Debts under

the Commission; another Person,

who was suggested to be a Trustee

for him, sued at Law upon a Note

which the Bankrupt had given for

another Part of the Goods. The

Court refused to interfere in a

summary Way to stay Pro-

ceedings on the Bail-bond in this

Action. Howell v. Golledge.

130

3. The Statute 46 Geo. 3. c. 135. s.

2. does not restrain a Creditor
from proving under a Commis-
sion of Bankruptcy a Debt con-
tracted before the Act of Bank-
ruptcy on which the Commission
issued, but after Notice of a prior
Act of Bankruptcy. Ex parte

Bowness.
266

4. The Statute 49 Geo. 3. C.

121. s. 14. which enacts that Cre-

ditors proceeding under the Com-

mission shall be deemed to have

made their Election not to sue,

does not extend to prevent a Cre-

ditor who proves a joint Debt un-

der a Commission against one

Partner from suing the others.

Heath v. Hall.
271

5. If the Title of Assignees of a

Bankrupt's

Bankrupt's Estate, Strangers to the
Record, comes in Question inci-
dentally, it must be proved in
the same Mode as before the Sta-
tute 49 Geo. 3. c. 121., although
no Notice of contesting the Bank-
ruptcy has been given by the op-
posite Party. Doe on the Demise
of Mawson v. Liston. Page 276

6. A. grants a Lease to B., which

contains a Covenant that B., his

Bankruptcy issued against the Ac-
ceptor, may sue the Acceptor be-
fore he has obtained his Certificate,
and arrest him upon the Bill, not-
withstanding the Holder has proved
the Bill under the Commission.
Mead v. Braham. Page 289

SOLICITOR.

1. The Majority of the Assignees re-

gulates the Removal or the Con-

tinuance of the Solicitor. Ex

parte Tomlinson.

Executors or Administrators, with- See PRACTICE. COSTS. LIEN.

out mentioning "Assigns," should

not underlet without the Consent

of the Lessor. B. becomes bank-

rupt, and his Assignees assign

the Premises to C.: B. obtains

his Certificate, and C. re-assigns

the Premises to him, after which

be underlets them to another Per-

son.Held that B. having been

discharged at the Time of his

Bankruptcy from all Covenants in

the Lease, by Stat. 49 Geo. 3. c.

121. s. 19., the Underletting by

him, which was in the Character of

Assignee, was no Forfeiture of the

Lease. Doe on the Demise of

Cheer v. Smith.
280

7. The proving a Debt under a Com-

mission is an Election by the Cre-

ditors within the Statute 49 Geo. 3.

c. 121. s. 14. which deprives him

of his Remedy by Action against

the Bankrupt, in the Cases ex-

cepted in Statute 5 Geo. 2. c. 30.

s. 9. Read v. Sowerby.

8. The Drawer of a Bill of Exchange

288

who has paid the Amount to the

2. The Solicitor under a Commission

of Bankruptcy is not liable, in

the first Instance, to the Mes-

senger, whom he nominates, for

his Bill of Fees; but if the So-

licitor agrees with the petitioning

Creditor to work a Commission for

a Sum certain, and receive a great

Part of that Sum, he will be liable

to such Messenger. Hartop v.

Juckes.
263

3. The Solicitor answerable to the

Commissioners for their Fees. Ex

parte Griffiths.

4. May maintain Action against As-

signee for Business done under

Commission, although the Bill has

not been taxed under 5 Geo. 2.

c. 30. s. 45. Tarn v. Heys. 475

SUPERSEDEAS.

342

Holder after a Commission of 1. A Commission of Bankrupt sus-

VOL. II.

M M

tained

tained against the three following 3. The Existence of a prior separate

Objections:

1st. That the petitioning Creditor

had, upon striking the Docket,

made an Affidavit of his Debt as

for Goods sold and delivered, al-

though he had at the Time ob-

tained Judgment in an Action

brought to recover the Amount of

the Goods.

2d. That prior to the Act of Bauk-

ruptcy upon which the Commission

issued there was another Act of

Bankruptcy, with a Debt sufficient

to sustain a Commission, and of

that the petitioning Creditor had

Notice.

3d. That prior to presenting the

Petition for a Commission, the pe-

titioning Creditor had not relin-

quished his Judgment.

The Court being of Opinion as to

the first Objection, that all the
Statute 5 Geo. 2. c. 30. s. 23. re-
quired was, in Truth and Reality,
a Debt of sufficient Amount; as
to the second, that it was not com-
petent to the Bankrupt to defeat a
Commission against him, by al-
leging the Criminality of another
Act of Bankruptcy; as to the
third, the Statute 49 Geo. 3. c. 121.
s. 14. only applied to Creditors
who came in to prove their Debts.
Bryant v. Withers. Page 8

2. The Lord Chancellor has no Ju-

risdiction to indemnify an Assig-

nee against the Consequences of a

Supersedeas. In the Matter of

Bryant.

Commission invalidates a subse-

quent joint one. But for the Con-

venience of administering the joint

Property, the Court will, by super-

seding the separate Commission,

give Effect to the joint one, unless

there be a strong Reason against

the Court so interfering; and it is

not a sufficient Reason that, by

such Interference, a separate Cre-

ditor, to a great Amount, will be

divested of his Right of voting in

the Choice of Assignees. Ex parte

Pachelor.
Page 26

4. Misnomer or Misdescription of

Bankrupt. Ex parte Smith.

5. A Creditor who has proved his

Debt is not precluded from ap-

plying to supersede the Commis-

sion. Ex parte Bonsor.
61

6. A Bankrupt who has obtained a
Verdict in an Action brought by
him to try the Validity of his Com-
mission, pending a Rule Nisi for
a new Trial, confessed Judgment
to one of his Assignees, who was
the petitioning Creditor, for a Sum
of Money in Discharge of his Debt,
in Consideration of his not op-
posing the Bankrupt's Petition for
a Supersedeas. The Court set aside
the Judgment on the Bankrupt's
Application. Thomas v. Rhodes.

104

7. Separate Commissions taken out

by a joint Creditor against Persons

who had just ceased to be Partners,

and who had very few separate

Debts

517

10. Superseded with Costs on a con-

certed Denial. Ex parte Binmer.

453

11. That there is a prior separate

Commission in Ireland in Prose-

cution against one of two Partners,

is not a Ground for superseding a

joint Commission against them in

this Country. Ex parte Caleb

Cridland.

164

12. A Commission sustained against

the following Objections: first, a

joint Bond to the Great Seal had

been executed by one only of the

Partners: secondly, one of the

Bankrupts had been the Subject of

two former Commissions, and al-

though he had obtained his Cer-

tificate, yet he had not, under the

second, paid fifteen Shillings in the

Pound. Ex parte Hodgkinson. 172

Roberts v. Hardie.

ibid. N.

13. Though the Commission be le-

gally valid, yet if it has been taken

out against good Faith, or with a

View to enforce a Compliance with

an Arrangement then pending be-

tween the Parties, this Court will

supersede it upon the general Prin-

ciple which all Courts adopt to con-

trol the Abuse of their Process.

Ex parte Harcourt. Page 203

14. Although the Requisites to sus-

tain the Commission appear on the

Proceedings to be established, yet

if the Court be satisfied on Af-

fidavit of their Insufficiency, it will

supersede the Commission without

an Issue. Ex parte Gallimore. 234

15. A Commission against a Person

by the Name of Laidlow super-

seded at the Instance of a Creditor

who had taken out a Commission

by the right Name of Laidlaw, al-

though the Bankrupt had used as

well one Name as the other.

Quare whether the Commission

would have been superseded at the

Instance of the Bankrupt himself.

Ex parte Schofield.

246

16. That a particular Trading is not

specified in the Commission is not

a Ground of Supersedeas, the ge-

neral Description of Dealer and

Chapman being sufficient. Ex

parte Herbert.

17. A second Commission super-

seded and a Procedendo issued on

a former Commission which had

expired. The petitioning Credi-

tor under the first Commission

having been prevented from pro-

secuting his Commission by the

Artifices of a Person who was de-

sirous of covering certain Transac

tions between himself and the

Bankrupt, by a Lapse of two

Months. Ex parte Knight. 319

18. A Commission under which the

Bankrupt has obtained his Certifi-

248

cate

cate not superseded on an Objec-
tion to the Trading, or that Debt-
ors to the Estate upon that Grouud
refuse to pay the Assignees, quære
if the Application for that Pur-
pose were made by all the Cre-
ditors under the Commission. Ex
parte Crowder.
19. A separate Commission not su-
perseded to give Effect to a joint
one, where the Bankrupt has com-
mitted a Felony in not surrender-
ing to the separate Commission.
Ex parte Roberts. Ex parte Wells.

Page 324

378

20. Although all the Requisites of a
Commission concur to its Validity,
yet, if taken out for an indi-
rect and improper Object, (as a
Landlord to determine a Lease,
contrary to good Faith), it will be
superseded. Ex parte Gallimore.
In the Matter of Gallimore. 424

SURETY.

1. The Words "Person liable,” in

the Statute 49 Geo. 3. c. 121. s.

8. will comprehend all Persons

rendering themselves responsible

for the Debt of another: e. g. an

Acceptor of a Bill for the Accom-

modation of the Drawer. Ex parte

Young.

2. The Obligee of a Bond given by a

Principal and Surety, conditioned

for the Payment of Money by In-