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up or previously selling his security.--Exp. Bennett, 2 Atk. 528 ; Exp. Goodman, 3 Madd. 373; Exp. Shepherd, Re Wilson, 2 Mont. D. and D. 204; Mont. and Ayrt. Bankr. Pract. 132, 134; Exp. Peacock, 2 Gl. and Jam. 27; Exp. Rogers, 1 Deac, and Chit. 38; Exp. Davenport, Re Buxton, 1 Mont. D. and D. G. 313; Exp. Shepherd, Re Plummer, 1 Mont. D, and D. G. 101 ; 3 Jur. 1147, S. C.
10. Must any, and what, notice be given of the intention to dispute the bankruptcy in an action or suit; and if so, at what stage of the proceedings and in what manner is it to be given ?
Ans. In actions by assignees where the defendant intends to dispute the bankruptcy, he must at or before pleading give notice to such assignee that he intends to dispute some of the facts necessary to the support of the fiat.—6 G. 4, c. 16, s. 90 ; Chit. Arch. Pract. 900, 7th ed.; Roscoe's Evidence. But by 5 & 6 Vict. c. 122, s. 24, if the bank. rupt shall not proceed, if within the United Kingdom, within 21 days, or if in any other part of Europe within three months, or if elsewhere within twelve months after the advertising of the bankruptcy, to dispute the fiat and prosecute the same with effect, the Gazette shall be conclusive evidence of the bankruptcy as against the bankrupt, and against persons whom the bankrupt might have sued had he not been adjudged bankrupt, saving present rights, for which any proceedings are pending.
In actions against assignees, the notice must be given before issue joined.—6 Geo. 4, c. 16, s. 90; Richmond v. Heapy, 4 Campb. 207. Folks v. Scudder, 3 Car. & P. 232; Howard v. Ramsbottom, 3 Taunt. 626. The notice must specify which of the three matters-trading, petitioning creditors' debt, or act of bankruptcy—is intended to be disputed. Notice to dispute the bankruptcy is too general.—Trimley v. Unwin, 6 B. & Cr. 537; Chit. Archb. Pract. p. 901, 7th ed. ; Mont & Ayrt. Bankr. Pract. 262.
Notice is not required on the trial of a feigned issue.-Lott v. Melville, 9 Dowl, 882; 5 Jur. 436, S.C.
11. By what means can a bankrupt be made a competent witness ?
Ans. If a Bankrupt have obtained his certificate and released the surplus, he is competent to prove the proceedings before the commissioners, and the hand-writing of the commissioners to documents which verify the requisites.-Gill v. Woodman, Buller's Nisi Prius, 38 ; Fergusson v. Spencer, 2 Sc. N. R. 229; 1 Man. & Gr. 987; Mont. & Ayrt. Bankr. Pract. 283; Kennett v. Greewollers, Peake, 3. He is a good witness if the effect of his evidence would be to diminish the estate.Langden v. Walker, Cowp. 70. Flower v. Herbert, 2 H. Black. 279; Clark v. Wilmot, 1 You. & C. N. C, 53.
A release to the bankrupt will not make him a competent witness. Field v. Curtis, 2 Stra. 829; Hoffnan v. Pitt, 5 Esp. 22; Mont. & Ayrt. Bankr. Pract. pp. 283, 284.
12. Can the proceedings on a fiat be given in evidence on a trial under any, and what, circumstances ?
By 6 G. 4, c. 16, s. 96, no commission or adjudication of bankruptcy, or assignment of the personal estate of the bankrupt, or certificate of conformity, shall be received as evidence in any court of law or equity, unless the same shall bave been first entered of record. By sec. 97, in every action, suit, or issue, office copies of any original instruments or writings filed in the office, or officially in the possession of the Lord Chancellor's Secretary of Bankrupts, shall be evidence to be received of every such original instrument or writing respectively. Sec. 95 authorised the Chancellor to appoint any person to enrol all matters relating to commissions of bankruptcy, and have the custody thereof. The 2nd & 3rd Will. 4, c. 114, s. 1, enacted that all commissions and proceedings so enrolled should be removed into the Court of Bankruptcy, and kept as records there. Sec. 4 gives any one of the judges of that court power to direct any old commission or proceeding to be entered of record. Sec. 5 enacts that all fiats, appointments of assignees, and certificates shall be entered of record, on the application of any party interested therein, without any petition ; and upon petition the commissioners may order any deposition or other proceeding so to be entered. See also 3 & 4 W. 4, c. 84, s. 9; Johnson v. Gillett, 5 Bing. 5; Ex Bowden, i Deac. and Ch. 453: Mont, and Ayrt. Bankr. Pract. 271, 272; Roscoe's Evidence.
13. When, and by what means, can a fiat be annulled ?
Ans. A fiat may be annulled upon reversal of adjudication, 1 & 2 W.4, c. 56, 8. 19; where commission was directed to two creditors, Exp. Matthews, 1 Gl. and Jam. 165; where bankrupt compounds with petitioning creditor, Exp. Paxton, 1 Ves. 464 ; where all or nine-tenths of creditors consent to supersede, 6 Geo. 4, c. 16, ss. 133, 134; where there is an improper description of bankrupt, Exp. Mills, i Mont. and Ayr. Rep. 310; Exp. Tanner, 2 Deac. and Chitt. 563; for non-prosecution of fiat in proper time, Lord Loughborough’s Order, 20th June, 1793 ; want of trading, Mont. and Ayrt. Bank Pract. ch. 23, sec. 1.
The mode of applying to annul is by petition to the Lord Chancellor -1 & 2 W. 4, c. 56, s. 19; Exp. Keys, 1 Mont. and Ayrt. 226; 3 Deac. and Ch. 263. Petitions to annul are, however, commonly presented to the Court of Review, which makes the order “ if the Lord Chancellor shall think fit.”—Mont. and Ayrt. Bank. Pract. p. 377.
14. Will the bankruptcy of a party to a bill of exchange excuse a want of a notice of dishonour?
Ans. The bankruptcy or insolvency of the drawee, however notorious, constitutes no excuse for neglect of notice of dishonour.-Russell v. Langstaffe, Doug. 497 ; Esdaile v. Sowerby, 11 East, 114; Boultbee v. Stubbs, 18 Ves, 21; 2 Bos. and P. 279; 3 Campb. 165. But see 3 Bro. C. Ç. 1; Byles on Bills, 194, 3rd ed.
15. Is a debt contracted abroad, barred by a certificate obtained under a fiat in this country.
Ans. A certificate obtained in England is a bar to a debt contracted at Calcutta, although the creditor had no notice of the fact, and was resident at Calcutta.- Edwards v. Ronald, 1 Knapp's Priv. Coun. Cas. 259; Mont. and Ayrt, Bank. Pract. 351.
EQUITY. 1. By whom are the costs of a bill for discovery only, to be paid ?
Ans. As a general rule, when discovery and no relief is sought, the plaintiff must pay all thc costs.—1 Smith's Ch. Pr. p. 501.
2. What proceedings must be taken to enable a party to appeal a once from the Master of the Rolls or from one of the Vice-Chancellor's to the House of Lords?
Ans. He should enrol the decree, which makes it the decree of the Lord Chancellor.—2 Smith's Ch. Pr. p. 2.
3. What are the remedies of partners as against each other, and how can the partnership assets be secured ?
Ans. The ordinary remedy of partners against each other is in equity only.-Gow on Partnership, ch. 2, s. 4, p. 93 to 102; Collyer on Partnership, b. 2, ch. 3, s. 2, p. 174 to 193; Story on Partnership, ch. 11, 8. 222. But this subject is rarely acted on in courts of equity, except on dissolution of partnership.
Equity will also in some cases appoint a receiver of the joint efiects during the continuance of the partnership, but only in cases of the grossest misconduct. This will only be done with a view of winding up the concern.—Gow on Partnership, ch. 2, s. 4, p. 114; Story, ch, 11, s. 228 ; and see the cases there cited.
4. If second mortgagee file a bill of foreclosure, how must he deal with the first mortgagee? "Ans. The decree in this case will direct a reference to the Master to take an account of principal, interest, and costs due to the first mortgagee, and gives the plaintiff six months after the date of the report to redeem the first mortgage, and in default of his so doing, dismisses the bill with costs.—1 Smith's Ch. Pr. 535.
5. If property be left to a wife and the husband die in her lifetime before it has been reduced into possession, to whom will such property belong on the death of the husband ?
Ans. To the wife. The leading case on this subject is Purdew v. Jackson, 1 Russ. 1. It is there laid down by Sir Thomas Plumer, “That all assignments made by the husband of the wife's outstanding personal chattel which is not, or cannot be then reduced into possession, whether the assignment be in bankruptcy or under the Insolvent Act, or to trustees for payment of debts, or to a purchaser for valuable consideration, pass only the interest which the husband has subject to the wife's
legal right by survivorship.” This case was followed in the recent case of Elwin v. Williams, 7 Jur. 337 by the Vice-Chancellor of England.
See the whole of the cases on this subject collected in an article in the Weekly Law Mag. pp. 51, et seq; 64, et seq ; 76 et seq; 88, et seq.
6. From what time and at what rate is interest allowed on a pecuniary legacy, there being no direction in the will on the subject ? : - Ans. From the end of one year from the testator's death, at 4 per cent. per annum.-Wood v. Penoyne 13 Ves, 333; Sitwell v. Barnard, 6 Ves. 520 ; Bryant v. Speke, 1 Ves. 171; 2 Black. Com. 513, 514 and note  by Hovenden. . 7. If a plaintiff in a bill is resident abroad, is the defendant entitled to any security for costs; and at what time, and in what manner, must he apply for such security ?
Ans. If on the face of the bill the plaintiff appear to be residing abroad, or if the defendant knows that he is, defendant, is entitled to security for costs, the application must be made before answer or other step in the cause.—Meliorucchy v. Meliorucchy, 2 Ves. 24; Anon 10, Ves. 287.
If the fact come to the defendant's knowledge in the course of the cause, he may apply at any time, provided he has not waived his right by any subsequent proceeding.- Weeks v. Cole, 14 Ves. 518.
All the plaintiffs must be resident abroad, for if only one of many plaintiffs be within the jurisdiction, the defendant cannot obtain the order.-Walker v. Easterby, 6 Ves. 612.
The order cannot be obtained if the plaintiff be abroad in official capacity or in actual service.-Colebrook v. Jones, Dick. 154. · If it be stated on the bill that the plaintiff is resident out of the jurisdiction, the defendant is entitled to security, on motion or petition of course ; but otherwise, the defendant must give a notice of motion, and support his application by affidavit.—1 Smith’s Ch. Pr. 558. The security required is a bond for £100, with sufficient sureties.40 N. 0. ~ 8. If a trustee or executor who is an accounting party be about to go abroad, how can he be made in equity to find security ? :
Ans. A bill having been filed, the party can apply exparte to the court for a writ of ne exeat regno. The motion must be supported by an affidavit stating that the defendant is indebted to the applicant in a certain amount, or that he believes that on an account being taken the defendant will be found to be indebted in that amount, and that he believes the defendant is about to quit the kingdom, adding, if possible, the circumstances on which that belief is founded. Thereupon a writ of ne exeat will be granted, directed to the sheriff, commanding him to cause the defendant to give sufficient bail or security in the sum mentioned in the order.-1 Smith's Ch. Pr. 576, et seq.
9. In case a testator die possessed of real estate subject to mortgages, and he bequeath his real estates to one person, and his personal estates to other persons, without any direction as to the payment of his debts, out of which estates are the mortgages to be paid ?
Ans. It is a rule that the personal estate of a testator is the first fund liable to the payment of his debts, and that a testator cannot, as against his creditors, exempt the personal estate from such liability.-Maddock's Pract. Chanc. ch. 6. Where there is a mortgage, the land is considered as a security only, and the personal estate must be applied for its discharge.-2 P. Will. 605 ; 2 Atk. 455; Robinson v. Gee, 1 Ves. 252. This same rule holds in favour of an heir, or of a devisee of the estate, provided the creditors of the testator do not lose their debts by the mortgage being paid out of the personal assets. -2 Atk, 487; Astley v. Tankerville, 3 Bro. C. C. 545; Serle v. Eloy, 2 P. Will. 386.
10. Is it necessary that all parties having an interest in real estates should be made parties to a bill against trustees in order to carry the trusts into execution ?
Ans. By the 30th of the orders of the 26th of August, 1841, it is ordered, that in all suits concerning real estate, which is vested in trustees by devise, and such trustees are competent to sell and give discharges for the proceeds of the sale, and for the rents and profits of the estate; such trustees shall represent the persons beneficially interested in the estate, or the proceeds or the rents and profits in the same manner, and to the same extent, as the executors or administrators in suits concerning personal estate represent the persons beneficially interested in such personal estate ; and in such cases it shall not be necessary to make the persons beneficially interested in such real estate, or rents and profits, parties to the suit; but the court may, upon consideration of the matter.-See May v. Selby, 6 Jur. 52; Hill v. Ledbrook, 6 Jur. 1078.
11. If a father have a power of appointing a trust fund among any one or more of his children, can be make a valid appointment to one son, with a condition annexed, that the son shall join the father in raising money upon the fund in question ?
Ans. Such an execution of the power of appointment would be bad.Pawlett v. Pawlett, 1 Wills, 224; Com. Dig. tit. “ Poiar" (C. 6); 2 Prest. Abst. 255; Abridgm. of Prest. Abst. in 2 Week. Law. Mag. p. 4; Sugd. on powers, 330; Palmer v. Wheeler, 2 Ball & Bea. 30; Maddock’s Pract. Chanc. Ch. 3; Dauberry v. Cockburn, 1 Meriv. 633.
12. Can a married woman assign or give any security upon a property to which she is entitled upon the happening of a future event?
Ans. A married woman cannot make an assignment of, or otherwise charge her reversionary property.-Pickard v. Roberts, 3 Madd. Rep. 384. But in Wollands v. Croucher, 12 Ves. 177, Sir W. Grant took the consent of a wife to the transfer of her reversionary interest. He did so, however, only de bene esse, so as not to prejudice the question in the event of her being the survivor. See the observations of Lord