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Ex parte Robinson, 3 Dea. & Ch.

103.

16. The assignees bought in premises sold under the usual order in case of equitable mortgages; the mortgagee applied to the commissioners for a second sale, which, however, was not then made; subsequently the assignees obtained another order for a sale, at which the premises were sold at a loss: Held, the assignees were not liable for the difference, but the ground-rent and expences since the first sale were paid out of the estate. Ex parte Baldock, 2 Dea. & Ch. 60.

17. The Court will not rescind a purchase by the mortgagee because he bid without leave. Ex parte Ashley, 1 Mont. & Ayr. 82.

18. A mortgagee, with a power of sale, himself put up the premises for sale, and then applied for leave to bid: Held, he could not be permitted unless he waived the power, and had the property sold under the order of the commissioners. Ex parte Davis, 1 Mont. & Ayr. 89.

19. A mortgagee having bid without leave, an order to bid nunc pro tunc was made. Ex parte Pedder, 1 Mont. & Ayr. 327.

20. The Court will not exempt a mortgagee who bids from paying a deposit. Ex parte Tatham, 1 Mont. & Ayr. 335.

21. The petition of an equitable mortgagee must be served on the assignees; service on the solicitor to the commission is not sufficient. Ex parte Cooks, 3 Dea. & Ch. 24.

22. In a pledge of goods the depositary can have no right which the party pledging did not possess. Per Chief Judge. Ex parte Britten, 8 Dea. & Ch. 48.

23. An equitable mortgagee of leasehold property must satisfy a distress for rent out of the proceeds

of the sale. Ex parte Cocks, 3 Dea. & Ch. 8.

24. A coal mine was worked by several persons under a lease, the articles of partnership giving each a power of pre-emption in case any partner wished to dispose of his share. A partner deposited an attested copy of the lease, in order to give an equitable mortgage on his share to a stranger. Held, the Court could not make the usual order for sale, &c., as the partnership accounts must first be taken, which this Court has no jurisdiction to do; and the case was not free from doubt. Cross, J.. dissenting. Ex parte Broadbent, 1 Mont. & Ayr. 635.

See ASSIGNEES, 24. 25.

ESTATE TAIL.

1. The common bargain sale to assignees passes an estate tail of which the bankrupt was possessed. Per Chief Judge. Ex parte Somerville, 1 Mont. & Ayr. 415.

2. Quære, Whether the commissioners can convey an estate tail after the death of the bankrupt? They would not do wrong in executing a conveyance to enable the question to be tried. Ex parte Somerville, 1 Mont. & Ayr. 408.

EVIDENCE.

1. On a petition to reverse the adjudication under section 17 of 1 & 2 W. 4. c. 56. the bankrupt is entitled to copies of the depositions. Ex parte Jackson, 2 Dea. & Ch. 601. S. C. Mont. & Bli. 391.

2. On a petition to reverse the adjudication under section 17 of 1 & 2 W. 4. c. 56. the assignees may adduce new evidence in support of

the requisites. Ex parte Jackson, 2 Dea. & Ch. 601. S. C. Mont. & Bli. 394.

3. An assignee, who was also a mortgagee, purchased the mortgaged estate without leave. The examination of the assignee before the commissioner as to the sale of the property was read as evidence of the assignee's misconduct. Ex parte Turville, 3 Dea. & Ch. 346.

4. On a charge of usury the bankrupt's affidavit in support of the respondent's case is admissible, though he have previously made one in support of the petition; but, when the party is dead who could have best answered such affidavit, the bankrupt's allegations, uncorroborated, will not go for much. Ex parte Gwyn, 2 Dea. & Ch. 12.

5. On a petition by assignees to supersede, the bankrupt's affidavit is admissible to show that the commission was fraudulently concerted. Ex parte Bellwood, 2 Dea. & Ch. 37.

6. The bankrupt's examination cannot be read as evidence against a third party who had no power of cross-examining him. Éx parte Armsby, 2 Dea. & Ch. 212.

7. A creditor of the bankrupt cannot give evidence vivâ voce as to the requisites to support the fiat. Ex parte Lavender, 1 Mont. & Ayr. 702.

8. Depositions enrolled by the assignees are not evidence against them to invalidate the commission. Chambers v. Bernasconi, 4 Tyr. 531.

9. If, in a case within the 92d section of 6 Geo. 4. c. 16., the assignees upon a trial go into evidence of trading in consequence of a notice to dispute, without relying upon the depositions, or adverting to the 92d section, 6 Geo. 4. c. 16., and fail to establish the trading, and are nonsuited, the Court will not set the

nonsuit aside.

Johnson v. Piper,

2 Nev. & Man. 672.

10. A written memorandum of an arrest, and of the place where it occurred, made by a sheriff's officer at the time, and immediately sent to the sheriff's office, and there filed in the course of business, is not admissible as evidence of the place at which the arrest took place in an action to dispute the commission. Chambers v. Bernasconi, 4 Tyr. 531.

11. It has been ruled that the bankrupt's statement on his balance sheet that he owes 30,0007, and that he cannot pay one shilling in the pound, is admissible evidence to show his circumstances, when a fi. fa. issued against his goods. Botcherley v. Lancaster, 3 Nev. & Man. 383.

12. A bankrupt gave a bond to trustees for the payment of 5,000l. as a provision for his daughter on her marriage: parol evidence is not admissible to prove, that when the bond was given it was understood that it was only to be available in the event of the success of a certain speculation which had failed. Ex parte Morley, 2 Dea. & Ch. 51.

13. If, on cross-examining a witness, an irrelevant question be put, evidence cannot be produced to disprove his answer; it must be taken for better and worse. Ex parte Armsby, 2 Dea. & Ch. 213. See S. P. Harris v. Tippett, 2 Camp. 637. See VIVA VOCE EXAMINAtion.

EXAMINATION OF
BANKRUPT.

See COMMISSIONERS, 1. 2. 3.

EXCEPTIONS TO REPORT.

On hearing exceptions to the master's report, those only of the

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an affidavit must be made that the party bona fide intends to prosecute the fiat, that there is no composition deed pending or intended, and no connivance with the bankrupt. Ex parte Smith, 1 Mont. & Ayr. 473.

13. Time for opening fiat will not be enlarged to give effect to an arrangement of composition. Re Moody, 2 Dea. & Ch. 210. S. C. differently reported, Mont. & Bli. 512.

General.

14. A new fiat issued on the application of the petitioning creditor to give effect to a more recent act of bankruptcy, the time for opening the first fiat not having expired. Re Crawley, 3 Dea. & Ch. 251.

15. A joint fiat issued against two partners; then commissioners were appointed in pursuance of 1 & 2 W. 4. c. 56. s. 14.: a separate fiat against a third partner cannot be directed to the old commissioners. Ex parte Beague, 1 Mont. & Ayr. 445.

16. If the fiat be lost, a new one must be issued. Re Levet, 1 Mont. and Ayr. 309.

See DOCKET PAPERS.

FIXTURES.

The assignees are entitled to trade fixtures. Ex parte Lloyd, 1 Mont. & Ayr. 503.

See REPUTED Ownership, 5. to 12.

FOREIGN COMMISSION.

A., trading in London on his separate account, and at Brazil in partnership with B. and C. under the firm of A. and Co., becomes insol

vent, when four of his creditors are appointed inspectors of his estates, who, it was agreed, should receive the several consignments and remittances expected from the Brazil house, as trustees for the persons to whom the same might be ultimately found to belong; the Brazil house, ignorant of A.'s insolvency, make various consignments to A., directing him to sell them at certain places abroad, and to place the proceeds to the account of the Brazilian house; these goods are accordingly sold under the direction of the inspectors, and the proceeds received by them; at the time of A.'s insolvency he was under acceptances to the Brazilian house to a larger amount than the value of the consignments, but such acceptances were on a general account, and not on the account of any particular consignment from the foreign house; A. afterwards became bankrupt, and a cession of the effects of the Brazilian house was also made to assignees according to the laws of Brazil: Held, that the assignees of the Brazilian house, and not the assignees of A. in England, were entitled to the proceeds of these goods. Ex parte Wacherer, 2 Dea. & Ch. 27.

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FRAUD, DEBTS PROVABLE THROUGH.

See DEBTS Provable, 7. 8. 9.

FRAUDULENT PREFERENCE. See PREFERENCE, FRAUDULent.

FREIGHT.

See REPUTED OWNERSHIP, 26.

GAZETTE.

See STAYING ADVERTISEMENT, &c.

HABEAS CORPUS.

1. On a return of a habeas corpus, affidavits may be read to show facts not apparent on the face of the warrant. Per Lord Chancellor. Ex parte Bardwell, 1 Mont. & Ayr. 249.

2. On habeas corpus the party may object that a question was illegal, though he did not object before the commissioners. Ex parte Bardwell, 1 Mont. & Ayr. 207.

3. A prisoner regularly committed by a commissioner to the messenger, and subsequently irregularly committed by the subdivision court, is not, on a discharge under habeas corpus, remanded to the custody of the messenger. Ex parte Bardwell, 1 Mont. & Ayr. 214.

4. If a party, discharged by the Lord Chancellor from a commitment by commissioners on habeas corpus, be arrested for debt on his way home, it is a great contempt, and every person concerned may be

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