N: 
 

 Cornell University Law Library \^^ 
 
 The Moak Collection \ 
 
 PURCHASED FOR 
 
 The School of Law of Cornell University i 
 
 And Presented February 14, 1893 
 
 IN HEnORY OF 
 JUDGE DOUGLASS BOARDMAN 
 
 FIRST DEAN OF THE SCHOOL 
 
 By his Wife and Daughter 
 A. M. ^pARDMAN and ELLEN D. WILLIAMS 
 
Cornell University Library 
 KD 2145.A2G78 Suppl. 
 
 A digest of all the reported cases decid 
 
 3 1924 017 855 689 
 
Cornell University 
 Library 
 
 The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924017855689 
 
A DIGEST 
 
 OF 
 
 ALL THE REPORTED CASES 
 
 DECIDED UNDER THE 
 
 BANKEUPTCY ACT, 1883, 
 
 WITH 
 
 BEFEEENCES TO ALL THE REPORTS, 
 
 AND TO THE 
 
 COVETS IN WHICH THE YABIOUS DECISIONS HAVE BEEN GIVEN. 
 
 COMPILED BY 
 
 CHARLES FRANCIS MORRELL, 
 
 OF THE MIDDLE TEMPLE, BARRISTER AT-LAW, 
 KEP0KTE8 AND EDITOE OP "mOEREh's BiSKRUPIOY OASES." 
 
 LONDON : 
 
 H. SWEET & SONS, 3, CHANCERY LANE, 
 
 1888. 
 
LONDOK : 
 BRADBURY, AONEVT, & CO., PRINTERS, WHITEFHTARS. 
 
PREFACE. 
 
 The present digest was undertaken in response to numerous 
 
 requests from subscribers to " Morrell's Bankruptcy Reports." 
 
 It was felt, however, that if all J;he cases wherever reported 
 
 ■* 
 under the present Bankruptcy Act were included, and references 
 
 ", v X 
 added to all the contemporary reports, the general usefulness of 
 
 the work would be very materially increased. In spite of very 
 
 careful revision, it is much to be feared that in a book 
 
 depending so entirely upon correctness of reference some 
 
 inaccuracies may unfortunately be discovered. For these the 
 
 Editor can only ask indulgence, and he has no higher hope than 
 
 that the present work may be accepted in the same kindly spirit 
 
 as that in which during the past four years his " Eeporta" have 
 
 been received by all branches of the profession. 
 
 i, Essex CorRT, Temple, E.G. 
 January, 1888. 
 
TABLE OF CASES. 
 
 PAOH 
 
 Abrauah, £x parte, Johnstone, In re 33, 96 
 
 Adamson & Ronaldson, Hx parte, Hagan & Co., In re 82 
 
 Addingtou, JEx parte, Ives, In re 56, 59 
 
 AUestree, Ux parte, Clarkson, In re 71 
 
 Andrews, In re, Andrews, Ux parte 39, 58, 157 
 
 Angell, In re, Shoolhred, Sx parte 52, 151 
 
 Angier, Sx parte, Johnstone, In re 50, 150 
 
 Arden, In re, Arden, Ex parte 13, 17, 47, 62, 109, 123 
 
 Armstrong, /« r«, Armstrong, .E'.r parte 12, 105 
 
 Ashcroft, In re, Todd, Ex parte 147 
 
 Aylmer, In re, Bischoffsheim, Ex parte 76, 141 
 
 Ayshford, /«. re, Lovering, ^o; parte 50,78, 115, 134 
 
 Badcock, In re, Badcock, Ex parte 67 
 
 Ball, Ex parte, Hutchinson, In re 93 
 
 Barlow, /?i re, Thomber, ^,r parte 44, 143, 152 
 
 Bame, In re, Barne, Ex parte 80 
 
 Barnett, 7?i re, Reynolds & Co., ^o; parte 57, 100, 149 
 
 Barnett, In re, Trustee, Ex parte 25 
 
 Basan, Ex parte, Foster, In re 30 
 
 Bates, In re, Lindsey, Ex parte 29, 86, 92 
 
 Baynes, Ex parte, Clarke, In re 19 
 
 Bear, In re. Official Receiver, Ex parte 94, 155 
 
 Beesty, Ex parte, Lowenthal, In re 97 
 
 Bell, 7w re 138 
 
 Berner, Ex parte, LainI, In re 117, 127 
 
 Betts & Block, 7?i re, Board of Trade, Ex parte 46, 68, 76, 107, 112 
 
 Bew, Inre, Bull, Exparte 10, 78, 102 
 
Vlll TABLE OF CASES. 
 
 FAOE 
 
 Binko, Lire ''^ 
 
 Bisclioffsheim, £(; parte, Aylmer, /?t re ''^i 141 
 
 Blakeway, In re, Eankart, Ex parte 53 
 
 Blaiiohett, Ex parte. Keeling, In re 21, 27, 89 
 
 Bliick, Inre, Bluck, Ex parte 56, 125 
 
 Board of Trade, Ex parte, Betts k. Block, In re 46, 68, 76, 107, 112 
 
 Board of Trade, Ex parte, Brunner, In re 82, 1 30 
 
 Board of Trade, Ex piarte, Chudley, In re 34 
 
 Board of Trade, Ex parte, Gaines, In re 34, 158 
 
 Board of Trade, Ex parte, Heap, In re 36, 68, 132 
 
 Board of Trade, Ex p)arte, Margetts, In re 33 
 
 Board of Trade, Ex parte. Mutton, /» re 17, 35, 36, 66, 67, 72 
 
 Board of Trade, Ex parte, Parker & Parker, Inre 110, 139 
 
 Board of Trade, Exparte, Pearoe, Inre 9, 38 
 
 Board of Trade, Ex parte, Rogers, In re 31 , 1 02, 159 
 
 Board of Trade, Ex parte, Rowlands, In re 9,34, 159 
 
 Board of Trade, Ex parte, Stainton, In re 13, 35, 70, 73 
 
 Board of Trade, Exparte, Strand, In re 54, 108, 130 
 
 Board of Trade, Exparte, Taj'lor, Inre 43, 114 
 
 Borneman v. Wilson 48 
 
 Brightmore, In re. May, Ex parte 97, 120 
 
 Brindley, In re, Brindley, Ex parte 38, 139 
 
 Brooke, In re. Trustee, Ex parte 74 
 
 Brooks, Inre 96, 132 
 
 Brown, Ex parte. Smith, Inre 48, 64, 129 
 
 Brown & Wingrove, Ex parte, Landau, Inre 73 
 
 Brunner, /m. re. Board of Trade, ^a; parte 82, 130 
 
 Bruno Silva k Son, In re, Francis k Co., Ex p)arte 155 
 
 Budden, Ex parte. Underbill, In re 82 
 
 Bull, Inre , 68, 112 
 
 Bull, Ex parte, Bew, In re 10, 78, 102 
 
 Burgess, In re. Burgess, Ex parte 37, 47, 78 
 
 Butler V. Wearing 24 95 
 
 CALiiOW, Ex parte, Jensen, Lire 137 
 
 Campbell, Exparte, Wallace, In re 35, 44, 67, 82, 113, 142 
 
 Campbell, /» re, Campbell, ^u: parte 5 
 
 Campbell, In re, AVolverhampton k Staffordshire Banking Company, 
 
 Exparte j2, 160 
 
TABLE OF CASES. IX 
 
 PACIE 
 
 Carr, In re, CaiT, Ex jy-iiie 134, l.')4 
 
 Carvill &, McKeaii, In ir 75 
 
 Castle Mail Packet Company, A'x jmrte, raync, In re 13, 5ri, 61, 67 
 
 Chapman, In re, Edwards, Rr parte 152 
 
 Chapman, In re, Parkei-, Ex purie 128, 146 
 
 Chappell, In re, Ford, Ex 23arte 109, 127 
 
 Charles, Ex parte, Tricks, In re 15, 65, 123 
 
 Chase, In re. Cooper, Ex pa rte 67 
 
 Chinery, In re, Chinery, Ex parte 27, 88, 94 
 
 Chudley, In re. Board of Trade, Ex ptarte 34 
 
 Clarke, In re, Bayues, Ex parte 19 
 
 Clarke, In re, Clarke, Ex p)arte 73, 141 
 
 Clarkson, In re, Allestree, Ex parte 71 
 
 Clement, In re, Goas, Ex parte 79 
 
 Cock, In re, Shilsou, Ex j^arte 161 
 
 Cohen, In re, Schmitz, Ex parte 27, 56, 88 
 
 Collinson, 7« ?r, Collinson, iiV^i'fc^i' 9, 120 
 
 Colonial Bank r. AVhinuey 38, 136, 148 
 
 Comptroller in Bankruptcy, Ex jxi rte, Thomas, In re 60 
 
 Cook, In re, 'D\]Ageon, Ex parte 135 
 
 Cooper, Ex parte, Chase, In re 67 
 
 Cooper, Ex parte, Knight, In re 148 
 
 Coton, hi re, Payne, Ex parte 33 
 
 Coulson, Ex piarte, Gardiner, In re 105 
 
 Courtenay, In re, Dear, Ex p)arte 16 
 
 Cox, In re. Trustee, Ex piarte 38 
 
 Crosthwaite, Ex parte, Pearce, In re 84 
 
 Crowther, In re, Duff, Ex parte 75, 159 
 
 Crowther, In re, Ellis, Ex parte 7, 58, 1 00 
 
 Cunningham, Ex parte, Mitchell, In re 80, 110 
 
 Curtis V. Wainbrook Iron Co 85, 118 
 
 Dale, In re, Dale, Ex parte 18 
 
 Dale, In re, Leicestershire Banking Company, Ex piarte 50, 114 
 
 Dashwood, In re, Kirk, Ex pmrte 1; '77 
 
 Davis, In re, Trustees of Pollen's Estate, Ex parte 84, 102 
 
 Dawes, Ex parte. Moon, In re 11, 79 
 
 Dawson, Khodes v 55, 131 
 
 Day, In re. Trustee, Ex parte 54, 149 
 
TABLE OF CASES. 
 
 PACK 
 
 Dear, Ex parte, Courtenay, In re lo 
 
 Dearie, Ex parte, Hastings, In re 4, 28, 62, 117,118, 120 
 
 District Bank, ^j; ^arfe, Genese, /n. re 106, 125 
 
 Dixon & Wilson, Inre, Dixon &Wibon, Exparte... 17, 22, 41, 49, 114, 131, 140 
 
 Dowson, In re, Dowson, Ex parte 73 
 
 Du Boulay, Inre '0 
 
 DMdigeon, Ex parte, Qook., In re 135 
 
 Duff, Ex parte, Crowther, In re 75, 159 
 
 Dyer, Ex parte, Taylor, In re 135 
 
 Easy, /w re, Hill & Hymans, ^j; parte 63, 119, 153 
 
 Eberle's Hotel Company v. Jonas 109 
 
 Edmunds, Ex parte, Green, In re 46, 52, 1 29 
 
 Edwards, Ex parte. Chapman, In re 152 
 
 Edwards, Ex parte. Home, In re 101 
 
 Edwards, Ex parte, Smith, In re 55, 124 
 
 Elderton, /re re, Russell, ^x parte 25, 149 
 
 Ellis, ^j: parte, Crowther, /re re 7, 58, 100 
 
 Ellis, In re, Hinshelwood, Exparte 53, 117, 120 
 
 Fabian, Ex parte, Landrock, Inre 139 
 
 Faithfull, In re, Moore, Exparte 30, 61, 91 
 
 Feast, In re, Feast, Exparte 27, 89 
 
 Fenton, Ex parte, Sissling, In re 15, 129 
 
 Field, In re, HoUyoak, Ex parte 121 
 
 Firbank, In re. Knight, Exparte 36, 132, 138 
 
 Fletcher, /» ?'e, Fletcher, Exparte 13, 113 
 
 Ford, Exparte, Chappell, In re 109, 127 
 
 Ford, In re, Ford, Exparte 29, 86 
 
 Foreman, Ex parte, Hann, In re 14 
 
 Forster, Ex parte, Hanson, Inre 7 
 
 Forstor, In re, Rawlings, Exparte 2, 24, 52, 151 
 
 Foster, In re, Basan, Ex parte 30 
 
 Foster & Co., Ex parte, Webster, Inre 45, 132 
 
 Foster & Co., Ex parte, Woolstenholme, In re 5 
 
 Francis k Co., Exparte, Bruno Silva & Son, In re 155 
 
 Friedlander, In re, Oastler & Co., Ex parte 6 11 
 
 Fryer, /re re, Fryer, ^./; parte 39 g2 64 
 
TABLE OF CASES. XI 
 
 PAOE 
 
 Games, Inre, Board of Trade, Ex parte 34, 158 
 
 Gamlen, In re, Ward & Co., Ex parte 16, 65, 120 
 
 Gardiner, In re, Coulsoii, Ex parte 105 
 
 Garnett, /ft re, Official Eeceiver, ^x parte 76, 107 
 
 Genese, In re, District Bank, Ex parte 106, 125 
 
 Genese, In re, Gilbert, Ex parte 161 
 
 Genese, In re, Kcarsley & Co., Ex parte {Motion hy creditors to declare 
 
 rights of trustee) 82, 160 
 
 Genese, In re, Kearsley & Co., Ex parte (Conjirmaiion of scheme) 42, 143, 145 
 
 Genese, Ex parte, Lascelles, In re 11, 63 
 
 Gibson & BoUand, Ex parte, Lamb, In re 7 
 
 Gibson, Ex parte, Stockton & Sabistau, In re 18 
 
 Gilbert, Ex 2}arte, Genese, In re , 161 
 
 Gillespie it Co., /ji re, Morrison, i7j /larfc 14,128 
 
 Gillespie, In re, Raid & Son, Ex 2Mrte 55, 109, 146, 149 
 
 Gillespie, /n. re, Eoberts, ^^ fjarte 31, 125 
 
 Glanville, In re, Trustee, Ex parte 3, 23, 49, 94, 115 
 
 Goas, Ex parte, Clement, In re 79 
 
 Godfrey, Ex parte, Lazarus, In re 45 
 
 Goldsmid, In re, Taylor, Ex parte 93 
 
 Good, /rare 66,68 
 
 Gould, In re, Official Receiver, Ex parte 7, 147 
 
 Gould, Ex parte, Ricbardson, In re 19, 132 
 
 Gould, Ex parte, Salmon & Woods, In re 19 
 
 Gould, Ex parte. Walker, In re 92, 104 
 
 Grant, /?i re, Whinney, ^J5 )oarte 140, 160, 162 
 
 Green, In re, Edmunds, Ex parte 46, 52, 129 
 
 Grepe, In re, Grepe, Ex parte {Costs of previous applications unpaid) 54 
 
 Grepe, In re, Grepe, Ex parte {Application to disjxnse with deposit on 
 
 appeal) 16, 66 
 
 Griffith, In re 42, 87, 145 
 
 Grimwade, Ex parte, Tennant, In re 25, 27, 40, 88 
 
 Guy, In re, Scantlebury, Ex parte 53, 151 
 
 Hagan & Co., In re, Adamson ifc Eonaldson, Ex parte 82 
 
 Hawa, In re, Foremem, Ex parte 14 
 
 Hanson, In re, Forster, Ex parte 7 
 
 Hard wick, /«. re, Hubbard, &; parte 32 
 
 'S.&XYej, Ex parte, Player, /w re 147, 148 
 
XU TABLE OF CASES. 
 
 FASE 
 
 Hastings, hi v.-, Dearie, Ex parte 4, 28, 62, 117, 118, 120 
 
 Ha wke, />i re, Scott & Smith, ^j^jartc 57, 100 
 
 Heap, hire, Board of Trade, Ex ixirte 36, 68, 132 
 
 Hewitt, In re, Hewitt, Ex parti 8, 162 
 
 Heyworth, Ex parte, IShodes, hire 4, 12, 28, 90, 134, 154 
 
 Hill, Ex parte, Lane, In re 32 
 
 Hill & Hymans, ^^ ^jarfp. Easy, /» rp 63, 119, 153 
 
 Hinks, Inre, Verdi, Ex parte 21, 103, 105, 124 
 
 Hinshelwood, ^j; ^a?-ie, Ellis, /ra re 53, 117, 120 
 
 Hobson, In re 81 
 
 Hockaday, /ra re. Nelson, ^j; ^sarie 33 
 
 Holland, In re, Warren, Ex parte 85 
 
 Home, In re, Edwards, Ex parte 101 
 
 Honygar, ^o; parte, Mahler, /re re 110 
 
 Horn, In re, Nassan, Ex parte 136 
 
 Homiblow, In re, Official Receiver, Ex parte 113 
 
 Hough V. Windas 81 
 
 Hough, Ex parte, Windas & Dunsmore, In re 81 
 
 Howe, Inre 58, 71, 87, 101 
 
 Hubbard, Ex parte. Hard wick, In re 32 
 
 Huggins, Ex parte. Woodward, In re 10, 135 
 
 Hughes, In re, Hughes, Ex piarte 40, 158 
 
 Hutchinson, In re. Ball, Ex parte 93 
 
 Hutchinson, In re, Plowden & Co., Ex parte 37, 83, 148 
 
 Ide, hi re, Ide, Ex parte 26, 88, 115 
 
 Isaac, In re, Isaac, Ex pjarte 91 
 
 Ives, In re, Addington, Ex parte 56, 59 
 
 Izard, Ex parte, Vanderhaage, In re 129 
 
 Jack, Inre 114, 156 
 
 James, Ex piarte, Maiden, Gibson & Co., In re 17, 47, 160 
 
 James, In re 105, 118 
 
 Jenkinsou, In re, Nottingham Bank, Ex parte 138 
 
 Jensen, In re. Callow, Ex p)arte 137 
 
 Johnstone, 7?i re, Abraham, ^.(- /xH'^e 33,96 
 
 Johnstone, /ft re, Angicr, i;V/irt)tc 50,150 
 
 Johnstone, In re, Singleton, Ex parte 35, 46, HI 
 
TABLE OF f'ASEP. XUl 
 
 PAOK 
 
 Jonas, Eberles Hotel Company v 109 
 
 Jones, Jure 101 
 
 Jordan, In re, Lloyd's Banking Company, Ex parte 47, 108, 139 
 
 Juby, Reg. V 61 
 
 Kearsley <fe Co., Ex parte, Genese, Lire 42, 82, 143, 145, 160 
 
 Keeling, In re, Blanchett, Ex parte 21, 27, 89 
 
 King, In re, Mesham, Ex parte 123 
 
 Kirk, Ex parte, Dashwood, In re 1,77 
 
 Knight, ^.r ^arte, Firbank, /;i re 36, 132, 138 
 
 Knight, In re. Cooper, Ex parte 148 
 
 Knight, In re, Smith & Co., Ex parte 14, 128 
 
 Koster, Ex parte, Park, In re 38, 63 
 
 Lacy, /» rf, Taylor, ^j; ^jarte 61 
 
 Laine, /;i re, Berner, jE'.r^xn-^f! 117, 127 
 
 Lamb, In re, Gibson & Bolland, Ex parte 7 
 
 Landau, In re, Bro\vn & Wingrove, Ex parte 73 
 
 Landrock, In re, Fabian, Ex parte 139 
 
 Lane, In re. Hill, Ex parte 32 
 
 Lascelles, In re, Genese, Ex parte 11, 63 
 
 Lay, In re. Woodward, Er parte 136 
 
 Lazarus, In re, Godfrey, Ex parte 4.5 
 
 Leathersellers' Company, Ex pjarte. Tickle, In re 103, 104 
 
 Ledger, Ex parte, Postlethwaite, In re 143 
 
 Leicestershire Banking Company, Ex parte, Dale, In re 50, 1 1 4 
 
 Lennox, In re, Lennox, Ex parte 90 
 
 Leslie, In re, Leslie, Ex parte 112, 131 
 
 Lindsey, Ex parte, Bates, In re 29, 86, 92 
 
 Linton, In re, Linton, Ex parte 10, 106, 124 
 
 Lipscombe, In re, Lipscombe, Ex parte 90 
 
 Livesey, In re 83 
 
 Lloyd's Banking Company, Ex pa rte, Jordan, In re 47,108,139 
 
 Lovering, ^a; ^arf?, Ayshford, 7w 7'« 50,78, 115, 134 
 
 Lowenthal, In re, Beesty, Ex parte 97 
 
 Lowndes, In re, Official Receiver, Ex p)arte 146 
 
 Lowndes, In re, Trustee, Ex parte 96 
 
 Ludford, hi re 54, 86 
 
Xiv TABLE OF CASES. 
 
 PAGE 
 
 Mackay v. Merritt 83 
 
 Mackintosh & Beaucliamp, Jn re, Mackintosh, Ex parte 98, 153 
 
 Magee, In re, Magee, Hx parte 9, 82, 128 
 
 Mahler, In re, Honygar, Ex piarte 110 
 
 Maiden, Gibson & Co., In re, James?, Ex parte 17, 47, 160 
 
 Manning, In re 20 
 
 March, Ex parte, Eichards, In re 18 
 
 Margetts, /re rf. Board of Trade, J'j; paria 33 
 
 Marsh, In re. Marsh, Ex parte 51, 151 
 
 Martin, .£'» ^arfc, Strick, /w re 60,65, 131 
 
 Matthew, In re, Matthew, Ex parte 28, 31 
 
 Maughan, In re, Trustee, Ex parte 74 
 
 Mawson, Senhouse V. 8,156 
 
 May, Ex parte, Brightmore, In re 97, 120 
 
 May, In re, May, Ex parte {Insolvent Estate) 8, 156 
 
 May, In re. May, Ex parte {Jurisdiction) 98 
 
 McAlpine, In re, McAlpine, Ex parte 27 
 
 Mein, Ex parte, Eidgway, In re 117, 127 
 
 Merritt, Mackay i) , 83 
 
 Meshaui, Ex 2Mrte, King, In re 123 
 
 WAw&c, In re,MATiSx, Ex parte 31,45 
 
 Mitchell, /» re, Cunningham, Ex parte 80,110 
 
 Moon, In re 99 
 
 Moon, In re, Dawes, Ex parte 11 79 
 
 Moon, In re. Moon, Ex parte 98, 144 
 
 Moore, Ex parte, FaithfuU, In re 30, 61, 91 
 
 Moore, /re re 12,138 
 
 Morley, /re re, Scott iJ. Morley 39,64 107 
 
 Morrison & Aitcheson, Ex parte, Gillespie & Co., In re 14 128 
 
 Moser, /re re. Painter, .ffir ^arte 74 91 
 
 Moss, Ex parte. Toward, In re 20 
 
 Mundy, /re re. Stead, -E'x parie I7 55 
 
 Mutton, In re. Board of Trade, Ex piarte {Deposit on Ap'peal) 17, 35, 66 
 
 Mutton, In re, Board of Trade, Ex parte {Discharge) 36, 67 72 
 
 Nassan, Ex parte, Horn, In re 23g 
 
 Nelson, Ex parte, Hockaday, In re 33 
 
 Nicholson, /re re, Nicholson, £■«; parie \\q 157 
 
 Nicholson, ^« ^ar^e, Philby, /re re 9 33 
 
TABLE OF CASES. XV 
 
 PAGE 
 
 'Nicholson, Ex parte, Stone, In re 9,38 
 
 Nickoll & Kniglit, JEx parte. Walker, In re 5, 11 
 
 Norris, ^a; ^nrtf, Sadler, In re C2, 123 
 
 Nottingham, Ex parte, Tuff & Nottingliam, /)i r« lOG, 126 
 
 Nottingham Bank, Ex parte, 3 en\inson, In re 138 
 
 Oastler & Co., £'x^arte, Friedlander, /« r« 6, 11 
 
 Official Receiver, .2'j; par^e. Bear, 7re re 94,155 
 
 Official Receiver, Ex parte, Gamett, In re 76, 107 
 
 Official Receiver, ^j; parie, Gould, 7»i. re 7, 147 
 
 Official Receiver, ^x ^arie, Horniblow, /» re 113 
 
 Official Receiver, Ex parte, Lowndes, 7n. re 146 
 
 Official Receiver, ^j; ^arte, Parker & Parker, In re 153 
 
 Official Receiver, Ex parte. Reed, Bowen & Co., In re 13, 112, 133, 144 
 
 Official Receiver, Ex parte, Richards, 7m. re 3, 22, 48 
 
 Official Receiver, Ex parte, Ryley, 7?i re 20, 24 
 
 Official Receiver, Ex parte, Taylor, 7re re 49, 115 
 
 Official Receiver, ^x ^arie, White & Co., 7m re 21, 35, 156 
 
 Official Receiver, .& ^jarie, Wilkinson, Tft re 22,93 
 
 Official Receiver v. Tailby 21 
 
 Oram, .S'a; ^arie, Watson & Smith, 7/1 re 41, 121, 140 
 
 Owen, In re, Owen, Ex parte 116 
 
 Owen, In re, Tejton, Ex parte 51,99,150 
 
 Page, In re. Trustee, Ex parte 48, 74 
 
 Painter, Ex parte, Moser, 7re re 74, 91 
 
 Palmer, 7m re, Palmer, .Ej; ^arie 80,159 
 
 Park, In re, Koster, Ex parte 38, 63 
 
 Parker, Ex parte. Chapman, In re 128, 146 
 
 Parker & Parker, In re, Board of Trade, Ex parte 110, 139 
 
 Parker & Parker, In re. Official Receiver, Ex parte 153 
 
 Parker & Parker, In re, Sheppard, Ex parte 117, 127 
 
 Parker & Parker, In re, Turquand, Ex parte (Disclaimer) 161 
 
 Parker & Parker, In re, Turquand, Ex parte {Reputed Ownership) 134 
 
 Parsons, Ex parte, Townsend, In re 32 
 
 Paterson, Ex parte, Rathbone, In re 75 
 
 Payne, In re. Castle Mail Packet Company, Ex parte 13, 55, 61, 67 
 
 Payne, Ex parte, Coton, 7m re 33 
 
XV] TABLE OF CASES. 
 
 PACE 
 
 Payne, &: parte, Sinclair, /«. re 51, 118, 152 
 
 Pearce, In re, Board of Trade, Ex parte {Motion to commit) 9, 38 
 
 Pearce, In re, Board of Trade, Ex parte {Suhstituted service of motion to 
 
 commit) 9, 38 
 
 Pearce, /» r?, Crosth waite, ^^.- i^arfe 84 
 
 Pearson, In re, West Cannock Colliery Company, Ex parte 85 
 
 Peters, Reg. v 61 
 
 Peyton, Ex parte, Owen, Lire 51, 99, 150 
 
 Philby, In re, Nicholson, Ex parte 9, 38 
 
 Phillips, Ex parte, Eodway, In re 34, 50, 138, 150 
 
 Player, In re, Harvey, Ex parte {Advance to son to start business) 14 
 
 Player, In re, Harvey, Ex parte {Transfer of shares to son) 147, 148 
 
 Plowden & Co., Ex parte, Hutchinson, In re 37, 83, 148 
 
 Pollen's Estate trustees, Ex parte, Davis, In re 84, 102 
 
 Pooley's Trustee v. Whetham 160 
 
 Postlethwaite, In re. Ledger, Ex parte 143 
 
 Pratt, In re, Pratt, Ex parte 1, 2 
 
 Price, In re 75 
 
 Purvis, In re, Rooke, Ex parti- 77, 162 
 
 Queen v. Juby 61 
 
 Queen v. Peters 61 
 
 Queen v. Registrar of Greenwich County Court 130, 149 
 
 Rankart, Ex parte, Blakewa)-, In re 53 
 
 Rankin, /» r*", Rankin, j6'x ^xn-/c 19 73 
 
 Rathbone, In re, Paterson, Ex piarte 75 
 
 Rawlings, ^« parie, Forster, /?! ri? 2,24 52 151 
 
 Reed, Bowen & Co., In re. Official Receiver, Ex parte 13, 112, 133, 144 
 
 Reed, Bowen & Co., In re. Reed, Bowen k Co., Ex parte... 17, 35, 49, 114, 142 
 
 Reg. V. Juby gj 
 
 Rep;, v. Peters gl 
 
 Reg. V. Registrar of the Greenwich County Court 130 149 
 
 Registrar of Greenwich County Court, Queen v 1 30 149 
 
 Reid & Son, .S'x parte, Gillespie, /:» re 55 109 146 149 
 
 Reynolds i& Co., .E'a; par*e, Barnett, /?i re 57 loO 149 
 
 Rhodes v. Dawson kk i gi 
 
 Rhodes, /» re, Heyworth, .£",*■ parte 4,12,28,90 134 154 
 
TABLE OF CASES. XVU 
 
 PAon 
 
 Richards, In re, March, Ex parte 18 
 
 Richards, In re. Official Receiver, Ex parte 3, 22, 48 
 
 Richardson, In re, Goiil'd, Ex parte' 19, 132 
 
 Richardson v. Webb 81, 103 
 
 Riddeough, In re, Vaughan, Ex parte 3, 23 
 
 Ridgway, In re, Mein,^j;parfe 117, 127 
 
 Ridgway, In re, Ridgways, Ex parte 63, 95 
 
 Roberts, Ex parte, GiUespie, In re 31, 125 
 
 Robertson, In re 16, 66 
 
 Rodway, In re, Phillips, Ex parte 34, 50, 138, 150 
 
 Rogers, In re. Board of Trade, Ex parte 34, 102, 159 
 
 Rogers, In re, Rogers, Ex parte 43, 152 
 
 Rooke, Ex2Mrte, Purvis, In re 77, 162 
 
 Rowland, Ex parte, Wise, In re 59, 99, 133 
 
 Rowlands, In re, Board of Trade, Ex parte 9, 34, 159 
 
 Russell, Ex parte, Elderton, In re 25, 149 
 
 Ryley, In re. Official Receiver, Ex parte 20, 24 
 
 Sadlee, In re, Norris, Ex parte 62, 123 
 
 Salaman, In re, Salaman, Ex parte 18, 66, 71, 153 
 
 Salmon & Woods, In re, Gould, Ex parte 19 
 
 Sandars, In re. Sergeant, Ex parte 12, 97 
 
 Sanders, In re, Whinney, Ex parte 25, 27, 88 
 
 Sandwell, In re, Zerfass, Ex parte 74 
 
 Saville, In re, Saville, Ex parte 90 
 
 Scantlebury, Ex parte, Guy, In re 53, 151 
 
 Schmitz, Ex parte, Cohen, In re 27, 56 
 
 Scott & Smith, Ex parte, Hawke, In re 57, 100 
 
 Scott ». Morley 39, 64, 107 
 
 Senhouse v. Mawson 8, 156 
 
 Sergeant, Ex parte, Sandars, In re 12, 97 
 
 Shepherd & Leech, In re, Whitehaven Mutual Insurance Society, Ex 
 
 parte 41, 126 
 
 Sheppard, Ex parte, Parker & Parker, In re 117, 127 
 
 Shilson, Ex parte. Cock, In re 161 
 
 Shoolbred, Ex parte, Angell, In re 52, 151 
 
 Sinclair, Jw re, Payne, J'x joarfe 51,118, 152 
 
 Singleton, J"* ^arfe, Johnstone, In re 35, 46, 111 
 
 Sissling, In re, Fenton, Ex parte 15, 129 
 
 M.D. '■* 
 
XVUl TABLE OJF CASES. 
 
 FAQB 
 
 Small & Small, In re, Small k Small, Ex parte 71 
 
 Smith, In re, Brown, Ex parte 48, 64, 129 
 
 Smith, In re, Edwards, Ex parte 55, 124 
 
 Smith, In re. Trustee, Ex parte Ill, 122 
 
 Smith & Co., Ex parte, Knight, In re 14, 128 
 
 Soauss, Ex parte. Walker, In re 157 
 
 Spamer, Ex parte, Voght, In re 15, 129 
 
 Stainton, In re, Board of Trade, Ex parte 13, 35, 70, 73 
 
 Stead, Ex parte, Mundy, In re 17, 55 
 
 Stephens, In re, Trustee, Ex parte 15 
 
 Stockton (fc Sabistan, In re, Gibson, Ex p>arte 18 
 
 Stone, In re, Nicholson, Ex parte 9, 38 
 
 Strand, In re. Board of Trade, Ex p)arte 54, 108, 130 
 
 Strick, In re, Martin, Ex parte 60, 65, 131 
 
 Sully, Ex 2xirte, Wallis, In re 137 
 
 Sultzberger, In re, Sulzberger, Ex piarte 69, 113 
 
 Tailbt, Official Eeceiver v 21 
 
 Taylor, Ex parte, Goldsmid, In re 93 
 
 Taylor, Ex parte. Lacy, In re 61 
 
 Taylor, In re. Board of Trade, Ex parte 43, 114 
 
 Taylor, In re. Dyer, Ex parte 135 
 
 Taylor, /ra re, Oflaoial Eeceiver, ^x ^;arte 49,115 
 
 Tennant, /?i «, Grimwade, Ex parte 25, 27, 40, 88 
 
 Thomas, In re, Comptroller in Bankruptcy, Ex parte 60 
 
 Thomas, In re, Ystradfodwg Local Board, Ex parte 49, 115, 122 
 
 Thornber, ^j; parte, Barlow, /?t re 44 143 152 
 
 Tickle, In re, Leathersellers' Company, Ex parte 103, 104 
 
 Tidswell, /«. re, Tidswell, ^x parte 106,126 
 
 Tippett, In re, Tippett, Ex parte , 15 
 
 Todd, ^x- parte, Ashcroft, /«. re 147 
 
 Toward, /)i re. Moss, ^A- parte 20 
 
 Townsend, In re. Parsons, Ex parte 32 
 
 Tricks, /?i re, Charles, ^j; parte 15 65 123 
 
 Tuff k Nottingham, In re, Nottingham, Ex parte 106, 126 
 
 Turner, In the goods of 107 
 
 Turquand,^^ parte, Parker & Parker, Inre 134, 161 
 
 Ukdeehill, /ji re, Budden, J'« parte 82 
 
TABLE OF CASES. XIX 
 
 FAQB 
 
 Vanderhaagb, /?i re, Izard, ^^ pai-i« 129 
 
 Vaughan, Ex parte, Eiddeough, In re 3, 23 
 
 NQYA\,Exparte,B.mks,Inre 21, 103, 105, 124 
 
 Voght, /» rf , Spamer, ^.r ^arte 15, 129 
 
 Wainbrook Iron Company, Curtis j; 85, 118 
 
 Walker, Inre 63, 119 
 
 Walker, Inre, Gould, Ex parte 92, 104 
 
 Walker, In re, NickoU & Knight, Ex parte {Leave to Appeal) 11 
 
 Walker, In re, Nickoll & Knight, Ex parte {Notice of Suspension) 5 
 
 Walker, In re, Soanes, Ex parte 157 
 
 Wallace, Inre, Campbell, Ex parte 35, 44, 67, 82, 113, 142 
 
 Wallace, In re, Wallace, Ex parte- 24, 117 
 
 Wallis, In re, Sully, Ex parte 137 
 
 Walsh, In re. Trustee, Ex parte 6 
 
 Ward, & Co., Ex parte, Gamlen, In re 16, 65, 120 
 
 Warren, Ex parte, Holland, Inre 85 
 
 Watkins, In re, Watkins, Ex parte 12, 40 
 
 Watkinson, Ex parte, Wilson, Inre 60, 82 
 
 Watson & Smith, In re, Oram, Ex parte 41, 121, 140 
 
 Wearing, Butler v 24, 95 
 
 Weaver, /n. re 8, 156 
 
 Webb & Sons, In re, Webb k Sons, Ex parte 14, 25, 145, 158 
 
 Webb, Eichardson, v 81, 103 
 
 Webber, In re, Webber, Ex parte 11, 109 
 
 Webster, In re 64, 68 
 
 Webster, //I re, Foster & Co., ^a; par <e 45, 132 
 
 Wemyss, In re, Wemyss, Ex parte 119 
 
 West Cannock CoUiery Company, Ex parte, Pearson, Inre 85 
 
 Whinney, Colonial Bank j; 38, 136, 148 
 
 Whinney, .E'«par<e, Grant, /w re 140, 160,162 
 
 Whinney, Ex parte, Sanders, In re 25, 27, 88 
 
 Whitaker, Inre Ill, 152 
 
 White & Co., In re, Official Eeceiver, Ex parte 21, 35, 156 
 
 White, Winter & Co., In re, White, Winter, & Co., Ex parte 18, 49, 70, 114 
 Whitehaven Mutual Insurance Society, Ex parte. Shepherd & Leech, 
 
 Inre 41, 126 
 
 Wilkinson, In re. Official Eeceiver, Ex parte 22, 93 
 
 Willisiraa, In re {Fublic Examination) : 108, 130 
 
XX TABLE OF CASES. 
 
 PAGE 
 
 Willisana, In re (Discliarge) 70 
 
 Wilson, Borneman v 48 
 
 Wilson, In re, Watkinson, Hx parte , 60, 82 
 
 Winby, In re, Winby, Ex parte 81, 118 
 
 Windas & Dunsmore, In re. Hough, Ex parte 81 
 
 Windas, Hough, i; 81 
 
 Winslow, /» re, Trustee, ^^ parte 36 
 
 Winterbottom, In re, Winterbottom, Ex parte 28, 40 
 
 Wise, In re, Kowland, Ex parte 59, 99, 133 
 
 Wolstenholme, In re, Wolstenholme, Ex parte 6 
 
 Wolverhampton & Staffordshire Banking Company, Ex parte, Campbell, 
 
 In re 12,160 
 
 Woodall, In re, Woodall, Ex parte 26, 87, 89 
 
 Woodward, Ex parte, Lay, In re 136 
 
 Woodward, In re, Huggins, Ex parte 10, 135 
 
 Woolstenholme, In re, Foster & Co., Ex piarte 5 
 
 Young, In re. Young, Ex parte 43, 153 
 
 Ystradfod wg Local Board, Ex parte, Thomas, In re 49, 1 1 5, 1 22 
 
 Zappert, In re, Trustee, Ex parte 74 
 
 Zerfass, Ex parte, Sand well. In re 74 
 
NOTE AND ADDENDA. 
 
 In tlie case of In re Schatrer, Ex parte Tilly (C. A., January 27th), 
 which was an appeal by the trustee in the banki-uptcy from the refusal 
 of the registrar to direct a witness to answer certain questions, the case 
 of In re Purvis, Ex parte Eooke (see pp. 77, 162) was referred to. 
 The Master of the EoUs (Lord Esher), in the course of his judgment 
 said, "... In the course of the argument something was said with regard 
 to the difficulty the registrars had in respect of the case of In re Purvis. 
 It was said to be open to this construction — that Mr. Justice Cave there 
 decided that the registrar was bound to accept the first answer given by 
 the witness, and the witness could not be asked any question as to his 
 credit. Now I have spoken to Mr. Justice Cave and he is astonished at 
 such an interpretation. What he meant to say was, that in the end the 
 answers of the witness must be taken — that is witnesses could not be 
 called to contradict him ; but the witness may be cross-examined. I 
 am authorized to give that explanation of In re Purvis, and on that 
 construction the case does not appear to present the difficulties which 
 the registrars have adopted on it . . ." See the Times newspaper, 
 January 28th, 1888. Solicitors' Journal, February 4th, 1888, p. 222. 
 
 Pp. 7, 58. In re Crowther, Ex parte Ellis, add also 67 L. J. Q. B. 57. 
 Pp. 39, 64. In re Mm-ley, Scott v. Morley, add also 57 L. J. Q. B. 43. 
 P. 63, In re Easy, Ex parte Hill & Eymans, add also 56 L. J. Q. B. 624. 
 
DIGEST OF CASES 
 
 DECIDED UNDER THE 
 
 BANKRUPTCY ACT, 1883, 
 
 ABUSE OP PROCESS. 
 
 The Court ■will not allow its process to be used to do indirectly that 
 which the process of the Court will not allow to be done directly. Thus 
 where application was made by a friendly creditor for discoYery of docu- 
 ments, nominally for the purpose of carrying out proceedings to expunge 
 a proof, but in reality for the purpose of reopening, after time for 
 appeal had elapsed, the question as to whether the receiving order had 
 been properly made against the bankrupt or not. 
 
 Held : That the application was an attempt by the contrivance of the 
 creditor and the bankrupt, in the interest of the bankrupt, to use the 
 process of the Court to do that which if the bankrupt himself asked the 
 Court, the Court would not allow to be done ; and that the Eegistrar was 
 quite right in refusing it. In re Dashuood, Ex parte Kirk, 3 Morrell, 
 257— C. A. 
 
 ACT OP BANKRUPTCY. 
 
 Proof of.] — If, on the hearing of a bankruptcy petition, the act of 
 bankruptcy alleged is not strictly proved, but the debtor appears and does 
 not raise the objection, and a receiving order is made, he cannot, on an 
 appeal from that order, raise the objection. In re Pratt, Ex parte Pratt, 
 1 Morrell, 27 ; L. E. 12 Q. B. D. 334 ; 53 L. J. Ch. 613 ; 50 L. T. 
 294; 32 W. E. 420— C. A. 
 
 Act of Bankruptcy before January 1st, 1884.] — Where a debtor had 
 committed an act of bankruptcy under the Bankruptcy Act, 1869, and no 
 proceedings in bankruptcy had been taken against him prior to January 
 1st, 1884, when the Bankruptcy Act, 1883, came into operation, pro- 
 
 D. B 
 
S DIGEST OF CASES DECIDED UNDER 
 
 ceedings in bankruptcy under the Bankruptcy Act, 1883, might be taken 
 against such debtor founded on the act of bankruptcy previously com- 
 mitted. Where proceedings in liquidation were pending on January 1st, 
 1884, which afterwards came to an end, proceedings to obtain an adjudi- 
 cation against a debtor founded on the act of bankruptcy committed by 
 him by filing the hquidation petition might be taken under the Bank- 
 ruptcy Act, 1883. In re Pratt, Ex parte Pratt, 1 Morrell, 27 : L. E. 
 12 Q. B. D. 334 ; 53 L. J. Ch. 613 ; 50 L. T. 294; 32 W. E. 420— 
 C. A. 
 
 Execution of Deed of Assignvient.]— On August 20th, 1885, in accord- 
 ance with a resolution passed at a meeting of creditors, the debtor 
 executed a deed of assignment vesting his estate in a trustee for their 
 benefit. On October 28th, 1885, a bankruptcy petition was presented 
 against the debtor, the act of bankruptcy alleged being the execution of 
 the deed of assignment. On October 31st, 1885, the trustee under the 
 deed paid out of assets in his hands the sum of 20L 7s. 8d. to a firm of 
 solicitors, being the amount of their bill of costs incurred in connection 
 with the meeting of creditors and in preparing the deed of assignment, 
 and also in collecting certain book debts. On January 20th, 1886, a 
 receiving order was made against the debtor, and the trustee under the 
 deed sent to the official receiver the balance of assets in his hands after 
 deducting the amount so paid to the solicitors together with an account 
 of receipts and payments in connection with the estate. The trustee 
 appointed in the bankruptcy appHed for an order for payment of the 
 201. Is. M. 
 
 Held : That the application must be granted ; but that certain items 
 for collecting book debts, amounting together to 2L, would, under the 
 circumstances, be allowed, and an order made for payment of 18Z. 7s. 8d. 
 In re Forster, Ex parte Rawlings, 4 Morrell, 292 ; 36 W. R. 144 — 
 Cave, J. 
 
 • A debtor, on August 28th, 1884, on being pressed by a creditor, who 
 
 had obtained judgment, for payment of the debt due to him, gave to an 
 auctioneer, who was about to sell the farming stock of such debtor, a 
 document by which he authorized and requested him to pay to such 
 creditor, after deducting any rent which might be due to the landlord, 
 the debt due to him out of the first proceeds of the sale, and appropriated 
 the sum necessary to pay the debt out of the proceeds of the sale for the 
 purposes of the payment. On October 22nd, 1884, a receiving order was 
 made against the debtor, and the sum so appropriated was subsequently 
 claimed by the official receiver as trustee in the bankruptcy on the 
 grounds (1) That the document was an assignment of the whole of the 
 
THE BANKRUPTCY ACT, 1883. 3 
 
 debtor's property, and as such amounted to an act of bankruptcy ; 
 (2) That it was a fraudulent preference. 
 
 Held : That under the circumstances of the case the document in 
 question did not amount to an assignment of the whole of the debtor's 
 property. 
 
 That the principal motive of the debtor was not to favour the 
 creditor, and that the transaction did not constitute a fraudulent 
 preference. 
 
 That the official receiver as trustee having come to the Court was 
 in the same position as an ordinary litigant, and being unsuccessful must 
 pay the costs. In re Glanvillc, Ex parte the Trustee, 2 Morrell, 71 ; 
 38 W. E. 523— Cave, J. 
 
 Where a deed of assignment of the whole of their property executed 
 
 by the debtors for the benefit of their creditors generally contained a 
 provision for the payment out of the assets in the first instance of the 
 costs and expenses of the trustee under the said deed of assignment, such 
 trustee was not entitled (on the debtors being adjudged bankrupt upon a 
 petition founded on the deed as an act of bankruptcy) to retain as against 
 the trustee in the bankruptcy assets in his hands, on the ground that a 
 sum exceeding the said assets was due to him for work and labour done. 
 Ill re J. J. and H. Bichards, Ex parte The Official Receiver, 1 Morrell, 
 242 ; 32 W. E. 1001— Wills, J. 
 
 Where a debtor has assigned the whole of his property to a trustee for 
 
 the benefit of his creditors generally, and such trustee has taken posses- 
 sion of the property and carried on the debtor's business, in the event of 
 the debtor subsequently being adjudged bankrupt on a petition founded 
 on the act of bankruptcy committed by the execution of the deed of 
 assignment, the trustee in the bankruptcy must elect to treat the trustee 
 under the deed either as his agent or as a trespasser. If the trustee in 
 the bankruptcy elects to treat the trustee under the deed as a tres- 
 passer, he can only claim from him any property of the bankrupt which 
 remains in his possession unconverted, and the value, at the time when 
 he took possession, of any property which he has taken possession of and 
 has converted. In re Eiddeough, Ex parte Vaughan, 1 MorreU, 258 ; 
 L. E. 14 Q. B. D. 25; 33 W. E. 161— D. 
 
 Failure to comply with Bankruptcy Notice — Appeal from Judgment — 
 Stay of Proceedings.] — Where a bankruptcy petition is presented by a 
 creditor founded on an act of bankruptcy committed by the failure of the 
 debtor to comply with the terms of a bankruptcy notice to pay a judgment 
 debt, and an appeal is pending from such judgment, it is a matter of 
 
 B 2 
 
4 DIGEST OF CASES DECIDED UNDER 
 
 discretion for the Eegistrar whether he will make a receiving order, or 
 stay the proceedings, and the Court of Appeal will not interfere unless 
 such exercise of discretion is clearly wrong. In re Ehodes, Ex parte 
 Heyworth, 1 Morrell, 269 ; L. E. 14 Q. B. D. 49 ; 54 L. J. Q. B. 198 ; 
 52 L. T. 201— C. A. 
 
 Bankruptcy Notice — Creditor entitled to Petition.]— Whexe by faiHng 
 to comply with the terms of a banki-uptcy notice a debtor has committed 
 an act of bankruptcy under sect. 4, sub-s. 1 (g), of the Bankruptcy Act. 
 1883, any creditor may avail himself of such act of bankruptcy for the 
 purpose of presenting a petition, and the right to present a petition is 
 not limited to that creditor by whom the bankruptcy notice has been 
 served. In re Hastings, Ex parte Dearie, 1 Morrell, 281 ; L. R. 14 
 Q. B. D. 184 ; 54 L. J. Q. B. 74; 33 W. R. 440— C. A. 
 
 Departing from Dwelling-house.} — On March 8th, 1887, the debtor, 
 who was a farmer, instructed an auctioneer to sell off all the stock, furni- 
 ture, and effects on his farms, and handbills and posters advertising the 
 sale to take place on March 16th and 18th were issued, in which it was 
 stated that the said debtor was leaving the neigbourhood. On March 
 15th, 1887, certain creditors, at whose bank the debtor had overdrawn 
 his account, having heard of the sale, wrote to the debtor thereon, and 
 on the same day he was served with a writ by another creditor. On 
 March, 16th, 1887, the debtor departed from his house but left his 
 brother at the farm, who superintended the conduct of the sale, and 
 informed the auctioneer that letters addressed to him would reach the 
 debtor. On March 17th, 1887, the debtor wrote to the bank, stating that 
 he would call on the following Saturday or Monday and explain matters, 
 which he did not do, and a petition was subsequently presented against 
 him by the bank in the County Court, the act of bankruptcy alleged 
 being that the said debtor departed from his dwelling-house with intent 
 to defeat or delay his creditors, within section 4, sub-section 1 {d) of the 
 Bankruptcy Act, 1883, but the County Court Judge declined to make a 
 receiving order. 
 
 Held (on appeal) : That the debtor was not bound to stay on his 
 property while it was being sold from under him: that he left a repre- 
 sentative in the person of his brother, and no evidence had been adduced 
 to show that if inquiries had been made as to the debtor they would not 
 have been answered : and that the County Court Judge, after hearing an 
 explanation of the facts and considering the demeanour of the debtor 
 when before him, having come to the conclusion that there was no inten- 
 tion to defeat the creditors, the Court would not interfere with his 
 
THE BANKRTtPTCY ACT, 1883. 5 
 
 decision. In re Woolstenholme, Ex parte Foster d Co., 4 Morrell, 258 
 — D. 
 
 Remaining out of England.'] — In January, 1886, the debtor, whose 
 business was largely connected with Central America, called on his 
 bankers informing them that he was about to visit that country, and 
 obtained fi-om them an advance of 2,000L The money was not repaid, 
 and in July, 1886, a circular was sent to the creditors by the 
 solicitors of the debtor stating that he was in difficulties and calling a 
 meeting in order that their wishes might be ascertained. After some 
 diiference of opinion it was finally resolved by a committee appointed for 
 that purpose, that the debtor should be requested to stay in America in 
 order to realise his assets there, and a telegram was thereupon sent to 
 him by his solicitors to that effect. The committee still continued to 
 meet, but no communications having arrived from the debtor, and his 
 soHcitors having declined to accept service of a writ, while it was 
 ascertained that the debtor's London office had been closed, the bank in 
 September, 1886, presented a bankruptcy petition. 
 
 Held: That the object with which the creditors accorded permission 
 to the debtor to remain in America was in order that he might realise 
 his assets : that the conduct of the debtor in not communicating with 
 the creditors, and also in respect of the non-acceptance of service of the 
 writ, together with other attendant cii-cumstances, afforded ample evidence 
 of an intention to stay abroad for the purpose of defeating his creditors 
 within the meaning of section 4, sub-section 1 {d) of the Bankruptcy 
 Act, 1883; and that the Court would have neglected its duty if it had 
 refused to make a receiving order. In re Campbell, Ex parte Campbell, 
 4 Morrell, 198— D. 
 
 Notice of Suspension — Verbal Notice.] — A notice given by a debtor 
 under section 4, sub-section 1 (h), that he has suspended, or that he is 
 about to suspend, payment of his debts, need not, in order to constitute 
 an act of bankruptcy, be necessarily given in writing. In re Walker d 
 Son, Ex parte Nickoll & Knight, 1 Morrell, 188 ; L. E. 13 Q. B. D. 469— D. 
 
 Notice nnist be Formal.] — Where a verbal statement was made by a 
 debtor to one of his creditors that he was unable to pay his debts in full, 
 such statement did not amount to a notice by the debtor "that he has 
 suspended, or that he is about to suspend, payment of his debts," so as 
 to constitute an act of bankruptcy under section 4, sub-section 1 (h), of 
 the Bankruptcy Act, 1883. Although such notice need not, in order to 
 constitute an act of bankruptcy, be necessarily given in writing, still if it 
 is given verbally it must be a formal notice, and given with the intention 
 
6 DIGEST OP CASES DECIDED UNDER 
 
 of giving such notice. In re Friedlander, Ex parte Oastler d Co., 
 1 Morrell, 207 ; L. E. 13 Q. B. D. 471 ; 54 L. J. Q. B. 23 ; 51 L. T. 
 309 ; 33 W. R. 126— C. A. 
 
 The fact that a debtor called a meeting of his creditors at which he 
 laid before them his position, and made an offer of 6s. 8d. in the pound, 
 did not amount to a notice by such debtor " that he has suspended, or 
 that he is about to suspend payment of his debts," so as to constitute an 
 act of bankruptcy under section 4, sub-section 1 (h), of the Bankruptcy 
 Act, 1883. In re Wcdsh, Ex parte the Trustee, 2 Morrell, 112 ; 52 
 L. T. 694— D. 
 
 Where two circulars were sent out by the solicitors of the debtor to 
 the creditors, calling a meeting of the creditors, and laying before them 
 the position of the debtor, and further stating that by the kindness of 
 friends, and by raising money upon his furniture, such debtor might be 
 enabled to pay 10s. in the pound, provided all the creditors would accept 
 it to save bankruptcy proceedings, but that if all the creditors would not 
 agree, there was no alternative but to seek the protection of the Court. 
 
 Held : That such statements amounted to a notice by the debtor " that 
 he has suspended, or that he is about to suspend payment of his debts," 
 so as to constitute an act of bankruptcy under section 4, sub-section 1 (h), 
 of the Bankruptcy Act, 1883. In re WolstenJwlme, Ex parte Wolsten- 
 holme, 2 Morrell, 213— D. 
 
 In considering the question whether a statement made by a debtor to 
 any of his creditors amounts to a notice that "he has suspended, or 
 that he is about to suspend payment of his debts " within section 4, 
 sub-section 1 (h) of the Bankruptcy Act, 1883, it is necessary in each 
 case to estimate the reasonable construction which those persons who 
 receive such statement of the debtor would, under the circumstances of 
 the debtor's case, have a right to assume to be his meaning as to what 
 he intends to do with respect to paying or suspending payment. Where 
 the language of the debtor can only lead his creditors to infer that if an 
 offer of a composition made by him is not accepted suspension is the 
 only alternative, such statement will amount to a notice within the 
 section. Thus, where a circular was sent out by a firm of accountants, 
 acting on behalf of the debtor, to the creditors, laying before them the 
 position of the debtor, and making an offer of 5s. in the pound, and 
 further stating that such debtor had no other property, and that it was 
 not his intention to go again into business. 
 
 Held : That from the circumstances of the case suspension was the 
 only alternative offered ; and that the statements in question amounted 
 
THE BANKKTJPTCY ACT, 1883. 7 
 
 to a notice by the debtor that he was about to suspend payment, so as to 
 constitute an act of bankruptcy under the section. In re Lamb, Ex parte 
 Gibson A Bolland, 4 Morrell, 25— C. A. 
 
 Computation of Time.] — In computing the three months -within which, 
 under section 6, sub- section 1 (c) of the Banki'uptcy Act, 1883, the act 
 of banki'uptcy on which a petition is grounded must have occurred, the 
 day on which such petition is presented is to be excluded. The act of 
 bankruptcy was committed on August 13th, 1886, and the petition was 
 filed on November 13th, 1886. 
 
 Held: That such petition was presented in time. In re Hanson, 
 Ex parte Foster, 4 Morrell, 98 ; 56 L. T. 573 ; 35 W. E. 456— D. 
 
 ADMINISTRATION OP ESTATE OP DECEASED 
 
 INSOLVENT. 
 
 Practice of Court.'] — The Court of Bankruptcy, in administering the 
 estate of a person dying insolvent under section 125 of the Bankruptcy 
 Act, 1883, will follow the practice of the Chancery Division of the High 
 Court in administration actions ; and the County Court in Bankruptcy 
 has in such case no jurisdiction to make an order against a stranger 
 to pay over money, which the Chancery Division of the High Court 
 would not make in an administration action. In re Crowiher, Ex parte 
 Ellis, 4 Morrell, 305 ; L. E. 20 Q. B. D. 38 ; 36 W. E. 189— D. 
 
 Section 47 not Applicable.] — Section 47 of the Bankruptcy Act, 1883, 
 which deals with the avoidance of voluntary settlements, does not apply 
 where the estate of a person dying insolvent is being administered in 
 bankruptcy under section 125 of the Act. In re Gould, Ex parte Chief 
 Official Receiver, 4 Morrell, 202 ; L. E. 19 Q. B. D. 92 ; 56 L. J. Q. B. 
 333 ; 56 L. T. 806 ; 35 W. E. 569— C, A. 
 
 Discovery — Order for Examination of Witnesses.] — Where an order 
 of commitment was made against the widow and son of a deceased debtor 
 whose estate was being administered in bankruptcy under the provisions 
 of section 125 of the Bankruptcy Act, 1883, on the ground that they 
 had refused to comply with an order of the County Court directing them 
 to attend for the purpose of being examined with regard to the estate of 
 such deceased debtor under section 27 of the Act. 
 
 Held : That section 27 of the Bankruptcy Act, 1883, does not apply 
 to section 125 of the Act : that the powers under Order XXXVII., Eule 5 
 of the Supreme Court Eules, 1883, as to the examination of witnesses 
 only exist where some litigation is in progress : and that Eule 58 of the 
 Bankruptcy Eules, 1883, did not give any such power as was sought 
 
8 DIGEST OP OASES DECIDED UNDER 
 
 for in the present case. In re Hewitt, Ex parte Hewitt, 2 Morrell, 184 ; 
 L. E. 15 Q. B. D. 159 ; 54 L. J. Q. B. 402 ; 53 L. T. 156— D. 
 
 Transfer of Proceedings.] — Where an order has been made under 
 suh-section (4) of section 125 of the Bankruptcy Act, 1883, transferring 
 proceedings for the administration of a deceased debtor's estate from the 
 Chancery Division of the High Court to the Court exercising jurisdiction 
 in bankruptcy, the latter Court may make an administration order on an 
 ex parte application by a creditor. But such order cannot be made until 
 the expiration of two months from the date of the grant of probate or of 
 letters of administration, unless either the legal personal representative 
 of the deceased debtor consents thereto, or unless such debtor has com- 
 mitted an act of bankruptcy within three months prior to his decease. 
 In re May, Ex parte May, 1 Morrell, 232 ; L. E. 13 Q. B. D. 552— D. 
 
 Where a testator having previously carried on business in England, 
 
 was for more than six months previous to his death an inmate of a 
 lunatic asylum in Scotland, and died insolvent, and an administration 
 action was commenced by a creditor ; on motion on behalf of the 
 plaintiff. 
 
 Held : That the Court had jurisdiction under sub-section (4) of sec- 
 tion 125 of the Bankruptcy Act, 1883, to make an order transferring 
 the proceedings to the County Court within the jurisdiction of which the 
 testator formerly carried on his business. Senhouse v. Maioson, 52 L. T. 
 745— Y.-C. B. 
 
 The power given by section 125 of the Bankruptcy Act, 1883, to 
 
 transfer the proceedings in an action brought for the administration of 
 an insolvent estate to the Court of Bankruptcy, is a discretionary one, 
 and it will not be exercised where the estate is small, the number of 
 creditors is small, and considerable expense has been already incurred 
 in chambers in proceedings under an administration judgment : — 
 Semble, that an application for transfer can only be made by a creditor 
 who has absolutely proved his debt. In re Weaver, Higgs v. Weaver, 
 L. E. 29 Ch. Div. 236 ; 54 L. J. Ch. 749 ; 52 L. T. 512 ; 33 W. E. 
 874 — Pearson, J. 
 
 ADVERTISEMENT. 
 
 Service of Petition hy.]— On appeal from an order directing that publica- 
 tion of a notice in the London Gazette, and in the Times newspaper, 
 should be deemed to be good service of a bankruptcy petition upon 
 the debtor. 
 
 Held : That under Eule 154 and Form 16 of the Bankruptcy Eules, 
 
THE BANKRUPTCY ACT, IS 83. -9 
 
 1866, the Registrar, on being satisfied that the debtor was avoiding 
 personal service, had perfect right to make the order in question ; and 
 that upon the facts of the case there was no ground for the appeal. 
 In re Collinson, Ex parte Collinson, 4 Morrell, 161 — C. A. 
 
 AFFIDAVIT. 
 
 Motio7i to Commit. — Affidavit of Service — Substituted Service]. — The 
 motion to commit should refer to the affidavit of service. And in order 
 to obtain an order for substituted service, it must bo shown that the 
 person sought to be served knows of the motion, and is intentionally 
 keeping out of the way. In re Pearce, Ex parte the Board of Trade, 
 1 Morrell, 111, 135— Cave, J. 
 
 ■ Where a party desires to enforce by commitment in the High Court 
 
 a judgment of a competent court, he need not file an affidavit in denial 
 of satisfaction. In re Stone, Ex parte Nicholson, 1 Morrell, 177 — 
 Cave, J. 
 
 Affidavit sivorn Abroad — Evidence.] — When an affidavit or proof in 
 bankruptcy is sworn abroad before a British consul, or vice-consul, a 
 notarial certificate in verification of the signature and qualification of the 
 consul, or vice-consul, is not required. The notarial certificate is only 
 required when such an affidavit or proof is sworn before a foreign 
 functionary. In re Magee, Ex parte Magee, L. E. 15 Q. B. D. 332 ; 
 54 L. J. Q. B. 394 ; 83 W. E. 655— Cave, J. 
 
 Stamp to.] — Where no estate has come into the hands of a trustee 
 under a scheme of arrangement, such trustee must himself provide the 
 stamp necessary to be af&xed to the affidavit of no receipts required to be 
 forwarded to the Board of Trade under Eule 291 of the Bankruptcy 
 Eules, 1886. In such case an unstamped affidavit cannot be accepted, 
 nor the amount necessary for the said stamp provided from the Bank- 
 ruptcy Estates' Account. In re Boivlands, Ex parte the Board of Trade, 
 i Morrell 70 ; 35 W. R. 457— Cave, J. 
 
 AGISTMENT. 
 
 Where a cattle dealer placed certain stock on the lands of a farmer 
 upon an agreement whereby such stock remained the property of the 
 dealer, who at the end of the fixed period was to sell the stock, and, after 
 deducting the original price together with a percentage for profit, was to 
 hand over the balance to the farmer : and during the continuance of the 
 agreement the farmer became bankrupt, whereupon the trustee in the 
 bankruptcy claimed the stock in question as being in the reputed owner- 
 
10 DIGEST OP CASES DECIDED UNDER 
 
 ship of the banki-upt within section 44, sub-section (iii.), of the Bank- 
 ruptcy Act, 1883. 
 
 Held : That the custom of agistment was notorious, and one which 
 the ordinary creditors of the bankrupt might reasonably be presumed to 
 haye known : and that such being the case no reputation of ownership 
 could arise with respect to the stock upon the lands of a farmer. In re 
 Woodward, Ex parte Hvcjcjins, 3 Morrell, 75; 54 L. T. 683— D. 
 
 AGRICULTURAL HOLDINGS ACT. 
 
 The rent of a certain holding was by the lease payable at Midsummer ; 
 but by the ordinary course of dealing between the landlord and tenant, 
 payment was deferred until September. Between Midsummer, 1886, and 
 the usual time for payment, the landlord distrained for the rent for 1886, 
 and also for the arrears of rent for 1885. 
 
 Held : That the landlord was entitled so to distrain : that section 44 
 of the Agricultural Holdings Act, 1883, does not say that a landlord 
 shall not distrain for more than a year's rent at a time, but that such 
 landlord shall not distrain for rent which is more than twelve months 
 old ; and that by the proviso in the section the rent for 1885 must be 
 deemed to have become due at the usual day of payment, and therefore 
 not to have been due for more than a year before the distress, so that it 
 could be distrained for as well as the rent for 1886. In re Beiv, 
 Ex parte Bidl, 4 Morrell, 94; L. R. 18 Q. B. D. 643; 56 L. J. Q. B. 
 270; 56 L. T. 571; 35 W. R. 455— D. 
 
 ALIMONY. 
 
 Proof /or.]— Where an order is made by the Divorce Court for the 
 future payment of alimony by a husband under the statute 29 & 30 Vict, 
 c. 32, s. 1, such payments are not capable of valuation, and cannot 
 therefore be proved for in the event of the husband being adjudicated 
 bankrupt, but such husband is liable to continue the payments notwith- 
 standing the bankruptcy. In re Linton, Ex parte Linton, 2 Morrell, 
 179; L. E. 15 Q. B. D. 239; 54 L. J. Q. B. 539; 52 L. T. 782; 33 
 W. R. 714 ; 49 J. P. 597— C. A. 
 
 ALLOWANCE. 
 
 A compassionate allowance granted to a retired Indian of&cer by the 
 Secretary of State for India under the powers conferred on him by the 
 Government of India Act, 1858— which said allowance is not provided 
 for in the regulations of the service, and the granting of it does not form 
 one of the terms upon which the service was originally entered upon, but 
 
THE BANKRUPTCY ACT, 1883. li 
 
 is a mere act of grace — does not fall within the words of section 53, sub- 
 section (2) of the Bankruptcy Act, 1883, and the Court will not make an 
 order under that section directing a certain sum to be paid thereout to 
 the trustee in the bankruptcy of such officer for the purpose of distri- 
 bution amongst his creditors. In order that section 53 may apply, the 
 payment must be one to which the bankrupt has a legal or equitable 
 claim. In re Webber, Ex parte Webber, 3 Morrell, 288 ; L. K. 18 Q. 
 B. D. Ill; 56 L. J. Q. B. 209; 55 L. T. 816; 35 W. R. 308— D. 
 
 AMENDMENT OF PROOF.— See Proo/. 
 
 APPEAL. 
 
 To what Court.] — ^AU appeals from decisions of the High Court of 
 Justice in bankruptcy matters, whether given in Court or Chambers, lie 
 to her Majesty's Court of Appeal, and not to a Divisional Court of the 
 High Court. Ex parte Oastlcr, In re Friedlander, 51 L. T. 309— C. A. 
 
 On Special Case.] — An appeal lies direct to the Court of Appeal from 
 the decision of the Judge in Bankruptcy upon a Special Case stated 
 under section 97, sub-section (3), of the Bankruptcy Act, 1883, by the 
 Judge of a County Court for the opinion of the High Court. In re Moon, 
 Ex parte Dawes, 3 Morrell, 105 ; L. E. 17 Q. B. D. 275 ; 55 L. T. 114 ; 
 34 W. E. 752— C. A. 
 
 Under Debtors Act, 1869.] — By reason of the provisions of sections 
 103 and 104 of the Bankruptcy Act, 1883, an appeal from an order of 
 the Judge to whom bankruptcy business is assigned upon an application 
 under section 5 of the Debtors Act, 1869, will now lie directly to the 
 Court of Appeal, and not as formerly to a Divisional Court. In re 
 Lascelles, Ex parte Genese, 1 Morrell, 183 ; 53 L. J. Q. B. 578 ; 32 
 W. E. 794— D. 
 
 From Divisional Court — Leave.] — An application for leave to appeal 
 under section 2 of the Bankruptcy Appeals (County Court) Act, 1884, 
 from the decision of a Divisional Court sitting as a Court of Appeal 
 from a County Court in bankruptcy, should be made in the first instance 
 to a Divisional Court. Such application for leave to appeal ought to be 
 made to the Divisional Court immediately after such Divisional Court 
 has pronounced its decision. In re Wallcer & Son, Ex parte Nickoll d 
 Knight, 1 Morrell, 249— C. A. 
 
 From Registrar.] — Where on the refusal of an application by the 
 Eegistrar, application was subsequently made to the Judge sitting in 
 bankruptcy to review the decision. 
 
12 DIGEST OF CASES DECIDED UNDER 
 
 Held: That there was no power to accede to the request, and that in 
 the event of the Eegistrar declining to review his own decision, the 
 proper course was by way of appeal to the Court of Appeal. In re 
 Moore, 2 Morrell, 78— Cave, J. 
 
 From Order of Committal.'] — The Judge of a County Court not having 
 jurisdiction in bankruptcy made an order of committal against the 
 appellant upon a judgment summons under section 5 of the Debtors Act, 
 1869. The judgment summons having by mistake been marked with 
 the words "In bankruptcy," an appeal was brought to the Divisional 
 Court. 
 
 Held : That no appeal could lie from the order complained of, at any 
 rate to the Divisional Court in Bankruptcy. 
 
 Qiuere : Whether any appeal lies from a committal in the County 
 Court under section 5. In re Watkins, Ex parte Watkins, 3 Morrell, 
 146— D. 
 
 Leave to Appeal — Reasons fur Refusing or Permitting.] — The juris- 
 diction of refusing or permitting an appeal is a very delicate jurisdiction, 
 but where a question is one of principle and has been decided for the first 
 time, it is not a sufficient reason for refusing leave to appeal because a 
 Judge is himself of opinion that he has given a right decision. In re 
 Armstrong, Ex parte Armstrong, 3 Morrell, 193 ; L. R. 17 Q. B. D. 521 ; 
 55 L. J. Q. B. 578; 55 L. T. 538; 34 W. E. 709— C. A. 
 
 Leave to Appeal — Wlien Granted.] — Where the sum at stake is not 
 large, and the Court entertains no doubt as to the principle involved, 
 leave to appeal to the Court of Appeal will not be given. In re Campbell, 
 Ex parte Wolverhampton Banking Co., L. E. 14 Q. B. D. 32 — D. 
 
 From County Court.] — In granting leave to appeal a County Court 
 Judge ought not to limit or qualify his leave to appeal. In re Sandars, 
 Ex parte Serjeant, 52 L. T. 516— D, 
 
 Bankruptcy Notice— Appeal pending from Judgment— Stay of Pro- 
 ceedings—Discretion of Registrar.]— Where a banki-uptcy petition is 
 presented by a creditor founded on an act of bankruptcy committed by 
 the failure of a debtor to comply with the terms of a bankruptcy notice 
 to pay a judgment debt, and an appeal is pending from such judgment, it 
 is a matter of discretion for the Eegistrar whether he will make a receiving 
 order or stay the proceedings, and the Court of Appeal will not interfere 
 unless such exercise of discretion is clearly wi-ong. In re Rhodes, Ex 
 parte Heyivorth, 1 Morrell, 269 ; L. E. 14 Q. B. D. 49 ; 54 L. J. Q. B. 
 198; 52 L. T. 201— C. A. 
 
THE BANKRUPTCY ACT, ISS-'i. 13 
 
 Notice of sent by Post.} — Qiusre : Whether, where notice of appeal 
 is sent by post in accordance with the provisions of section 142 of 
 the Banki'uptcy Act, 1883, such notice will be in time, unless the letter 
 is received by the respondent before the expiration of the twenty-one days 
 during which the appeal may be brought. In re Arclen, Ex parte 
 Arde7i, 2 Morrell, 1 ; L. E. 14 Q. B. D. 121 ; 51 L. T. 712 ; 33 W. E. 
 460— D. 
 
 Notice of to Official Receiver.] — ^Where after a receiving order has been 
 made against a debtor on a bankruptcy notice, the petitioning creditor is 
 settled with, and with his assent the debtor appeals for the purpose of 
 having the receiving order set aside, it would appear that notice should 
 be given to the official receiver, and where this was not done the Court 
 discharged the receiving order as prayed, but directed that the order 
 should not be drawn up for four days, and notice be given to the official 
 receiver so as to enable him to come forward if he thought fit. In re 
 Fletcher, Ex parte Fletcher, 4 Morrell, 113— D. 
 
 Who may Appeal.] — An unpaid creditor is a "person aggrieved" 
 within the meaning of section 104, sub-section (2) of the Bankruptcy 
 Act, 1883, by the granting of an order of discharge to a bankrupt, and as 
 ' such has a right of appeal agaiust such order. In re Payne, Ex parte 
 Castle Mail Packet Co., 3 Morrell, 270; L. E. 18 Q. B. D. 154; 56 L. 
 J. Q. B. 625; 35 W. E. 89— C. A. 
 
 The official receiver has locus standi to appeal to the Court of Appeal 
 
 from the refusal of the Eegistrar forthwith to adjudge a debtor bankrupt 
 on application made by him for that purpose under Eule 191 of the 
 Bankruptcy Eules, 1886. In re Reed, Bowen <£ Co., Ex parte the Chief 
 Official Receiver, 4 Morrell, 225 ; L. E. 19 Q. B. D. 174 ; 56 L. J. Q. B. 
 447 ; 56 L. T. 876 ; 35 W. E. 660— C. A. 
 
 Eule 237 of the Bankruptcy Eules, 1886, is not idtra vires, but is a 
 
 rule for carrying into effect the objects of the Bankruptcy Act, 1883 ; 
 and the Board of Trade are entitled under that rule to appeal from any 
 order of the Court made upon an application by a bankrupt for his 
 discharge. In re Stainton, Ex parte the Board of Trade, 4 Morrell, 242 ; 
 L. E. 19 Q. B. D. 182 ; 57 L. T. 202 ; 35 W. E. 667— D. 
 
 Where a trustee in a liquidation applied to the Court for directions 
 
 as to the acceptance of an offer for the purchase of the debtors' property, 
 and notice was given to the debtors, but at the hearing of the application 
 the County Court Judge refused to hear the solicitor for the debtors or to 
 receive evidence on their behalf. 
 
14 DIGEST OF CASES DECIDED UNDER 
 
 Held : That notice haying been given to the debtors they ought to 
 have been heard ; and that an appeal lay from such refusal of the County 
 Court Judge to do so. 
 
 Quare ,• Whether when a trustee applies to the Court for directions in 
 any particular matter the debtor is in any event entitled to appear and be 
 heard. In re IVehb & Sons, Ex parte Webb d Sons, 4 Morrell, 52 — 
 Cave, J. 
 
 Limitation of Right of.'] — Upon appeal from the decision of the Divi- 
 sional Court in bankruptcy, dismissing a County Court appeal on the 
 ground that the money or money's worth involved did not amount to 
 501., and that no leave to appeal had been obtained, the objection was 
 taken that Eule 111 (2) of the Banki-uptcy Kules, 1883 (see Eule 129 (2) 
 Bankruptcy Rules, 1886), by which the said limitation is made, was 
 ultra vires. 
 
 Held : That the Rule 111 (2) was not idtra vires ; and that section 
 104, sub-section 2 (d) of the Bankruptcy Act, 1883, taken together with 
 section 127 of the Act, empowered the making of such a rule, specifying 
 within what limit the right of appeal shall be confined. In re Hann, 
 Ex parte Forevian, 4 Morrell, 16 ; L. R. 18 Q. B. D. 393 ; 56 L. J. 
 Q. B. 161 ; 55 L. T. 820; 35 W. R. 370— C. A. 
 
 Appeal from Rejection of Proof — Locus standi of Bankrupt.] — Where 
 at the first meeting of the creditors of a bankrupt the chairman rejects 
 the proof tendered by a creditor for the sum at which the bankrupt has 
 entered and sworn to the debt in his statement of afl'airs, and the 
 creditor appeals from such rejection, the bankrupt has no locus standi to 
 appear and oppose the appeal, even though he may have been served 
 with notice of the appeal ; but it would seem that the bankrupt will be 
 entitled to his costs of appearing. In re Knight, Ex parte Smith d Co., 
 1 Morrell, 74— Cave, J. 
 
 Appeal from Rejection of Proof ^Time.] — Where the trustee rejects a 
 proof tendered by a creditor, and from such rejection an appeal is 
 brought, it is not suiBcient to apply to the Court within the twenty-one 
 days limited by Eule 174 of the Bankruptcy Rules, 1883 (see Rule 230, 
 Bankruptcy Rules, 1886), to fix a day and time for the hearing of the 
 appeal, but notice of motion in the usual way must be served on the 
 trustee within the twenty-one days. In re Gillespie d; Co., Ex parte 
 Morrison d Aitcheson, 1 Morrell, 278 j L. R. 14 Q. B. D. 385; 52 L. T. 
 55 ; 33 W. R. 751— Cave, J. 
 
 Where on an appeal from the rejection of a proof by the trustee the 
 
 objection is taken that such rejection was not made within the fourteen 
 
THE BANKRUPTCY ACT, 1883. 15 
 
 days required by Rule 173 of the Bankruptcy Eules, 1883, the Court 
 will allow such objection, but will treat the application as a motion to 
 expunge the proof on behalf of the trustee, and will deal with the case 
 accordingly. In re Voglit, Ex parte Spamer, 3 Morrell, 164— Cave, J. ; 
 and see also In re Sissling, Ex parte Fcnton, 2 Morrell, 289 ; 53 L. T. 
 967— D., and compare Eules 227, 228, Bankruptcy Eules, 1886. 
 
 From Refusal to Order Prosecution of Banknipt.] — An appeal will lie 
 to the Divisional Court from the refusal of the County Court Judge to 
 order the prosecution of a fraudulent bankrupt. In re Stephens, Ex 
 parte Jones, 2 Morrell, 20— D. 
 
 Appeal out of Time — Delay.] — Although the time allowed for appeal 
 in bankruptcy matters may be extended by the Court, yet some ground 
 must always be shown why this should be done, and notwithstanding the 
 fact that when a bond fide mistake has been committed in the estimation 
 of a proof the trustee in the banki-uptcy ought not to be permitted to 
 take a technical advantage of such mistake, where a creditor for more 
 than a year and a half took no steps to reverse the decision of the County 
 Court Judge refusing to allow such creditor to amend or withdraw his 
 proof alleged to be so wrongly estimated, the Court could not permit 
 him to reopen the case for the purpose of setting aside that decision. 
 In re Tricks, Ex parte Charles, 3 Morrell, 15 — Cave, J. 
 
 On an appeal from the refusal by the Registrar of an application of 
 
 the debtor for leave to summon a fresh first meeting of his creditors, the 
 objection was taken that the appeal was out of time. The appellant's 
 solicitor deposed that he had mistaken the effect of the rules, and was of 
 opinion that the time for appealing ran from the date of the perfecting of 
 the order, instead of the date when it was pronounced. 
 
 Held : That the order appealed from was in the nature of an inter- 
 locutory order, and as no harm could be done to any one, the time 
 would now be extended. In re Tippett, Ex parte Tippett, 2 Morrell, 
 229— C. A. 
 
 On an appeal by the trustee in a bankruptcy from an order of the 
 
 County Court allowing a preliminary objection raised against the rejec- 
 tion of a proof by such trustee that such rejection was out of time as 
 provided by Eule 173 of the Bankruptcy Rules, 1883. 
 
 Held : That the objection must fail : that the question was one merely 
 of procedure : and that the proper course for the Registrar of the County 
 Court to have taken was to have treated the application as a motion to 
 expunge the proof on behalf of the trustee. In re Sissling, Ex parte 
 Fenton, 2 Morrell, 289 ; 53 L. T. 967— D., and see also In re Voght, 
 
10 DIGEST OF CASES DECIDED UNDEE 
 
 Ex parte Spamer, 3 Morrell, 164— Cave, J. ; and compare Eules 227, 
 228, Bankruptcy Rules, 1886. 
 
 An appeal from the decision of the Registrar declining to make 
 
 a receiving' order must be brought within twenty-one days. In re 
 Courtenay, Ex parte Dear, 1 Morrell, 89 — C. A. 
 
 After a bankruptcy petition had been presented but before the day 
 
 appointed for the hearing the debtor obtained the consent of the petition- 
 ing creditors to an adjournment of such hearing with a view to a settle- 
 ment, and a form of consent to an extension of time was sent to the 
 County Court Registrar by post, but on the day appointed for the hearing 
 the Registrar dismissed the petition for non-appearance. Notice of 
 appeal having been given by the petitioning creditors, the debtor filed 
 his own petition, on which a receiving order was made. When the 
 appeal came on for hearing an adjournment was taken by consent in order 
 that a scheme of arrangement proposed by the debtor might be con- 
 sidered ; but this subsequently fell through and the petitioning creditors 
 now proceeded with their appeal a year after notice thereof had been 
 given. 
 
 Held : That the delay which had occurred was fatal to the appeal ; 
 and that no sufficient reason having been put forward to justify the Court 
 in hearing it notwithstanding such delay, the appeal must be dismissed 
 with costs. In re Gamlen, Ex parte Ward dc Co., 4 Morrell, 301 
 — D. 
 
 Deposit on.] — Where application was made by a debtor who had pre- 
 sented a bankruptcy petition against himself to dispense with the deposit 
 of 20L required to be lodged upon an appeal against a decision of the 
 Registrar rescinding the receiving order at the request of the of&cial 
 receiver under section 14 of Bankruptcy Act, 1888. 
 
 Held : That the debtor's alleged inability to raise the necessary sum 
 did not on the facts of the case constitute such a special circumstance 
 under Rule 113 of the Bankruptcy Rules, 1883, as to justify the Court 
 in granting the application. In re Robertson, 2 Morrell, 117 — C. A. 
 
 -Where application was made by a bankrupt under Rule 131 of the 
 
 Bankruptcy Rules, 1886, for leave to dispense with the deposit of 20L 
 required to be lodged upon an appeal by him from an order of the 
 Registrar refusing to annul the adjudication. 
 
 Held : That the inability of the bankrupt himself to find the means 
 for making the deposit, or to obtain the necessary sum from his friends, 
 did not constitute such grounds as would justify the Court in granting 
 the application. In re Grepe, Ex parte Grepe, 4 Morrell, 128— C. A. 
 
THE BANKEUPTOY ACT, 1883. 17 
 
 In the case of an appeal to the Court of Appeal by the Board of 
 
 Trade, Eule 131 of the Bankruptcy Rules, 1886, does not apply, and the 
 Board of Trade being a Government department is entitled to have the 
 appeal entered without lodging any deposit. In re MiMon, Ex parte The 
 Board of Trade, i Morrell, 115— D, 
 
 Costs of.] — As a matter of courtesy, the solicitor of a respondent, if 
 he is aware of a preliminary objection to an appeal, ought as early as 
 possible to give notice to his opponent of such preliminary objection. 
 If, however, the notice is not given, and the appeal is dismissed on the 
 preliminary objection, such omission to give notice is no reason for 
 depriving the respondent of the costs of the appeal. In re Mundy, Ex 
 •parte Stead, 2 Morrell, 227 ; L. E. 15 Q. B. D. 338 ; 53 L. T. 655— 
 C. A. 
 
 Costs of Trustee on.] — Where, in a case of any legal difficulty, a 
 trustee in a bankruptcy has obtained the decision of the Court, if such 
 trustee appeals from the decision given and does not succeed, the order 
 for costs will be made against him personally. A trustee, therefore, 
 before appealing from such decision ought to obtain the consent of the 
 creditors to do so, and also to obtain a guarantee from such creditors 
 for his own protection in the event of the appeal being decided against 
 him. In re Maiden, Gibson do Co., Ex parte James, 3 Morrell, 185 ; 
 55 L. T. 708— D. 
 
 A trustee in bankruptcy who is served with notice of an appeal, and 
 
 who appears and only asks for his costs, will not be allowed his costs of 
 appearance. In re Arden, Ex parte Arden, 2 Morrell, 1 ; L. E. 14 
 Q. B. D. 121 ; 51 L. T. 712 ; 33 W. E. 460— D. 
 
 Costs of Official Receiver on.] — When the official receiver has made 
 his report upon a composition or scheme of arrangement his duty is 
 complete, and except under very particular circumstances, he should not 
 appear on an appeal. If the appearance of the official receiver is 
 essential, the Court will allow the appeal to stand over for that purpose ; 
 and unless his appearance is requisite no costs will be allowed to him. 
 In re Reed, Boiven & Co., Ex parte Reed, Bowen & Co., 3 Morrell, 90 ; 
 L. E. 17 Q. B. D. 244 ; 55 L. J. Q. B. 244 ; 34 W. E. 493 -C. A. 
 
 As a general rule the official receiver, though served with a notice 
 
 of appeal, ought not to appear on the hearing unless there are special 
 circumstances which he desires to bring before the Court, and in the 
 absence of special circumstances he will not be allowed his costs of 
 appearance. In re Dixon & Wilson, Ex parte Dixon <& Wilson, 1 
 Morrell, 98 ; L. E. 13 Q. B. D. 118 ; 53 L. J. Ch, 769 ; 50 L. T. 414 ; 
 
 M.D. 
 
18 DIGEST OF CASES DECIDED UNDER 
 
 32 W. K. 837— C. A., and see also In re White, Winter d Co., Ex 
 parte ' White, Winter & Co., 2 Morrell, 42; L. E. 14 Q. B. D. 600 
 -C. A. 
 
 Of Creditors on.'] — Creditors served with notice of appeal by a bank- 
 rupt from an order granting him a conditional discharge, will not be 
 allowed their costs of appearing on the hearing of the appeal when the 
 official receiver or trustee appears. In re Salaman, Ex parte Salaman, 
 2 Morrell, 61 ; L. E. 14 Q. B. D. 936 ; 54 L. J. Q. B. 238 ; 52 L. T. 
 378— C. A. 
 
 Small Bankruptcies— Leave to Appeal.]— Vt^oh an appeal from a 
 County Court in the case of a small bankruptcy under section 121 of the 
 Bankruptcy Act, 1883, it was argued, against the preliminary objection 
 taken that the necessary leave to appeal had not been obtained, that 
 Eule 199, sub-section 6, of the Bankruptcy Eules, 1883 (see Eule 273 (6) 
 of the Bankruptcy Eules, 1886), by which such leave is made requisite, 
 was ultra vires. 
 
 Held : That the right of appeal given by the Act was a statutory 
 right ; that the same statute which gave the right could delegate to a 
 prescribed authority the power to modify the right in the prescribed 
 manner ; and that the necessary leave not having been obtained, the 
 appeal could not be heard. In re Dale, Ex parte Dale, 2 Morrell, 92 ; 
 62 L. T. 627 ; 33 W. E. 476— D. 
 
 The difficulty caused by the refusal of a County Court Judge to 
 
 give leave to appeal from an order made by him in a small banki-uptcy 
 cannot be got rid of by the creditors after such leave has been refused, 
 appointing a trustee in accordance with the proviso to section 121 of the 
 Bankruptcy Act, 1883, whereupon " the bankruptcy shall proceed as if 
 an order for summary administration had not been made," at any rate 
 where the appeal by such trustee is not brought within twenty-one days. 
 And quare whether the difficulty can be so got rid of, even though the 
 trustee appointed does appeal within the limited time. In re Richards, 
 Ex parte Official Receiver, 4 Morrell, 233 — D. 
 
 In a small bankruptcy under section 121 of the Bankruptcy Act, 
 
 1883, an appeal to the Divisional Court was heard, although the leave 
 of the County Court Judge was not obtained when the notice of appeal 
 was given and served. In re Stockton & Sahistan, Ex parte Gibson, 
 2 Morrell, 189— D. 
 
 Eule 273 (6) of the Bankruptcy Eules, 1886 — which provides that 
 
 in a small banki-uptcy no appeal shall lie from any order of the Court 
 
THE BANKRUPTCY ACT, 1883. 19 
 
 except by leave of the Court — does not apply to the case of an order 
 made upon application by a bankrupt for his discharge. In re Rankin, 
 Ex ■parte Rankin, 4 Morrell, 311 — D. 
 
 On July 2nd, 1886, a receiving order was made against the debtor, 
 
 and on July 15th, 1886, an order for the summary administration of the 
 estate. On September 10th, 1886, an application by the debtor to 
 rescind the receiving order was allowed. The petitioning creditor having 
 appealed against such rescission, the objection was taken that no leave 
 to appeal had been obtained. 
 
 The Court allowed the appeal to proceed. 
 
 Qu(sre : Whether, in such a case, where the receiving order has been 
 rescinded, an appeal by the petitioning creditor against the rescission is 
 an appeal against an order made in a summary administration for which 
 leave is necessary. In re Clarke, Ex parte Bayncs, 4 Morrell, 80 — D. 
 
 APPRENTICESHIP PEE. 
 
 Application for Return of.'] — An application under section 41, sub- 
 section (1), of the Bankruptcy Act, 1883, for the return of an apprentice- 
 ship premium paid to a bankrupt as a fee, ought to be made to the 
 Eegistrar and not to the Judge in Court. In re Richardson, Ex parte 
 Gould, 4 Morrell, 47 ; 35 W. R. 381— Cave, J. 
 
 APPROPRIATION OP SALARY.— See SaUry. 
 
 " APPURTENANCES." 
 
 Meaning of Term.] — In a case where certain fishing boats had been 
 mortgaged by the bankrupts, and the mortgagees laid claim to the nets 
 and fishing gear which had been used on board the said vessels (but of 
 which no particular nets were appropriated to or specially belonging to 
 any particular vessel) on the ground that such nets and fishing gear 
 came within the word " ship " in section 72, and the word " appurten- 
 ances " in the form of mortgage of a ship now in use and substituted for 
 Form I. given in the Merchant Shipping Act, 1854. 
 
 Held: That in order to make a thing an appurtenance it must be 
 specified : that in the present case there was no evidence to show that 
 any specific nets were appropriated to any particular ship, but that they 
 were used indiscriminately : and that they could not in consequence be 
 considered " appurtenances " within the meaning of the Act. In re 
 Salmon & Woods, Ex parte Gould, 2 Morrell, 137— D. 
 
 ARRANGEMENT. — See Scheme of Arrangement. 
 
 C 2 
 
20 DIGEST OP CASES DECIDED UNDER 
 
 ARREST. 
 
 Attachment — Effect of Receiving Order.] — On Febrnary 12th, 1885, a 
 receiving order was made against the debtor, and on February 23rd the 
 summary administration of his estate was ordered under section 121 of 
 the Bankruptcy Act, 1883. On February 25th, while on his way to the 
 of&ce of the official receiver for the purpose of handing to that officer 
 certain moneys which he had been ordered to pay over, the debtor was 
 served by the serjeant-at-mace of the Mayor's Court with an order of 
 commitment for having failed to pay an instalment of 21. 8s. 6d. due 
 under a judgment previously obtained in that Court. This sum, in order 
 to avoid arrest, the debtor paid under protest. On application made by 
 the oificial receiver that it should be paid over to him. 
 
 Held : That under section 9 of the Bankruptcy Act, 1883, the creditor 
 lost the right to enforce the payment by arrest, and that the official 
 receiver was entitled to the money. In re Ryley, Ex parte the Official 
 Receiver, 2 Morrell, 171 ; L. E. 15 Q. B. D. 329 ; 54 L. J. Q. B. 420 ; 
 83 W. R. 666— Cave, J. 
 
 Arrest between Date of and Signing of Receiving Order.] — Having 
 regard to the terms of section 9 of the Bankruptcy Act, 1888, as to the 
 effect of a receiving order in protecting a debtor from arrest, the order 
 must be deemed to have been " made " on the day it was pronounced, 
 and therefore as protecting the debtor as from that day. Therefore 
 where a debtor had been arrested under an order of the Chancery Divi- 
 sion made after the date of a receiving order pronounced before but not 
 drawn up and signed by the Registrar until after the arrest, he was 
 ordered to be discharged notwithstanding that he had by his counsel 
 submitted to the order of attachment. In re Manning, L. R. 30 Ch. D. 
 480; 34W. E. Ill— C. A. 
 
 Compare also cases collected under title Committal — Attachment. 
 
 ASSIGNMENT. 
 
 Of Debt.]— k shipbuilder agreed to build a vessel, the price to be paid 
 in specified instalments. Part of the work having been done, but less 
 than the value of such part having been paid to the builder, he charged 
 in favour of a creditor the instalment due to him on the delivery of the 
 vessel. Before the ship was completed he became bankrupt. The 
 trustee in the banki-uptcy completed the vessel, and in so doing expended 
 less than the amount which remained to be paid by the purchaser. 
 
 Held : That the charge, being upon money which had been already 
 earned by the builder, was valid as against the trustee. In re Toward, 
 Ex parte Moss, L. R, 14 Q. B. D. 810— C. A. 
 
THE BANKRUPTCY ACT, 1883. 21 
 
 Of Booh Dehtsi] — An assignment of the book debts will carry the books, 
 so that the person entitled to the book debts under the deed is entitled 
 to the books of account ; and Rule 259 (see Rule 349, Bankruptcy Rules, 
 1886) was intended to apply only to a case where a person not entitled 
 to the debts sets up some claim to the books. In re White & Co., Ex 
 parte The Official Receiver, 1 Morrell, 77 — Cave, J. 
 
 A bill of sale contained an assignment (^intcr alia) of all the book 
 
 debts which might, during the continuance of the security, become due 
 and owing to the mortgagor. 
 
 Held : That such an assignment of future book debts, not being 
 limited to book debts to arise in any particular business, was inyalid on 
 the ground that the subject-matter was not sufficiently defined, and that 
 therefore it did not operate to pass the property in a book debt which 
 came into existence after the assignment. Official Receiver v. Tailby, 
 L. R. 18 Q. B. D. 25 ; 66 L. J. Q. B. 30 ; 55 L. T. 626 ; 35 W. R. 
 91— C. A. 
 
 Of Judgment Deht.'\ — The assignee of a judgment debt is not "a 
 creditor" who "has obtained a final judgment" against the judgment 
 debtor within the meaning of section 4, sub-section 1 (g), of the Bank- 
 ruptcy Act, 1883 ; and such assignee is not entitled to issue a bankruptcy 
 notice against the debtor in respect of the debt. In re Keeling, Ex parte 
 Blanchett, 3 Morrell, 157 ; L. R. 17 Q. B. D. 303 ; 55 L. J. Q. B. 327; 
 34 W. R. 438— C. A. 
 
 Of Lease.] — The assignee of a lease of certain premises having become 
 bankrupt and rent being in arrear, judgment for the same was recovered 
 against his assignor who was under covenant to pay such rent. The 
 assignor thereupon proved against the estate of the bankrupt for the 
 amount so paid ; and also sought to prove in respect of his contingent 
 liability for the rent during the time the said lease had yet to run. The 
 last-mentioned proof was rejected by the trustee in the bankruptcy. 
 
 Held : That the proof must be admitted ; and that an estimate must 
 be made by the trustee in the bankruptcy of the value of the liability 
 under section 37, sub-section (4), of the Bankruptcy Act, 1883. In re 
 Hinks, Ex parte Verdi, 3 Morrell, 218 — Cave, J. 
 
 Of Lease, Goodwill, Stock, dc] — The debtor, who carried on business 
 at two different premises, within a few days of filing his petition executed 
 an assignment handing over his interest in the lease, goodwill, and stock 
 of one of the said premises to a judgment creditor who was threatening to 
 levy execution, such assignment to be in full satisfaction of the whole 
 judgment debt, and the judgment creditor was to redeem the lease of the 
 
22 DIGKST OF CASES DECIDED UNDEK 
 
 property, which had been deposited on mortgage with a loan society, and 
 to pay rent due, &c. 
 
 Held : That there was no proof that the motive of the debtor was to 
 prefer the creditor ; that at the time of the assignment the judgment 
 creditor could seize and have his debt paid out of the goods at both the 
 places of business of the debtor ; that the effect of the assignment was to 
 relieve the debtor of liability at one place of business, and could not be 
 deemed to be fraudulent preference. In re Wilkinson, Ex parte the 
 Official Receiver, 1 Morrell, 65— Cave, J. 
 
 Of Property to Trustee for Benefit of Creditors generally.}— The fact 
 that a large majority in number and value of the creditors of a debtor 
 have assented to a deed assigning to trustees all the debtor's property for 
 the benefit of his creditors generally, is not a " sufficient cause " within 
 the meaning of section 7, sub-section (3), of the Bankruptcy Act, 1883, 
 for dismissing a petition for a receiving order against the debtor presented 
 by a dissenting creditor even for a small amount ; such receiving order 
 being founded on the act of bankruptcy committed by the execution of 
 the deed. It is the intention of the legislature that proposals for a com- 
 position or scheme of arrangement shall only be entertained after a 
 receiving order has been made. 
 
 An official receiver ought not to appear at the hearing of an appeal 
 from a receiving order, unless it is necessary for him to do so for the 
 purpose of bringing some special circumstance to the notice of the Court; 
 and this special circumstance the Court will take into consideration when 
 the costs are applied for. In re Dixon dc Wilson, Ex parte Dixon d 
 Wilson, 1 Morrell, 98 ; L. R. 13 Q. B. D. 118 ; 53 L. J. Ch. 769 ; 50 
 L. T. 414; 32 W. R. 837— C. A. 
 
 Where a deed of assignment of the whole of their property executed 
 
 by the debtors for the benefit of their creditors generally contained a 
 proviso for the payment out of the assets in the first instance of the costs 
 and expenses of the trustee under the said deed of assignment, such 
 trustee was not entitled (on the debtors being adjudged bankrupt upon a 
 petition founded on the deed as an act of bankruptcy) to retain as against 
 the trustee in the bankruptcy assets in his hands, on the ground that a 
 sum exceeding the said assets was due to him for work and labour done. 
 In re J. d; H, Richards, Ex parte the Official Receiver, 1 Morrell, 242 ; 
 32 W. E. 1001— Wills, J. 
 
 ■ Where a debtor has assigned the whole of his property to a trustee 
 
 for the benefit of his creditors generally, and such trustee has taken 
 possession of the property and carried on the debtor's business, in the 
 
THE BANKRUPTCY ACT, 1883. 23 
 
 event of the debtor subsequently being adjudged bankrupt on a petition 
 founded on tbe act of bankruptcy committed by the execution of the deed 
 of assignment, the trustee in the bankruptcy must elect to treat the 
 trustee under the deed either as his agent or as a trespasser. If the 
 trustee in the bankruptcy elects to treat the trustee under the deed as a 
 trespasser, he can only claim from him any property of the bankrupt 
 which remains in his possession unconverted, and the value, at the time 
 when he took possession, of any property which he has taken possession 
 of and has converted. In re Riddeough, Ex parte Vatighan, 1 Morrell, 
 258 ; L. E. 14 Q. B. D. 25 ; 33 W. R. 161— D. 
 
 ■ A debtor on August 24th, 1884, on being pressed by a creditor who 
 
 had obtained judgment for payment of the debt due to him, gave to an 
 auctioneer who was about to sell the farming stock of such debtor, a 
 document by which he authorised and requested him to pay to such 
 creditor, after deducting any rent which might be due to the landlord, the 
 debt due to him out of the first proceeds of the sale, and appropriated the 
 sum necessary to pay the debt out of the proceeds of the sale for the 
 purposes of the payment. On Oct. 22nd, 1884, a receiving order was 
 made against the debtor, and the sum so appropriated was subsequently 
 claimed by the official receiver as trustee in the bankruptcy on the grounds 
 (1) That the document was an assignment of the whole of the debtor's 
 property, and as such amounted to an act of bankruptcy. (2) That it 
 was a fraudulent preference. 
 
 Held : That the document in question did not amount to an assign- 
 ment of the whole of the debtor's property, that the principal motive of 
 the debtor was not to favour the creditor, and that the transaction did not 
 constitute a fraudulent preference. In re Glanville, Ex parte the Trustee, 
 2 Morrell, 71 ; 33 W. R. 523— Cave, J. 
 
 On August 20th, 1885, in accordance with a resolution passed at a 
 meeting of creditors the debtor executed a deed of assignment, vesting 
 his estate in a trustee for their benefit. On Oct. 28th, 1885, a bank- 
 ruptcy petition was presented against the debtor, the act of bankruptcy 
 alleged being the execution of the deed of assignment. On Oct. 31st, 
 1885, the trustee under the deed paid out of assets in his hands the sum 
 of 201. Is. 8d. to a firm of solicitors, being the amount of their bill of 
 costs incurred in connection with the meeting of creditors, and in 
 preparing the deed of assignment, and also in collecting certain book 
 debts. On January 20th, 1886, a receiving order was made against the 
 debtor, and the trustee under the deed sent to the official receiver the 
 balance of assets in his hands, after deducting the amount so paid to the 
 solicitors, together with an account of receipts and payments in connection 
 
24 DIGEST OF CASES DECIDED UNDER 
 
 with the estate. The trustee appointed in the bankruptcy applied for an 
 order for payment of the 201. Is. 8d. 
 
 Held: That the application must be granted; but that certain items 
 for collecting book debts, amounting together to 21., would under the 
 circumstances be allowed, and an order made for payment of 181. 7s. 8d. 
 In re Forster, Ex parte Eauiings, 4 Morrell, 292 ; 36 W. K. 144— 
 Cave, J. 
 
 ATTACHMENT. 
 
 Where a judgment creditor obtained a garnishee order in respect of a 
 debt due to the judgment debtor, and a dispute having arisen, payment 
 into Court of the debt to abide further order was directed, and the 
 judgment debtor subsequently become bankrupt. 
 
 Held : That such payment into Court to abide further order did not 
 constitute a "receipt of the debt " by which an attachment is completed 
 within section 45, sub-section (2) of the Bankruptcy Act, 1883. 
 
 That the meaning and intention of the legislature by the Bankruptcy 
 Act, 1883, was to get rid of all questions which might have arisen before 
 that Act was passed, and to put the law upon a very simple and plain 
 foundation : and that a judgment creditor having attached a debt does 
 not become entitled to retain it unless he has received the debt before 
 the bankruptcy. Butler v. Wearing, 3 Morrell, 5 ; L. R, 17 Q. B. D. 
 182— Manisty, J. 
 
 After a commitment order had been issued by the Mayor's Court in 
 London against a judgment debtor for default in payment of an instal- 
 ment of the judgment debt a receiving order was made against him under 
 section 9 of the Bankruptcy Act, 1883. 
 
 Held : That the commitment order was not a process for contempt of 
 Court, but to enforce payment of a debt provable in the bankruptcy, and 
 that after the making of the receiving order the debtor was privileged 
 from arrest. In re Ryley, Ex parte Official Receiver, 2 Morrell, 171 ; 
 L. R. 15 Q. B. D. 329 ; 54 L. J. Q. B. 420 ; 83 W. R. 656— Cave, J. 
 
 Compare also cases under titles, Arrest, Committal. 
 
 ATTORNEY. 
 
 Signature of Petition hy."] — A bankruptcy petition presented by a 
 creditor may be signed on behalf of such creditor by his duly constituted 
 attorney. In re Wallace, Ex parte Wallace, 1 Morrell, 246 ; L. R. 
 14 Q. B. D. 22; 54 L. J. Q. B. 293; 51 L. T. 551; 33 W. R. 66 
 — C. A. 
 
THE BANKRITPTCY ACT, 18S3. 25 
 
 AUDIENCE, RIGHT OF. 
 
 Of Solicitor.] — Under the Bankruptcy Act, 1883, and the Bank- 
 ruptcy Appeals (County Courts) Act, 1884, a solicitor has the same 
 right of audience in the Divisional Court sitting as a Court of Appeal 
 from orders of the County Courts in bankruptcy matters, as that 
 formerly possessed under the Bauki-uptcy Act, 1869, in the case of an 
 appeal from the County Court to the chief judge in bankruptcy. In re 
 Barnett, Ex parte the Trustee, 2 Morrell, 122; L. E. 15 Q. B. D. 169 ; 
 54 L. J. Q. B, 354 ; 53 L. T. 448— D. 
 
 • The right of audience given to a solicitor in bankruptcy matters by 
 
 section 151 of the Bankruptcy Act, 1883, is limited to the High Court, 
 and does not extend to the Court of Appeal. In re Elderton, Ex parte 
 Russell, 4 Morrell, 36— C. A. 
 
 Of Debtor.] — Where a trustee in a liquidation applied to the County 
 Court for directions as to the acceptance of an offer for the purchase of 
 the debtor's property, and notice was given to the debtors, but at the 
 hearing of the application the County Court Judge refused to hear the 
 solicitor for the debtors or to receive evidence on their behalf. 
 
 Held : That notice having been given to the debtors they ought to 
 have been heard ; and that an appeal lay from such refusal of the County 
 Court Judge to do so. 
 
 Qucere : Whether when a trustee appHes to the Court for directions in 
 any particular matter, the debtor is in any event entitled to appear and 
 be heard. In re Webb d Sons, Ex parte Webb d: Sons, 4 Morrell, 52 — 
 Cave, J. 
 
 BALANCE ORDER. 
 
 " A balance order " made in the voluntary winding-up of a company, 
 whereby a contributory was ordered to pay in to the liquidator certain 
 calls made in respect of the said company before the commencement of 
 the winding-up, is not a "final judgment " within the meaning of sec- 
 tion 4, sub-section 1 (g), of the Bankruptcy Act, 1883, so as to support 
 a bankruptcy notice. In re Sanders, Ex parte Whinney, 1 Morrell, 
 185 ; L. K. 13 Q. B. D. 476— D. 
 
 "A balance order " for the payment of calls upon shares, made on a 
 
 contributory in the winding-up of a company, is not a " final judgment " 
 within the meaning of section 4, sub-section 1 (g), of the Bankruptcy 
 Act, 1883, so as to enable the liquidator of the company to issue a 
 bankruptcy notice against the contributory in respect of the amount 
 ordered by the balance order to be paid. In re Tennant, Ex parte 
 
26 BIGEST OF CASES DECIDED UNDER 
 
 Grimwade, 3 Morrell, 166, L. E. 17 Q. B. D. 357 ; 56 L. J. Q. B. 495 
 — C. A. 
 
 BANKRUPTCY NOTICE. 
 
 Who may serve.] — A creditor in order to serve a bankruptcy notice 
 
 under section 4, sub-section 1 (g) of the Bankruptcy Act, 1883, must be 
 entitled and in a position to issue execution : and in consequence a bank- 
 ruptcy notice against a judgment debtor cannot be issued by the executor 
 of a creditor who has obtained final judgment, unless such executor has 
 first obtained leave from the Court to issue execution on the judgment 
 under Eule 23 of Order XLII. of the Rules of the Supreme Court, 1883. 
 In re Woodall, Ex parte Woodall, 1 Morrell, 201 ; L. E. 13 Q. B. D, 
 479 ; 53 L. J. Ch. 966 ; 50 L. T. 747 ; 32 W. R. 774 — C. A. 
 
 A creditor who has obtained a final judgment cannot under section i, 
 
 sub-section 1 (g), of the Bankruptcy Act, 1883, issue a bankruptcy notice 
 against the judgment debtor, unless such creditor is also in a position 
 to issue immediate execution on the judgment. Thus, where final judg- 
 ment is obtained against a firm, a bankruptcy notice cannot be issued 
 against a member of such firm who has not been served with the writ, 
 and has not appeared, or admitted that he is or has been adjudged to be 
 a partner, unless under Order XLII., Rule 10, of the Eules of the 
 Supreme Court, 1883, leave to issue execution against such partner has 
 been obtained. In re Ide, Ex parte Ide, 3 Morrell, 239 ; L. E. 17 
 Q. B. D. 755 ; 55 L. J. Q. B. 484 ; 35 W. R. 20— C. A. 
 
 If execution may be issued on a judgment, a bankruptcy notice 
 
 under section 4, sub-section 1 (g), of the Bankruptcy Act, 1883, may be 
 issued. Thus, where a banki-uptcy notice has been issued in respect of 
 a judgment debt and withdrawn, a second bankruptcy notice may be 
 issued in respect of the same debt. Judgment for 438L 12s. and costs 
 having been recovered against a debtor, the costs were taxed at 37L, and 
 the creditor issued a bankruptcy notice in respect of the judgment debt 
 and costs. An agreement was thereupon come to between the debtor and 
 the creditor, by which the debt and costs were agreed at 500L, and the 
 debtor agreed to pay lOOL at once, such lOOL including the S7l. taxed 
 costs, 251. costs of the bankruptcy proceedings, and 38L part of the judg- 
 ment debt, and the balance of the debt by monthly instalments of 201. ; 
 in case any instalment was not duly paid the whole amount then unpaid 
 to be forthwith due and payable. The lOOZ. and some of the instalments 
 wore duly paid, but on default subsequently being made, a bankruptcy 
 notice for the unpaid balance was issued by the creditor. 
 
THE BANKRUPTCY ACT, 1883. 27 
 
 Held : That the agreement entered into was to the effect that, upon 
 default of payment of any instalment, the unpaid balance was to become 
 due under the judgment, and that the creditor was entitled to issue a 
 bankruptcy notice in respect of the debt. In re Feast, Ex parte Feast, 
 4 Morrell, 37— C. A. 
 
 -The assignee of a judgment debt is not "a creditor" who "has 
 
 obtained a final judgment" against the judgment debtor within the 
 meaning of se'ction 4, sub-section 1 (g), of the Bankruptcy Act, 1883 : 
 and such assignee is not entitled to issue a bankruptcy notice against 
 the debtor in respect of the debt. The words of the said sub-section 
 cannot be extended further than to the personal representative of the 
 creditor who has obtained the judgment : and the decision of the Court 
 of Appeal in the case of In re Woodall, Ex parte Woodall (see 1 Morrell, 
 201 ; L. R. 13 Q. B. D. 479), did not go further than to such personal 
 representatiye. In re Keeling, Ex parte Blanchett, 3 Morrell, 157; 
 L. R. 17 Q. B. D. 303 ; 55 L. J. Q. B. 327 ; 34 W. R. 438- C. A. 
 
 "Final Judgment."'] — A garnishee order absolute is not a "final 
 judgment " against the garnishee within the meaning of section 4, sub- 
 section 1 (g), of the Banki-uptcy Act, 1883, so as to make the failure to 
 comply with a bankruptcy notice founded upon it an act of bankruptcy 
 on the part of the garnishee. Ex parte Chinery, In re Chinery, 1 
 MorreU, 31 ; L. R. 12 Q. B. D. 342 ; 53 L. J. Ch. 662 ; 60 L. T. 342 ; 
 32 W. R. 469— C. A. 
 
 -The fact that an order has been made against a defendant requiring 
 
 him to pay the taxed costs in an action within a specified time, does not 
 constitute such order a "final judgment" within the meaning of section 4, 
 sub-section 1 (g), of the Bankruptcy Act, 1883, so as to entitle the 
 plaintiff, in the event of the defendant failing to comply with the terms 
 of the order, to obtain a bankruptcy notice against the defendant founded 
 on the order. In re Cohen, Ex parte Schmitz, 1 Morrell, 55 ; L. R. 
 12 Q. B. D. 509; 53 L. J. Ch. 1168; 50 L. T. 747; 32 W. R. 812— 
 C. A. 
 
 A " balance order " made in the voluntary winding-up of a company. 
 
 whereby a contributory was ordered to pay in to the liquidator certain 
 calls made in respect of the said company before the commencement of 
 the winding-up, is not a " final judgment " within the meaning of section 
 4, sub-section 1 (g), of the Bankruptcy Act, 1883, so as to support a 
 bankruptcy notice. In re Sanders, Ex parte Whinney, 1 Morrell, 185 ; 
 L. R. 13 Q. B. D. 476 — D. ; and In re Tennant, Ex parte Grimtvade, 
 3 MorreU, 166; L. R. 17 Q. B. D. 357; 65 L. J. Q. B. 496— C. A. 
 
28 DIGEST OF CASES DECIDED UNDER 
 
 Service of by Liquidator.] — The power given by section 95 of the 
 Companies Act to a liquidator to bring or defend any action, suit, or 
 prosecution, or other legal proceeding, civil or criminal, in the name and 
 on behalf of the company, includes the power to serve a bankruptcy 
 notice upon a judgment debtor of such company under section 4, sub- 
 section 1 {g), of the Bankruptcy Act, 1883. But the provisions of 
 section 95 of the Companies Act must be strictly complied with, and the 
 proceedings in connection with serving such bankruptcy notice must be 
 taken "in the name and on behalf of the company," and not by the 
 liquidator in his own name. Jra re Wintei-bottom, Ex parte Winterbottom, 
 4 Morrell, 5; L. E. 18 Q. B. D. 446; 56 L. J. Q. B. 238; 66 L. T. 
 168— D. 
 
 Conditional Payment of Debt.] — Where a bill has been given by a 
 debtor, upon whom a bankruptcy notice has been served, for the amount 
 of the judgment debt, and has been taken by the' creditor, such bill is 
 sufficient satisfaction of the requirements of the bankruptcy notice under 
 section 4, sub-section 1 (g), of the Bankruptcy Act, 1883, so as to 
 prevent such creditor afterwards proceeding to obtain a petition against 
 the debtor on the bankruptcy notice. In re Mattlieiv, Ex parte Matthew, 
 1 Morrell, 47 ; L. E. 12 Q. B. D. 506 ; 51 L. T. 179 ; 32 W. E. 813 
 — C. A. 
 
 JVho may Petition upon failure to Comply tcith Terms of] — 
 Where, by failing to comply with the terms of a bankruptcy notice, a 
 debtor has committed an act of bankruptcy under section 4, sub-sec- 
 tion 1 (g), any creditor may avail himself of such act of banla-uptcy for 
 the purpose of presenting a petition, and the right to present a petition 
 is not limited to that creditor by whom the bankruptcy notice has been 
 served. In re Hastings, Ex parte Dearie, 1 Morrell, 281 ; L. E. 
 14 Q. B. D. 184 ; 54 L. J. Q. B. 74; 33 W. E. 440— C. A. 
 
 Appeal Pending— Stay of Proceedings.]— Where a bankruptcy petition 
 is presented by a creditor founded on an act of bankruptcy committed by 
 the failure of the debtor to comply with the terms of a bankruptcy notice 
 to pay a judgment debt, and an appeal is pending from such judgment, 
 it is a matter of discretion for the Eegistrar whether he will make a 
 receiving order, or stay the proceedings ; and the Court of Appeal will 
 not interfere unless such exercise of discretion is clearly wrong. In re 
 Rhodes, Ex parte Heyworth, 1 Morrell, 269 ; L. E. 14 Q. B. D. 49 ; 
 54 L. J. Q. B. 198; 52 L. T. 201— C. A. 
 
 Interpleader Order— Stay of Execution.]— On August 28rd, 1886, 
 judgment was recovered against the debtor, and execution was issued 
 
THE BANKRUPTCY ACT, 18S3. 29 
 
 under which the sheriff levied on August 26th. On September 1st, a 
 third person having claimed the goods, an interpleader order was obtained 
 by the sheriff under which the claimant paid 1201. into Court, and there- 
 upon in pursuance of the order the sheriff withdrew from possession. 
 On September 20th the issue in the interpleader was settled, but on 
 September 27th, before such issue was decided, the judgment creditor 
 served on the debtor a bankruptcy notice under section 4, sub-section 1 (g), 
 of the Bankruptcy Act, 1883. On an appeal from the decision of the 
 County Court Registrar refusing to set aside the notice. 
 
 Held : That when the interpleader order was made, and an issue 
 directed, it was in substance a stay of execution until such issue in the 
 interpleader was decided : and that the creditor not being in a position 
 to issue execution on the judgment was not entitled to serve a bank- 
 ruptcy notice on the debtor at the date when such notice was served. In 
 re Ford, Ex parte Ford, 3 Morrell, 283 ; L. E. 18 Q. B. D. 369 ; 56 
 L. J. Q. B. 188 ; 56 L. T. 166— D. 
 
 Formal Defects in.] — On January 14th, 1887, judgment was recovered 
 against the debtor for 446L, and execution was issued under which the 
 sheriff levied ; but a third person having claimed the goods, an inter- 
 pleader order was obtained, whereby upon payment of 20Z. into Court by 
 the claimant, the sheriff was directed to withdraw. On March 14th, 
 1887, a bankruptcy notice under section 4, sub-section 1 (g), of the 
 Bankruptcy Act, requiring payment of the debt, was served upon the 
 debtor, but the notice was dismissed by the Registrar of the County 
 Court, on the ground that within the meaning of the section execution 
 had been stayed. 
 
 Held (on appeal) ; That in any event there had been no stay, except 
 as to 20L ; that in the case of In re Ford, Ex parte Ford (see 
 
 3 Morrell, 283), the whole amount of the judgment debt had been levied, 
 and the case was so distinguishable ; and that the creditor was entitled 
 to issue a bankruptcy notice. 
 
 That the fact that the creditor had omitted to insert his name in the 
 heading of the banki-uptcy notice, such heading being left " Ex parte ..." 
 — the notice being sued out by him in person, and giving complete 
 information on the face of it who the creditor was — did not render the 
 notice invalid. 
 
 That the fact of the notice claiming the whole debt of 446Z. without 
 considering the 20?. which might be stayed, only amounted to a formal 
 error which the Court would rectify. In re Bates, Ex parte Lindsey, 
 
 4 Morrell, 192 ; 57 L. T. 417 ; 35 W. E. 668— D. 
 
30 DIGEST OF CASES DECIDED UNDER 
 
 Application to Set Aside — Evidence.] — A debtor, after the service of a 
 bankruptcy notice upon him under section 4, sub-section 1 (g), of the 
 Bankruptcy Act, 1883, commenced an action against his creditor to set 
 aside the judgment on which such notice was founded, and prayed that 
 an account might be taken, and made other claims in the nature of a 
 counterclaim. The debtor delivered the statement of claim in the action 
 and applied to the Court to dismiss the bankruptcy notice. The Eegistrar, 
 after reading the statement of claim, adjourned the application sine die, 
 with liberty to apply. 
 
 Held (on appeal) : That the statement of claim was not evidence ; and 
 the Eegistrar, before interfering with the operation of the banki-uptcy 
 notice, ought to have been satisfied by evidence that the debtor had at 
 any rate some reasonable ground for bringing the action. In re Foster, 
 Ex parte Basan, 2 Morrell, 29—0. A. 
 
 Judgment for Costs.] — Where, in consequence of a breach of covenant 
 of articles of partnership, an action was brought in the Chancery Division 
 and judgment obtained, restraining the defendant from carrying on 
 business within a certain radius — dissolving the partnership — ordering 
 an enquiry as to the amount of damage sustained by the plaintiff — and 
 further ordering the costs of the defendant to be paid — and pending the 
 enquiry as to the damages, the costs were taxed, and only a portion being 
 paid, a bankruptcy notice was served on the debtor under section 4, sub- 
 section 1 (g), of the Bankruptcy Act, 1883, for the remainder. 
 
 HeU : That the sum in respect of which the bankruptcy notice was 
 served was due under a final judgment within the meaning of the section, the 
 amount in question being wholly independent of the result of the enquiry. 
 
 That the words "a creditor" in section 4, sub-section 1 (g), of the 
 
 Bankruptcy Act, 1813, mean a creditor under or by means of a final 
 judgment. In re Faithfull, Ex parte Moore, 2 Morrell, 52; L. E. 
 14 Q. B. D. 627 ; 54 L. J. Q. B. 190 ; 52 L. T. 376 ; 33 W. E. 438— 
 C. A. 
 
 Compensation Deed — Preference.]— Where a debtor against whom no 
 proceedings in banki-uptcy had been taken, entered into an arrangement 
 with his creditors, by which he agreed to pay 10s. in the pound within 
 six years to any creditors signmg the deed of arrangement, and the 
 creditors covenanted by the said deed not to sue the debtor, or to enforce 
 any judgment already obtained, and to forego all their claims on him if 
 the provisions of the deed were carried out : which deed was signed by 
 a creditor who had previously obtained a final judgment against the 
 debtor : and after such creditor had signed, three other creditors signed 
 the deed, who it was subsequently discovered, had received from the 
 
THE BAKKRUPTCY ACT. 1883. 31 
 
 debtor's brother, with the knowledge of the debtor, certain other 
 payments over and above the 10s. in the pound secured by the deed. 
 
 Held : That the principle laid down in the case of Dauglish v. Tennent 
 (L. E. 2 Q. B. 49) applies to all composition deeds whether under a statute 
 or not ; that it is an implied condition in all such deeds that all the 
 creditors shall come into the arrangement on perfectly equal terms ; and 
 that the order of the Registrar refusing to set aside a bankruptcy notice 
 served upon the debtor by the creditor who had obtained a final judgment 
 was a right order, such creditor being no longer bound by the deed. 
 In re Milner, Ex parte Milncr, 2 Morrell, 190 ; L. R. 15 Q. B. D. 605 ; 
 54 L. J. Q. B. 425 ; 33 W. E. 867— C. A. 
 
 BETTING.— See SpccuMion. 
 
 BILL OF EXCHANGE. 
 
 Where a bill has been given by a debtor, upon whom a bankruptcy 
 notice has been served, for the amount of the judgment debt, and has 
 been taken by the creditor, such bill is sufficient satisfaction of the 
 requirements of the bankruptcy notice under section 4, sub-section 1 (g), 
 of the Banki-uptcy Act, 1883, so as to prevent such creditor afterwards 
 proceeding to obtain a petition against the debtor on the bankruptcy 
 notice. In re Mattheic, Ex parte Matthew, 1 Morrell, 47; L. E. 12 
 Q. B. D. 506 ; 51 L. T. 179 ; 32 W. E. 813— C. A. 
 
 -Where six bills of exchange were drawn in Tobago, accepted by the 
 
 debtors, and made payable at the London and Westminster Bank, but 
 were subsequently dishonoured, and thereupon sent back to Tobago, and 
 taken up by the drawers who sought to prove for the re- exchange against 
 the debtor's estate. 
 
 Held : That subject to the damages being proved, the claim ought to 
 be admitted : that the re-exchange mentioned in section 57 of the Bills 
 of Exchange Act, 1882, was simply the difference between English and 
 foreign currency, and that under that Act the claim was still admissible. 
 In re Gillespie, Ex parte Roberts, 2 Morrell, 278 ; L. E. 16 Q. E. D. 
 702; 55 L. J. Q. B. 131; 53 L. T. 770; 34 W. E. 258— Cave, J. And 
 see L. E. 18 Q. B. D. 286; 56 L. J. Q. B. 74; 56 L. T. 699; 35 
 W. E. 128— C. A. 
 
 BILL OP SALE. 
 
 Omission to specify Place tchere Goods situate.] — A bill of sale is not 
 void under the Bills of Sale Act, 1882, although it may omit to specify 
 
S3 DIGEST OF CASES DECIDED UNDER 
 
 the locus or place at which the goods assigned are situate. In re Lane, 
 Ex parte Hill, 3 Morrell, 148 ; L. K. 17 Q. B. D. 74— D. 
 
 Licence to take Possession — Form.] — Although it is from its nature 
 impossible that a licence to take immediate possession of goods as a 
 security for a debt, which is a bill of sale within the Bills of Sale Acts, 
 1878 and 1882, should be made in the form given in the schedule to the 
 Act of 1882, such a licence is void under section 9 of that Act as between 
 grantor and grantee, the object of the Act being to make Toid every bill 
 of sale given to secure the payment of money by the grantor unless it is 
 made substantially in accordance with the form given in the schedule. 
 The ratio decidendi in the cases of Li re Hall, Ex parte Close (L. R. 14 
 Q. B. D. 386), and In re Cunningham d Co., Attenboroiigh's Case (L. R. 
 28 Ch. D. 682), disapproved. In re Townsend, Ex parte Parsons, 3 
 Morrell, 36 ; L. E. 16 Q. B. D. 532 ; 55 L. J. Q. B. 137 ; 53 L. T. 897 ; 
 34 W. R. 329— C. A. 
 
 Document accompanying Pledge.] — Where a transaction is one of pawn 
 or pledge, by which goods are deposited by the pledgor with the pledgee 
 as security for the payment of money then advanced by the pledgee to the 
 pledgor, such transaction is not within the Bills of Sale Acts ; and a 
 document signed at the time by the pledgor, recording the transaction 
 and regulating the rights of the pledgee as to the sale of the goods, is not 
 a bill of sale within the meaning of the said Acts. 
 
 The effect of the decision in the case of In re Toivnsend, Ex parte 
 Parsons (see 3 Morrell, 36 ; L. R. 16 Q. B. D. 532) was to determine 
 that an authority to take possession of goods as security for the payment 
 of money is not exempted from the Bills of Sale Acts because it is an 
 authority to take immediate possession : and that a transaction which is 
 contrary to the Bills of Sale Acts is not taken out of the operation of such 
 Acts because from its nature such transaction cannot be expressed in the 
 statutory form of a bill of sale. In re Hardwick, Ex parte Hubbard, 3 
 Morrell, 246 ; L. R. 17 Q. B. D. 690 ; 55 L. J. Q. B. 490 ; 35 W. R. 
 2— C. A. 
 
 Consideration — Money "now paid."]— On April 22nd, 1886, in 
 consequence of the discovery that a previous bill of sale given by the 
 debtor on October 25th, 1885, was invalid, a new bill of sale instead 
 thereof was executed. This new bill of sale was expressed to be made in 
 consideration of the sum of 220L " now paid " by the grantee to the 
 grantor, but no money actually passed on its execution. The trustee 
 in the bankruptcy of the grantor having sought to set aside such bill of 
 
THE BANKRUPTCY ACT, 1883. 33 
 
 sale on the ground that the consideration was not truly stated within 
 section 8 of the Bills of Sale Act, 1882. 
 
 Held : That the consideration was truly stated so as to satisfy the 
 said section ; that the case was within the decision given in Tlie Credit 
 Co. V. Pott (L. E. 6 Q. B. D. 295) ; and that the addition of the word 
 "truly" in section 8 of the Bills of Sale Act, 1882, did not take the 
 case out of that decision. In re Hockaday, Ex parte Nelson, 4 Morrell, 
 12 ; 55 L. T. 819 ; 35 W. R. 264— C. A. 
 
 Form.] — A hill of sale contained a covenant hy the grantor that he 
 would not remove the goods without the consent of the grantee. It was 
 also provided that the grantor should pay to the grantee the principal 
 sum and interest then due on June 1st : provided that if the grantor 
 should not break any of the covenants, and should not become bankrupt, 
 and should pay to the grantee the principal sum with interest by equal 
 monthly instalments of three guineas, then, and in that case, the grantee 
 should accept payment by such instalments. 
 
 Held : That the provision as to payment by instalments was a provision 
 in ease of the debtor ; and that neither of the above-mentioned covenants 
 rendered the bill of sale invalid. In re Coton, Ex parte Payne, 4 Morrell, 
 90 ; 56 L. T. 571 ; 35 W. R. 476— D. 
 
 Injunction — Undertaking as to Damages.] — An injunction restraining 
 a person, not a party to the bankruptcy proceedings, from dealing with 
 property of the debtor claimed under a bill of sale, the validity of which 
 is disputed, ought not to be granted without requiring an undertaking to 
 be given for damages by the person obtaining the order. In re F. H. 
 Johnstone, Ex parte Abraham, 1 Morrell, 32 ; 50 L. T. 184 — Cave, J. 
 
 BOARD OF TRADE. 
 
 Order for Account — Non-compliance.] — When the Board of Trade 
 applies to the Court under section 102, sub-section (5) of the Bankruptcy 
 Act, 1883, to enforce an order made by the Board under section 162, sub- 
 section (2) against a trustee to submit to them an account of receipts 
 and expenditure, the Court will in the first instance make an order 
 that the trustee obey the order of the Board of Trade, but will not add 
 to that order a conditional order for the committal of such trustee. In re 
 Margetts, Ex parte the Board of Trade, 1 Morrell, 211 ; 32 W. R. 1002 
 — Cave, J. 
 
 Discharge of Trustee — Power to require Account.] — A trustee under 
 the Bankruptcy Act, 1869, who has obtained his statutory release and 
 discharge under that Act after August 25th, 1883 (the date of the 
 
 M.D. D 
 
34- DIGEST OF CASES DECIDED UNDER 
 
 passing of the Bankruptcy Act, 1883), is not thereby relieved from 
 rendering an account to the Board of Trade of his receipts and payments 
 as such trustee, if on that date he had in his hands any undistributed 
 funds, although such funds may have been disposed of by a subsequent 
 resolution of the creditors. In re Chudley, Ex parte the Board of Trade, 
 2 Morrell, 8 ; L. R. 14 Q. B. D. 402 ; 33 W. E. 708— Cave, J. 
 
 Trustee removed — Power to require Account.] — ^Although a trustee 
 under a scheme of arrangement has been removed from office, the Board 
 of Trade has power to demand a statement of his receipts and payments 
 as such trustee, and to apply to the Court under section 102, sub-section 
 (5), of the Bankruptcy Act, 1883, to enforce that order in case of neglect 
 or refusal to comply with it. In re Rogers, Ex parte the Board of 
 Trade, 4 Morrell, 67 ; 35 W. R. 457— Cave, J. 
 
 Stamp.'] — Where no estate has come into the hands of a trustee under 
 a scheme of arrangement, such trustee must himself provide the stamp 
 necessary to be affixed to the affidavit of no receipts required to be 
 forwarded to the Board of Trade under Rule 291 of the Bankruptcy 
 Rules, 1886. In such case an unstamped affidavit cannot be accepted, 
 nor the amount necessary for the said stamp provided from the Bank- 
 ruptcy Estates Account. In re Rowlands, Ex parte the Board of 
 Trade, 4 Morrell, 70 ; 35 W. R. 457— Cave, J. 
 
 Costs against.] — Although the Board of Trade act in a public capacity, 
 the Court will not in a proper case consider them as differing from an 
 ordinary litigant. In re Rodtvay, Ex parte Phillips, 1 Morrell, 232 — 
 Wills, J. 
 
 Objection to Trustee hy.] — The fact that a trustee has been proposed 
 by the brother of the bankrupt ; and that such trustee has previously 
 voted in favour of a composition or scheme of arrangement of the debtor's 
 affairs ; and that no committee of inspection is appointed, will not justify 
 the Board of Trade in objecting to the appointment of such trustee 
 under section 21, sub-section (2), of the Bankruptcy Act, 1883, even 
 though the majority in number of the creditors are desirous that such 
 objection should be made. In re Games, Ex parte the Board of Trade, 
 1 Morrell, 216— Cave, J. 
 
 Permission of, to Official Receiver to Compromise.] — A debtor on May 
 6th presented his own petition on which a receiving order was made, and 
 on May 7th the official receiver took possession of the debtor's property. 
 On June 30th a compromise was entered into between the official receiver 
 and two holders of bills of sale over the property of the debtor. On July 
 
THE BANKRUPTCY ACT, 1883. 35 
 
 9th the debtor was adjudicated bankrupt, and on July 23rd the certificate 
 of approval of the trustee in the bankruptcy was granted by the Board o f 
 Trade. The trustee subsequently applied to the Court to set aside the 
 compromise. 
 
 Held : That on its appearing that the official receiver had the permis- 
 sion of the Board of Trade to make this compromise the application of 
 the trustee must be refused. In re Johnstone, Ex -parte Singleton, 2 
 Morrell, 206— D. 
 
 Appeal hy.'\ — Kule 237 of the Bankruptcy Eules, 1886, is not ultra 
 vires, but is a rule for carrying into effect the objects of the Bankruptcy 
 Act, 1883 ; and the Board of Trade are entitled under that rule to appeal 
 from any order of the Court made upon an application by a banki-upt for 
 his discharge. In re Stainton, Ex parte the Board of Trade, 4 Morrell, 
 242; L. L. 19 Q. B. D. 182; 57 L. T. 202 ; 35 W.B,. 667— D. 
 
 In the case of an appeal to the Court of Appeal by the Board of 
 
 Trade, Rule 131 of the Banki-uptcy Eules, 1886, does not apply, and the 
 Board of Trade being a Government Department is entitled to have the 
 appeal entered without lodging any deposit. In re Mutton, Ex parte 
 the Board of Trade, 4 Morrell, 115— D. 
 
 BOOK DEBTS. 
 
 An assignment of the book debts will carry the books, so that the 
 person entitled to the book debts under the deed is entitled to the books 
 of account ; and Eule 259 of the Banki-uptcy Eules, 1883 (see Eule 349, 
 Bankruptcy Eules, 1886), was intended to apply only to a case where a 
 person not entitled to the debts sets up some claim to the books. In re 
 White & Co., Ex parte the Official Receiver, 1 Morrell, 77 — Cave, J. 
 
 BOOKS. 
 
 Proper to be kept.] — In deciding as to the granting or refusing the 
 discharge of a bankrupt or the approval of a composition or scheme of 
 arrangement, the question whether the debtor has kept proper books is 
 one of primary importance. Li re Wallace, Ex parte Campbell, 2 Morrell, 
 167 ; L. E. 15 Q. B. D. 213 ; 54 L. J. Q. B. 382 ; 53 L. T. 208— C. A. 
 
 In deciding as to the granting or refusing the approval of the Court 
 
 to a composition or scheme of arrangement, the question whether the 
 debtor has kept proper books is one of primary importance ; and the 
 neglect of a trader to have books properly kept and balanced from time 
 to time, so that the real state of his affairs may at once appear, is a 
 serious offence. In re Reed, Boiven & Co., Ex parte Reed, Bowen d 
 Co., 3 Morrell, 90; L. E. 17 Q. B. D. 244; 55 L. J. Q. B. 244; 34 
 
 D 2 
 
36 DIGEST OF CASES DECIDED UNDER 
 
 W. K. 493 — C. A. And see also In re Heap, Ex parte the Board of 
 Trade, 4 Morrell, 314— D. 
 
 The bankrupt, who carried on business as a hatter, made certain 
 
 purchases of land and houses adjoining property belonging to himself for 
 the purpose of resale. The books in the hatter's business were properly 
 kept and balanced, but no proper books were kept with respect to the 
 land purchases through which the bankruptcy subsequently occurred. 
 On application for discharge the official receiver submitted that the bank- 
 rupt had brought himself within the provisions of section 28, sub-section 
 
 3 {a), of the Bankruptcy Act, 1883, in that he had " omitted to keep 
 such books of account as are usual and proper in the business carried on 
 by him, and as sufficiently disclose his business transactions and financial 
 position within the three years immediately preceding his bankruptcy." 
 
 Held : (1) That the bankrupt in making the purchases of land under 
 the circumstances was not carrying on a business, and did not fall within 
 the provisions of section 28, sub-section 3 (a), by omitting to keep books 
 of account. 
 
 (2) That such books as are usual and proper in the business carried 
 on are to be kept ; and if there are no books usually kept in a particular 
 trade, or if a bankrupt is not a trader, he does not fall within the section 
 by omitting to keep books. In re Mutton, Ex parte the Board of Trade, 
 
 4 Morrell, 180 ; L. E. 19 Q. B. D. 102 ; 56 L. J. Q, B. 395 ; 56 L. T. 
 802 ; 35 W. R. 561— C. A. 
 
 "Books of Accounts."'] — Letters, cheque-books and other general 
 documents are not " books of accounts " within the meaning of Eule 269 
 of the Bankruptcy Rules, 1883, which can be claimed by the trustee in 
 a bankruptcy, even though from such documents an account might be 
 made up. In re Winslow, Ex parte the Trustee, 3 Morrell, 60 ; L. E. 
 16 Q. B. D. 696 ; 55 L. J. Q. B. 238 ; 54 L. T. 306 ; 34 W. R. 534— 
 Cave, J. See Rule 349, Bankruptcy Rules, 1886. 
 
 Order to hand ouer.]— An application for an order to hand over books 
 and papers under section 118 of the Bankruptcy Act, 1883, which pro- 
 vides that every British Court having jurisdiction in bankruptcy or 
 insolvency shall be auxiliary to each other, ought to be made to the 
 Registrar and not to the Judge in Court. In re Firhank, Ex parte 
 Knight, 4 Morrell, 50— Cave, J. 
 
 CERTIFICATE. 
 
 To remove Disqualifications of Bankrupt.]— The words " misfortune 
 without any misconduct " in section 32, sub-section 2 (6), of the Bank- 
 ruptcy Act, 1883— which provides for the granting of a certificate for the 
 
THE BANKRUPTCY ACT, 1883. 37 
 
 removal of the disqualifications of a bankrupt — mean pure misfortune as 
 distinguished from and without misconduct, and the word " misconduct" 
 in that section is not to be interpreted with reference to section 28 of the 
 Act, or confined to the " conduct " therein specified. The bankrupt, 
 who was the editor of a newspaper, was indicted for a libel and sentenced 
 to three months' imprisonment and to pay the costs of the prosecution. 
 During the time he was in gaol all his property was sold under a bill of 
 sale given for the purposes of the defence, and he subsequently presented 
 his own petition. On appeal from a decision of the County Court Judge 
 refusing a certificate under section 32, sub-section 2 {b), of the Bank- 
 ruptcy Act, 1883. 
 
 Held : That the bankruptcy was caused by the libel, the sentence, and 
 the imprisonment ; that it was impossible to say that such bankruptcy 
 was caused by misfortune without any misconduct on the bankrupt's 
 part ; and that the refusal of the certificate was right. In re Burgess, 
 Ex parte Burgess, 4 Morrell, 186; 57 L. T. 200; 35 W. E. 702— D. 
 
 CHARGING ORDER. 
 
 A charging order upon shares, made under the statute 1 & 2 Vict. 
 c. 110, s. 14, does not fall within section 45 of the Bankruptcy Act, 
 1883, and the words in the said section, " an execution against the goods 
 of a debtor," which is to be completed by seizure and sale, do not include 
 such an order. In re Hutchinson, Ex parte Plowden d Co., 3 Morrell, 
 19 ; L. E. 16 Q. B. D. 515 ; 55 L. J. Q. B. 582 ; 54 L. T. 302 ; 34 
 W. E. 475— D. 
 
 "CHOSE IN ACTION." 
 
 Shares in a railway company are "things in action " within the mean- 
 ing of section 44, sub-section (iii.) of the Bankruptcy Act, 1883, so as 
 to be excepted from the doctrine of reputed ownership. Where a partner 
 in a stockbroking firm purchased shares in a railway company with 
 money of the firm, and subsequently deposited the share certificates with 
 the firm's bankers as security or cover for advances made by them to the 
 firm, and before notice of the deposit had been given to the railway 
 company, the firm, and also the members of it, were adjudicated 
 bankrupts. 
 
 Held : That the trustee in the bankruptcy was not entitled to such 
 shares as being in the reputed ownership of the bankrupts within section 
 44, sub-section (iii.) of the Bankruptcy Act. 
 
 Quare : "Whether the term " choses in action " does not now include 
 all personal chattels not in possession. 
 
38 DIGEST OP CASES DECIDED UKDER 
 
 The decision in GoJonial Bank v. Whinney (see 2 Morrell, 234) 
 reversed. Colonial Bank v. WMnney, 3 Morrell, 207 ; L. E. 11 App. 
 Cas. 426 ; 56 L. J. Ch. 43 ; 55 L. T. 362 ; 84 W. E. 705-H. L. 
 
 COMMERCIAL TRAVELLER. 
 
 Where a bankrupt was a commercial traveller at an annual^ salary of 
 lOOL, paid weekly, the engagement being terminable at a week's notice. 
 
 Held : That such bankrupt was in the receipt of a salary, within the 
 meaning of section 53, sub-section (2), of the Bankruptcy Act, 1883, out 
 of which the Court had power to direct payment of a certain sum by 
 monthly instalments to the trustee in the bankruptcy, for the purpose of 
 distribution amongst the creditors. In re Brindley, Ex parte Brindley, 
 4 Morrell, 104 ; 56 L. T. 498 ; 35 W. E. 596-D. 
 
 COMMITTAL. 
 
 Motion to Commit— Affidavit of Service.]— The motion to commit 
 should refer to the afEdavit of service. In re Pearce, Ex parte the 
 Board of Trade, 1 Morrell, 111— Cave, J. 
 
 Substituted Service.]— In order to obtain an order for substituted 
 service it must be shown that the person sought to be served knows of 
 the motion and intentionally keeps out of the way. In re Pearce, Ex 
 parte the Board of Trade, 1 Morrell, 135 — Cave, J. 
 
 AVhere a party desires to enforce by commitment in the High Court 
 
 a judgment of a competent Court, he need not file an affidavit in denial 
 of satisfaction. In re Stone, Ex parte Nicholson, 1 Morrell, 177 — 
 Cave, J. 
 
 Debtor retaining Possession of Premises.] — Where a debtor refused to 
 deliver up possession of the premises occupied by him at the request of 
 the trustee in bankruptcy, the Court made an order for his committal for 
 contempt. In re Cox, Ex parte the Trustee, 2 Morrell, 23 — Field, J. 
 
 Order to Pay by Instalments — " Means to Pay."] —For the purpose 
 of determining whether a judgment debtor has had the " means " to pay 
 the judgment debt, with the view of making an order for his committal 
 under section 5, sub-section (2) of the Debtors Act, 1869, money derived 
 from a gift may be taken into account. It is not necessary that the 
 "means to pay" should have been derived from the debtor's earnings or 
 from a fixed income. In re Park, Ex parte Koster, 2 Morrell, 35 ; L. E. 
 14 Q. B. D. 597 ; 54 L. J. Q. B. 389 ; 52 L. T. 946 ; 33 W. E. 606— 
 C. A. 
 
THE BANKRUPTCY ACT, 1883. S9 
 
 Married Women.] — A married woman cannot be committed to prison 
 under section 5 of the Debtors Act, 1869, for non-payment of a judgment 
 recoyered against her in an action brought under section 1, sub-section (2) 
 of the Married "Women's Property Act, 1882. In re Morley, Ex parte 
 Morlc.y, Scott v. Morley, 4 Morrell, 286 ; L. R. 20 Q. B. D. 120 ; 36 
 W. R. 67--C. A. 
 
 Receiving Order in Lieu of.]— The Court has jurisdiction to make a 
 receiving order, in lieu of a committal, against a judgment debtor, under 
 section 103, sub-section (5) of the Bankruptcy Act, 1883, only on the 
 application of a person who is strictly spealdng a "judgment creditor." 
 Such receiving order cannot be made, therefore, on the application of 
 every person who is entitled to apply to the Court under section 5 of the 
 Debtors Act, 1869. Where an order is made in the Divorce Court 
 directing the co-respondent to pay to the husband, the petitioner in the 
 suit, the amount given as damages forthwith for the purpose of settlement 
 on the children of the marriage, such husband is not a "judgment 
 creditor" of the co-respondent within the meaning of section 103, sub- 
 section (5), of the Bankruptcy Act. "Where a judgment debtor makes 
 default in payment of the judgment debt, the Court has power of 
 committal under section 5 of the Debtors Act, 1869, if proof is given 
 that such debtor has had the means of paying part of the said debt, even 
 though he has not had the means of paying the whole amount. In re 
 Fryer, Ex parte Fryer, 3 Morrell, 231 ; L. E. 17 Q. B. D. 718 ; 65 
 l/j. Q. B. 478 ; 55 L. T. 276 ; 34 "W. E. 766— C. A. 
 
 "Where the Judge of a County Court, not having jurisdiction in 
 
 banki-uptcy, at the hearing of a judgment summons for a committal, is 
 of opinion that a receiving order should be made in lieu of a committal, 
 and orders the matter to be transferred to the Bankruptcy Court under 
 Eule 268 (1) (a) of the Bankruptcy Eules, 1885, notice of the subsequent 
 proceedings under the order of transfer must be served on the judgment 
 debtor. The Court of Bankruptcy in such a case is not bound to adopt 
 the opinion of the County Court Judge, and to make a receiving order as 
 a matter of course, but must exercise its own judicial discretion at the 
 hearing. In re Andrews, Ex parte Andrews, 2 Morrell, 244 ; L. R. 15 
 Q. B. D. 335 ; 54 L. J, Q. B. 672— Cave, J. 
 
 On December 30th, 1886, judgment for 33L was recovered against 
 
 the debtor, and in January, 1887, a judgment summons was issued. On 
 February 11th, 1887, a receiving order in lieu of a committal was made 
 against the debtor under section 103, sub-section (5), of the Bankruptcy 
 Act, 1883. The debtor thereupon paid the debt, and the judgment 
 
40 DIGEST OF CASES DECIDED DNDEB 
 
 creditor consented to the receiving order being rescinded, but on appli- 
 cation being made for that purpose, the County Court Judge held that 
 the debtor had not shown that the consent of the creditors to such 
 rescission had been obtained, and he declined to make any order. 
 
 Held : That the debtor was entitled to have the matter referred to the 
 Registrar to report whether a majority of the creditors did assent or not. 
 
 Qu<2re : Whether, where a receiving order in lieu of a committal is 
 made, it is necessary that the consent of the creditors should be shown, 
 if the debtor pays the judgment creditor and appHes to rescind. In re 
 Hughes, Ex parte Hughes, 4 Morrell, 236 — D. 
 
 -The Judge of a County Court not having jurisdiction in bankruptcy 
 
 made an order of committal against the appellant upon a judgment 
 summons under section 5 of the Debtors Act, 1869. The judgment 
 summons having by mistake been marked with the words "In bank- 
 ruptcy," an appeal was brought to the Divisional Court. 
 
 Held : That no appeal could lie from the order complained of, at any 
 rate to the Divisional Court in Bankruptcy. 
 
 Qiicere : Whether any appeal lies from a committal in the County Court 
 under section 5. In re Watkins, Ex parte Watkins, 3 Morrell, 146 — D. 
 
 Compare also cases under titles Arrest — Attachment. 
 
 COMPANY. 
 
 A " balance order" in respect of calls made on a contributory in the 
 winding-up of a company, is not a " final judgment" within the meaning 
 of section 4, sub- section 1 (g), of the Bankruptcy Act, 1883, and a bank- 
 ruptcy notice cannot be issued in respect of such an order. In re 
 Tennant, Ex parte Grimicade, 3 Morrell, 166; L. E. 17 Q. B. D. 357 ; 
 55 L. J. Q. B. 495— C. A. 
 
 The power given by section 95 of the Companies Act to a liquidator 
 
 to bring or defend any action, suit, or prosecution, or other legal pro- 
 ceedings, civil or criminal, in the name and on behalf of the company, 
 includes the power to serve a bankruptcy notice upon a judgment debtor 
 of such company under section 4, sub-section 1 {g), of the Bankruptcy 
 Act, 1883. But the provisions of section 95 of the Companies Act must 
 be strictly complied with, and the proceedings in connection with serving 
 such bankruptcy notice must be taken " in the name and on b(half of the 
 company," and not by the liquidator in his own name. In re Winter- 
 bottom. Ex parte Winterhottom, 4 Morrell, 5 ; L. R. 18 Q. B. D. 446; 
 56 L. J. Q. B. 238 ; 56 L. T. 168— D. 
 
 On appeal from the rejection by the trustee in the banki-uptcy of a 
 
THE BANKEUPTCY ACT, 1883. 41 
 
 proof of dett carried in by the liquidator of a mutual assurance company 
 for the sum of 85L, the amount due from the bankrupts as contributors 
 in respect of calls, and also for the estimated sum of 1001. for further 
 calls which had accrued before the date of the receiving order, but had 
 not been then ascertained, the County Court Judge allowed the proof as 
 to the 851., and directed the proof as to the lOOL to stand over. On 
 July 30th, 1886, proof for the ascertained sum of 74L in substitution for 
 the lOOZ. was tendered, and was rejected by the trustee on the ground (1) 
 that the claim was made too late by reason of the fact that on July 9th, 
 1886, notice to declare a dividend had been inserted in the Gazette, by 
 which July 28th was specified as the last day for claims to be sent in ; 
 and (2) that the alleged claim had already been adjudicated upon by the 
 Court. 
 
 Held : That the notice in question did not prevent the creditor from 
 making the claim ; and that the proof in respect of the further calls was 
 not res judicata , and must be allowed. In re Shepherd cO Leech, Ex parte 
 Whitehaven Mutual Insurance Society, 4 Morrell, 180 — D. 
 
 COMPOSITION. 
 
 It is the intention of the Legislature that proposals for a composition or 
 scheme of arrangement shall only be entertained after a receiving order 
 has been made. In re Dixon & Wilson, Ex parte Dixon d- Wilson, 
 1 Morrell, 98 ; L. E. 13 Q. B. D. 118 ; 50 L. J. Ch. 769 ; 50 L. T. 414 ; 
 32W.R. 837— C. A. 
 
 The fact that before the presentation of a bankruptcy petition 
 
 against the debtor, a large number of the creditors have assented to a 
 deed of arrangement, is not a " suiEcient cause " within the meaning of 
 section 7, sub-section (3), of the Bankruptcy Act, 1883, for dismissing 
 such petition presented by a dissenting creditor, however beneficial to 
 the creditors the terms of such arrangement may be ; and, in con- 
 sequence, there is no jurisdiction to adjourn generally the hearing of 
 such petition with a view to its ultimate dismissal, if the arrangement 
 should be found to work well. The case of In re Dixon d Wilson, Ex 
 parte Dixon d- Wilson (see above), approved and explained to the effect 
 that the decision there did not depend upon the particular terms of the 
 arrangement, but upon the fact that such arrangement was made at the 
 time, and in the manner, and by the persons by whom it was made. 
 In re Watson & Smith, Ex parte Oram, 2 Morrell, 199 ; L. R. 15 Q. 
 B. D. 899 ; 62 L. T. 785 ; 33 W. E. 890-C. A. 
 
 Approval — Discretion of Registrar.] — Where the creditors of a bank- 
 rupt after adjudication by special resolution resolve under section 23 of 
 
42 DIGEST OF CASES DECIDED UNDER 
 
 the Bankruptcy Act, 1883, to entertain a proposal for a composition or 
 scheme of arrangement of the banki-upt's affairs, such special resolution 
 must be confirmed at a second meeting of the creditors in the same 
 manner as a special resolution under section 18 of the Act, resolving 
 before adjudication to entertain a like proposal. Where apphcation is 
 made to the Court for approval of a composition or scheme the Eegistrar 
 must exercise a judicial discretion on the whole case, and the Court of 
 Appeal will not disapprove of his decision except on the clearest ground. 
 The Eegistrar ought to look both at the interests of the creditors and the 
 conduct of the debtor, and so far as the effects of the approval of the 
 composition or scheme will be to release the debtor from liability, his 
 conduct ought to be carefully examined : but regard must also be had 
 for the interests of the creditors, and if the composition or scheme is 
 clearly the best thing for the creditors, the Registrar ought to have due 
 regard for that fact. The Eegistrar must look closely into all the cir- 
 cumstances and exercise his discretion thereon. In re Genese, Ex parte 
 Kearsley £ Co., 3 Morrell, 274 ; L. E. 18 Q. B. D. 168 ; 56 L. J. Q. B. 
 220; 56 L. T. 79— C. A. 
 
 Approval — Court Fees.] — The proposal put forward by a debtor 
 provided that all the property of such debtor divisible among his 
 creditors should vest in a trustee, and, subject to the provisions of the 
 scheme, be administered according to the law of bankruptcy : that, in 
 addition, the sum of lOOL a year out of a pension of 297Z. belonging to 
 the debtor should be paid to the trustee under the scheme until, with the 
 rest of the debtor's property, all the costs relating to the bankruptcy 
 should have been paid, and the creditors should have received 15s. in the 
 pound upon the amount of their debts : that after payment of 15s. in 
 the pound to the creditors upon their debts and of all the costs, charges, 
 and expenses, the trustee should hand over to the debtor the surplus of 
 the estate : and that as from the date of the confirmation of the scheme 
 by the Court the debtor should be released and discharged from all debts 
 provable under the banki-uptcy. On the debtor applying to the Court 
 for its approval, the Eegistrar was in doubt whether such proposal 
 required to be stamped as a composition or a scheme of arrangement, 
 and the question was referred to the Judge for decision. 
 
 Held : That the arrangement in question had more of the elements of 
 a scheme than of a composition : and that the fee must be paid on the 
 estimated value of the 100?. a year as an asset. In re Griffith, 3 Morrell, 
 111— Cave, J. 
 
 Approval— Business carried on hy Official Receiver.]— "Where, before 
 a composition is approved by the Court, the business of the debtor is 
 
THE BANKRUPTCY ACT, 1883. 43 
 
 carried on by the official receiver, wlio makes payments out of his own 
 pocket, and incurs personal liability for the purpose of carrying on such 
 business, the proper order for the Court to make on approving the 
 composition is, that the official receiver shall forthwith deliver up posses- 
 sion of the debtor's estate to the trustee under the composition, and that 
 such trustee shall pay to the official receiver what may be found due to 
 him out of the first assets which come into his hands. In re Taylor, 
 Ex parte the Board of Trade, 1 Morrell, 264; 51 L. T. 711— D. 
 
 Approval — Discretion — Rash and Hazardous Speculations.] — ^A Court 
 to whom application is made to approve a composition accepted by the 
 creditors of a debtor under section 18 of the Bankruptcy Act, 1883, must 
 exercise its own discretion in determining whether such composition is 
 reasonable and calculated to benefit the general body of creditors, and if 
 such Court is not satisfied with all the circumstances attending the 
 debtor's conduct and the acceptance of the composition, it is its duty to 
 refuse its approval. In a case where a debtor within the space of about 
 eighteen months had allowed a debt due to him from a person whom he 
 knew to be in pecuniary difficulties to increase from 32,000L to more 
 than 60,000Z., and it appeared that to the amount of 11,OOOZ. this 
 increase was due to accommodation bills, and such debtor subsequently 
 stopped payment and presented a bankruptcy petition, and a composition 
 was accepted by the creditors. 
 
 Held : That the debtor had been guilty of rash and hazardous specu- 
 lations, and that, even if the composition were reasonable, the Court 
 ought to refuse its approval. In re Rogers, Ex parte Rogers, 1 Morrell, 
 159 ; L. E. 13 Q. B. D. 438 ; 33 W. K. 354— D. 
 
 In a case where a debtor, as the managing director of a mining 
 
 company, the mines being undeveloped, advanced both his own and 
 borrowed money to the company, which subsequently became insolvent, 
 and a petition in bankruptcy was presented against the debtor, and a 
 composition accepted by his creditors. 
 
 Held : That the debtor had been guilty of rash and hazardous specu- 
 lations ; and that the Eegistrar was quite right in refusing to approve 
 the composition offered. In re Young, Ex parte Young, 2 Morrell, 37 
 — C. A. 
 
 The term " rash and hazardous speculations " in section 28, sub- 
 section 3 (d), of the Bankruptcy Act, 1883, is not confined to rash and 
 hazardous speculations in trade, but the term also includes other specu- 
 lations of a rash and hazardous nature, such as gambling, betting, and 
 Stock Exchange transactions. On the question of granting or refusing 
 
44 DIGEST OF CASES DECIDED UNDER 
 
 the approval of the Court to a composition or scheme of arrangement the 
 Eegistrar must not take a one-sided view, but look at all the circum- 
 stances. He must consider, on the one side, the conduct of the debtor, 
 and on the other, the interests of the creditors, and he must exercise his 
 discretion both in regard to his duty to the public on the one hand and 
 his duty to the creditors on the other. The Eegistrar must consider all 
 the cu'cumstances and exercise his discretion thereon. In re Barlow, 
 Ex parte Thornher, 3 Morrell, 304— C. A. 
 
 Report of Official Receiver. — On a contention raised that although for 
 the purposes of the discharge of a banki-upt under section 28 of the Bank- 
 ruptcy Act, 1883, the report of the official receiver is prima facie evidence 
 of the truth of the statements therein contained, nevertheless for the pur- 
 poses of the approval of a composition or scheme under section 18, sub- 
 section (6), of the Act, such report is not made ^rm^/acie evidence, and 
 that the Registrar ought not to refuse to approve a composition without 
 having the facts mentioned in section 28, sub-section (3), proved by 
 other evidence. 
 
 Held: That the report of the official receiver is prima facie evidence 
 for the purposes of section 18, sub-section (6), and that the proof of the 
 facts referred to in section 28, sub-section (3), which is sufficient in the 
 case of the discharge of a bankrupt under that section, would also be 
 sufficient proof in the case of the appoval of the composition or scheme 
 under section 18, sub-section (6). 
 
 Per Beett, M. R.— That in deciding as to the granting or refusing 
 the discharge of a banki-upt or the approval of a composition or scheme 
 of arrangement, the question whether the debtor has kept proper books 
 is one of primary importance. 
 
 That it is no ground to set aside the decision of the Registrar refusing 
 to approve a composition because a large majority of the creditors of a 
 debtor are desirous of accepting it, but that the object of the Bankruptcy 
 Act, 1883, being to prevent reckless debtors from escaping the conse- 
 quences of their conduct by the payment of a nominal dividend, it is the 
 duty of the Court to protect such creditors from themselves. In re 
 Wallace, Ex parte Campbell, 2 Morrell, 167 ; L. R. 15 Q. B. D. 213 ; 
 54 L. J. Q. B. 382 ; 53 L. T. 208— C. A. 
 
 -Where on application to the Court to approve a composition the official 
 
 receiver reported that he had a sufficient sum in his hands for payment 
 thereof, such report being founded on the estimate given by the debtor 
 m his statement of affairs, which subsequently proved to be wrong, and 
 an order was in consequence asked for against the official receiver per- 
 sonally to make i;p the required sum. 
 
THE BANKRUPTCY ACT, 1883. 45 
 
 Held : That the applicants were not entitled to an order against the 
 official receiver personally. 
 
 That if a debtor thus forms a wrong estimate of his position, unless the 
 amount found to be necessary to pay the composition agreed upon is 
 procured, the proper order for the Court to make is one adjudging such 
 debtor bankrupt and annulling the composition under section 18, sub- 
 section (11), of the Bankruptcy Act, 1883. In re Webster, Ex parte 
 Foster & Co., 3 Morrell, 132— Cave, J. 
 
 Composition Deed. — Where a debtor against whom no proceedings in 
 bankruptcy had been taken entered into an arrangement with his creditors 
 by which he agreed to pay 10s. in the pound within six years to any 
 creditors signing the deed of arrangement and the creditors covenanted 
 by the said deed not to sue the debtor, or to enforce any judgment already 
 obtained, and to forego all their claims on him if the provisions of the 
 deed were carried out : which deed was signed by a creditor who had pre- 
 viously obtained a final judgment against the debtor : and after such 
 creditor had signed three other creditors signed the deed, who it was 
 subsequently discovered had received from the debtor's brother, with the 
 knowledge of the debtor, certain other payments over and above the 10s. 
 in the pound secured by the deed. 
 
 Held : That the principle laid down in the case otDauglish v. Tennant, 
 (L. E. 2 Q. B. 49) applies to all composition deeds whether under a 
 statute or not : that it is an implied condition in all such deeds that all 
 the creditors shall come into the arrangement on perfectly equal terms : 
 and that the order of the Registrar refusing to set aside a bankruptcy 
 notice served upon the debtor by the creditor who had obtained a final 
 judgment was a right order, such creditor being no longer bound by the 
 deed. In re Milner, Ex parte Milner, 2 Morrell, 190 ; L. R, 15 
 Q. B. D. 605 ; 54 L. J. Q. B. 425 ; 33 W. R. 867— C. A. 
 
 Power of Court to enforce.] — The Court has the same power to enforce 
 the payment of a composition accepted after bankruptcy adjudication 
 under section 23 of the Bankruptcy Act, 1883, as it has to enforce the 
 payment of a composition entered into before adjudication under sec- 
 tion 18 of the Act. In re Lazarus, Ex parte Godfrey, 4 Morrell, L. R. 
 121 ; L. R. 18 Q..B. D. 670 ; 56 L. J. Q. B. 369 ; 35 W. R. 533— C. A. 
 
 See also cases under title Scheme of Arrangement. 
 
 COMPROMISE. 
 
 By Official Eeceiver.] — A debtor on May 6th presented his own 
 petition upon which a receiving order was made ; and on May 7th the 
 official receiver took possession of the debtor's property. On June 30th 
 
46 DIGEST OF CASES DECIDED UNDER 
 
 a compromise was entered into between the official receiver and two 
 holders of bills of sale over the property of the debtor. On July 9th the 
 debtor was adjudicated banki-upt ; and on July 23rd the certificate of 
 approval of the trustee in the bankruptcy was granted by the Board of 
 Trade. The trustee subsequently applied to the Court to set aside the 
 compromise. 
 
 Held : That on its appearing that the official receiver had the 
 permission of the Board of Trade to make this compromise, the applica- 
 tion of the trustee must be refused. In re Johnstone, Ex parte Singleton, 
 2 Morrell, 206— D. 
 
 By Trustee.] — The father of a bankrupt carried in two separate proofs 
 against the estate for 3000L, which were respectively rejected by the 
 trustee to the extent of 2000Z., and on the application of another 
 creditor were subsequently expunged in the County Court. The creditor 
 appealed ; but while the appeals were pending, a compromise was entered 
 into, according to the terms of which it was agreed that the claim of 
 the creditor should be reduced to the sum of 1380L, and that all costs 
 should be paid by the trustee. On application to the County Court 
 Judge for an order for taxation in accordance with the terms of this 
 compromise, it was refused. 
 
 Held (on appeal) : That the proper course was to come to the Court 
 for its consent to the arrangement ; and that the refusal of the County 
 Court Judge to grant an order for taxation under the circumstances 
 was right. In re Green, Ex parte Edmunds, 2 Morrell, 294 ; 53 L. T. 
 967— D. 
 
 "CONDUCT" OF BANKRUPT. 
 
 On apphcation by a banki-upt for his discharge, under section 28 of the 
 Bankruptcy Act, 1883, the Court has no jurisdiction to take into con- 
 sideration as "conduct," a refusal on the part of such bankrupt to 
 submit to a medical examination, with a view to life insurance, for the 
 purpose of enabling the trustee in the banki'uptcy to realise to better 
 advantage a contingent reversionary interest of the said bankrupt in 
 certain property. 
 
 The word " conduct," in section 28, does not include general mis- 
 conduct, but if not covered by any of the specific instances mentioned in 
 that section, it must be regarded with reference to section 24 of the Act, 
 which defines the duties of the debtor as to the reahsation and dis- 
 tribution of his property. In re Betts d Block, Ex parte the Board of 
 Trade, 4 Morrell, 170; L. E. 19 Q. B. D. 39 ; 56 L. J. Q. B. 370; 
 56 L. T. 804 ; 35 W. E. 530— C. A. 
 
 The words " misfortune, without any misconduct," in section 32, 
 
THE BANKRUPTCY ACT, 1SS3. 47 
 
 Bub-section 2 (b), of the Bankruptcy Act, 1883 — whicli provides for the 
 granting of a certificate for the removal of the disqualifications of a 
 bankrupt — mean pure misfortune as distinguished from and without 
 misconduct; and the word "misconduct" in that section is not to be 
 interpreted with reference to section 28 of the Act, or confined to the 
 "conduct" therein specified. Li re Burgess, Ex parte Burgess, 
 4 Morrell, 186 ; 57 L. T. 200 ; 35 W. R. 702— D. 
 
 COSTS. 
 
 Of Trustee.] — A trustee in banki-uptcy who is served with notice of an 
 appeal, and who appears and only asks for his costs, will not be allowed his 
 costs of appearance. In re Arden, Ex parte Arden, 2 Morrell, 1 ; L. E. 
 14 Q. B. D. 121 ; 51 L. T. 712; 38 "W. R. 460— D. 
 
 The provisions of Rules 78 to 81 of the Banla'uptcy Rules, 1870 
 
 {compare Xos. 65 to 69 of the Bankruptcy Rules, 1883), were not 
 intended to fetter the Court in cases where an application has been 
 made to the Court by a mortgagee of property of the bankrupt for 
 a sale of such property as provided by the rules, so as (1) to compel the 
 Court to give the conduct of such sale to the trustee in the bankruptcy : 
 or (2) to compel the Court to give the trustee a first charge on the 
 proceeds of the sale for his costs and expenses in cases where the conduct 
 of the sale has been taken away from him. In re Jordan, Ex parte 
 Lloyd's Banking Co., 1 Morrell, 41 ; L. R. 13 Q. B. D. 228 ; 53 L. J. 
 Q. B. 554; 50 L. T. 594; 33 W. R. 153— Cave, J. 
 
 Against Trustee personally.] — Where, in a case of any legal difficulty, 
 a trustee in a bankruptcy has obtained the decision of the Court, if such 
 trustee appeals from the decision given and does not succeed, the order 
 for costs will be made against him personally. A trustee, therefore, 
 before appealing from such decision ought to obtain the consent of the 
 creditors to do so, and also to obtain a guarantee from such creditors for 
 his own protection in the event of the appeal being decided against him. 
 In re Maiden, Gibson & Co., Ex parte James, 3 Morrell, 185 ; 55 L. T. 
 708— D. 
 
 Although by section 89, sub-section (1), of the Bankruptcy Act, 
 
 1883, a trustee shall, in the administration of the property of the 
 bankrupt and in the distribution thereof amongst his creditors, have 
 regard to any directions which may be given by the committee of inspec- 
 tion ; nevertheless, if such trustee unreasonably and vexatiously rejects a 
 proof of debt, the Court will order him to pay personally the costs 
 occasioned by such rejection, even though in so doing he acted under the 
 
48 DIGEST OF CASES DECIDED UNDER 
 
 directions of the committee. "Where the view taken by a committee of 
 inspection upon any question is frivolous and wasteful of the assets, the 
 trustee is not justified in acting upon it, and cannot set up the directions 
 of such committee as a defence against a personal order upon him to pay 
 costs. In re Smith, Ex parte Brown, 3 Morrell, 202 ; L. E. 17 Q. B. D. 
 488— C. A. 
 
 Where notice had been served on the trustee requiring him to decide 
 
 whether he would disclaim or not within twenty-eight days in accordance 
 with the terms of section 55, sub-section 4, of the Bankruptcy Act, 1883, 
 and the trustee did not within that time signify his intention as required, 
 leave to disclaim given only on condition of payment of a month's rent to 
 the landlord, such rent, together with the costs of the landlord, to be paid 
 by the trustee personally. In re Page, Ex parte the Trustee, 1 Morrell, 
 287 ; L. E. 14 Q. B. D. 401 ; 33 W. E. 825— Cave, J. 
 
 An interlocutory order for an injunction and receiver having been 
 
 made against the defendants in an action, they gave notice of appeal, and 
 shortly afterwards became bankrupt. An order was made for carrying 
 on the proceedings against their trustee. The trustee gave notice to the 
 plaintiff that he should not proceed with the appeal. Shortly after this 
 the trustee entered an appearance and called for a statement of claim. 
 He declined to undertake to pay the costs of the appeal incurred by the 
 plaintiff before the notice that the appeal would not be proceeded with, 
 and the appeal came on that the question as to the costs might be 
 decided. 
 
 Held : That the appeal must be dismissed with costs to be paid by 
 the trustee, for that having adopted the defence of the bankrupts he had 
 placed himself in their position as to the whole of the action, and could 
 not reject part of the proceedings in it. Borneman v. Wilson, L. E. 28 
 Ch. D. 53 ; 54 L. J. Ch. 631 ; 51 L. T. 728 ; 33 W. E. 141— C. A. 
 
 Of Trustee under Deed of Assignment.] — ^Where a deed of assignment 
 of the whole of their property executed by the debtors for the benefit of 
 their creditors generally contained a provision for the payment out of 
 the assets in the first instance of the costs and expenses of the trustee 
 under the said deed of assignment, such trustee was not entitled (on the 
 debtors being adjudged bankrupt upon a petition founded on the deed as 
 an act of bankruptcy) to retain as against the trustee in the bankruptcy 
 assets in his hands, on the ground that a sum exceeding the said assets 
 was due to him for work and labour done. In re J. and H. Richards, 
 Ex parte the Official Receiver, 1 Morrell, 242 ; 32 W. E. 1001— 
 Wills, J. 
 
THE BANKRUPTCY ACT, 1883. 49 
 
 Of Official Receiver.] — An official receiver ought not to appear at the 
 hearing of an appeal from a receiving order unless it is necessary for 
 him to do so for the purpose of bringing some special circumstance to 
 the notice of the Court ; and this special circumstance the Court will 
 take into consideration when the costs are applied for. In re Dixon Jj 
 Wilson, Ex parte Dixon cO Wilson, 1 Morrell, 98 ; L. K. 13 Q. B. D. 
 118 ; 53 L. J. Ch. 769 ; 50 L. T. 414 ; 32 W. E. 837— C. A. 
 
 ^When the official receiver has made his report upon a composition 
 
 or scheme of arrangement his duty is complete, and, except under very 
 particular circumstances, he should not appear on an appeal : if the 
 appearance of the official receiver is essential, the Court will allow the 
 appeal to stand over for that purpose : and unless his appearance is 
 requisite no costs will be allowed to him. In re Reed, Bowen d- Co., 
 Ex parte Reed, Bourn d Co., 3 Morrell, 90 ; L. E. 17 Q. B. D. 244 ; 
 55 L. J. Q. B. 244 ; 34 W. E. 493— C. A. 
 
 The official receiver will not be allowed his costs of appeal, even if 
 
 he was served with notice of appeal, unless his appearance was necessary. 
 In re ]Vhite, Winter d- Co., Ex parte White, Winter d Co., 2 Morrell, 
 42 ; L. E. 14 Q. B. D. 600 -C. A. 
 
 The official receiver acting as trustee of an estate being administered 
 
 in a summary manner under section 121 of the Bankruptcy Act, 1883, 
 on an unsuccessful motion by him was ordered personally to pay the 
 costs of the respondent, with liberty to take the costs out of the estate, 
 if any. In re Glanville, Ex parte the Trustee, 2 Morrell, 71 ; 33 W. E. 
 523 — Cave, J. ; and compare In re Thomas, Ex parte Ystradfodwg 
 Local Board, 4 Morrell, 295 — Cave, J. 
 
 The effect of section 116, sub-section (2), of the Banki-uptcy Act, 
 
 1883, which provides that no official receiver " shall, during his con- 
 tinuance in office, either directly or indirectly, by himself, his clerk, or 
 partner, act as solicitor in any proceeding in bankruptcy," is not limited 
 to cases of the official receiver acting as solicitor by himself, his clerk or 
 partner, for another person, or on an application for the benefit of the 
 estate, but extends also to cases where the official receiver is acting as 
 solicitor for himself and conducting a case on his own behalf. In re 
 Taylor, Ex parte the Official Receiver, 2 Morrell, 127 — D. 
 
 An order made by a county court, on the application of the official 
 
 receiver, setting aside a payment made by a debtor as a fraudulent 
 preference having been reversed on appeal, 
 
 Held : That the costs of the appellants and of the official receiver in 
 M.D. E 
 
50 DIGEST OP CASES DECIDED UNDER 
 
 both courts must be paid out of the debtor's assets, the costs of the 
 appellants having priority. In re Dale, Ex parte Leicestershire Banking 
 Co., L. R. 14 Q. B. D. 48 ; 33 W. E. 354— D. 
 
 In June, 1886, the debtor executed an assignnient for the benefit of 
 
 his creditors, under which the applicant was employed to prepare a state- 
 ment of affairs, and it appearing that the landlord was threatening a 
 distress for rent, the applicant upon the instructions of the creditors paid 
 the amount due. In July, 1886, a receiving order was made against the 
 debtor, and repayment of the amount so paid by the applicant for the 
 benefit of the creditors was refused by the official receiver without an 
 order of the Court. 
 
 Held : (1) That under the circumstances and looking to the fact that 
 a request signed by a majority in number and value of the creditors had 
 been presented to the official receiver stating their willingness that 
 repayment should be allowed, the Court would make the order. 
 
 (2) But that the official receiver would be entitled to retain his costs 
 of the hearing out of the amount and hand over the balance to the 
 applicant. In re Aysliford, Ex parte Lorering, 4 Morrell, 164 ; 35 W. R. 
 652— Cave, J. 
 
 Of Solicitor.] — Where, after the presentation of the bankruptcy 
 petition, proceedings are carried on by a debtor, from which the official 
 receiver comes to a clear conclusion that substantial advantage has 
 accrued to the debtor's estate, such ought to be looked upon in the light 
 of salvage, and the costs attendant upon- the proceedings in question 
 should be allowed out of the estate. In re F. H. Johnstone, Ex parte 
 Angier, 1 Morrell, 213 ; 32 W. E. 1001— Cave, J. 
 
 An application by the Board of Trade for a review of taxation of the 
 
 costs of a solicitor under Rule 104 of the Bankruptcy Rules, 1883, can 
 only be made for the benefit of the estate ; and where there is no estate 
 and no trustee such rule will not apply. In re Rodivay, Ex parte 
 Phillips, 1 Morrell, 228— Wills, J. See Rule 124 ; and compare Rule 
 209, Bankruptcy Rules, 1886. 
 
 Where an agreement entered into by a solicitor to conduct certain 
 
 bankruptcy proceedings on the terms that his costs should not exceed 
 lOL had been declared void by the County Court Judge on the appli- 
 cation of such solicitor, and an appeal from this decision having been 
 brought to the Divisional Court in Bankruptcy, the preliminary objection 
 was taken that the Court, sitting as a Court of Appeal in bankruptcy 
 matters only, had no jurisdiction to deal with the question at all. 
 Held : That the Court had jurisdiction to hear the appeal. 
 
THE BANKRUPTCY ACT, 1883, 51 
 
 That the fact that the agreement did not contain a provision that 
 
 the solicitor so employed might continue the bankruptcy proceedings to 
 the end, did not make such agreement unfair or unreasonable, and that 
 the order of the County Court Judge setting aside such agreement mus* 
 be reversed. In re Owen, Ex parte Peyton, 2 Morrell, 87 ; 52 L. T. 
 628— D. 
 
 On the presentation of a banla-uptcy petition against a debtor and 
 
 an order for the appointment of an interim receiver having been made, 
 such debtor instructed his solicitor to oppose the petition, and to move 
 to rescind the interim order, and then paid to such solicitor at his request 
 251. on account of costs of counsel's fees and other expenses for that 
 purpose. The application to rescind the interim order was dismissed^ 
 and the debtor was subsequently adjudicated bankrupt. The trustee in 
 the bankruptcy thereupon claimed the 251. from the solicitor as money 
 received by him from the debtor with knowledge of the act of bankruptcy 
 on which the receiving order was made. 
 
 Held : That the application of the trustee must be refused ; that it 
 was right that a debtor should have legal assistance and advice against 
 a bankruptcy petition ; and that a debtor would be practically defenceless 
 if money paid to a solicitor for services rendered on such an occasion 
 could afterwards be recovered by the trustee. In re Sinclair, Ex parte 
 Payne, 2 Morrell, 255; L. E. 15 Q. B. D. 616; 53 L. T. 767— 
 Cave, J. 
 
 ^Where in an ordinary taxation of the costs of the solicitor to the 
 
 trustee in the bankruptcy, the amount of the solicitor's bill is reduced by 
 more than one-sixth, there is no rule in the Court of Bankruptcy that 
 such solicitor shall pay the costs of the taxation. The provisions of the 
 Attorneys and Solicitors Act (6 & 7 Yict. c. 73) do not apply in an 
 ordinary reference to tax such costs, but the taxation is regulated by the 
 practice of the Court of Bankruptcy. In re Marsh, Ex parte Marsh, 
 2 MorreU, 232 ; L. K. 15 Q. B. D. 340; 54 L. J. Q. B. 557 ; 53 L. T. 
 418— C. A. 
 
 The father of a bankrupt carried in two separate proofs against the 
 estate for 3,000Z., which were respectively rejected by the trustee to the 
 extent of 2,000L, and on the application of another creditor were subse- 
 quently expunged in the County Court. The creditor appealed, but 
 while the appeals were pending, a compromise was entered into according 
 to the terms of which it was agreed that the claim of the creditor should 
 be reduced to the sum of 1,380Z., and that all costs should be paid by 
 the trustee. On application to the County Court Judge for an order 
 
 E 2 
 
5-2 DIGEST OF CASES DECIDED UNDER 
 
 for taxation in accordance with the terms of this compromise, it was 
 refused. 
 
 Held (on appeal) : That the proper course was to come to the Court 
 for its consent to the arrangement ; and that the refusal of the County 
 Court Judge to grant an order for taxation under the circumstances was 
 right. In re Green, Ex parte Edmunds, 2 Morrell, 294 ; 53 L. T. 
 967— D. 
 
 -On August 20th, 1885, in accordance with a resolution passed at a 
 
 meeting of creditors, the debtor executed a deed of assignment vesting 
 his estate in a trustee for their benefit. On October 28th, 1885, a 
 bankruptcy petition was presented against the debtor, the act of bank- 
 ruptcy alleged being the execution of the deed of assignment. On 
 October 31st, 1885, the trustee under the deed paid out of assets in his 
 hands the sum of 201. Is. 8d. to a firm of solicitors, being the amount of 
 their bill of costs incurred in connection with the meeting of creditors 
 and in preparing the deed of assignment, and also in collecting certain 
 book debts. On January 20th, 1886, a receiYing order was made against 
 the debtor, and the trustee under the deed sent to the official receiver 
 the balance of assets in his hands after deducting the amount so paid to 
 the solicitors together with an account of receipts and payments in 
 connection with the estate. The trustee appointed in the bankruptcy 
 applied for an order for payment of the 20L 7s. 8d. 
 
 Held : That the application must be granted ; but that certain items 
 for collecting book debts amounting together to 2L would, under the 
 circumstances, be allowed, and an order made for payment of 18L 7s. 8d. 
 In re Forster, Ex parte Rawlings, 4 Morrell, 292 ; 36 W. R. 144— 
 Cave, J. 
 
 As hetiveen Solicitor and Client.'] — The Court by three orders gave 
 
 costs as " between party and party." Subsequently an application was 
 made that such costs might be " as between solicitor and client; " which 
 application was refused. 
 
 Held (on appeal) : That the application ought to have been made to 
 the Court at the time when the costs were awarded ; and that the words 
 of Rule 98 of the Bankruptcy Rules, 1888 — "the Court in awarding costs" 
 — mean at the time when the Court makes the order. In re Angell, Ex 
 parte Shoolbred, 2 Morrell, 5 ; L. R. 14 Q. B. D. 298 ; 54 L. J. Q. B. 
 87 ; 51 L. T. 678 ; 33 W. R. 202-C. A. 
 
 ^Where a form of order by consent in a motion contained an agree- 
 ment by one of the parties— the trustee in the bankruptcy — to pay the 
 costs of the other " as between solicitor and client," 
 
THE BANKRUPTCY ACT, 1883. 53 
 
 Held : That such a form of order could not be approved by the Court. 
 In re Guy, Exparte Scantlebury, 4 Morrell, 300— Cave, J. 
 
 Of Amendment.] — At the hearing of a bankruptcy petition the objection 
 was raised on behalf of the debtor that the petitioning creditor was a 
 mere trustee for his father, and the registrar after hearing the evidence 
 having come to that conclusion, the petition was dismissed without leave 
 to amend. 
 
 Reld (on appeal) : That although the registrar was justified on the 
 case before him in coming to the conclusion to which he did, yet as a 
 matter of indulgence leave to amend the petition by joining the father 
 would be granted. 
 
 But such leave must be subject to the condition that all costs thrown 
 away by his not being joined should be paid by the father within one 
 month, including the costs of the appeal. In re Ellis, Ex parte 
 Hinshelwood, 4 Morrell, 283— C. A. 
 
 Of Applicant.l — The bankrupts were stockbrokers who had been 
 employed by the applicant to buy certain specific shares for him and had 
 received payment for the same. These shares with others were deposited 
 by the bankrupts with B. & Co., as security for an advance. When the 
 banki-uptcy became known B. & Co. sold the shares, reimbursed them- 
 selves, and handed over the balance to the trustee. Upon the applicant 
 sending iu a claim for the balance another claimant retired. 
 
 Held : That the money might be paid over to the applicant on the 
 terms that his solicitor would give a personal undertaking to repay so 
 much as the Court might order at any time within three years. 
 
 That the costs of the applicant must be borne by him, since it would 
 be unjust that the expense of enforcing his claim should be borne 
 by the general body of the creditors. In re Blakeway, Ex parte Rankart, 
 52 L. T. 630— Cave, J. 
 
 Where an application was made by the son and daughter of a bankrupt 
 for an order to restrain the trustee in the bankruptcy from selling and 
 for delivery to the applicants of certain goods which they claimed as 
 belonging to them as a gift from their father, and such application was 
 dismissed, 
 
 Held : That although there was not the slightest doubt but that the 
 claim of the applicants was made in the utmost good faith and it was 
 impossible not to feel sympathy with them, yet the general rule as to 
 costs could not be departed from, and the application must be refused 
 with costs. In re Eidgway, Ex parte Ridgivays, 2 Morrell, 248 — 
 Cave, J. 
 
54 DIGEST OF CASES DECIDED UNDER 
 
 Of former Applications Unpaid.'] — Although it is no good reason for 
 dismissing an application made in one matter, that costs ordered to be 
 paid in a previous application in another matter substantially different 
 have not been paid ; yet the Court will not be bound to hear a subsequent 
 application made to it unless the costs of a previous application in the 
 same matter, which have been ordered to be paid by the applicant, have 
 been settled. In re Grepe, Ex parte Grepe, 2 Morrell, 298 — Cave, J. 
 
 Of Execution.] — The meaning to be attached to the words " costs of 
 the execution " in sub-section 1 of section 46 of the Banki-uptcy Act, 
 1888, is different to the meaning to be attached to the same words in 
 sub-section 2 of the same section. Under the words " costs of the 
 execution" in sub-section 1 the sheriff is not entitled to "poundage." 
 In re W. cC- J. Ludford, 1 Morrell 131 ; L. K. 13 Q. B. D. 415 ; 53 L. 
 J. Q. B. 418; 51 L. T. 240; 33 W. E. 152— Cave, J. 
 
 Of PitUic Examination.] — The words, " any proceeding in Court " in 
 section 105, sub-section 1, of the Bankruptcy Act, 1883, do not include a 
 second meeting of the creditors under a bankruptcy petition, summoned 
 for the purpose of confirming a scheme of arrangement of the debtor's 
 affairs accepted at the first meeting. The Court has in consequence no 
 power to order the costs of the petitioner incidental to such second 
 meeting to be paid out of the debtor's estate. But the words do include 
 the public examination of the debtor, and the Court has power to order 
 costs incidental to such public examination to be paid out of the estate. 
 In re Strand, Ex parte The Board of Trade and The Official Receiver, 
 1 Morrell, 196 ; L. R. 13 Q. B. D. 492 ; 53 L. J. Q. B. 563— D. 
 
 Of Shorthand Writer's Wotes.] — As a general rule the application to 
 allow the costs of shorthand writer's notes of evidence as the costs of a 
 successful appellant should be made at the hearing, but the mere omission 
 to make the application then does not prevent its being made subse- 
 quently. Semble, if the application is made on a subsequent day, and 
 is successful, the Court ought to make the applicant pay the costs of the 
 application, as they were caused by his own omission. Where the short- 
 hand writer is appointed at the instance of one party, he cannot recover 
 the costs of the notes unless under special circumstances. Where 
 the appointment is made by both parties, the costs should be paid by the 
 unsuccessful party. In re Day, Ex parte Steed, 1 Morrell, 251 ; 33 
 W. R. 80— Cave, J. 
 
 It is the invariable practice of the Bankruptcy Court to refuse the costs 
 of shorthand writer's notes unless the application is made at the 
 
THE BANKRUPTCY ACT, 1883. 55 
 
 commencement of the case. In re Gillespie, Ex parte Reid, 33 W. E. 
 707— Cave, J. See " Eegulations," March 25th, 1885, Rule 9. 
 
 Against Undischarged Bankrupt.] — The Com-t has power to give costs 
 against an undischarged bankrupt, and in a case in which it thinks right 
 it will exercise that power. In re Payne, Ex parte Castle Mail Packet 
 Company, 3 Morrell, 270 ; L. E. 18 Q. B. D. 154 ; 35 W. E, 82— C. A. 
 
 Effect of Receiving Order.] — That a receiving order in bankruptcy has 
 been made against a plaintiff is no ground for requiring him to give 
 security for costs. Rhodes v. Dawson, L. E. 16 Q. B. D. 548 ; 55 L. J. 
 Q. B. 134; 34 W. E. 340— C. A. 
 
 When Appeal out of Time.] — As a matter of courtesy, the solicitor of 
 a respondent, if he is aware of a preliminary objection to an appeal, ought 
 as early as possible to give notice to his opponent of such preliminary 
 objection. If, however, the notice is not given, and the appeal is 
 dismissed on the preliminary objection, such omission to give notice is 
 no reason for depriving the respondent of the costs of the appeal. In re 
 Mundy, Ex parte Stead, 2 Morrell, 227 ; L. E. 15 Q. B. D. 338 ; 53 
 L. T. 655— C. A. 
 
 Proof for.] — On July 15th, 1884, an order was made by consent by 
 which all matters in dispute in an action were referred to arbitration, the 
 costs to be in the discretion of the said arbitrator. On November 15th, 
 1884, during the continuance of the arbitration proceedings, the defendant 
 debtor became bankrupt, and on January 21st, 1885, the trustee in the 
 bankruptcy vrrote to the arbitrator as follows : — " I give you notice that 
 I as trustee deny any agreement of reference or that any award therein 
 is or will be binding on me, and so far as I have the power I revoke your 
 authority." On February 26th, 1885, the arbitrator gave his decision, 
 by which he awarded to the plaintiff in the action a certain sum, and 
 ordered that all costs should be paid by the defendant. A proof for the 
 said costs having been rejected by the trustee in the bankruptcy and also 
 by the County Court Judge, 
 
 Held (on appeal) : That the banki-uptcy did not operate as a revocation 
 of the submission : that the trustee had no power to revoke the authority; 
 and that the creditor was entitled to prove for the costs in question. In 
 re Smith, Ex parte Edtvards, 3 Morrell, 179 — D. 
 
 On December 18th, 1886, a receiving order was made against the 
 
 debtor. On December 20th, 1886, verdict and judgment for the defendants 
 was given in an action previously brought by the debtor. On February 
 6th, 1887, a proof for the costs in the action was tendered by the 
 
56 DIGEST OF CASES DECIDED UNDER 
 
 defendants against the estate, and at a subsequent meeting of creditors a 
 proposal of the debtor for a scheme of arrangement was rejected by 
 reason of the Tote given by the defendants at the meeting, and the debtor 
 became bankrupt. 
 
 Held : (1 ) That under the circumstances the bankrupt had locus standi 
 to apply to the Court under Rule 25 of the Second Schedule to the 
 Bankruptcy Act, 1883, to expunge the proof. 
 
 (2) That the debt for which proof was made was not a debt proTable 
 in the bankruptcy, and that the proof must therefore be expunged. In 
 re Bluck, Ex parte Bluck, 4 Morrell, 273 ; 56 L. J, Q. B. 607 ; 57 L. T. 
 419 ; 35 W. R. 720— Cave, J. 
 
 Order for Payment of — "Final Judgment."'\ — The fact that an order 
 has been made against a defendant requiring him to pay the taxed costs 
 in an action within a specified time, does not constitute such order a 
 " final judgment " within the meaning of section 4, sub-section 1 (g), of 
 the Bankruptcy Act, 1883, so as to entitle the plaintiff in the event of 
 the defendant failing to comply with the terms of the order to obtain a 
 bankruptcy notice against the defendant founded on the order. In re 
 Cohen, Ex parte Schmitz, 1 Morrell, 55 ; L. R. 12 Q. B. D. 509 ; 53 
 L. J. Ch. 1168; 50 L. T. 747; 32 W. R. 812— C. A. 
 
 Payment hy Instalments.] — The plaintiff in an action in the Queen's 
 Bench Division of the High Court of Justice obtained an order against 
 the defendant for the payment of certain costs. Subsequently, on the 
 application of the plaintiff, a judgment summons under the Debtors Act, 
 1869, was issued out of the Brentford County Court asking for an order 
 for the payment by instalments of the sum due. The County Court 
 Judge refused to make the order, on the ground that he had no 
 jurisdiction to interfere with the order of a Superior Court for payment 
 of a larger sum. 
 
 Ilekl : That the County Court, not being a Court within the London 
 Banki-uptcy District, bad power to enforce such an order or judgment of 
 the High Court by directing payment thereof by instalments. 
 
 But the County Court would have no power to vary or rescind an order 
 made by the Superior Court for the payment by instalments of a judg- 
 ment debt, as in such a case the Superior Court would have already 
 dealt with the question of the debtor's means. 
 
 The case of Washer v. Elliott (1 C. P. D. 169 ; 45 L. J. C. P. 144; 
 34 L. T. 756; 24 W. R. 432) explained. In re Ives, Ex parte 
 Addington, 3 Morrell, 83 ; L. R. 16 Q. B. D. 665 ; 55 L. J, Q. B. 246; 
 34 W. R. 593— Cave, J. 
 
THE BANKRUPTCY ACT, 1883. 57 
 
 COUNTERCLAIM.-See Set-off. 
 
 COUNTY COURT. 
 
 Jurisdiction of.} — By the provisions of sections 100 and 102 of the 
 Bankruptcy Act, 1883, which gave to a County Court " for the purposes 
 of its bankruptcy jurisdiction, in addition to the ordinary powers of the 
 Court all the powers and jurisdiction of the High Court," and also "full 
 power to decide all questions of priorities, and all questions whatsoever 
 whether of law or fact which may arise in any case of bankruptcy," a 
 County Court has no jurisdiction or power to restrain an action in the 
 High Court brought against the trustee of a debtor adjudicated bankrupt 
 in such County Court. In re Barnett, Ex parte Reynolds & Co., 
 2 Morrell, 147 ; L. E. 15 Q. B. D. 169 ; 54 L. J. Q. B. 354 ; 53 L. T. 
 448 ; 33 W. K. 715— C. A. 
 
 ■ On June 8th, 1885, the manager of the debtor, without his know- 
 ledge, communicated to a firm of corn-factors, to whom the debtor was 
 indebted for wheat then in his stores, the fact that the debtor was in 
 difficulties, and the firm thereupon bought from the manager all the 
 wheat in the debtor's stores on the usual credit terms. On the same day 
 the debtor sent out by post from another place notices of suspension of 
 payment, which were delivered on the following morning to the creditors 
 and also to the debtor's manager. On the facts of the sale of the wheat 
 coming to the knowledge of the debtor he repudiated the transaction, and 
 it was subsequently set aside by the County Court Judge. At the hearing 
 it was objected that the claim did not arise out of the bankruptcy, and as 
 the amount in dispute exceeded 200L, and all parties did not consent, 
 the County Court had no jurisdiction. 
 
 Held (on appeal) : That the claim did arise out of the bankruptcy : 
 that but for the impending bankruptcy the transaction would never have 
 taken place, and but for the actual bankruptcy it would never have been 
 disputed : and that the decision of the County Court Judge was right. 
 In re Haivke, Ex parte Scott c£- Smith, 3 Morrell, 1 ; L. E. 16 Q. B. D. 
 503 ; 55 L. J. Q. B. 302 ; 54 L. T. 54 ; 34 W. E. 167— D. 
 
 Jurisdiction — Transfer from.] — Where the Judge of a County Court 
 not having jurisdiction in bankruptcy, at the hearing of a judgment 
 summons for a committal, is of opinion that a receiving order should be 
 made in lieu of a committal, and orders the matter to be transferred to 
 the Bankruptcy Court under Eule 268 (1) (a) of the Bankruptcy Eules, 
 1885 {compare Rule 359, Bankruptcy Rules, 1886), notice of the subse- 
 quent proceedings under the order of transfer must be served on the 
 judgment debtor. The Court of Bankruptcy in such a case is not bound 
 to adopt the opinion of the County Court Judge, and to make a receiving 
 
58 DIGEST OF CASES DECIDED UNDER 
 
 order as a matter of course, but must exercise its own judicial discretion 
 at the hearing. In re Andreus, Ex parte Andrews, 2 Morrell, 244 ; 
 L. E. 15 Q. B. D. 335 ; 54 L. J. Q. B. 572— Cave, J. 
 
 Discharge of Bankrupt — Consent to Judgment — Practice.] — Where 
 under the provisions of section 28, sub-section (6), of the Bankruptcy 
 Act, 1883, the discharge of a bankrupt is gi-anted by the County Court 
 Judge, subject to the condition that such bankrupt shall consent to 
 judgment being entered against him by the trustee in the bankruptcy for 
 any balance of the debts provable under the bankruptcy, which was not 
 satisfied at the date of the order, judgment shall be entered in the County 
 Court, even though the amount is in excess of 50L As the judgment is 
 entered in the County Court without any preliminary proceedings, the 
 Registrar is not entitled to demand any fees as in respect thereof on 
 entering such judgment. In re Howe, 4 Morrell, 57 ; L. R. 18 Q. B. D. 
 573 ; 56 L. J. Q. B. 257 ; 3 W. R. 380— Cave, J. 
 
 Administration of Estate of Deceased Insolvent — Practice.] — -The 
 Court of Bankruptcy, in administering the estate of a person dying 
 insolvent under section 125 of the Bankruptcy Act, 1883, will follow the 
 practice of the Chancery Division of the High Court in administration 
 actions ; and the County Court in Bankruptcy has in such case no juris- 
 diction to make an order against a stranger to pay over money, which 
 the Chancery Division of the High Court would not make in an adminis- 
 tration action. In re Croicther, Ex parte Ellis, 4 Morrell, 304; L. R. 
 20 Q. B. D. 47 ; 36 W. R. 139— D. 
 
 Order of High Court for Payment of Costs — Power to order Payment 
 hy Instalments.] — The plaintiff in an action in the Queen's Bench Divi- 
 sion of the High Court of Justice obtained an order against the defendant 
 for the payment of certain costs. Subsequently, on the application of 
 the plaintiff, a judgment summons under the Debtors Act, 1869, was 
 issued out of the Brentford County Court, asking for an order for the 
 payment by instalments of the sum due. The County Court Judge 
 refused to make the order, on the ground that he had no jurisdiction to 
 interfere with the order of a Superior Court for payment of a larger 
 sum. 
 
 Held : That the County Court, not being a Court within the London 
 Bankruptcy District, had power to enforce such an order or judgment of 
 the High Court by directing payment thereof by instalments. 
 
 But the County Court would have no power to vary or rescind an order 
 made by the Superior Court for the payment by instalments of a judg- 
 ment debt, as in such a case the Superior Court would have already dealt 
 with the question of the debtor's means. 
 
THE BANKKTJPTCY ACT, 1SS3. 59 
 
 The case of Washer v. Elliott (1 C. P. D. 169 ; 45 L. J. C. P. 144 ; 
 34 L. T. 756 ; 24 W. R. 432) explained. In re Ives, Ex parte Addington, 
 3 Morrell, 83 ; L. R. 16 Q. B. D. 665; 55 L. J. Q. B. 246; 34 W. R. 
 593— Cave, J. 
 
 Appeal from — Duty of Eeciistrar.] — Where an order is made by a 
 Divisional Court in Bankruptcy on an appeal from a County Court, and 
 the Registrar of the County Court neglects or refuses to carry out such 
 order, the Divisional Court has no original jurisdiction to make an order 
 on the County Court Registrar directing him to do so. But where an 
 order is made by a Divisional Court in Bankruptcy on an appeal from a 
 County Court, the Registrar of the County Court ought to comply with 
 such order forthT\ith, and has no right to refuse to comply with it until 
 the time limited for appeal to the Court of Appeal has expired. Thus, 
 where the Divisional Court in Banla-uptcy on an appeal from a County 
 Court allowed the appeal, and gave leave to the unsuccessful respondent 
 to appeal to the Court of Appeal, but made an order directing moneys in 
 Court to be paid out, which the Registrar of the County Court declined 
 to do until the time limited for appeal to the Court of Appeal had expired, 
 and an order was in consequence made by the Divisional Court, directing 
 him to pay out the moneys in question, together with costs, from which 
 order the Registrar appealed. 
 
 Held : That the Registrar had no right to refuse to pay out the said 
 moneys, there having been no stay of proceedings under the order of the 
 Divisional Court pending appeal. 
 
 But the Registrar was an officer of the County Court : the order of 
 the Divisional Court upon the appeal from the County Court was to be 
 carried out by the County Court; and the Divisional Court had no 
 jurisdiction to make such an order against the Registrar. In re Wise, 
 Ex parte Rowland, 3 Morrell, 174; L. R. 17 Q. B. D. 389 ; 55 L. J. 
 Q. B. 362 ; 54 L. T. 722 ; 34 W. R. 711— C. A. 
 
 Receiving Order made in County Court and High Court."] — On 
 February 19th, 1885, a petition was presented against the debtor in the 
 London Bankruptcy Court ; but the hearing of such petition was sub- 
 sequently adjourned from time to time, with the consent of the petitioning 
 creditor. On January 5th, 1886, a receiving order was made on this 
 petition in the High Court at 11.30 o'clock, and on the same day at 
 1 o'clock, a receiving order was also made against the debtor in the 
 Swansea County Court at the instance of another creditor. On an appeal 
 by the creditor presenting the petition in London to set aside such order 
 of the County Court, 
 
 Held : That from the evidence it appeared clear that the legitimate 
 
60 DIGEST OF CASES DECIDED UNDER 
 
 business of the debtor was carried on in Swansea, which was prima facie 
 the place where his business transactions ought to be investigated ; and 
 that the petitioning creditor in London having for his own purposes 
 delayed for several months to proceed with his petition, the proper course 
 for the Court to pursue was not to interfere with the order of the County 
 Court, and application to be made to the London Court to stay the 
 proceedings there. In re Strick, Ex parte Martin, 3 Morrell, 78 — D. 
 
 Application to be made to, to enforce Payment of Money hy Trustee.] 
 —An order having been made by a County Court Judge against a trustee 
 in liquidation to credit the estate of the debtor with certain moneys, 
 the trustee appealed to the Bankruptcy Judge, by whom the decision 
 was substantially affirmed, and a special order was made as to costs, 
 and as to the payments to be made by the trustee. The trustee having 
 failed to comply with the order, an application was made to the Bank- 
 ruptcy Judge to enforce the order. 
 
 Held : That the application should have been made to the County 
 Court Judge. In re Thomas, Ex parte Comptroller, 4 Morrell, 49 — 
 Cave, J. 
 
 Practice in — Viva Voce Evidence.] — The practice by which applica- 
 tion to be allowed to give viva voce evidence must be made beforehand, 
 and not at the same time with the motion, upon the hearing of which 
 it is desired to use such evidence, applies only to the High Court ; and 
 such practice is not intended to apply to the County Courts, or to affect 
 the course of business therein. In re Wilson, Ex parte Watkinson, 
 4 Morrell, 238 ; 57 L. T. 201 ; 35 W. R. 668— D. 
 
 REDIT. 
 
 Undischarged Bankrupt — Obtaining Credit] — In order to convict an 
 undischarged bankrupt under 46 & 47 Vict. c. 52, section 31, of the 
 offence of " obtaining credit to the amount of twenty pounds or upwards 
 from any person, without informing such person that he is an undis- 
 charged banla-upt," it is not necessary that there should be a stipula- 
 tion to grant credit in the contract between the parties ; it is sufficient 
 if a credit in fact is obtained. The prisoner, an undischarged bankrupt, 
 living in Newcastle-on-Tyne, bought a horse from the prosecutor, a 
 farmer in Ireland, for 22Z., free of expenses to the vendor, who by the 
 prisoner's direction delivered the horse on board a steamer at Larne ; no 
 stipulation was made as to the time or mode of payment, and the 
 prisoner did not disclose the fact that he was an undischarged bankrupt. 
 The prisoner paid for the carriage of the horse on its delivery to him at 
 
THE BAls'KRUPTOY ACT, 1883. 61 
 
 Newcastle, and immediately sold it, and refused to pay the price to the 
 prosecutor. 
 
 Held : That there was evidence to go to the jury of an obtaining 
 of credit by the prisoner within the meaning of section 31 of the 
 Bankruptcy Act, 1883. 
 
 That the offence was committed inNewcastle-on-Tyne: Reg. v. Peters, 
 L. E. 16 Q. B. D. 636 ; 55 L. J. M. C. 173 ; 54 L. T. 545 ; 34 W. R. 
 399 ; 50 J. P. 631 ; 16 Cox, C. C. 36 -C. C. R. 
 
 Order for Goods less than 201. — Belivery of Goods over 20L] — The 
 offence of obtaining credit to the extent of 20L or upwards by an un- 
 discharged bankrupt is committed where the bankrupt receives and keeps 
 goods of the value of 20L or upwards without paying for them or inform- 
 ing the creditor of the fact that he is an undischarged bankrupt, or 
 repudiating the contract, although the goods were sent in execution of 
 an order for goods of a less value than 20L Reg. v. Juhy, 55 L. T. 788 ; 
 35 W. R. 168 ; 51 J. P. 310 ; 16 Cox, C. C. 160— C. C. R. 
 
 CREDITOR. 
 
 Meaning of Term.] — The words " a creditor " in section 4, sub-section 
 1 (g), of the Bankruptcy Act, 1883, mean a creditor under or by means 
 of a final judgment. In re Faithfull, Ex parte Moore, 2 Morrell, 52 ; 
 L. R. 14 Q. B. D. 627 ; 54 L. J. Q. B. 190 ; 52 L. T. 376 ; 33 W. R, 
 438— C. A. 
 
 An unpaid creditor is a " person aggrieved" within the meaning of 
 
 section 104, sub-section (2), of the Bankruptcy Act, 1883, by the grant- 
 ing of an order of discharge to a bankrupt, and as such has a right of 
 appeal against such order. In re Payne, Ex parte Castle Mail Packet 
 Co., 3 Morrell, 270; L. R. 18 Q. B. D. 151; 35 W. R. 82— C. A. 
 
 Secured.'] — The estimate of the value of his security required of a 
 secured creditor by section 6, sub-section (2) , of the Bankruptcy Act, 1883, 
 does not necessarily mean that such estimate shall be the exact value, 
 and the fact that a secured creditor has undervalued his security is not 
 a ground for dismissing a bankruptcy petition presented by him. A 
 secured creditor so presenting a petition would be bound to give up the 
 security to the trustee in the bankruptcy if he wishes to take it at the 
 value placed by such secured creditor upon it in the petition. In re 
 Lacy, Ex -parte Taylor, 1 Morrell, 113 ; L. R. 13 Q. B. D. 128— D. 
 
 •Where a valuation was put upon a security by a creditor which, 
 
 owing to the death of the bankrupt, greatly increased in value, such 
 
62 DIGKST OF OASES DECIDED UNDER 
 
 creditor was entitled to amend his valuation under Eule 13 of Schedule 
 II. of the Banki-uptcy Act, 1883, notwithstanding that the trustee in the 
 bankruptcy had stated to the creditor that he intended to purchase the 
 security at his valuation, but the purchase-money had not been paid. 
 The words of the said Eule 13, which provides that a secured creditor 
 may amend the valuation of his security made in his proof of debt " at 
 any time," are to be limited to the extent that the right cannot be 
 exercised after the trustee in the bankruptcy has actually paid for the 
 security at the valuation set upon it by the creditor. A further limita- 
 tion may also arise if, under Eule 12 (c) of Schedule II., the creditor, 
 by notice in writing, puts the trustee to his election whether he will 
 redeem the security or not, and the trustee has declared his election to 
 purchase the security at the creditor's valuation. In re Sadler, Ex parte 
 Norris, 3 Morrell, 260; L. E. 17 Q. B. D. 728; 56 L. J, Q. B. 93; 35 
 W. E. 19— C. A. 
 
 Where a mortgagee who has valued his security is desirous of 
 
 amending his valuation and proof under Eule 13 of Schedule II. of the 
 Bankruptcy Act, 1883, leave to amend may be given in a proper case, 
 although such amendment is opposed by a subsequent mortgagee. In 
 re Arden, Ex imrte Arden, 2 Morrell, 1 ; L. E. 14 Q. B. D. 121 ; 51 
 L. T. 712 ; 33 W. E. 460— D. 
 
 "Judgment."'] — Where an order is made in the Divorce Court direct- 
 ing the co-respondent to pay to the husband, the petitioner in the suit, 
 the amount given as damages forthwith for the purpose of settlement on 
 the children of the marriage, such husband is not a "judgment creditor " 
 of the co-respondent within the meaning of section 103, sub-section (5), 
 of the Bankruptcy Act. In re Fryer, Ex parte Fryer, 3 Morrell, 231 ; 
 L. E. 17 Q. B. D. 718 ; 55 L. J. Q. B. 478 ; 55 L. T. 276 ; 34 W. E. 
 766— C. A. 
 
 Entitled to Petition.] — ^Where by failing to comply with the terms of 
 a banki-uptcy notice a debtor has committed an act of bankruptcy under 
 section 4, sub-section 1 (g), of the Bankruptcy Act, 1883, any creditor 
 may avail himself of such act of banki-uptcy for the purpose of presenting 
 a petition, and the right to present a petition is not limited to that 
 creditor by whom the banki-uptcy notice has been served. In re Hastings, 
 Ex parte Dearie, 1 Morrell, 281; L. E. 14 Q. B. D. 184 ; 54 L. J. Q. B. 
 74 ; 33 W. E. 440— C. A. 
 
 CUSTOM.]— See Reputed Otvnership. 
 
THK BANKRUPTCY ACT, 1S83. 63 
 
 DEATH. 
 
 Of Dehtor.'\ — Where a debtor died two days after presenting his peti- 
 tion in the County Court, and at the subsequent first meeting of the 
 creditors resolutions were passed that the proceedings be continued and 
 the estate administered by a trustee as if such debtor were alive and had 
 been adjudicated bankrupt, but the County Court Judge declined to 
 confirm such resolutions, and stated a case for the opinion of the High 
 Court, 
 
 Held : That the intention of the Legislature in framing section 108 of 
 the Bankruptcy Act, 1883, which provides for the continuance of pro- 
 ceedings on the death of a debtor by or against whom a bankruptcy 
 petition has been presented, was to meet a case of this nature : and that 
 the proper course for the Court to pursue, in the absence of any arrange- 
 ment on the part of the representatives of the deceased debtor, was to 
 make an order of adjudication against him and allow the matter to 
 proceed in the ordinary way. In re Walker, Ex parte Sharpe, 3 Morrell, 
 69 ; 54 L. T. 682 ; 34 W. R. 550— D. 
 
 Where a debtor dies after a bankruptcy petition has been presented 
 
 against him by a creditor, but before the petition has been served, all 
 further proceedings on such petition must be stayed. In re Easy, Ex 
 parte Hill & Hymans, 4 Morrell, 281 ; L. R. 19 Q. B. D. 538 ; 35 W. R. 
 819— C. A. 
 
 DEBTORS ACT, 1869. 
 
 Appeal under.'\ — By reason of the provisions of sections 103 and 104 
 of the Banki-nptcy Act, 1883, an appeal from an order of the judge to 
 whom banliruptcy business is assigned upon an application under section 
 5 of the Debtors Act, 1869, will now lie directly to the Court of Appeal, 
 and not as formerly to a Divisional Court. In re Lascelles, Ex parte 
 Genese, 1 Morrell, 183 ; 53 L. J. Q. B. 578 ; 82 W. R. 794— D. 
 
 " Means."] — For the purpose of determining whether a judgment 
 debtor has had the " means to pay " the judgment debt, with the view of 
 making an order for his committal under section 5 of the Debtors Act, 
 1869, money derived from a gift may be taken into account. It is not 
 necessary that the " means to pay " should have been derived from the 
 debtor's earnings or from a fixed income. In re Park, Ex parte Koster, 
 2 Morrell, 35 ; L. R. 14 Q. B. D. 597 ; 54 L. J. Q. B. 389 ; 52 L. T. 
 946 ; 33 W. R. 606— C. A. 
 
 Effect of, on Discharge.] — Under section 28, sub-section (2), of the 
 Bankruptcy Act, 1883, the Court is bound to refuse an order of discharge 
 to a bankrupt who has been convicted of a misdemeanour under Part II. 
 
6i DIGEST OF OASES DECIDED UNDER 
 
 of the Debtors Act, 1869, even tliough such bankrupt has undergone a 
 sentence of imprisonment imposed upon him for the said offence. In re 
 Richardson & Webster, 4 Morrell, 22— Hazlitt, R. 
 
 Married Woman.] — A married woman cannot be committed to prison 
 under section 5 of the Debtors Act, 1869, for non-payment of a judgment 
 recovered against her in an action brought under section 1, sub-section 
 (2), of the Married Women's Property Act, 1882. In re Morley, Scott v. 
 Morley, 4 Morrell, 286 ; L. R. 20 Q. B. D. 120 ; 36 W. R. 67— C. A. 
 
 Judgment Creditor — Means.] — The Court has jurisdiction to make a 
 receiving order, in lieu of a committal, against a judgment debtor, under 
 section 103, sub-section (5), of the Bankruptcy Act, 1883, only on the 
 application of a person who is strictly speaking a "judgment creditor." 
 Such receiving order cannot be made, therefore, on the application of 
 every person who is entitled to apply to the Court under section 5 of the 
 Debtors Act, 1869. Where a judgment debtor makes default in payment 
 of the judgment debt, the Court has power of committal under section 5 
 of the Debtors Act, 1869, if proof is given that such debtor has had the 
 means of paying part of the said debt even though he has not had the 
 means of paying the whole amount. In re Fryer, Ex parte Fryer, 3 
 Morrell, 231 ; L. R. 17 Q. B. D. 718 ; 55 L. J. Q. B. 478 ; 55 L. T. 276 ; 
 34 W. R. 766— C. A. 
 
 Unreasonable rejection of Proof — Omission to file Judgment by Con- 
 sent.] — ^A trustee ought not to reject a proof tendered in respect of a debt, 
 for which a judgment by consent has been obtained, merely on the ground 
 that a copy not having been filed as required by section 27 of the Debtors 
 Act, 1869, the judgment or any execution issued or taken out thereon is 
 void ; but in such case the trustee ought to investigate the validity of the 
 alleged debt. In re Smith, Ex parte Brown, 3 Morrell, 202 ; L. R. 17 
 Q. B. D. 488— C. A. 
 
 See also cases collected under titles : Arrest ; Committal. 
 
 DELAY. 
 
 Of Petitioning Creditor.]— On February 19th, 1886, a petition was 
 presented agamst the debtor in the London Banki-uptcy Court, but the 
 hearing of such petition was subsequently adjourned from time to time 
 with the consent of the petitioning creditor. On January 5th, 1886, a 
 receiving order was made on this petition in the High Court at 11 '30 
 o'clock, and on the same day at 1 o'clock, a receiving order was also made 
 against the debtor in the Swansea County Court at the instance of another 
 
THE BANKRUPTCY ACT, 1883. G5 
 
 creditor. On an appeal by the creditor presenting the petition in London 
 to set aside such order of the County Court. 
 
 Held : That from the evidence it appeared clear that tha legitimate 
 business of the debtor was carried on in Swansea, which was iirimd facie 
 the place where his business transactions ought to be investigated ; and 
 that the petitioning creditor in London having for his own purposes 
 delayed for several months to proceed with his petition, the proper course 
 for the Court to pursue was not to interfere with the order of the County 
 Court, and application to be made to the London Court to stay the pro- 
 ceedings there. In re Strick, Ex parte Martin, 3 Morrell, 78 — D. 
 
 After a banki-uptcy petition had been presented but before the day 
 
 appointed for the hearing, the debtor obtained the consent of the petition- 
 ing creditors to an adjournment of such hearing with a view to a settle- 
 ment, and a form of consent to an extension of time was sent to the 
 County Court Registrar by post, but on the day appointed for the hearing 
 the Registrar dismissed the petition for non-appearance. Notice of 
 appeal having been given by the petitioning creditors, the debtor filed his 
 own petition, on which a receiving order was made. When the appeal 
 came on for hearing, an adjournment was taken by consent in order that 
 a scheme of arrangement proposed by the debtor might be considered ; 
 but this subsequently fell through, and the petitioning creditors 
 now proceeded with their appeal, a year after notice thereof had been 
 given. 
 
 Held : That the delay which had occurred was fatal to the appeal ; and 
 that no sufficient reason having been adduced to justify the Court in 
 hearing it notwithstanding such delay, the appeal must be dismissed. 
 In re Gamlen, Ex parte Ward & Co., 4 Morrell, 301 — D. 
 
 Of Creditor.] — ^Although the time allowed for appeal in banki-uptcy 
 matters may be extended by the Court, yet some ground must always be 
 shown why this should be done, and notwithstanding the fact that when 
 a hand fide mistake has been committed in the estimation of a proof the 
 trustee in the bankruptcy ought not to be permitted to take a technical 
 advantage of such mistake, where a creditor for more than a year and a 
 half took no steps to reverse the decision of the County Court Judge 
 refusing to allow such creditor to amend or withdraw his proof alleged to 
 be so wrongly estimated, the Court could not permit him to reopen the 
 case for the purpose of setting aside that decision. In re Tricks, Ex 
 parte Charles, 3 Morrell, 15 — Cave, J. 
 
 Of Debtor in applying for discharge.'] — The fact that a bankrupt who, 
 by his conduct, has brought himself within the quasi-penal provisions of 
 
 M.D. F 
 
66 DIGEST OF CASES DECIDED UNDER 
 
 section 28 of the Bankruptcy Act, 1883, abstains from applying for his 
 discharge for a considerable time after he is entitled to do so, affords no 
 ground for mitigation of the punishment proper to be imposed by the 
 Court under that section by reason of such conduct. In re Good, 3 
 Morrell, 43 — Brougham, E. 
 
 DEPARTING PROM DWELLING-HOUSE. 
 
 — See Act of Bankruplcij. 
 
 DEPOSIT. 
 
 Application to dispense with, on appeal.] — ^Where application was 
 made by a debtor who had presented a bankruptcy petition against him- 
 self to dispense with the deposit of 201. required to be lodged upon an 
 appeal against a decision of the Eegistrar rescinding the receiving order 
 at the request of the official receiver under section 14 of the Banliruptcy 
 Act, 1883. 
 
 Held : That the debtor's alleged inability to raise the necessary sum 
 did not on the facts of the case constitute such a special circumstance 
 under Rule 113 of the Bankruptcy Eules, 1883, as to justify the Court 
 in granting the application. In re Robertson, 2 Morrell, 117 — C. A. 
 
 Where application was made by a bankrupt under Rule 131 of the 
 
 Bankruptcy Rules, 1886, for leave to dispense with the deposit of 20Z. 
 required to be lodged upon an appeal by him from an order of the 
 Registrar refusing to annul the adjudication. 
 
 Held : That the inability of the bankrupt himself to find the means 
 for making the deposit, or to obtain the necessary sum from his friends, 
 did not constitute such grounds as would justify the Court in granting 
 the application. In re Grepe, Ex parte Grepe, 4 Morrell, 128 — C. A. 
 
 In the case of an appeal to the Court of Appeal by the Board of 
 
 Trade, Eule 131 of the Bankruptcy Eules, 1886, does not apply, and the 
 Board of Trade being a Government Department is entitled to have the 
 appeal entered without lodging any deposit. In re Mutton, Ex parte 
 the Board of Trade, 4 Morrell, 115— D. 
 
 DISCHARGE. 
 
 The quasi-penal provisions of section 28 of the Bankruptcy Act, 1883, 
 with regard to the granting of a bankrupt's discharge, apply to the 
 conduct of the bankrupt previous to the time when the Act came into 
 operation. In re Salaman, Ex parte Salaman, 2 Morrell, 61 L. E. 14 
 Q. B. D. 936 ; 64 L. J. Q. B. 238 ; 52 L. T. 378— C. A. 
 
THE BANKRUPTCY ACT, 1883. 67 
 
 Absolute Refusal of — Discretion.] — In considering the question of a 
 bankrupt's discharge the Court is bound to have regard not to the 
 interests of such bankrupt or of the creditors alone, but also to the 
 interests of the public and of commercial morality : and although facts 
 may not be absolutely proved which would under section 28, sub- 
 section (2), of the Bankruptcy Act, 1883, compel the Court to refuse 
 any discharge, yet where gross misconduct within the said section is 
 shown on the part of the bankrupt, the Court is perfectly justified in 
 declining to grant a discharge upon conditions and in making an order 
 absolutely refusing to such bankrupt any discharge at all. In re Bad- 
 cock, Ex parte Badcock, 3 Morrell, 138 — D. 
 
 Suspension — Appeal from discretion.] — Where all the facts have been 
 brought to the notice of the Eegistrar, and he has exercised his discre- 
 tion as to the terms on which a banki-upt should obtain his discharge, 
 the Court of Appeal will not interfere with such decision on an allegation 
 that the punishment imposed was too lenient and unless it is perfectly 
 clear that the decision was wrong. In re Chase, Ex parte Cooper, 3 
 Morrell, 228— C. A. 
 
 ^Where the Eegistrar is not required by the provisions of the Bank- 
 ruptcy Act absolutely to refuse a bankrupt his discharge, he has a 
 discretion under section 28 as to the amount of punishment to be 
 inflicted, and it will require a very strong case to induce the Court of 
 Appeal to interfere with the exercise of that discretion if the Eegistrar 
 comes to a right conclusion on the facts. But if the Court of Appeal is 
 of opinion that the conclusion come to by the Eegistrar as to the facts 
 is erroneous, the Court of Appeal will vary his decision. In re Payne, 
 Ex parte Castle Mail Packet Company, 3 Morrell, 270 ; L. E. 18 
 Q. B. D. 154 ; 56 L. J. Q. B. 625 ; 35 W. E. 89— C. A. 
 
 " Proper Books."] — In deciding as to the granting or refusing the 
 discharge of a bankrupt or the approval of a composition or scheme of 
 arrangement, the question whether the debtor has kept proper books is 
 one of primary importance. In re Wallace, Ex parte Campbell, 2 
 Morrell, 167 ; L. E. 15 Q. B. D, 213 ; 54 L. J. Q. B. 382 ; 53 L. T. 
 208— C, A. 
 
 Such books as are usual and proper in the business carried on are 
 
 to be kept ; and if there are no books usually kept in a particular trade, 
 or if a bankrupt is not a trader, he does not fall within the section by 
 omitting to keep books. In re Mutton, Ex parte the Board of 'Trade, 
 4 Morrell, 180; L. E. 19 Q. B. D. 102 ; 56 L. J, Q. B. 395 ; 56 L. T. 
 803 ; 35 W. R. 561— C. A. 
 
 F 2 
 
68 DIGEST OF CASES DECIDED UNDER 
 
 Misdemeanour — Absolute Refusal.] — Under section 28, sub-section (2) 
 of the Bankruptcy Act, 1888, the Court is bound to refuse an order of 
 discharge to a bankrupt who has been convicted of a misdemeanour under 
 Part II. of the Debtors Act, 1869, even though such bankrupt has 
 undergone a sentence of imprisonment imposed upon him for the said 
 offence. In re Richardson & Webster, 4 Morrell, 22 — Hazlitt, E. 
 
 "Conduct" of Bankrupt.] — On application by a bankrupt for his 
 discharge under section 28 of the Bankruptcy Act, 1883, the Court has 
 no jurisdiction to take into consideration as "conduct" a refusal on the 
 part of such bankrupt to submit to a medical examination with a view to 
 life insurance for the purpose of enabling the trustee in the bankruptcy 
 to realise to better advantage a contingent reversionary interest of the 
 said banki-upt in certain property. The word "conduct" in section 28 
 does not include general misconduct, but if not covered by any of the 
 specific instances mentioned in that section, it must be regarded with 
 reference to section 24 of the Act, which defines the duties of the debtor 
 as to the realisation and distribution of his property. 
 
 A report as to the bankrupt's conduct and affairs signed by the assistant 
 official receiver will be accepted as the "Eeport of the Official Eeceiver," 
 which the Court is required to take into consideration on an application 
 for discharge. In re Betts and Block, Ex parte the Board of Trade, 4 
 Morrell, 170 ; L. E. 19 Q. B. D. 39 ; 66 L. J. Q. B. 370; 56 L. T. 804 ; 
 35 W. E. 630— C. A. And see also In re Bidl, 2 Morrell, 59— 
 Murray, E. 
 
 Upon application by a bankrupt for his discharge under section 28 
 
 of the Bankruptcy Act, 1883, where any of the offences specified in sub- 
 section (3) of that section are proved to have been committed, the Court 
 must either refuse the order, or suspend its operation, or grant an order 
 subject to conditions, and the Court cannot in such case grant an 
 unconditional discharge. In re Heap, Ex parte the Board of Trade, 4 
 Morrell, 314— D. 
 
 The fact that a bankrupt who, by his conduct, has brought himself 
 
 within the quasi-penal provisions of section 28 of the Bankruptcy Act, 
 1883, abstains from applying for his discharge for a considerable time 
 after he is entitled to do so, affords no ground for mitigation of the 
 punishment proper to be imposed by the Court under that section by 
 reason of such conduct. In re Good, 3 Morrell, 43— Brougham, E. 
 
 Report of OJicial Receiver— Absolute Refused— Mistake.]— Although a 
 Court of Appeal in Bankruptcy will not readily interfere with the exercise 
 of the discretion of a County Court Judge refusing the discharge of a 
 
THE BANKRUPTCY ACT, 1883. 69 
 
 bankrupt, yet if the decision of such judge is founded solely on the report 
 of the official receiver and on appeal the statements contained in such 
 report are proved to be unfounded and are capable of explanation, the 
 Court of Appeal -will vary the order of the County Court and will grant 
 to the bankrupt his order of discharge, subject to such conditions as in 
 the nature of the case it may think fit. Where in the report of the 
 official receiver it was alleged that the banla-upt had committed six of the 
 offences specified in section 28, sub-section (3) of the Banki-uptcy Act, 
 1883, and the discharge was in consequence absolutely refused, but on 
 appeal satisfactory explanations were afforded of all the said charges with 
 the exception of the fact that twenty-three years ago the bankrupt had 
 made a statutory arrangement with his creditors. 
 
 Held : That the discharge of the banki-upt should be granted, subject 
 to a suspension of one day to meet the requirements of the Act in respect 
 of the only offence proved against him. In re Sultzberger, Ex parte 
 Sultzberger, 4 Morrell, 82— D. 
 
 Report of Official Receiver — Extravagant Living — Speculations — 
 Continuing to Trade,] — The official receiver reported on an application 
 by a banki-upt for his discharge that such bankrupt had been guilty of 
 unjustifiable extravagance in living, of rash and hazardous speculations, 
 and of continuing to trade after knowing himself to be insolvent, which 
 report was borne out by the facts. An unconditional discharge was 
 nevertheless granted to the bankrupt by the County Court Judge. 
 
 Held: That the Bankruptcy Act, 1883, was intended to make 
 mercantile men restrain from offences against the law of fair dealing ; 
 and where a banki-upt is clearly proved to have committed offences under 
 section 28, sub- section (3) of the Act the Court ought not to pass over 
 such offences. 
 
 That where the County Court Judge finds that a bankrupt has been 
 guilty of misconduct under section 28 and imposes a penalty, the Court 
 of Appeal will not be inclined, except upon very grave grounds, to 
 interfere with the amount of punishment awarded, but if the Judge comes 
 to a wrong decision, contrary to the facts, that no misconduct has been 
 committed, the Court on an appeal is bound to express its opinion and 
 act upon it. 
 
 That although a man has a perfect right, as long as he is solvent, to 
 determine that he will go on with a business even though it may be a 
 losing one, in the hope of a revival in trade, yet the moment he becomes 
 insolvent he is no longer going on at his own risk but at the risk of his 
 creditors ; and the proper course for a man to pursue, as soon as he finds 
 that he cannot pay twenty shiUings in the pound, but he nevertheless 
 
70 DIGEST Ot' CASES DECIDED UNDER 
 
 thinks that if he goes on he may be able to retrieve his position, is to 
 call his creditors together and leave them to determine whether the 
 business shall be continued or not. 
 
 That a man has no right, when his business can no longer support it, 
 to go on living in the style usual during the time such business was a 
 profitable one merely for the sake of keeping up appearances, -which under 
 such circumstances is only another term for living on his creditors. 
 
 A man is bound not to keep up appearances, but to pay his debts, and 
 if his profits will not allow of his living at the particular rate he has been 
 accustomed to live at, then his plain duty is at once to reduce such 
 expenditure. In re Stainton, Ex parte the Board of Trade, 4 Morrell, 
 242— D. 
 
 Action by Debtor — Contracting Debts.]— The fact that a banki-upt has 
 brought an unsuccessful action, the costs of which he is unable to pay, is 
 not sufficient cause to justify the Court in refusing his discharge on the 
 ground that under sub-section 3 (c) of section 28 of the Bankruptcy Act, 
 1888, such bankrupt has contracted a debt without having any reasonable 
 ground of expectation of being able to pay it. In re J. Williams, 1 
 Morrell, 91 — Brougham, E. And see also In re Du Boulay, 2 Morrell, 
 49 — Brougham, E. 
 
 Contracting Debts — Condition — Consent to Jiidgment.] — The debtors 
 commenced business by means of borrowed money, and assigned as 
 security to the lender their leasehold premises, goodwill, and all existing 
 and after-acquired stock-in-trade. The mortgagee subsequently took 
 possession under this deed, and the debtors became bankrupt, nothing 
 being left for the general creditors. 
 
 Held: That the debtors had contracted debts without having any 
 reasonable or probable ground of expectation of being able to pay them ; 
 and that the order of the Eegistrar granting a discharge only upon the 
 terms of judgment being entered up against the bankrupts for the full 
 amount of the debts provable in the banki-uptcy, was a right order. In 
 re White, Winter d: Co., Ex parte White, Winter d- Co., 2 Morrell, 42 ; 
 L. E. 14 Q. B. D. 600 ; 54 L. J. Q. B. 384 ; 33 W. E. 670— C. A. 
 
 Condition — Consent to Judgment.'] — A debtor at the time when the 
 action was commenced in which final judgment was obtained against him, 
 upon which the receiving order was subsequently made, carried on 
 business in partnership with his father, and had a considerable income. 
 During the pendency of the proceedings in the action, the debtor paid 
 away the money belonging to him in the business, and also received 
 notice from his father to quit the partnership. The County Court Judge 
 
THE BANKRUPTCY ACT, 1883. 71 
 
 granted the bankrupt his discharge on the terms that he should pay to 
 the trustee in the bankruptcy the sum of 700L out of his earnings or 
 income or any after-acquired property. 
 
 Held (on appeal) : That the order of the County Court Judge must be 
 modified, and that there would be an order granting to the bankrupt his 
 discharge on consenting to judgment being entered against him in the 
 terms of section 28, sub-section (6), of the Bankruptcy Act, 1883. In re 
 Clarkson, Ex parte Allestree, 2 Morrell, 219 — D. 
 
 Condition — Consent to Judgment.] — An order was made by the County 
 Court Judge directing that the discharge of the bankrupts should be 
 allowed as soon as a suf&cient sum was paid to the trustee in the bank- 
 ruptcy to make up a dividend of 5s. in the pound. On appeal the 
 objection was taken that the order in question was wrong in form. 
 
 Held : That the proper order to be made under the circumstances was 
 that the discharge of the bankrupts should be granted subject to judg- 
 ment being entered against them under section 28, sub-section (6), of 
 the Bankruptcy Act, 1883, for such amount and under such conditions 
 as set out in the order. Li re Small d Small, Ex parte Small & Small, 
 3 Morrell, 296— D. 
 
 Consent to Judgment — Practice in County Court.] — ^Where under the 
 provisions of section 28, sub-section (6), of the Bankruptcy Act, 1883, 
 the discharge of a bankrupt is granted by the County Court Judge 
 subject to the condition that such bankrupt shall consent to judgment 
 being entered against him by the trustee in the bankruptcy for any 
 balance of the debts provable under the bankruptcy which was not 
 satisfied at the date of the order, judgment shall be entered in the 
 County Court even though the amount is in excess of 501. As the 
 judgment is entered in the County Court without any preliminary pro- 
 ceedings, the Registrar is not entitled to demand any fees as in respect 
 thereof on entering such judgment. In re Howe, 4 Morrell, 57 ; L. E. 
 18 Q. B. D. 573 ; 56 L. J. Q. B. 267; 35 W. E. 380— Cave, J. 
 
 Rash and hazardous speculations — Conditional discharge.] — Where 
 the bankrupt who was a solicitor without capital entered into heavy 
 building operations on borrowed money, to which speculations his 
 insolvency was attributable. 
 
 Held: That the bankrupt had been guilty of rash and hazardous 
 speculations, and that the order of the Registrar refusing an absolute 
 discharge was a right order. In re Salaman, Ex parte Salaman, 2 
 Morrell, 61; L. E. 14 Q. B. D. 936; 54 L. J. Q. B. 238; 52 L, T. 
 378— C. A. 
 
72 DIGEST OF CASES DECIDED UNDER 
 
 Rash and hazardous speculations — Proper hoohs.'] — The bankrupt, who 
 carried on business as a hatter, made certain purchases of land and 
 houses adjoining property belonging to himself for the purpose of resale. 
 The books in the hatter's business were properly kept and balanced, but 
 no proper books were kept with respect to the land purchases through 
 which the bankruptcy subsequently occurred. On application for dis- 
 charge the official receiver submitted that the bankrupt had brought 
 himself within the provisions of section 28, sub-section 3 («) of the 
 Bankruptcy Act, 1883, in that he had " omitted to keep such books of 
 account as are usual and proper in the business carried on by him, and 
 as sufficiently disclose his business transactions and financial position 
 within the three years immediately preceding his bankruptcy." 
 
 Held : That the bankrupt in making the purchases of land under the 
 circumstances was not carrying on a business, and did not fall within the 
 provisions of section 28, sub-section 3 (a), by omitting to keep books of 
 account. 
 
 That such books as are usual and proper in the business carried on 
 are to be kept ; and if there are no books usually kept in a particular 
 trade, or if a bankrupt is not a trader, he does not fall within the section 
 by omitting to keep books. In re Mutton, Ex parte the Board of Trade, 
 4 Morrell, 180 ; L. R. 19 Q. B. D. 102 ; 56 L. J. Q. B. 395 ; 56 L. T. 
 802; 35 W. E. 561— C. A. 
 
 Effect of previous petition under ivhich no discharge.] — On the appU- 
 cation of the banki-upt for his discharge the official receiver reported that 
 the bankrupt had previously filed a petition for liquidation of his affairs, 
 under which his discharge had not been granted. 
 
 Held: That the practice of the Court is, that when an undischarged 
 bankrupt makes an application for his discharge under a second bank- 
 ruptcy, the Court will not entertain the application until he has purged 
 himself of his former bankruptcy ; and it appearing that the bankrupt 
 had not obtained his discharge under the liquidation petition referred to 
 in the report of the official receiver, the application would be adjourned 
 sine die with liberty to apply. In re Binko, 2 Morrell, 45— Murray, E. 
 
 Suspension— Mistake as to Facts.] — After an order had been made 
 suspending the discharge of a bankrupt for five years, certain facts were 
 brought to the notice of the County Court Judge, from which he came to 
 the conclusion that the opinion he had formed of the bankrupt's conduct 
 at the time of the application for discharge was a mistaken one. On 
 appeal by the bankrupt from the order made on application for his 
 discharge, 
 
 Hdd : That the proper course was for such appeal to stand over in 
 
THE BANKRUPTCY ACT, 18S3. 73 
 
 order that an application might, under the circumstances, be made to 
 the County Court Judge to review his decision. Iti re Dowson, Ex parte 
 Dowson, 4 Morrell, 310— D. 
 
 Appeal from Order of— Notice.] — Notice of appeal from an order 
 made by the Court on application by a bankrupt for his discharge should 
 be a fourteen days' notice. Where such notice was not given and objec- 
 tion was taken at the hearing, the Court directed the case to stand over 
 for a week until the required time had elapsed. In re Landau, Ex parte 
 Brown & Wingrove, 4 Morrell, 253 — C. A. 
 
 Appeal hy Board of Trade.] — Eule 237 of the Bankruptcy Eules, 
 1886, is not idtra vires, but is a rule for carrying into effect the objects 
 of the Bankruptcy Act, 1883 ; and the Board of Trade are entitled under 
 that rule to appeal from any order of the Court made upon an application 
 by a bankrupt for his discharge. In re Stainton, Ex parte the Board of 
 Trade, 4 MorreU, 242 ; L. R. 19 Q. B. D. 182 ; 57 L. T. 202 ; 35 W. E. 
 667— D. 
 
 Appeal in Small Bankruptcies.] — Eule 273 (6) of the Bankruptcy 
 Eules, 1887, — which provides that in a small bankruptcy no appeal shall 
 lie from any order of the Court except by leave of the Court — does not 
 apply in the case of an order made upon application by a bankrupt for 
 his discharge. In re Rankin, Ex parte Rankin, 4 Morrell, 311 — D. 
 
 Discharge under Scheme of Arrangement.] — In a case where a scheme 
 of arrangement of the debtor's affairs, duly agreed to and confirmed by 
 the creditors in accordance with the provision of section 18 of the Bank- 
 ruptcy Act, 1883, contained a clause to the effect that " the debtors shall 
 be discharged when the committee of inspection so resolve." 
 
 Held : That such provision dealing with the discharge of the debtors 
 was unreasonable, and not in accordance with the intention and scope of 
 the Act ; and that a scheme containing such a provision ought not to be 
 approved by the Court, even though the debtors themselves asked that 
 such approval should be given. In re Clarke, Ex parte Clarke, 1 Morrell, 
 143 ; L. E. 13 Q. B. D. 426 ; 53 L. J. Ch. 1062 ; 51 L. T. 584 ; 32 
 W. E. 775— C. A. 
 
 DISCLAIMER. 
 
 Leave — On what terms granted.] — In cases where a trustee in a bank- 
 ruptcy seeks to disclaim, if subsequent to the adjudication any advantage 
 has been derived from the use of the landlord's property, that is the use 
 of the creditors and not of the debtor and for this advantage the land- 
 
U DIGIEST OF CASES DECIDED UKDER 
 
 lord is entitled to be paid. In re T. Brooke, Ex parte the Trustee, 1 
 Morrell, 82— Cave, J. 
 
 -Where application for leave to disclaim is made by a trustee in a 
 
 bankruptcy, a demand of the landlord for rent in respect of the premises 
 sought to be disclaimed ivill not be entertained by the Court unless such 
 landlord has been kept out of his property for the benefit of the creditors, 
 and the creditors have obtained some advantage therefrom. In re Zappert 
 d- Co., Ex parte the Trustee, 1 Morrell, 72— Cave, J. 
 
 Where notice had been served on the trustee requiring him to decide 
 
 whether he would disclaim or not within twenty-eight days in accordance 
 with the terms of section 55, sub-section 4, and the trustee did not within 
 that time signify his intention as required, leave to disclaim given only 
 on condition of payment of a month's rent to the landlord, such rent, 
 together with the costs of the landlord, to be paid by the trustee personally. 
 In re Page, Ex parte the Trustee, 1 Morrell, 287 ; L. E. 14 Q. B. D. 401; 
 33 W. R. 825— Cave, J. 
 
 Where a trustee seeks to disclaim a lease under section 55 of the 
 
 Bankruptcy Act, 1883, the Court may, if it thinks fit, under sub-section 
 3 of section 55 permit such trustee to remove fixtures. In re Moser, Ex 
 parte the Trustee, 1 Morrell, 244 ; L. R. 13 Q. B. D. 738 ; 33 W. R. 16 
 —Wills, J. 
 
 Claim of Landlord — Small Bankruptcy.] — Where in accordance with 
 the provisions of section 121 of the Bankruptcy Act, 1883, relating to 
 small bankruptcies, an order is made for the summary administration of 
 a bankrupt's estate, and the official receiver, as trustee in the bankruptcy, 
 disclaims leasehold property of the bankrupt without the leave of the 
 Court under the powers conferred on him by Rule 232 of the Bankruptcy 
 Rules, 1883, the Court has no jurisdiction to give any compensation to 
 the landlord out of the estate for the use and occupation of such leasehold 
 property by the official receiver as such trustee. In re Sandwell, Ex 
 parte Zerfass, 2 MorreU, 95 ; L. R. 14 Q. B. D. 960 ; 54 L. J. Q. B. 
 325 ; 62 L. T. 692 ; 33 W. R. 522— Cave, J. 
 
 " Property " Disclaimahle.] — The word " property " as used in section 
 55, and as defined in section 168 of the Bankruptcy Act, 1883, is not 
 restricted to " property divisible amongst the creditors " mentioned in 
 section 44, but extends to any kind of property subject to any onerous 
 covenants or obligations which may be vested in the debtor. In re 
 Maughan, Ex parte Monkhouse, 2 Morrell, 25 ; L. R. 14 Q. B. D. 956 ; 
 54 L. J. Q. B. 128; 33 W. R. 308— Field, J. 
 
THE BANKRUPTCY ACT, 1883. 75 
 
 Application for Leave — Extension of Time.] — Although the three 
 months given to a trustee by section 55, sub-section (1), of the Bank- 
 ruptcy Act, 1883, within which to disclaim onerous property may have 
 expired, the Court has power under section 105, sub-section (4), to grant 
 the trustee an extension of time. When a trustee applies for an exten- 
 sion of time, he should give some good reason for the indulgence he asks, 
 and if the rights of the other parties will be prejudiced by the time being 
 extended, the Court will, as a general rule, put the trustee upon terms. 
 In re Price, Ex parte Foreman, 1 Morrell, 153 ; L. R. 13 Q. B. D. 466 ; 
 83 W. R. 139— Cave, J. 
 
 Notice of motion for leave to disclaim a lease by the trustee in bank- 
 ruptcy may be served on persons interested out of the jurisdiction of the 
 Court in the ordinary way. In re Rathhone, Ex parte Paterson, 
 4 MorreU, 270 ; 66 L. J. Q. B. 504 ; 57 L. T. 420 ; 35 W. E. 735— 
 Cave, J. 
 
 Refusal of Leave— Misconduct of Trustee.] — On August 4th, 1886, the 
 agent on behalf of a banking company took possession of a quarry under 
 a sublease previously granted by the debtor, the original lessee, as security 
 for a loan. On August 11th, 1886, the debtor was adjudged bankrupt, 
 and such agent was appointed trustee in the bankruptcy, but he neverthe- 
 less continued in possession of the said quarry on the part of the bank, 
 which was worked for the bank's benefit. On November 6th, 1886, the 
 agent, as trustee in the bankruptcy, appHed to the County Court for 
 unconditional leave to disclaim the lease. This application was opposed 
 by the landlord, and refused by the County Court Judge, but without 
 prejudice to the trustee to apply for leave to disclaim on terms. 
 
 Held : That the County Court Judge was right in refusing uncondi- 
 tional leave to disclaim ; that the trustee had taken upon himself two 
 utterly irreconcilable duties ; and that, having regard to his conduct, and 
 to the fact that no evidence was before the County Court Judge to enable 
 him to come to a proper conclusion as to terms, the order made by him 
 was right. In re Crowther, Ex parte Duff, 4 Morrell, 100 — D. 
 
 See also Vesting Order. 
 
 DISCOVERY. 
 
 The Court ordered that the defendant in an action brought by a trustee 
 in bankruptcy of a firm which had been adjudicated bankrupt before the 
 passing of the Bankruptcy Act, 1883, should be allowed to obtain 
 particulars from and deliver interrogatories to the trustee, and that the 
 action should be tried by a jury. In re Carvill d- McKean, 1 Morrell, 
 150— Cave, J. 
 
76 DIGEST or CASES DECIDED UNDER 
 
 -Where application was made under section 19 of the Bankruptcy 
 
 Act, 1869 {see section 24 of the Bankruptcy Act, 1883), for an order 
 upon a debtor to answer certain enquiries, and to submit to a medical 
 examination for the purpose of life insurance. 
 
 Held : That the provisions of the section apply to an examination of 
 the debtor in respect of property ; and that the Court could not under 
 the section make an order for the personal examination of the debtor as 
 to the state of health, with a view to insurance. In re Garnett, Ex parte 
 the Official Receiver, 2 Morrell, 286 ; L. R. 16 Q. B. D. 698 ; 55 L. J. 
 Q. B. 77 ; 53 L. T. 769 ; 34 W. E. 79— Cave, J. 
 
 -On application by a bankrupt for his discharge, under section 28 
 
 of the Bankruptcy Act, 1883, the Court has no jurisdiction to take into 
 consideration as "conduct" a refusal on the part of such bankrupt to 
 submit to a medical examination, with a view to life insurance, for tha 
 purpose of enabling the trustee in the bankruptcy to realise to better 
 advantage a contingent reversionary interest of the said bankrupt in 
 certain property. The word " conduct " in section 28 does not include 
 general misconduct, but if not covered by any of the specific instances 
 mentioned in that section, it must be regarded with reference to sec- 
 tion 24 of the Act, which defines the duties of the debtor as to the 
 realisation and distribution of his property. In re Betts d Block, 
 Ex parte the Board of Trade, 4 Morrell, 170 ; L. R. 19 Q. B. D. 39 ; 
 56 L. J. Q. B. 370; 56 L. T. 804 ; 35 W. E. 530— C. A. 
 
 The powers given by section 27 of the Banki-uptcy Act, 1883, in 
 
 respect of discovery of a debtor's property, cannot be incorporated into a 
 scheme of arrangement accepted by a majority of the creditors under 
 section 18 of the Act. A scheme of arrangement must be both reason- 
 able, and calculated to benefit the general body of creditors ; and where 
 a proposed scheme gave to the creditors no advantage which they would 
 not have if bankruptcy proceedings were allowed to go on, but by 
 reason of the inability to apply the provisions of section 27 as to dis- 
 covery, such scheme gave to the creditors even less advantage than a 
 bankruptcy. 
 
 Held : That the scheme in question was not reasonable, and was not 
 calculated to benefit the general body of creditors ; and that the approval 
 of the Court ought not to be granted. In re Aylmer, Ex parte Bischoffs- 
 heim, 4 Morrell, 152; L. E. 19 Q. B. D. 33; 56 L. J. Q. B. 460; 
 56 L. T. 801 ; 35 W. R. 532— C. A. 
 
 Of Document.] — The Court will not allow its process to be used to do 
 indirectly that which the process of the Court will not allow to be done 
 
THE BANKRUPTCY ACT, 1883. 77 
 
 directly. Thus where application was made by a friendly creditor for 
 discovery of documents, nominally for the purpose of carrying out pro- 
 ceedings to expunge a proof, but in reality for the purpose of reopening, 
 after time for appeal had elapsed, the question as to whether the receiving 
 order had been properly made against the banlaupt or not. 
 
 Held : That the application was an attempt by the contrivance of the 
 creditor and the banlo-upt, in the interest of the bankrupt, to use the 
 process of the Court to do that which, if the bankrupt himself asked the 
 Court, the Court would not allow to be done ; and that the Eegistrar was 
 quite right in refusing it. In re Dashvood, Ex parte Kirk, 3 Morrell, 
 257— C. A. 
 
 Examination of Witness — Refusal to produce Letter Book.] — A witness 
 was examined before the Eegistrar, under section 27 of the Bankruptcy 
 Act, 1883, and produced certain letters torn from a letter-book in his 
 possession, but refused to produce the book itself, as he swore that it 
 contained no letters relating to the debtor, his dealings or property, other 
 than those produced. On an application being made to commit the 
 witness under rule 88 of the Bankruptcy Rules, 1886. 
 
 Held : That the answer of the witness must be accepted, as the object 
 of tjie section was not to enable a trustee by cross-examination to make 
 out a case. In re Purvis, Ex parte Rooke, 56 L. T. 679 — Cave, J. 
 
 And see cases under title Witness, 
 
 DISQUALIFICATIONS OF BANKRUPT. 
 
 The words " misfortune without any misconduct " in section 32, sub- 
 section 2 (&) of the Bankruptcy Act, 1883 — which provides for the grant- 
 ing of a certificate for the removal of the disqualifications of a bankrupt 
 ■ — mean pure misfortune as distinguished from and without misconduct, 
 and the word " misconduct " in that section is not to be interpreted with 
 reference to section 28 of the Act, or confined to the " conduct " therein 
 specified. The bankrupt, who was the editor of a newspaper, was indicted 
 for a libel and sentenced to three months' imprisonment and to pay the 
 costs of the prosecution. During the time he was in gaol all his pro- 
 perty was sold under a bill of sale given for the purposes of the defence, 
 and he subsequently presented his own petition. On appeal from a 
 decision of the County Court Judge refusing a certificate under section 
 32, sub-section 2 (fc), of the Bankruptcy Act, 1883. 
 
 Held : That the bankruptcy was caused by the libel, the sentence, and 
 the imprisonment ; that it was impossible to say that such bankruptcy 
 was caused by misfortune without any misconduct on the bankrupt's 
 
78 DIGEST OF OASES DECIDED UNDER 
 
 part ; and that the refusal of the certificate was right. In re Burgess, 
 Ex parte Burgess, 4 Morrell, 186; 57 L. T. 200; 35 W. R. 702— D. 
 
 DISTRESS. 
 
 Right of.] — The rent of a certain holding was by the lease payable at 
 Midsummer, but by the ordinary course of dealing between the landlord 
 and tenant, payment was deferred until September. Between Mid- 
 summer, 1886, and the usual time for payment, the landlord distrained 
 for the rent for 1886, and also for the arrears of rent for 1885. 
 
 Held : That the landlord was entitled so to distrain : that section 44 
 of the Agricultural Holdings Act, 1883, does not say that a landlord 
 shall not distrain for more than a year's rent at a time, but that such 
 landlord shall not distrain for rent which is more than twelve months 
 old : and that by the proviso in the section the rent for 1885 must be 
 deemed to have become due at the usual day of payment, and therefore 
 not to have been due for more than a year before the distress, so that it 
 could be distrained for as well as the rent for 1886. In re Bew, Ex 
 parte Bull, 4 Morrell, 94; L. R. 18 Q. B. D. 643 ; 56 L. J. Q. B. 270; 
 56 L. T. 571 ; 35 W. R. 455— D. 
 
 Payment to prevent.] — In June, 1886, the debtor executed an assign- 
 ment for the benefit of his creditors, under which the applicant was 
 employed to prepare a statement of affairs, and it appearing that the 
 landlord was threatening a distress for rent, the applicant upon the 
 instructions of the creditors paid the amount due. In July, 1886, a 
 receiving order was made against the debtor, and repayment of the 
 amount so paid by the applicant for the benefit of the creditors was 
 refused by the official receiver without an order of the Court. 
 
 Held : That under the circumstances and looking to the fact that a 
 request signed by a majority in number and value of the creditors had 
 been presented to the of&cial receiver stating their willingness that 
 repayment should be allowed, the Court would make the order. But 
 that the official receiver would be entitled to retain his costs of the 
 hearing out of the amount and hand over the balance to the applicant. 
 In re Ayshford, Ex parte hovering, 4 Morrell, 164 ; 35 W. R, 652— 
 Cave, J. 
 
 DOCUMENT. 
 
 Construction of.] — ^It is a general good rule of construction that where, 
 if nothing were said, there would be a general applied condition, if there 
 is inserted in a document a specific and limited condition, such specific 
 and limited condition was meant to take the place of the general condition. 
 
THE BANKRUPTCY ACT, 1883. 79 
 
 Thus, where a deed of arrangement, by which a debtor agreed to pay his 
 creditors their debts in full by certain quarterly instalments, contained a 
 clause that if default be made for the space of twenty-one days in paying 
 any one instalment, then, and in such case, it should be lawful for the 
 trustee under the deed by notice in wiiting to declare such deed void, 
 " and in such event the creditors shall be entitled to enforce their claims 
 as if the said deed had never been made or executed." 
 
 Held : That the trustee not having given the said notice, a creditor 
 under the deed was not entitled to serve a bankruptcy notice and present 
 a petition on account of the debt due to him. In re Clement, Ex parte 
 Goas, 3 Morrell, 153— C. A. 
 
 A deed of composition executed by a debtor who had filed a bank- 
 
 ruptcy petition recited that the debtor was possessed of or entitled to the 
 real and personal estate specified m the schedule, and that in accordance 
 with his desire to pay his creditors 20s. in the pound, and in order that 
 the composition should be secured, he had agreed with the trustee to 
 assign to him all the property set forth in the schedule upon the trusts 
 thereinafter contained. By the operative part the debtor, " for effectuating 
 the said desire, and in pursuance of the said agreement," assigned to the 
 trustee " all and singular the several properties, chattels and effects set 
 forth in the said schedule hereto, and all the estate, right, title, interest, 
 claim, and demand " of the debtor " in, to, and upon the said chattels, 
 properties, and effects, and all other estate {if any) " of the debtor. The 
 debtor was under the trusts of a post-nuptial settlement, entitled to a 
 life interest in certain property. This life interest was not mentioned in 
 the schedule. 
 
 Held : That the general words of the assignment were controlled by 
 the recital which showed that the deed was intended to apply only to the 
 property specified in the schedule, and that the life interest did not pass 
 to the trustee. In re Moon, Ex parte Dawes, L. R. 17 Q. B. D. 275 ; 
 55 L. T. 114; 34 W. E. 752— C. A. 
 
 Discovery of.] — -Where application was made by a friendly creditor for 
 discovery of documents, nominally for the purpose of carrying out pro- 
 ceedings to expunge a proof, but in reality for the purpose of reopening, 
 after time for appeal had elapsed, the question as to whether the receiving 
 order had been properly made against the bankrupt or not. 
 
 Held : That the application was an attempt by the contrivance of the 
 creditor and the bankrupt, in the interest of the bankrupt, to use the 
 process of the Court to do that which, if the bankrupt himself asked the 
 Court, the Court would not allow to be done : and that the Registrar was 
 
80 DIGEST OF OASrS DECIDED UNDER 
 
 quite riglit in refusing it. In re Dashcood, Ex parte Kirk, 3 Morrell, 
 257— C. A. 
 
 Belivery of.'] — ^Where after the annulment of bankruptcy proceedings 
 application was made by the bankrupt for an order against the trustee to 
 deliver up books and papers and a statement of account, the said trustee, 
 •with the solicitors and committee of inspection, having been indicted by 
 ■ the banki'upt for conspiracy in bringing about the bankruptcy with intent 
 to defraud, which indictment was then pending. 
 
 Held : That in the face of the criminal proceedings the application 
 could not then be allowed; and that the proper course under the circum- 
 stances was to order the case to stand over until after the trial upon the 
 indictment had taken place, or until its abandonment. In re Palmer, 
 Ex parte Palmer, 3 Morrell, 267— C. A. 
 
 DOMICIL. 
 
 Section 6, sub-section 1 (d), of the Bankruptcy Act, 1888, which pro- 
 vides that a creditor shall not be entitled to present a bankruptcy petition 
 against a debtor, unless such " debtor is domiciled in England, or, within 
 a year before the date of the presentation of the petition, has ordinarily 
 resided or had a dwelling-house or place of business in England," must 
 be taken to mean domiciled in England as distinguished from Scotland 
 or Ireland. The onus of proof of the domicil is, in the first instance, 
 on the creditor presenting the petition. It is not sufiBcient, in order to 
 throw the onus of proof on the other side, for the petitioning creditor to 
 show that the debtor is an officer in the British army on active service 
 out of England, and belongs to a regiment, the head-quarters of which 
 are in England, and bears an English name. A Scotchman or an Irish- 
 man does not lose his domicil of origin by accepting a commission in the 
 English army. {Yelverton's Case, 29 L. J., P. & M. 34, followed.) In 
 re Mitchell, Ex parte Cunnincjham, 1 Morrell, 137 ; L. R. 13 Q. B. D. 
 418 ; 53 L. J. Ch. 1067 ; 51 L. T. 447 ; 33 W. R. 22— C. A. 
 
 Although the onus is on the petitioning creditor to prove the English 
 
 domicil of the debtor as required by section 6, sub-section 1 (d), of the 
 Bankruptcy Act, 1883, and that the residence of the debtor has been 
 such as to give the Court in wiiich the petition is presented jurisdiction 
 under section 95 ; nevertheless, if there is no reason to suppose that the 
 debtor will dispute that his domicil is English, or that the petition is 
 presented in the right Court, it is not necessary for the petitioning 
 creditor in the first instance to adduce evidence of either of these facts. 
 In re Barne, Ex parte Barne,^ 3 Morrell, 33 ; L. E. 16 Q. B. D. 522 ; 
 54 L. T. 662— C. A. 
 
THE BANKKUPTCY ACT, 1883. 81 
 
 ELEGIT. 
 
 Notwithstanding the provisions of section 146 of the Banb-uptcy Act, 
 1883, a writ of elegit still extends to leaseholds. Richardson v. Wehh, 
 1 Morrell, 40— D. 
 
 In a case where possession of the goods of a debtor had been taken by 
 
 the sheriff under a writ of elegit on December 22nd, 1888, but no delivery 
 had been made to the judgment creditor prior to January 1st, 1884, when 
 the Bankruptcy Act, 1883, came into operation (by which statute it is 
 provided that writs of elegit shall no longer extend to goods). 
 
 Held : That the judgment creditor was still entitled to delivery of the 
 goods. Hough v. Windas, 1 Morrell, 1 ; L. K. 12 Q. B. D. 224 ; 53 
 L. J. Q. B. 165 ; 50 L. T. 312 ; 22 W. R. 452— C. A. 
 
 -In a case where possession of the goods of a debtor had been taken 
 
 by the sheriff under a wi-it of elegit on December 22nd, 1883, but no 
 delivery had been made to the judgment creditor prior to the debtor being 
 adjudicated a bankrupt under the Bankruptcy Act, 1883, which came 
 into operation on January 1st, 1884 (by which it is provided that writs 
 of elegit shall no longer extend to goods ; and, further, that an execution 
 against goods must be completed by seizure and sale in order to entitle 
 the creditor to the benefit of the execution in case of the debtor's 
 bankruptcy.) 
 
 Held : That the judgment creditor was not deprived of his right to 
 the delivery of the goods. In re Windas & Dunsmore, Ex parte Hough, 
 1 MorreU, 22 ; 50 L. T. 212 ; 32 W. E. 540— Cave, J. 
 
 An execution against lands is " completed by seizure " within 
 
 section 45, sub-section (2), of the Bankruptcy Act, 1883, as soon as the 
 sheriff has delivered the lands to the execution creditor under a writ of 
 elegit, though a receiving order is afterwards made before the sheriff 
 makes a return to the writ. In re Hobson, L. R. 33 Ch. D. 493 ; 55 
 L. J. Ch. 754 ; 55 L. T. 255 ; 34 W. R. 786— V.-C. B. 
 
 EVIDENCE. 
 
 In support of Petition.] — Where, upon the hearing of a bankruptcy 
 petition against a debtor, the evidence requisite under section 7, sub- 
 section (2), of the Bankruptcy Act, 1883, is adduced, it is not necessary, 
 in the event of the hearing being adjourned, to give at such adjourned 
 hearing similar evidence under the said sub- section. In re Winby, Ex 
 parte Winby, 3 Morrell, 108 — C, A. 
 
 Answers of Bankrupt on Public Examination.] — The answers of a 
 bankrupt on his public examination are not admissible in evidence iir 
 M.D. Q 
 
8 a DIGEST OF CASES DECIDED UNDER 
 
 subsequent motions in the same bankruptcy as against parties other than 
 the bankrupt himself. In re Brunner, Ex parte the Board of Trade, 4 
 Morrell, 255 ; L. R. 19 Q. B. D. 572 ; 56 L. J. Q. B. 606 ; 57 L. T. 
 418 ; 35 W. R. 719— Cave, J. 
 
 Affidavit sworn Abroad.'] — When an affidavit or proof in bankruptcy 
 is sworn abroad before a British consul, or vice-consul, a notarial certifi- 
 cate in verification of the signature and qualification of the consul or 
 vice-consul is not required. The notarial certificate is only required 
 v?hen such an affidavit or proof is sworn before a foreign functionary. 
 In re Magee, Ex parte Magee, L. R. 15 Q. B. D. 332 ; 54 L. J. Q. B. 
 894 ; 33 W. R. 655— Cave, J. 
 
 Report of Official Receiver.] — The report of the official receiver is, 
 under section 18 of the Bankruptcy Act, 1883 — as it is under section 28 
 ■ — prima facie evidence of the statements contained in it. In re Wallace, 
 Ex parte Campbell, 2 Morrell, 167 ; L. R. 15 Q. B. D. 213 ; 54 L. J. 
 Q. B. 382 ; 53 L. T. 208— C. A. 
 
 Viva voce.] — An application to be allowed to give viva voce evidence 
 ought to be made beforehand, and not at the same time with the motion 
 upon the hearing of which it is desired to use such evidence. In re 
 Genese, Ex parte Kearsley d- Co., 3 Morrell, 57 ; L. R. 17 Q. B. D. 1; 
 55 L. J. Q. B. 325 ; 34 W. R. 474— Cave, J. 
 
 Where in a case to be heard before the Judge in Bankruptcy it is 
 
 desired to use viva voce evidence, the application for leave to give such 
 vivd voce evidence must be made beforehand to the Judge, and not to 
 the Registrar. In re Hagan & Co., Ex parte Adamson d Ronaldson, 8 
 Morrell, 117— Cave, J, 
 
 ■ Where it is desired to use vivd voce evidence at the hearing of a 
 
 motion, and both parties consent, a written notice to that effect may be 
 given to the clerk of the Court, and application made to the Judge to fix 
 a suitable day for the hearing. But if both parties do not consent, the 
 matter must come on as a motion in the ordinary way. In re Underhill, 
 3 Morrell, 282 ; L. R. 18 Q. B. D. 115 ; 35 W. R. 336— Cave, J. 
 
 Practice in County Courts.] — The practice by which application to be 
 allowed to give vivd voce evidence must be made beforehand and not at 
 the same time with the motion upon the hearing of which it is desired 
 to use such evidence, applies only to the High Court ; and such practice 
 is not intended to apply to the County Courts, or to aifect the course of 
 business therein. In re Wilson, Ex parte Watkinson, 4 Morrell, 238 ; 
 57 L. T. 201; 35 W. R. 668— D. 
 
THE BANKEUPTOY ACT, 18S3. S3 
 
 EXA.MINATION. — See Pahlic Examination—Medical Examination. 
 
 EXECUTION. 
 
 Charging Order nisi.l — A charging order upon shares, made under the 
 Statute 1 & 2 Vict. c. 110, s. 14, does not fall within section 45 of the 
 Bankruptcy Act, 1883, and the words in the said section, "an execu- 
 tion against the goods of a debtor," which is to be completed by seizure 
 and sale, do not include such an order. In re Hutchinson, Ex parte 
 Ploifden (& Co., 3 Morrell, 19 ; L. E. 16 Q. B. D. 515 ; 55 L. J. Q. B. 
 582 ; 54 L. T. 302 ; 34 W. R. 475— D. 
 
 Seizure and Sale — Interpleader — Completion of Execution.] — Goods 
 of the debtor were taken in execution by the plaintiff under judgment for 
 a sum exceeding 20Z. The goods having been claimed by a third person, 
 an interpleader order was made on March 16th directing that, unless 
 payment were made or security given by the claimant according to the 
 provisions of the order, the sheriff should sell the goods and pay the 
 proceeds of the sale into Court. The claimant did not comply with the 
 provisions of the order, and ultimately withdrew his claim. On March 
 28th the goods were sold, and the proceeds paid into Court on April 6th. 
 On April 7th notice of a banki-uptcy petition having been presented 
 against the debtor was served on the sheriff, and the debtor was adjudged 
 bankrupt on such petition. 
 
 Held : That under sections 45 and 46 of the Banki-uptcy Act, 1883, 
 the trustee in bankruptcy of the debtor was entitled as against the plain- 
 tiff to the money in Coart. In re Livesey, L. E. 19 Q. B. D. 285 ; 56 
 L. J. Q. B. 645 ; 36 W. E. 127 ; 51 J. P. 471— D. 
 
 Completion of Execution — Seizure and Sale.] — ^Where a sheriff has 
 seized goods on behalf of an execution creditor, but is ordered before sale 
 to withdraw in favour of the receiver in an action in the Chancery Divi- 
 sion, the execution has not been completed within section 45 of the 
 Bankruptcy Act, 1883, and the goods seized pass to the trustee in bank- 
 ruptcy of the debtor. Mackay v. Merritt, 34 W. E. 433— V.-C. B. 
 
 « 
 
 Notice to Sheriff— Title to Proceeds of Sale.] — The sheriff was in 
 
 possession of the goods under several writs of fi. fa. — the three first of 
 which according to date were for more than 20Z., and the fifth for 12Z. 13s. 
 The sale was held, and the sheriff, having received notice within fourteen 
 days of a bankruptcy petition against the debtor, paid in the proceeds of 
 the sale to the official receiver as trustee in the bankruptcy. The amount 
 of the three prior writs exceeded together the amount realized by the 
 sale. On a claim by the execution creditor under the subsequent writ 
 
 G 2 
 
84 DIGEST OP OASES DECIDED UXDER 
 
 for 121. 13s. — that he was entitled to be paid the amount of his debt in 
 full. 
 
 Held : That it was not the effect of section 46 of the Bankruptcy Act, 
 1883, to make executions for more than 20L altogether void, but to 
 deprive the execution creditor of the benefit of the execution : that if no 
 bankruptcy had occurred the writs would have been paid in order of 
 date : and that under the Act the sheriff was required to pay over to the 
 trustee in the bankruptcy the amount which would have been appropriated 
 to the first writs. In re Pearce, Ex parte Crosthivaite, 2 Morrell, 105 ; 
 L. E. 14 Q. B. D. 966; 54 L. J. Q. B. 316; 52 L. T. 518; 33 W. E. 
 614 — Cave, J. 
 
 Rights of Landlo^'d — Rent.] — On March 11th the goods of the debtor 
 were seized under a Ji. fa., and on March 17th they were sold by the 
 sheriff by private contract under an order of the Court to that effect, but 
 they were not removed from the premises by the purchaser until April 
 10th. On March 23rd a bankruptcy petition was presented against the 
 debtor, and on April 14th a receiving order was made. On April 15th 
 the landlords of the debtor's premises served upon the sheriff a notice 
 requiring him not to remove the goods from such premises until the sum 
 of 1161. 8s., arrears of rent due at Christmas, 1884, and Lady-day, 1885, 
 had been paid to them. The sheriff, under section 46, sub-section (2), 
 of the Bankruptcy Act, 1883, handed to the trustee of the bankrupt's 
 estate the proceeds of the sale after deducting the usual costs of execution. 
 On an application for an order directing the sheriff to pay to the landlords 
 the said sum of 116Z. 8s. 
 
 Held: That for the rent due at Christmas, 1884, the landlords might 
 have distrained at any time between March 17th and April 10th ; and for 
 the rent due on March 25th, the sheriff who quitted the premises on 
 March 17 was not responsible ; and that, the landlords having failed to 
 take advantage of the opportunity offered to them, the application must 
 be dismissed with costs. In re Davis, Ex parte Pollen's Trustees, 
 3 Morrell, 27 ; 55 L. J. Q. B. 217 ; 54 L. T. 304 ; 34 W. E. 442— 
 Cave, J. 
 
 Payment by Judgment Debtor before Sale — Right to Proceeds.] — On 
 February 3rd, 1886, the sheriff having seized the goods of a debtor under 
 an execution for more than twenty pounds, the debtor on February 4th, 
 before sale, paid him the amount of the debt and costs. Notice was 
 given of this payment to the judgment creditors, who on February 11th 
 assented to the payment and wrote to the sheriff for the money. On 
 February 13th a bankruptcy petition was presented against the debtor, 
 who was adjudicated bankrupt thereon, and the trustee in the banki-uptcy 
 
THE BANKRUPTCY ACT, 1883. 85 
 
 having laid claim to the money so paid, an order was obtained in the 
 County Court directing the sheriff to hand over the amount to such 
 trustee. 
 
 Held (on appeal) : That the payment out by a debtor of an execution 
 upon his goods is not a " sale" within the meaning of section 46, sub- 
 section (2), of the Bankruptcy Act, 1883 : that the money was received 
 by the sheriff for the judgment creditors, who were entitled to it as 
 against the trustee in the bankruptcy : and that the order of the County 
 Court directing the sheriff to pay over the money to such trustee was 
 wrong. In re Pearson, Ex parte West Cannock Colliery Co., 3 Morrell, 
 187— D. 
 
 Notice of Petition after Sale.] — The notice to the sheriff mentioned in 
 section 46, sub-section (2), of the Banki-uptcy Act, 1883, must be given 
 either to the sheriff himself, or to some recognised agent of his for the 
 purpose of receiving such notice, such as the under-sheriff or some 
 authorised person at the sheriff's of&ce, and such notice given to an 
 ordinary bailiff or man in possession is not sufficient. The term " officer 
 charged with the execution of a writ or other process " included in the 
 term " sheriff" by section 168 of the Bankruptcy Act, 1883, signifies an 
 officer charged with duties similar to those of a sheriff though he is not 
 called sheriff, as for example, the bailiff of a County Court. In an action 
 in the Mayor's Court the notice should be given at the office of the 
 Serjeant-at-Mace, either to him or to his representative. In re Holland, 
 Ex -parte Warren, 2 Morrell, 142 ; L. E. 15 Q. B. D. 48 ; 54 L. J. Q. B. 
 320 ; 53 L. T. 68 ; 33 W. l\. 572— C. A. 
 
 Notice to Sheriff of Petition.] — The notice to be served on a sheriff of 
 a bankruptcy petition having been presented against or by the debtor 
 under section 46, sub-section (2), of the Bankruptcy Act, 1883, need not 
 necessarily be in writing. Curtis v. Wainbrook Iron Co., 1 C. & E. 351 
 — Grove, J. 
 
 Stay of.] — On August 23rd, 1886, judgment was recovered against the 
 debtor, and execution was issued under which the sheriff levied on 
 August 26th. On September 1st a third person having claimed the 
 goods an interpleader order was obtained by the sheriff, under which the 
 claimant paid 120L into Court, and thereupon in pursuance of the order 
 the sheriff withdrew from possession. On September 20th the issue in 
 the interpleader was settled, but on September 27th before such issue 
 was decided the judgment creditor served on the debtor a bankruptcy 
 notice under section 4, sub-section 1 (g) of the Bankruptcy Act, 1883 
 On an appeal from the decision of the County Court Registrar refusing 
 to set aside this notice. 
 
86 DIGEST OF CASES DECIDED UNDER 
 
 Held: That wlien the interpleader order was made, and an issue 
 directed, it was in substance a stay of execution until such issue in the 
 interpleader was decided : and that the creditor not being in a position to 
 issue execution on the judgment was not entitled to serve a bankruptcy 
 notice on the debtor at the date when such notice was served. In re 
 Ford, Ex -parte Ford, 3 Morrell, 283 ; L. E. 18 Q. B. D. 869 ; 56 L. J. 
 Q. B. 188; 56 L. T. 166— D. 
 
 On January 14th, 1887, judgment was recovered against the debtor 
 
 for 446L, and execution was issued under which the sheriff levied ; but a 
 third person having claimed the goods, an interpleader order was obtained, 
 whereby upon payment of 20Z. into Court by the claimant, the sheriff was 
 directed to withdraw. On March 14th, 1887, a bankruptcy notice under 
 section 4, sub-section 1 {g), of the Bankruptcy Act, requiring payment 
 of the debt, was served upon the debtor, but the notice was dismissed by 
 the Registrar of the County Court, on the ground that within the meaning 
 of the section execution had been stayed. 
 
 Held (on appeal) : That in any event there had been no stay, except as 
 to 20/!. ; that in the case of In re Ford, Ex parte Ford (see 3 Morrell, 
 283), the whole amount of the judgment debt had been levied, and the 
 case was so distinguishable ; and that the creditor was entitled to issue a 
 bankruptcy notice. 
 
 That the fact that the creditor had omitted to insert his name in the 
 heading of the bankruptcy notice, such heading being left " Ex parte 
 . . . ." — the notice being sued out by him in person, and giving 
 complete information on the face of it who the creditor was — did not 
 render the notice invalid. 
 
 That the fact of the notice claiming the whole debt of 446L without 
 considering the 20L which might be stayed, only amounted to a formal 
 error which the Court would rectify. In re Bates, Ex parte Lindsey, 
 4 Morrell, 192; 57 L. T. 417 ; 35 W. E. 668— D. 
 
 " Costs of Execution."] — The meaning to be attached to the words 
 " costs of the execution " in sub-section 1 of section 46 of the Bankruptcy 
 Act, 1883, is different to the meaning to be attached to the same words 
 in sub-section 2 of the same section. Under the words " costs of the 
 execution " in sub-section 1, the sheriff is not entitled to poundage. 
 In re W. dc J. Ludford, 1 Morrell, 131 ; L. E. 13 Q. B. D. 415 ; 53 
 L. J. Q. B. 418 ; 51 L. T. 240 ; 83 W. E. 152— Cave, J. 
 
 And see also cases collected under title Elegit. 
 
THE BANKRUPTCY ACT, 1883. 87 
 
 EXECUTOR. 
 
 Power of, to issue Bankruptcy Notice] — A bankruptcy notice against a 
 judgment debtor cannot be issued by the executor of a creditor who has 
 obtained final judgment unless such executor has first obtained leave 
 from the Court to issue execution on the judgment under Eule 23 of 
 Order XLII. of the Rules of the Supreme Court, 1883. In re Woodall, 
 Ex parte Woodall, 1 Morrell, 201 ; L. R. 13 Q. B. D. 479 ; 53 L. J. 
 Ch. 966 ; 50 L. T. 747 ; 32 W. R. 774— C. A. 
 
 PEES. 
 
 Scheme or Composition — Fees.] — The proposal put forward by a 
 debtor provided that all the property of such debtor divisible among his 
 creditors should vest in a trustee, and, subject to the provisions of the 
 scheme, be administered according to the law of bankruptcy : that, in 
 addition, the sum of lOOL a year out of a pension of 2971. belonging to 
 the debtor should be paid to the trustee under the scheme until, with the 
 rest of the debtor's property, all the costs relating to the bankruptcy 
 should have been paid, and the creditors should have received 15s. in 
 the pound upon the amount of their debts : that after payment of 15s. in 
 the pound to the creditors upon their debts and of all the costs, charges, 
 and expenses, the trustee should hand over to the debtor the surplus of 
 the estate : and that as from the date of the confirmation of the scheme 
 by the Court the debtor should be released and discharged from all debts 
 provable under the bankruptcy. On the debtor applying to the Court for 
 its approval, the Registrar was in doubt whether such proposal required 
 to be stamped as a composition or a scheme of arrangement, and the 
 question was referred to the Judge for decision. 
 
 Held : That the arrangement in question had more of the elements of 
 a scheme than of a composition ; and that the fee must be paid on the 
 estimated value of the 1001. a year as an asset. In re Griffith, 3 Morrell, 
 111— Cave, J. 
 
 County Court — Discharge — Consent to Judgment — Fees.] — Where 
 under the provisions of section 28, sub-section (6) of the Bankruptcy Act, 
 1883, the discharge of a bankrupt is granted by the County Court judge, 
 subject to the condition that such bankrupt shall consent to judgment 
 being entered against him by the trustee in the bankruptcy for any 
 balance of the debts provable under the bankruptcy which was not 
 satisfied at the date of the order, judgment shall be entered in the 
 County Court, even though the amount is in excess of 50Z. : and as the 
 judgment is entered in the County Court without any preliminary pro- 
 ceedings, the Registrar is not entitled to demand any fees as in respect 
 thereof on entering such judgment. In re Howe, 4 Morrell, 57 ; L. R. 
 18 Q. B. D. 573 ; 56 L. J. Q. B. 257 ; 35 W. R. 380— Cave, J. 
 
88 DIGEST OF CASES DECIDED UNDER 
 
 FI. PA. — See Execution. 
 
 PINAL JUDGMENT. 
 
 The words "final judgment" in section 4, sub-section 1 (g), of the 
 Bankruptcy Act, 1883, must te construed in their strict technical sence 
 of a judgment in an action which established a liability previously exist- 
 ing of a debtor to a creditor. A garnishee order absolute is not a 
 "final judgment" against the garnishee within the sub-section, and 
 the judgment creditor who has obtained the order cannot issue a bank- 
 ruptcy notice against the garnishee in respect of it. In re Chinery, Ex 
 parte Chinery, 1 Morrell, 31 ; L. E. 12 Q. B. D. 342 ; 53 L. J. Ch. 
 662,; 50 L. T. 342 ; 32 W. R. 469— C. A. 
 
 The fact that an order has been made against a defendant requiring 
 
 him to pay the taxed costs in an action within a specified time, does 
 not constitute such order a " final judgment " within the meaning of 
 section 4, sub-section 1 (g), of the Bankruptcy Act, 1883, so as to entitle 
 the plaintiff, in the event of the defendant failing to comply with the terms 
 of the order, to obtain a bankruptcy notice against the defendant founded 
 on the order. In re Cohen, Ex parte Schnitz, 1 Morrell, 55 L. R. 12 Q. 
 B. D. 509 ; 53 L. J. Ch. 1168 ; 50 L. T. 747 ; 32 W. R. 812— C. A. 
 
 A "balance order" for the payment of calls upon shares, made on a 
 
 contributory in the winding-up of a company, is not a " final judgment " 
 within the meaning of section 4, sub-section 1 (g), of the Bankruptcy 
 Act, 1883, so as to enable the liquidator of the company to issue a bank- 
 ruptcy notice against the contributory in respect of the amount ordered 
 by the balance order to be paid. The case of In re Sanders, Ex parte 
 Whinney (see 1 Morrell, 185 ; L. R. 13 Q. B. D. 476), approved and 
 followed. In re Tennant, Ex parte Grimwade, 3 Morrell, 166 ; L. R. 
 17 Q. B. D. 357; 55 L. J. Q. B. 495— C. A. 
 
 A creditor who has obtained a final judgment cannot under section 4, 
 
 sub-section 1 (g), of the Bankruptcy Act, 1883, issue a bankruptcy notice 
 against the judgment debtor, unless such creditor is also in a position to 
 issue immediate execution on the judgment. In re Ide, Ex parte Ide, 
 3 Morrell, 239 ; L. R. 17 Q. B. D. 755 ; 55 L. J. Q. B. 484 ; 35 W. R. 
 20— C. A. 
 
 Executor of original Judgment Creditor.] — A creditor in order to serve 
 a bankruptcy notice under section 4, sub-section 1 (g) of the Bankruptcy 
 Act, 1883, must be entitled and in a position to issue execution ; and in 
 consequence a bankruptcy notice against a judgment debtor cannot be 
 Issued by the executor of a creditor who has obtained final judgment 
 unless such executor has first obtained leave from the Court to issue 
 
THE BANKRUPTCY ACT, 18S3. 89 
 
 execution on the judgment under Eule 23 of Order XLII. of tlie Rules of 
 the Supreme Court, 1883. In re Woodall, Exparte Woodall, 1 Morrell, 
 201 ; L. E. 13 Q. B. D. 479 ; 53 L. J. Ch. 966 ; 60 L. L. 747 ; 
 32 W. R. 774— C. A. 
 
 Assignee of Judgment Debt.] — The assignee of a judgment debt is not 
 " a creditor " who " has obtained a final judgment " against the judg- 
 ment debtor -within the meaning of section 4, sub-section 1 (g), of the 
 Banki-uptcy Act, 1883 ; and such assignee is not entitled to issue a 
 bankruptcy notice against the debtor in respect of the debt. The words 
 of the said sub-section cannot be extended further than to the personal 
 representative of the creditor who has obtained the judgment : and the 
 decision of the Court of Appeal in the case of In re Woodall, Ex parte 
 Woodall (see 1 Morrell, 201 ; L. E. 13 Q. B. D. 479), did not go further 
 than to such personal representative. In re Keeling, Exparte Blanchett, 
 8 MorreU, 157 ; L. R. 17 Q. B. D. 303 ; 55 L. J. Q. B. 327 ; 34 W. E. 
 438— C. A. 
 
 Eight to isstie Seco7id Bankri(ptcy Notice.] — If execution may be issued 
 on a judgment, a bankruptcy notice under section 4, sub-section 1 (g), 
 of the Bankruptcy Act, 1883, may be issued. Thus, where a bankruptcy 
 notice has been issued in respect of a judgment debt, and withdrawn, a 
 second bankruptcy notice may be issued in respect of the same debt. 
 Judgment for 438Z. 12s. and costs having been recovered against a 
 debtor, the costs were taxed at S7l., and the creditor issued a bankruptcy 
 notice in respect of the judgment debt and costs. An agreement was 
 thereupon come to between the debtor and the creditor, by which the 
 debt and costs were agreed at 500L, and the debtor agreed to pay 1001. 
 at once, such lOOZ., including the B71. taxed costs, 25Z. costs of the 
 bankruptcy proceedings, and 38Z., part of the judgment debt, and the 
 balance of the debt by monthly instalments of 201. ; in case any instal- 
 ment was not duly paid, the whole amount then unpaid to be forthwith 
 due and payable. The lOOZ. and some of the instalments were duly 
 paid ; but on default subsequently being made, a bankruptcy notice for 
 the unpaid balance was issued by the creditor. 
 
 Held : That the agreement entered into was to the effect that, upon 
 default of payment of any instalment, the unpaid balance was to become 
 due under the judgment, and that the creditor was entitled to issue a 
 bankruptcy notice in respect of the debt. In re Feast, Ex parte Feast, 
 4 MorreU, 37— C A. 
 
 Power of Court to go behind Judgment.] — Upon a petition by a judg- 
 ment creditor for a receiving order, the Court of Bankruptcy has power, 
 at the instance of the judgment debtor, to go behind the judgment, and 
 
90 DIGEST OF CASES DECIDED UNDER 
 
 to inquire into the consideration for the judgment debt, even though the 
 debtor has consented to the judgment. If on the hearing of the petition 
 evidence is put forward of such facts, which, if proved, would show that, 
 notwithstanding the judgment, there is by reason of fraud or otherwise, 
 no real debt, the Court ought not to make a receiving order without 
 inquiry into the truth of the facts alleged. In re Lennox, Ex parte 
 Lennox, 2 Morrell, 271; L. R. 16 Q. B. D. 315; 55 L. J. Q. B. 45; 
 54 L. T. 452 ; 34 W. E. 51— C. A. 
 
 Although upon a petition by a judgment creditor for a receiving 
 
 order the Court has power, at the instance of the judgment debtor, to go 
 behind the judgment, yet, if the facts alleged by such debtor as a reason 
 for so doing, are in the opinion of the Registrar immaterial and insuffi- 
 cient, he is right in refusing to hear evidence in support of such facts, 
 and in making a receiving order as prayed. In re Lipscomhe, Ex parte 
 lApscomhe, 4 Morrell, 43 — C. A. 
 
 Although upon a petition by a judgment creditor for a receiving 
 
 order, the Court has power at the instance of the judgment debtor to go 
 behind the judgment, yet the Court will not do so on the mere suggestion 
 that the judgment debt is bad, if it comes to the conclusion that the 
 objections raised are frivolous. Where on taxation of a bill of costs the 
 debtor offered no evidence of a surcharge carried in by him, and although 
 on application for judgment under Order XrV. for the amount certified 
 he filed an affidavit, alleging that he had a counterclaim, yet did not 
 appeal from the order for judgment then made, but on a bankruptcy 
 petition being presented by the judgment creditors, such debtor was 
 desirous of going into the merits of the surcharge or counterclaim. 
 
 Held : That the Registrar was right in refusing to allow the question 
 to be re-opened, and in making a receiving order as prayed. In re Saville, 
 Ex parte Saville, 4 Morrell, 277 ; 35 W. R. 791— C. A. 
 
 Appeal pending from Judgment — Stay of Proceedings.] — ^Where a 
 bankruptcy petition is presented by a creditor, founded on an act of 
 bankruptcy committed by the failure of the debtor to comply with the 
 terms of a bankruptcy notice to pay a judgment debt, and an appeal is 
 pending from such judgment, it is a matter of discretion for the Registrar 
 whether he will make a receiving other, or stay the proceedings ; and the 
 Court of Appeal will not interfere unless such exercise of discretion is 
 clearly wrong. In re Rhodes, Ex parte Heytcorth, 1 Morrell, 269; 
 L. R. 14 Q. B. D. 49 ; 54 L. J. Q. B. 198 ; 52 L. T. 201— C. A. 
 
 Judgment for Costs.] — Where, in consequence of a breach of covenant 
 of articles of partnership, an action was brought in the Chancery Divi- 
 
THE BANKRUPTCY ACT, 18S3. 91 
 
 sion, and judgment obtained, restraining the defendant from carrying on 
 business within a certain radius — dissolving the partnership — ordering 
 an inquiry as to the amount of damage sustained by the plaintiff — and 
 further ordering the costs of the defendant to be paid — and pending the 
 inquiry as to the damages, the costs were taxed, and only a portion being 
 paid, a bankruptcy notice was served on the debtor under section 4, 
 sub-section 1 (g), of the Bankruptcy Act, 1883, for the remainder. 
 
 Held : That the sum in respect of which the bankruptcy notice was 
 served was due under a final judgment within the meaning of the section, 
 the amount in question being wholly independent of the result of the 
 inquiry. In re Faitlifidl, Ex parte Moore, 2 Morrell, 62 ; L. E. 14 Q. 
 
 B. D. 627; 54 L. J. Q. B. 190; 52 L. T. 376; 33 W. E. 438— 
 
 C. A. 
 
 Alleged Set-ojf.] — A debtor against whom action was brought allowed 
 judgment to go by default, but subsequently obtained leave to defend on 
 payment of 43L into Court, which he neglected to do. Judgment was 
 thereupon signed, and a bankruptcy petition presented, and the debtor 
 having refused to give security for the debt as required by the Court, a 
 receiving order was made. On appeal by the debtor to set aside this 
 order under section 4, sub-section 1 (g) of the Bankruptcy Act, 1883, on 
 the ground that he had a counterclaim, set-off, or cross-demand, which 
 equalled or exceeded the amount of the judgment debt, and which he 
 could not set-up in the action in which judgment was obtained. 
 
 Held: That the debtor had had ample opportunity to set up the 
 alleged set-off in the action, which he had neglected to do : and that the 
 order of the County Court was a right order. In re Isaac, Ex parte 
 Isaac, 2 Morrell, 258— D. 
 
 FIXTURES. 
 
 Where a trustee seeks to disclaim a lease under section 65, the Court 
 may, if it thinks fit, under sub-section 3 of section 65, permit such 
 trustee to remove fixtures. In re Moser, Ex parte Painter, 1 Morrell, 
 244 ; L. E. 13 Q. B. D. 738 ; 33 W. E. 16— Wills, J. 
 
 A lease of a mill and warehouse made October 1st, 1880, for twenty- 
 one years, contained the following covenants and provisoes : — " That in 
 case the said lessees shall during the said term be bankrupts, or file a 
 petition in liquidation, or make an assignment for the benefit of their 
 creditors, then the said term hereby created shall cease." " That on the 
 determination or cesser of the said term the machinery-room, ware- 
 house and chimney shall be and remain the property of the company, 
 but all the machinery, and also all the other buildings erected by the 
 
9^ DIGEST OF CASES DECIDED UNDER 
 
 lessees, shall be their property, and shall be removed by them previously 
 to the determination or cesser of the said term, unless it shall be then 
 mutually agreed by the said company and the lessees that the company 
 shall purchase them. The said lessees in case the same shall be removed 
 to make good all damage which may be caused in their removal." 
 " That the several articles and things mentioned in the schedule hereto 
 {consisting of iron columns and beams in hoiler-room, ivood floor in oil 
 mill, and other articles), shall be the property of the lessees, and shall be 
 removable by them ; the said lessees making good all damage done by 
 such removal." In March, 1884, the lessees presented a bankruptcy 
 petition under the Bankruptcy Act, 1883, upon which a receiving order 
 was made. 
 
 Held : 1. That the lessees had taken such steps under the Bankruptcy 
 Act, as, having regard to the provisions of the new Act and to section 
 149 of it, would justify the lessors in saying that the clause of forfeiture 
 applied, and that consequently the presentation of the petition by the 
 lessees caused a cesser of the term under that proviso. 
 
 2. That the official receiver was entitled to the articles mentioned in 
 the clauses above, notwithstanding the forfeiture. In re Walker, Ex 
 parte Gould, Official Receiver, 1 Morrell, 168 ; L. E. 13 Q. B. D. 464 ; 
 51 L. T. 368— D. 
 
 FORMAL DEFECTS. 
 
 Li Bankruptcy Notice.] — The fact that the creditor had omitted to 
 insert his name in the heading of the bankruptcy notice, such heading 
 
 being left " Ex parte ," the notice being sued out by him in person 
 
 and giving complete information on the face of it who the creditor was 
 — did not render the notice invalid. And the fact of the notice claiming 
 the whole debt of 446Z. without considering 20L, which under the 
 circumstances of the case might be stayed, only amounted to a formal 
 error which the Court would rectify. In re Bates, Ex parte Lindsey, 4 
 Morrell, 192 ; 57 L. T. 417 ; 35 W. K. 668— D. 
 
 FRAUDULENT PREFERENCE. 
 
 Motive of Debtor — Payment to make good Breach of Trust.] — In order 
 that a payment or transfer of property made by a bankrupt within three 
 months before the presentation of the petition on which he was adjudi- 
 cated a bankrupt, should amount to a fraudulent preference within section 
 48 of the Bankruptcy Act, 1883, it is essential that it should have been 
 made by him with a view of giving a preference to the creditor to whom 
 it was made ; and it is not sufficient that the creditor was in fact preferred. 
 The Court must, therefore, in each case consider as a question of fact 
 
THK BANKRUPTCY ACT, 1883. 93 
 
 what was tlie real or dominant motive of the bankrupt in making the 
 payment or transfer, and if the Court comes to the conclusion that (for 
 example), the bankrupt's real motive was to save himself from exposure 
 or from a criminal prosecution, the payment or transfer is not a fraudulent 
 preference. It is also essential that the relation of debtor and creditor 
 should have existed between the parties at the time when the payment 
 or transfer was made. So a voluntary payment to make good a breach 
 of trust committed by the banki-upt is not within section 48. In re 
 Goldsmid, Ex parte Taylor, L. K. 18 Q. B. D. 295 ; 56 L. J. Q. B. 195 ; 
 35 W. K. 148— C. A. 
 
 ^Where payments are made previous to bankruptcy in restitution of 
 
 a breach of trust by a person unable to pay his debts as they become due, 
 such payments cannot be recovered by the trustee on the ground of 
 fraudulent preference. The relation of debtor and creditor has been held 
 not to be created between co-trustees, or between a trustee and his cestui 
 que trust within the meaning of the fraudulent preference section of the 
 Bankruptcy Act. In re Hutchinson, Ex parte Ball, 35 W. E. 264 — 
 C. A. 
 
 Assignment — Motive of Debtor.] — The debtor, who carried on business 
 at two different premises, within a few days of filing his petition executed 
 an assignment handing over his interest in the lease, goodwill and stock 
 of one of the said premises to a judgment creditor who was threatening 
 to levy execution, such assignment to be in full satisfaction of the whole 
 judgment debt, and the judgment creditor was to redeem the lease of the 
 property, which had been deposited on mortgage with a loan society, and 
 to pay rent due, &c. 
 
 Held : That there was no proof that the motive of the debtor was to 
 prefer the creditor ; that at the time of the assignment the judgment 
 creditor could seize and have his debt paid out of the goods at both the 
 places of business, of the debtor ; that the effect of the assignment was to 
 relieve the debtor of liability at one place of business and could not be 
 deemed to be a fraudulent preference. In re W. H. Wilkinson, Ex parte 
 the Official Receiver, 1 Morrell, 65 — Cave, J. 
 
 A debtor, on August 28th, 1884, on being pressed by a creditor, who 
 
 had obtained judgment, for payment of the debt due to him, gave to an 
 auctioneer, who was about to sell the farming stock of such debtor, a 
 document by which he authorised and requested him to pay to such 
 creditor, after deducting any rent which might be due to the landlord, 
 the debt due to him out of the first proceeds of the sale, and appropriated 
 the sum necessary to pay the debt out of the proceeds of the sale for the 
 
9i DIGEST OF CASES DECIDED UNDER 
 
 purposes of the payment. On October 22na, 1884, a receiving order was 
 made against the debtor, and the sum so appropriated was subsequently 
 claimed by the official receiver as trustee in the bankruptcy on the 
 grounds (1) That the document was an assignment of the whole of the 
 debtor's property, and as such amounted to an act of bankruptcy ; (2) 
 That it was a fraudulent preference. 
 
 Held: That under the circumstances of the case the document in 
 question did not amount to an assignment of the whole of the debtor's 
 property. 
 
 That the principal motive of the debtor was not to favour the creditor, 
 and that the transaction did not constitute a fraudulent preference. 
 
 That the official receiver as trustee having come to the Court was in 
 the same position as an ordinary litigant, and being unsuccessful must 
 pay the costs. In re Glaiiville, Ex parte Jenkins, 2 Morrell, 71 ; 33 
 W. K. 523— Cave, J. 
 
 Assign7nent — Payment to Surety.] — On application by the trustee to 
 declare void, on the ground of fraudulent preference, an assignment of 
 certain patent rights and also the payment of a sum of money made by 
 the debtor within three months of a banki-uptcy petition being presented 
 against him, to his uncle who had guaranteed the payment of a debt due 
 from such debtor to another person, the objection was raised that the 
 payment now sought to be set aside had been made in consequence of 
 the guarantee and not " in favour of any creditor." 
 
 Held : That the assignment was clearly a fraudulent preference ; and 
 that, on the facts of the case, the uncle of the debtor at the time of the 
 payment of the said money to him being independently of the guarantee, 
 a creditor for goods sold, such payment was also void under the section. 
 
 Qucerc : Whether if a debtor, within the time limited by the section, 
 makes a payment to a person who has guaranteed a debt due from him 
 to a third party, and which the surety has not then paid, such transac- 
 tion can be set aside as being a payment made in favour of " any creditor " 
 within section 48 of the Bankruptcy Act, 1883. In re Bear, Ex parte 
 OJicial Receiver, 3 Morrell, 129 — Cave, J. 
 
 GAMBLING.— See Speculation. 
 
 GARNISHEE ORDER. 
 
 A garnishee order absolute is not a " final judgment " against the 
 garnishee within the meaning of section 4, sub-section 1 (g), so as to 
 make the failure to comply with a bankruptcy notice founded upon it an 
 act of bankruptcy on the part of the garnishee. In re Chinery, Ex parte 
 
THE BANKRUPTCY ACT, 1883. 95 
 
 Chinery, 1 Morrell, 31 ; L. E. 12 Q. B. D. 342 ; 53 L. J. Ch. 662 ; 50 
 L. T. 842 ; 32 W. E. 469— C. A. 
 
 ^Wliere a judgment creditor obtained a garnishee order in respect of 
 
 a debt due to the judgment debtor, and a dispute having arisen, payment 
 into Court of the debt to abide further order was directed, and the judg- 
 ment debtor subsequently became bankrupt. 
 
 Held : That such payment into Court to abide further order did not 
 constitute a " receipt of the debt " by which an attachment is completed 
 within section 45, sub-section (2), of the Bankruptcy Act, 1888. Butler 
 Y. Wearing, 3 Morrell, 5 ; L. E. 17 Q. B. D. 182— Manisty, J. 
 
 GIFT INTER VIVOS. 
 
 Where at the birth of his eldest son, a father laid down a pipe of port 
 wine, and at the same time expressed an intention to give his eldest 
 daughter certain port wine in particular bins, such wine being thereafter 
 known in the family as the wine of the son and daughter, but remaining 
 in the possession and cellar of the father, who subsequently became 
 bankrupt. 
 
 Held : That under the circumstances of the case, there was no proof 
 of any intention on the part of the father of making a present immediate 
 gift, and that the wine belonged to the trustee in the bankruptcy. 
 
 That although it is going too far to say that retention of possession by 
 the donor is conclusive proof that there is no immediate present gift, yet 
 unless explained, and its effect destroyed by other circumstances, it is 
 strong evidence against the existence of such an intention ; and, in order 
 to rebut this inference, circumstances must be proved from which it can 
 fairly be inferred that the donor intended to make an immediate gift, so 
 that the thing given then ceased to be the donor's, and became the pro- 
 perty of the donee. It is not enough to prove circumstances from which 
 the proper inference is, that the donor intended to make a gift in the 
 future, but so that until something further was done to complete the 
 gift, he should retain the control over the thing intended to be given. 
 In re Ridgway, Ex parte Ridgways, 2 Morrell, 248 ; L. E. 15 Q. B. D. 
 447 ; 54 L. J. Q. B. 570 ; 34 W. E. 80— Cave, J. 
 
 GUARDIAN. 
 
 Ad litem.] — ^Where it is desired to bring an infant before the Court, 
 the proper course is to apply for the appointment of a guardian ad litem 
 for that purpose. Where, on an appeal from a County Court, the 
 Divisional Court in Bankruptcy directs such appeal to stand over in 
 order that certain persons, some of whom are infants, may be made 
 
96 DIGEST OP CASES DECIDED UNDER 
 
 parties, it would appear tliat application for the appointment of a 
 guardian ad litem should be made to the County Court. In re Lowndes, 
 Ex 'parte Trustee, 3 Morrell, 216— Caye, J. 
 
 HOTEL KEEPER.— See RepuM Ownership. 
 
 HUSBAND AND WIPE.— See Harried Woman. 
 
 INFANT. 
 
 Where it is desired to bring an infant before the Court, the proper 
 course is to apply for the appointment of a guardian ad litem for that 
 purpose. Where, on an appeal from a County Court, the Divisional 
 Court in Bankruptcy directs such appeal to stand over in order that 
 certain persons, some of whom are infants, may be made parties, it 
 would appear that application for the appointment of a guardian ad 
 litem should be made to the County Court. In re Lowndes, Ex parte 
 Trustee, 3 Morrell, 216— Cave, J. 
 
 INJUNCTION. 
 
 An injunction restraining a person, not a party to the bankruptcy 
 proceedings, from dealing with property of the debtor claimed under 
 a bill of sale, the validity of which is disputed, ought not to be granted 
 without requiring an undertaking to be given for damages by the person 
 obtaining the order. In re F. H. Johnstone, Ex parte Abraham, 1 
 Morrell, 32 ; 50 L. T. 184— Cave, J. 
 
 -It is the duty of the Kegistrar to hear and determine, an applica- 
 
 tion made ex parte for an injunction, even though at the time of such 
 application the Judge in Bankruptcy may be sitting. In re Brooks, 3 
 Morrell, 62— Cave, J. 
 
 INSOLVENT. — See Administration of Estate of Deceased Insolvent. 
 
 INSURANCE.— See Medical Examination. 
 
 INTERIM RECEIVING ORBER.— See Official Eeceiver. 
 
 INTERPLEADER.— See Execution^Bankruptcy Notice. 
 
 JUDGMENT.— See Final Judgment. 
 
THE BANKRUPTCY ACT, 18S3. 97 
 
 JURISDICTION. 
 
 The jurisdiction conferred on the Court of Bankruptcy by section 102 
 of the Bankruptcy Act, 1883, is the same as that formerly conferred on 
 the Court hy section 72 of the Bankruptcy Act, 1869. In reLowciitlial, 
 Ex parte Beestij, 1 Morrell, 117 ; L. E. 13 Q. B. D. 238 ; 53 L. J. Q. B. 
 521 ; 51 L. T. 431 ; 33 W. E. 138— Cave, J. 
 
 Consent to Jurisdiction — Mistake.^ — By the proviso to section 102 of 
 the Bankruptcy Act, 1883, it is provided that " the jurisdiction hereby 
 given shall not be exercised by the County Court for the purpose of 
 adjudicating upon any claim, not arising out of the bankruptcy, which 
 might heretofore have been enforced by action in the High Court, unless 
 all parties to the proceeding consent thereto, or the money, money's 
 vrorth, or right in dispute does not, in the opinion of the Judge, exceed 
 in value 200L" Consent to the jurisdiction was given in ignorance of 
 the fact that an order for summary administration had been made. 
 
 Held : That the consent to the jurisdiction was vitiated by the fact 
 that it had been given under a mistaken impression of facts not easily to 
 be ascertained. In re Sandars, Ex parte Sergeant, 52 L. T. 516 — D. 
 
 Where Petition presented in ivrong Court.'] — "Where a bankruptcy 
 petition is presented in the wrong Court by inadvertence, such Court has 
 jurisdiction to hear the petition, and to make a receiving order. In re 
 Brightmore, Ex parte May, 1 Morrell, 253 ; L. K. 14 Q. B. D. 37 ; 51 
 L. T. 710 ; 33 W, K. 598— D. 
 
 Adjudication under Bcmhruptcy Act, 1869. J — On an appeal from decision 
 of Eegistrar, refusing rehearing of a bankruptcy petition, with a view to 
 the adjudication obtained under the Bankruptcy Act, 1869, being dis- 
 charged, on the ground that at the time of the presentation of the bank- 
 ruptcy petition the creditor's right to present it, and the liability of 
 the debtor to be adjudicated a bankrupt under the Act of 1869, had 
 ceased. 
 
 Held : That although the adjudication was made on wrong grounds, 
 and was wrong in form, because it was an ordinary adjudication made 
 upon the petition of a creditor under the Bankruptcy Act, 1869, founded 
 on an act of banki-uptcy committed by the previous filing of a liquidation 
 petition by the debtor, and under such circumstances the proceedings 
 ought to have been taken under the Bankruptcy Act, 1883, yet the Court 
 would have had jurisdiction to make the adjudication under section 125, 
 sub-section 12, of the Bankruptcy Act, 1869, in consequence of the 
 failure of the liquidation proceedings ; and the bankrupt not having 
 raised the objection in the Court below, the adjudication must stand. 
 
 M.D. H 
 
98 DIGEST OF CASES DECIDED UNDER 
 
 In re May, Ex parte May, 1 Morrell, 50 ; L. K. 12 Q. B. D. 497 ; 53 
 L. J. Q. B. 571 ; 50 L. T. 744 ; 32 W. K. 839— C. A. 
 
 As to Staying Proceedings in another Divisio7i.] — Where application 
 made by a bankrupt, wbo had failed to pay over certain trust moneys in 
 accordance with an order of the Chancery Division, for an order restrain- 
 ing further proceedings on a motion for attachment. 
 
 Held : That the application must be refused. If the application had 
 been made by the trustee in the bankruptcy for the benefit of the 
 creditors, there might be some grounds for the Court to interfere. In re 
 Mackintosh d- Beauchamp, Ex parte Mackintosh, 1 Morrell, 84 ; L. E. 
 13 Q. B. D. 235 ; 51 L, T. 208 ; 33 W. E. 140— Cave, J. 
 
 To make Order of Adjudication on failure of Scheme.] — A debtor 
 having filed a bankruptcy petition against himself, the creditors accepted 
 a scheme of arrangement for the payment of a composition of 20s. in the 
 pound, as security for which the debtor assigned to a trustee for the 
 creditors all his property, except certain property included in a post- 
 nuptial settlement made by himself, under which he had a life interest. 
 The value of the property so assigned proved to be much less than the 
 debtor's estimate of it, and was insufficient to pay the creditors 20s. in 
 the pound, and they therefore applied for an adjudication of bankruptcy 
 against the debtor with the view of testing the validity of the settle- 
 ment made by him, and of obtaining possession of the debtor's life 
 interest. 
 
 Held : (1) That although it could not be said that the debtor had been 
 guilty of fraud, yet he had misled the creditors by over-estimating the 
 value of his assets ; that it would be unjust to the creditors that they 
 should not get 20s. in the pound ; and that the Court had jurisdiction 
 under section 18, sub-section (11), of the Bankruptcy Act, 1883, to make 
 an order of adjudication under the circumstances. 
 
 (2) That although the Court would not make an order of adjudication, 
 if no benefit could possibly result from it to the creditors, yet as it was 
 possible that they might get something more by means of the adjudica- 
 tion in the present case, the order ought to be made. In re Moon, Ex 
 parte Moon, 4 Morrell, 263 ; L. E. 19 Q. B. D. 669 ; 56 L. J. Q. B. 
 496; 35 W. E. 743— C. A. 
 
 Of Divisional Court.'] — Where application was made, pending appeal, 
 for a stay of proceedings on a warrant granted by a County Court, to a 
 Divisional Court of the High Court of Justice of which the Judge to whom 
 Bankruptcy business is assigned was not a member. 
 
 Held : That Mr. Justice Cave not being a member of such Divisional 
 Court it had no jurisdiction to hear and decide upon the application. 
 
THE BANKRUPTCY ACT, 1883. 99 
 
 On application subsequently made to a Divisional Court sitting in 
 banki'uptcy, a stay of proceedings granted. In re Moon, 3 Morrell, 
 74— D. 
 
 Where an agreement entered into by a solicitor to conduct certain 
 
 bankruptcy proceedings on the terms that his costs should not exceed 
 101. had been declared void by the County Court Judge on the applica- 
 tion of such solicitor, and an appeal from this decision having been 
 brought to the Divisional Court in Bankruptcy, the preliminary 
 objection was taken that the Court, sitting as a Court of Appeal in 
 bankruptcy matters only, had no jurisdiction to deal with the question 
 at all. 
 
 Held : That the Court had jurisdiction to hear the appeal. 
 
 That the fact that the agreement did not contain a provision that the 
 solicitor so employed might continue the bankruptcy proceedings to the 
 end, did not make such agreement unfair or unreasonable, and that the 
 order of the County Court Judge setting aside such agreement must be 
 reversed. In re Owen, Ex parte Peyton, 2 Morrell, 87; 52 L. T. 628 
 — D. 
 
 Where an order is made by a Divisional Court in Bankruptcy on an 
 
 appeal from a County Court and the Registrar of the County Court 
 neglects or refuses to carry out such order, the Divisional Court has no 
 original jurisdiction to make an order on the County Court Registrar 
 directing him to do so. But where an order is made by a Divisional 
 Court in Bankruptcy on an appeal from a County Court, the Registrar of 
 the County Court ought to comply with such order forthwith, and has no 
 right to refuse to comply with it until the time limited for appeal to the 
 Court of Appeal has expired. Thus, where the Divisional Court in Bank- 
 ruptcy on an appeal from a County Court allowed the appeal, and gave 
 leave to the unsuccessful respondent to appeal to the Court of Appeal, but 
 made an order directing moneys in Court to be paid out, which the Regis- 
 trar of the County Court declined to do until the time limited for appeal 
 to the Court of Appeal had expired, and an order was in consequence made 
 by the Divisional Court directing him to pay out the moneys in question 
 together with costs, from which order the Registrar appealed. 
 
 Held : That the Registrar had no right to refuse to pay out the said 
 moneys, there having been no stay of proceedings under the order of the 
 Divisional Court pending appeal. 
 
 But the Registrar was an of&cer of the County Court : the order of the 
 Divisional Court upon the appeal from the County Court was to be 
 carried out by the County Court ; and the Divisional Court had no 
 jurisdiction to make such an order against the Registrar. In re Wise, 
 
 H 2 
 
100 DIGEST OF CASES DECIDED UNDEK 
 
 Ex parte Roivland, 3 Morrell, 174; L. R. 17 Q. B. D. 389; 55 L. J. 
 Q. B. 362 ; 64 L. T. 722 ; 34 W. R. 711— C. A. 
 
 Of County Court in Bankruptcy.] — By the provisions of sections 100 
 and 102 of the Bankruptcy Act, 1883, which give to the County Court 
 " for the purposes of its bankruptcy jurisdiction, in addition to the 
 ordinary powers of the Court all the powers and jurisdiction of the High 
 Court," and also " full power to decide all questions of priorities, and aU 
 other questions whatsoever whether of law or fact which may arise in any 
 case of bankruptcy," a County Court has no jurisdiction or power to 
 restrain an action in the High Court brought against the trustee of a 
 debtor adjudicated bankrupt in such County Court. In re Barnett, Ex 
 parte Reynolds do Co., 2 Morrell, 147 ; L. E. 15 Q. B. D. 169 ; 64 L. J. 
 Q. B. 354 ; 53 L. T. 448 ; 33 W. R. 715— C. A. 
 
 The Court of Bankruptcy, in administering the estate of a person 
 
 dying insolvent under section 125 of the Bankruptcy Act, 1883, will 
 follow the practice of the Chancery Division of the High Court in 
 administration actions; and the County Court in Banki-uptey has no 
 jurisdiction to make an order against a stranger to pay over money, 
 which the Chancery Division of the High Court would not make in an 
 administration action. In re Croicther, Ex parte Ellis, 4 Morrell, 305 ; 
 L. R. 20 Q. B. D. 38 ; 57 L. J. Q. B. 57 ; 36 W. R. 189— D. 
 
 On June 8th, 1885, the manager of the debtor, without his know- 
 ledge, communicated to a firm of corn-factors, to whom the debtor was 
 indebted for wheat then in his stores, the fact that the debtor was in 
 difficulties, and the firm thereupon bought from the manager all the wheat 
 in the debtor's stores on the usual credit terms. On the same day the 
 debtor sent out by post from another place notices of suspension of pay- 
 ment which were delivered on the following morning to the creditors and 
 also to the debtor's manager. On the facts of the sale of the wheat 
 coming to the knowledge of the debtor he repudiated the transaction, and 
 it was subsequently set aside by the County Court Judge. At the hear- 
 ing it was objected that the claim did not arise out of the bankruptcy, 
 and as the amount in dispute exceeded 200Z., and all parties did not con- 
 sent, the County Court had no jurisdiction. 
 
 Held (on appeal) : That the claim did arise out of the bankruptcy; 
 that but for the impending bankruptcy the transaction would never 
 have taken place, and but for the actual bankruptcy it would never have 
 been disputed ; and that the decision of the County Court Judge was 
 right. In re Haivke, Ex parte Scott d- Smith, 3 Morrell, 1 ; L. R. 
 
THE BANKRUPTCY ACT, 1883. 101 
 
 16 Q. B. D. 503; 55 L. J. Q. B. 302; 54 L. T. 54; 34 W. R. 
 167-D. 
 
 Where under the proTisions of section 28, sub-section (6) of the 
 Bankruptcy Act, 1888, the discharge of a bankrupt is granted by the 
 County Court Judge subject to the condition that such bankrupt shall 
 consent to judgment being entered against him by the trustee in the 
 bankruptcy for any balance of the debts provable under the bankruptcy 
 ■which -was not satisfied at the date of the order, judgment shall be 
 entered in the County Court even though the amount is in excess of 501. 
 As the judgment is entered in the County Court without any preliminary 
 proceedings the Registrar is not entitled to demand any fees as in respect 
 thereof on entering such judgment. In re Howe, 4 Morrell, 57 ; L. R. 
 18 Q. B. D. 573 ; 56 L. J. Q. B. 257 ; 35 W. R. 380— Cave, J. 
 
 0/ Registrar.} — On application to the Registrar on behalf of the trustee 
 in abankruptcy under the Bankruptcy Act, 1869, that a solicitor 
 should pay over to such trustee certain moneys alleged to be in his hands, 
 and to belong to the bankrupt's estate, it was objected that under the 
 terms of the Bankruptcy Act, 1883, the Registrar had no jurisdiction to 
 hear the application. 
 
 Held: That the Registrar had jurisdiction. In re Evan Jones, 
 1 Morrell, 17 ; 49 L. T. 745— Mathew, J. 
 
 On appeal from an order of the Registrar the effect of which was 
 to set aside as against the trustee in a bankruptcy under the Bankruptcy 
 Act, 1869, a post-nuptial settlement executed by the bankrupt, it was 
 objected that under the provisions of the Bankruptcy Act, 1883, the 
 Registrar had no jurisdiction to make the order. 
 
 Held : That the jurisdiction which the registrars in bankruptcy had 
 by delegation or otherwise, under the Bankruptcy Act, 1869, is preserved 
 to them in respect of pending proceedings by section 169, sub-section (3) 
 of the Bankruptcy Act, 1883. 
 
 That Rule 264 of the Bankruptcy Rules, 1883, which provides for the 
 exercise of their jurisdiction, is not idtra vires, and is properly framed for 
 the purpose of carrying out the intention of the legislature with regard to 
 pending proceedings. In re Home, Ex parte Edivards, 2 Morrell, 203 ; 
 54 L. J. Q. B. 447— C. A. 
 
 Of Board of Trade] — Although a trustee under a scheme of arrange- 
 ment has been removed from office, the Board of Trade has power to 
 demand a statement of his receipts and payments as such trustee, and to 
 apply to the Court under section 102, sub-section (5), of the Bankruptcy 
 Act, 1883, to enforce that order in case of neglect or refusal to comply 
 
iO-Z DIGEST OP CASES DECIDED UNDER 
 
 with it. In re Rogers, Ex parte the Board of Trade, 4 Morrell, 67; 35 
 W. E. 457— Cave, J. 
 
 LANDLORD AND TENANT. 
 
 Right of Landlord to Distrain.] — The rent of a certain holding was by 
 the lease payable at Midsummer, but by the ordinary course of dealing 
 between the landlord and tenant, payment was deferred until September. 
 Between Midsummer, 1886, and the usual time for payment, the land- 
 lord distrained for the rent for 1886, and also for the arrears of rent for 
 1885. 
 
 Held : That the landlord was entitled so to distrain : that section 44 
 of the Agricultural Holdings Act, 1883, does not say that a landlord shall 
 not distrain for more than a year's rent at a time, but that such landlord 
 shall not distrain for rent which is more than twelve months old : and 
 that by the proviso in the section the rent for 1885 must be deemed to 
 have become due at the usual day of payment, and therefore not to have 
 been due for more than a year before the distress, so that it could be 
 distrained for as well as the rent for 1886. In re Bew, Ex parte Bidl, 
 4 Morrell, 94 ; L. K. 18 Q. B. D. 643 ; 56 L. J. Q. B. 270 ; 56 L. T. 
 571 ; 35 W. R. 455— D. 
 
 Rights of Landlord — Rent.] — On March 11th the goods of the debtor 
 were seized under & Ji. fa., and on March 17th they were sold by the 
 sheriff by private contract under an order of the Court to that effect, but 
 they were not removed from the premises by the purchaser until April 
 10th. On March 23rd a bankruptcy petition was presented against the 
 debtor, and on April 14th a receiving order was made. On April 15th 
 the landlords of the debtor's premises served upon the sheriff a notice 
 requiring him not to remove the goods from such premises until the sum 
 of 116L 8s., arrears of rent due at Christmas, 1884, and Lady-day, 1885, 
 had been paid to them. The sheriff under section 46, sub-section (2), 
 of the Bankruptcy Act, 1883, handed to the trustee of the bankrupt's 
 estate the proceeds of the sale after deducting the usual costs of execu- 
 tion. On an application for an order directing the sheriff to pay to the 
 landlords the said sum of 116L 8s. 
 
 Held : That for the rent due at Christmas, 1884, the landlords might 
 have distrained at any time between March 17th and April 10th ; and 
 for the rent due on March 25th, the sheriff who quitted the premises on 
 March 17th was not responsible ; and that, the landlords having failed 
 to take advantage of the. opportunity offered to them, the application 
 must be dismissed with costs. In re Davis, Ex parte Pollen's Trustees, 
 
THE BANKRUPTCY ACT, 1883. 103 
 
 3 Morrell, 27 ; 55 L. J. Q. B. 217 ; 54 L. T. 804 ; 84 W. E. 442— 
 Cave, J. 
 
 Lease — Proviso for Deterviination on Bankruptcy — Election of Lessor 
 — Proof] — When a lease contains a proviso or condition that on breach 
 of any of the covenants such lease " shall cease, determine, and be void 
 to all intents and purposes whatsoever," such words must be construed 
 to mean void at the election of the lessor. Thus, where a lease con- 
 tained a priviso to the effect that if the lessee should become bankrupt or 
 insolvent, the lease "shall cease, determine, and be void," and, the 
 lessee having become bankrupt, the trustee in the bankruptcy rejected 
 a proof put in by the lessors founded on such lease, upon the ground 
 that on the bankruptcy the lease became void. 
 
 Held: That such rejection by the trustee was wrong, and must be 
 reversed. In re Tickle, Ex parte Leathersellers Co., 3 Morrell, 126 — 
 Cave, J. 
 
 Assignment of Lease — Liability of Assignor for Rent — Proof]— The 
 assignee of a lease of certain premises having become bankrupt, and rent 
 being in arrear, judgment for the same was recovered against his assignor, 
 who was under covenant to pay such rent. The assignor thereupon 
 proved against the estate of the bankrupt for the amount so paid ; and 
 also sought to prove in respect of his contingent liability for the rent 
 during the time the said lease had yet to run. The last-mentioned proof 
 was rejected by the trustee in the bankruptcy. 
 
 Held : That th3 proof must be admitted ; and that an estimate must 
 be made by the trustee in the bankruptcy of the value of the liability 
 under section 37, sub-section (4) of the Bankruptcy Act, 1883. In re 
 Hinks, Ex parte Verdi, 3 MorreU, 218 — Cave, J. 
 
 And see also cases collected under title Disclaimer — Distress — Vesting 
 Order. 
 
 LEASE. 
 
 Elegit extends to.] — Notwithstanding the provisions of section 146 of 
 the Bankruptcy Act, 1883, a writ of elegit still extends to leaseholds. 
 Richardson v. Wehh, 1 Morrell, 40 — D. 
 
 Forfeiture of, on Tenant being Bankrupt — Fixtures.] — A lease of a 
 mill and warehouse made October 1st, 1880, for twenty-one years, con- 
 tained the following covenants and provisoes : — " That in case the said 
 lessees shall during the said term be bankrupts, or file a petition in 
 liquidation, or make an assignment for the benefit of their creditors, 
 then the said term hereby created shall cease : That on the determina- 
 tion or cesser of the said term the machinery-room, warehouse, and 
 
104 DIGEST OP CASES DECIDED UNDER 
 
 chimney shall be and remain the property of the company ; but all the 
 machinery, and also all the other buildings, erected by the lessees, shall 
 be their property, and shall be removed by them previously to the deter- 
 mination or cesser of the said term, unless it shall be then mutually 
 agreed by the said company and the lessees that the company shall 
 purchase them. The said lessees, in case the same shall be removed, shall 
 make good all damage which may be caused in their removal : That the 
 several articles and things mentioned in the schedule hereto {consisting 
 of iron columns and beams in boiler-room, wood floor in oil-mill, and 
 other articles), shall be the property of the lessees, and shall be removable 
 by them, the said lessees making good all damage done by such removal." 
 In March, 1884, the lessees presented a banki-uptcy petition under the 
 Bankruptcy Act, 1883, upon which a receiving order was made. 
 
 Held : (1) That the lessees had taken such steps under the Bank- 
 ruptcy Act, as having regard to the provisions of the new Act, and to 
 section 149 of it, would justify the lessors in saying that the clause of 
 forfeiture applied, and that consequently the presentation of the petition 
 by the lessees caused a cesser of the term under that proviso ; (2) That 
 the official receiver was entitled to the articles mentioned in the clauses 
 above, notwithstanding the forfeiture. In re Walker, Ex parte Goidd, 
 1 Morrell, 168 ; L. E. 13 Q. B. D. 454 ; 51 L. T. 368— D. 
 
 Forfeiture — Election of Lessor.] — When a lease contains a proviso or 
 condition that on breach of any of the covenants such lease " shall cease, 
 determine, and be void to all intents and purposes whatsoever," such words 
 must be construed to mean void at the election of the lessor. Thus, 
 where a lease contained a proviso to the effect that if the lessee should 
 become bankrupt or insolvent, the lease " shall cease, determine, and be 
 void," and, the lessee having become bankrupt, the trustee in the bank- 
 ruptcy rejected a proof put in by the lessors founded on such lease, upon 
 the ground that on the bankruptcy the lease became void. 
 
 Held : That such rejection by the trustee was wrong, and must be 
 reversed. Jk re Tickle, Ex parte Leathcrsellers Co., 3 Morrell, 126 — 
 Cave, J. 
 
 Assignment of — Liability of Assignor for Bent.] — The assignee of a 
 lease of certain premises having become bankrupt, and rent being in 
 arrear, judgment for the same was recovered against his assignor, who 
 was under covenant to pay such rent. The assignor thereupon proved 
 against the estate of the bankrupt for the amount so paid; and also 
 sought to prove in respect of his contingent liability for the rent during 
 the time the said lease had yet to run. The last-mentioned proof was 
 rejected by the trustee in the banla-uptcy. 
 
THE BANKRUPTCY ACT, 1883. 105 
 
 Held : That the proof must be admitted ; and that an estimate must 
 be made by the trustee in the bankruptcy of the value of the liability 
 under section 37, sub-section (4), of the Bankruptcy Act, 1883. In re 
 Hinks, Ex parte Verdi, 3 Morrell, 218— Cave, J. 
 
 LIQUIDATOR— See Com])any. 
 
 LUNATIC. 
 
 Committee of, may file Petition on Leave.] — The Court gave leave to 
 the committee of a lunatic to file a petition in bankruptcy under sec- 
 tion 4, sub-section 1 (f), of the Bankruptcy Act, 1883, on behalf of the 
 lunatic upon evidence that it would be for the benefit of the lunatic that 
 he should be made a bankrupt, and that the creditors were willing to 
 make him an allowance. In re James, L. R. 13 Q. B. D. 382 ; 53 L. J. 
 Q. B. 575; 50 L. T. 471— C. A. 
 
 MANAGER. — See Siwcial Manager. 
 
 MARRIED WOMAN. 
 
 Liability of, to Bankruptcy Laivs.\ — A married woman who does not 
 carry on a separate trade is not subject to the bankruptcy laws, and a 
 bankruptcy notice under section 4, sub- section 1 {g) of the Bankruptcy 
 Act, 1883, cannot be served upon her. In re Gardiner, Ex parte Coulson, 
 L. E. 20 Q. B. D. 249 ; 36 W. R. 142— D. 
 
 Separate Trading — Separate Property — Potver of Appointment.] — The 
 "separate property" referred to in section 1, sub-section (5) of the 
 Married Women's Property Act, 1882, which provides that "Every 
 married woman carrying on a trade separately from her husband, shall, 
 in respect of her separate property, be subject to the bankruptcy laws in 
 the same way as if she were a feme sole," comprises only that which 
 would be her separate property if she were ajeme sole. Thus, where, by 
 a settlement, real property was vested in a trustee in trust for a married 
 woman — who traded separately from her husband and became bankrupt 
 — for life for her separate use, without restraint on anticipation, with 
 remainder to such persons as she might, whether covert or sole, appoint, 
 and with further trusts in default of appointment, the Court would not 
 compel her to exercise in favour of the trustee in the bankruptcy such 
 power of appointment. In re Armstrong, Ex parte Armstrong, 3 Morrell, 
 193; L. R. 17 Q. B. D. 521; 65 L. J. Q. B. 578; 65 L. T. 638; 34 
 W. R. 709— C. A, 
 
106 DIGEST OF CASES DECIDED UNDER 
 
 Proof hy."] — Under the provisions of the Married Women's Property 
 Act, 1882, a wife who advances money to her husband out of her separate 
 estate is not entitled, on the bankruptcy of her husband, either to prove 
 or vote until all the other creditors of the bankrupt have been satisfied. 
 In such case it lies on the wife to show that the money has not been 
 advanced to the husband for the purposes of his business. In re Genese, 
 Ex parte the District Bank, 2 Morrell, 283 ; L. E. 16 Q. B. D. 700 ; 
 55 L. J. Q. B. 118; 34 W. E. 79— Cave, J. 
 
 Section 3 of the Married Women's Property Act, 1882, by which the 
 
 claim of a wife for money lent by her to her husband for the purposes of 
 any trade or business carried on by him is, in the event of the husband's 
 bankruptcy, postponed until all claims of the other creditors have been 
 satisfied, applies only where the husband is a sole trader. Thus, where 
 a married woman lends her own moneys to a trading partnership of 
 which her husband is a member, she is entitled on the bankruptcy of the 
 partnership to prove against the joint estate in competition with other 
 creditors. In re Tuff dt Nottingham, Ex parte Nottingham, 4 Morrell, 
 116; L. E. 19 Q. B. D. 88; 56 L. J. Q. B. 440; 56 L. T. 573; 35 
 W. E. 567— Cave, J. 
 
 Section 3 of the Married Women's Property Act, 1882, by which the 
 
 claim of a wife to a dividend in respect of money lent by her to her 
 husband " for the purpose of any trade or business carried on by him, or 
 otherwise," is, in the event of the husband's bankruptcy, postponed until 
 all claims of other creditors for value have been satisfied, applies only 
 where money has been so lent by a wife to her husband for the purpose 
 of his trade or business. Money lent by a wife to her husband for 
 private purposes may be proved for by her and she may receive a dividend 
 in competition with other creditors. The words "or otherwise" in 
 section 3 of the Married Women's Property Act, 1882, do not refer to 
 the words "for the purpose of any trade or business " in the said section, 
 but they refer to the immediately preceding words " carried on by him." 
 In re Tidswell, Ex parte Tidswell, 4 Morrell, 219 ; 56 L. J. Q. B. 548 ; 
 57 L. T. 416 ; 35 W. E. 669— Cave, J. 
 
 Proof for Alimony.] — Where an order is made by the Divorce Court 
 for the future payment of alimony by a husband under the statute 
 29 & 30 Vict. c. 32, s. 1, such payments are not capable of valuation, and 
 cannot therefore be proved for in the event of the husband being adjudi- 
 cated bankrupt, but such husband is liable to continue the payments 
 notwithstanding the bankruptcy. In re Linton, Ex parte Linton, 2 
 Morrell, 179 ; L. E. 15 Q. B. D. 239 ; 54 L, J. Q. B. 529 ; 52 L. T. 
 782 ; 33 W. E. 714— C. A. 
 
THE BANKRUPTCY ACT, 1883. 107 
 
 Bankruptcy of Hushand — Right of Trustee to Administer to Wife's 
 Estate.] — A husband's right to administer to his wife's estate is not such a 
 right as will vest in the trustee under his bankruptcy. Where the husband 
 of a deceased intestate had left this country and had been adjudicated 
 banki-upt before he had administered to his wife's estate, the Court 
 refused to regard his right to administer as property divisible amongst 
 his creditors under section 4i of the Banki'uptcy Act, but made a grant 
 of administration to the wife's estate to the trustee under section 73 of 
 the Court of Probate Act. In the goods of Turner, L. E. 12 P. D. 18 ; 
 56 L. J. P. 41 ; 57 L. T. 372 ; 35 W. E. 384— Butt, J. 
 
 Committal of] — A married woman cannot be committed to prison 
 under section 5 of the Debtors Act, 1869, for non-payment of a judgment 
 recovered against her in an action brought under section 1, sub-section 
 (2) of the Married Women's Property Act, 1882. In re Morley, Scott 
 V. Morley, 4 Morrell, 286; L. K. 20 Q. B. D. 120; 57 L. J. Q. B. 43 ; 
 36 W. E. 67— C. A. 
 
 MEDICAL EXAMINATION. 
 
 Where application was made under section 19 of the Bankruptcy Act, 
 1869 (see section 24 of the Bankruptcy Act, 1883), for an order upon a 
 debtor to answer certain enquiries and to submit to a medical examination 
 for the pui-pose of life insurance. 
 
 Held : That the provisions of the section apply to an examination of 
 the debtor in respect of property ; and that the Court could not under 
 the section make an order for the personal examination of the debtor as 
 to the state of health, with a view to insurance. In re Garnctt, Ex parte 
 the Official Receiver, 2 Morrell, 286 ; L. E. 16 Q. B. D. 698 ; 55 L. J. 
 Q. B. 77 ; 58 L. T. 769 ; 34 W. E. 79— Cave, J. 
 
 -On application by a bankrupt for his discharge under section 28 of 
 
 the Bankruptcy Act, 1883, the Court has no jurisdiction to take into 
 consideration as "conduct" a refusal on the part of such bankrupt to 
 submit to a medical examination with a view to life insurance for the 
 purpose of enabling the trustee in the banki-uptcy to realise to better 
 advantage a contingent reversionary interest of the said bankrupt in 
 certain propert3% The word "conduct" in section 28 does not include 
 general misconduct, but if not covered by any of the specific instances 
 mentioned in that section, it must be regarded with reference to section 
 24 of the Act, which defines the duties of the debtor as to the realisation 
 and distribution of his property. In re Betts d; Block, Ex parte the 
 Board of Trade, 4 Morrell, 170 ; L. E. 19 Q. B. D. 39 ; 56 L. J. Q. B. 
 370 ; 56 L. T. 804 ; 35 W. E. 530— C. A. 
 
108 DIGEST OF CASES DECIDED UNDER 
 
 MEETING OP CREDITORS. 
 
 The public examination cannot be concluded until the adjourned first 
 meeting of creditors has been concluded. In re William Williavis, 1 
 Morrell, 16— Pepys, R. 
 
 The words " any proceeding in Court " in section 105, sub-section 
 
 (1), of the Bankruptcy Act, 1883, do not include a second meeting of the 
 creditors under a bankruptcy petition, summoned for the purpose of con- 
 firming a scheme of arrangement of the debtor's affairs accepted at the 
 first meeting, and the Court has in consequence no power to order the 
 costs of the petitioner incidental to such second meeting to be paid out 
 of the debtor's estate. But the words do include the public examination 
 of the debtor, and the Court has power to order costs incidental to such 
 public examination to be paid out of the estate. In re Strand, Ex parte 
 the Board of Trade, 1 Morrell, 196 ; L. R. 13 Q. B. D. 492 ; 53 L. J, 
 Q. B. 563— D. 
 
 MORTGAGE. 
 
 Application by Equitable Mortgagee for Sale — Conduct of Sale.] — 
 The proyisions of Eules 78 to 81 of the Bankruptcy Eules, 1870 (compare 
 Nos. 65 to 69 of the Bankruptcy Eules, 1883), were not intended to fetter 
 the Court in cases where an application has been made to the Court by 
 a mortgagee of property of the bankrupt for a sale of such property as 
 provided by the rules, so as (1) to compel the Court to give the conduct 
 of such sale to the trustee in the bankruptcy ; or (2) to compel the Court 
 to give the trustee a first charge on the proceeds of the sale for his costs 
 and expenses in cases where the conduct of the sale has been taken away 
 from him. In re Jordan, Ex parte Lloyd's Banking Co., 1 Morrell, 
 41 ; L. E. 13 Q. B. D. 228 ; 53 L. J. Q. B. 554 ; 50 L. T. 594 ; 33 
 W. E. 153 — Cave, J. And compare Eules 73 to 77 of the Bankruptcy 
 Eules, 1886. 
 
 Proof by Second Mortgagee.]— In order to enable a mortgagor to 
 obtain a further advance from the first mortgagee on the security of the 
 mortgaged property, the second mortgagee agreed to postpone his charge 
 to a then existing third charge in favour of the first mortgagee, and to the 
 fresh advance. The mortgagor became bankrupt, and when the property 
 was afterwards sold by the first mortgagee, the proceeds of sale were 
 insufficient to pay the whole amount due to him, though they exceeded 
 the amount of the first mortgage. 
 
 Held : That the second mortgagee was entitled to prove in the bank- 
 ruptcy for the amount which he would have received out of the proceeds 
 of sale if he had not consented to postpone his charge, on the ground 
 
THE BANKRUPTCY ACT, 1883. 109 
 
 that the Court was entitled to infer an implied promise by the bankrupt 
 to indemnify the second mortgagee against any loss which might result 
 from the postponement of his charge. In re Chappdl, Ex parte Ford, 
 L. R. 16 Q. B. D. 305 ; 55 L. J. Q. B. 406— C. A. 
 
 Amendment of Proof hy Mortgagee.] — Where a mortgagee who has 
 valued his security is desirous of amending his valuation and proof under 
 Rule 13 of Schedule II. of the Bankruptcy Act, 1883, leave to amend 
 may be given in a proper case, although such amendment is opposed by 
 a subsequent mortgagee. In re Arden, Ex parte Arden, 2 Morrell, 1 ; 
 L. R. 14 Q. B. D. 121 ; 51 L. T. 712 ; 33 W. R. 460— D. 
 
 MUTUAL DEALINGS. 
 
 As a general rule, and in the absence of special circumstances, where 
 there are mutual dealings between a debtor and his creditors, the line as to 
 set-off must be drawn at the date of the commencement of the bankruptcy. 
 In re Gillespie, Ex parte Rcid d: Son, 2 Morrell, 100 ; L. R. 14 Q. B. D. 
 963 ; 64 L. J. Q. B. 342 ; 52 L. T. 692 ; 33 W. R. 707— Cave, J. 
 
 Section 38 of the Bankruptcy Act, 1883, is only applicable where 
 
 the claims on each side are such as result in pecuniary liabilities. Eberle's 
 Hotels Company v. Jonas, L. R. 18 Q. B. D. 459 ; 56 L. J. Q. B. 278 ; 
 35 W. R. 467— C. A. 
 
 NEWSPAPER.— See Advertisement. 
 
 NOTICE. 
 
 See Act of Banlcriiptcy — Official Receiver — Disclaimer' — Execution. 
 
 OFFICER. 
 
 A compassionate allowance granted to a retired Indian officer by the 
 Secretary of State for India under the powers conferred on him by the 
 Government of India Act, 1858 — which said allowance is not provided 
 for in the regulations of the service, and the granting of it does not form 
 one of the terms upon which the service was originally entered upon, but 
 it is a mere act of grace — does not fall within the words of section 53, 
 sub-section (2) of the Banki-uptcy Act, 1883, and the Court will not 
 make an order under that section directing a certain sum to be paid 
 thereout to the trustee iu the bankruptcy of such oificer for the purpose 
 of distribution amongst his creditors. In order that section 53 may 
 apply the . payment must be one to which the bankrupt has a legal or 
 equitable claim. In re Webber, Ex parte Webber, 3 Morrell, 288; 
 
110 DIGEST OF CASES DECIDED UNDER 
 
 L. E. 18 Q. B. D. Ill ; 56 L. J. Q. B. 209 ; 55 L. T. 816 ; 35 W. K. 
 308— D. 
 
 -The onus of proof of domicil is, in the first instance, on the creditor 
 
 presenting the petition. It is not sufficient, in order to throw the onus 
 of proof on the other side, for the petitioning creditor to show that the 
 debtor is an officer in the British army on active service out of England, 
 and belongs to a regiment the head-quarters of which are in England, 
 and bears an English name. A Scotchman or an Irishman does not lose 
 his domicil of origin by accepting a commission in the English army. 
 In re Mitchell, Ex parte Cunningham, 1 Morrell, 137 ; L. E. 13 Q. B. D. 
 418 ; 53 L. J. Ch. 1067 ; 51 L. T. 447 ; 33 W. E. 22— C. A. 
 
 OFFICIAL RECEIVER. 
 
 Powers and Duties of.] — The Court does not sit to assist the official 
 receiver or the trustee in simple matters relating to the management of 
 the estate, but it sits for a judicial purpose ; and where there is no 
 question of law arising, there is no justification for coming to the Court. 
 The official receiver must be prepared to undertake the proper responsi- 
 bility of his position, and he has no right in a simple case to come to the 
 Court merely for information. In re G. <£ A. Mahler, Ex parte 
 Honygar ; In re G. d- A. Mahler, Ex parte Charhin, 1 Morrell, 272 — 
 Cave, J. 
 
 As to Sale of Bankrupt's Property,] — Before the appointment of a 
 trustee by the creditors the official receiver who is, by section 54 of the 
 Bankruptcy Act, 1883, the trustee for the purposes of that Act until a 
 trustee is appointed, has power, after an adjudication in bankruptcy has 
 been made against a debtor, to exercise the powers given by section 56 of 
 the Act to the trustee. Such official receiver, therefore, may sell the 
 property of the bankrupt. In re Parker d Parker, Ex parte the Board 
 of Trade, 2 Morrell, 158 ; L. E. 15 Q. B. D. 196 ; 54 L. J. Q. B. 372 ; 
 62 L. T. 670— C. A. Confirmed, L. E. 11 App. Cas. 286 ; 55 L. J. Q. B. 
 417 ,- 55 L. T. 80— H. L. 
 
 As to poiver to Compromise.] — A debtor on May 6th presented his 
 own petition upon which a receiving order was made, and on May 7th the 
 official receiver took possession of the debtor's property. On June 30th 
 a compromise was entered into between the official receiver and two 
 holders of bills of sale over the property of the debtor. On July 9th 
 the debtor was adjudicated bankrupt, and on July 23rd the certificate of 
 approval of the trustee in the bankruptcy was granted by the Board of 
 
THE BANKRUPTCY ACT, 1883. Ill 
 
 Trade. The trustee subsequently applied to the Court to sot aside the 
 compromise. 
 
 Held : That on its appearing that the official receiver had the permis- 
 sion of the Board of Trade to make this compromise the application of 
 the trustee must be refused. In re Johnstone, Ex parte Singleton, 2 
 Morrell, 206— D. 
 
 As to Appointment of Special Manaf/er.] — The power of appointing a 
 special manager given by section 12 of the Bankruptcy Act, 1883, to the 
 official receiver is entirely a discretionary power ; and the Court has no 
 authority to interfere to compel an official receiver who refuses to make 
 such appointment. In re Frederick Whitaker, 1 Morrell, 36 ; 50 L. T. 
 510— Cave, J. 
 
 As to Payment of Wages.] — Although the words in section 40 of the 
 Bankruptcy Act, 1883, which direct the payment in priority of " all 
 wages or salary of any clerk or servant in respect of services rendered to 
 the bankrupt during four months before the date of the receiving order," 
 apply to the four months immediately preceding the date of the receiving 
 order, nevertheless, looking at the fact that one object of the Act was to 
 secure and protect the wages of such clerks or servants, the Legislature 
 must have intended to designate that date at which a bankrupt is 
 deprived of all control over his property and the receipts cease to go into 
 his hands, by the appointment of the official receiver as interim receiver. 
 Therefore, where a bankruptcy petition was presented against a debtor 
 on March 7th, and the official receiver was appointed interim receiver on 
 March 13th, but it was not until August 21st that a receiving order was 
 made and the debtor adjudicated bankrupt ; and the official receiver on 
 August 27th paid to a servant of the bankrupt wages in full for four 
 months preceding March 13th, and the trustee applied that the money so 
 paid might be refunded by the official receiver, the application for such 
 repayment was refused. 
 
 Held : That the proper course for the trustee to have pursued would 
 have been to report the matter to the Board of Trade in accordance with 
 the provisions of Rule 249 of the Bankruptcy Rules, 1883, and in the 
 event of the Board of Trade declining to take the steps desired, to have 
 moved the Court for an order directing the Board of Trade and the official 
 receiver together to show cause why the moneys should not be refunded. 
 In re Smith, Ex parte Fox, 3 Morrell, 63 ; L. R. 17 Q. B. D. 4 ; 55 
 L. J, Q. B. 288 ; 54 L. T. 307 ; 34 W. R. 535— Cave, J. 
 
 Locus of] — ^After a receiving order had been made against a debtor on 
 his own petition, all the creditors were settled with, but were not paid 
 
112 DIGEST OF CASES DECIDED UNDER 
 
 their debts in full. The debtor thereupon, with the consent of the 
 creditors, but before his public examination was concluded, applied to 
 the Court to have the receiving order rescinded. This application was 
 opposed by the official receiver, on the ground that it should not he made 
 until after the public examination of the debtor had taken place, and the 
 County Court Judge, refused the application. 
 
 Held (on appeal) : That it was in the discretion of the County Court 
 Judge whether he would rescind the receiving order or not ; and that, 
 under the circumstances, the discretion was rightly exercised. 
 
 That the official receiver had locus standi to oppose the application in 
 the County Court, and to appear on the appeal. In re Leslie, Ex parte 
 Leslie, 4 Morrell, 75; L. E. 18 Q. B. D. 619 ; 56 L. T. 569; 35 W. E. 
 395— D, 
 
 The official receiver has locus standi to appeal to the Court of Appeal 
 
 from the refusal of the Eegistrar forthwith to adjudge a debtor bankrupt 
 on application made by him for that purpose under Eule 191 of the 
 Bankruptcy Eules, 1886. Li re Reed, Bowen ct Co., Ex parte the Chief 
 Official Receiver, 4 Morrell, 225; L. E. 19 Q. B. D. 174; 56 L. J. Q. B. 
 447 ; 56 L. T. 876 ; 35 W. E. "660— C. A. 
 
 Report o/.] — A report as to the bankrupt's conduct and affairs signed 
 by the assistant official receiver will be accepted as the " Eeport of the 
 official receiver," which the Court is required to take into consideration 
 on an application for dischaa-ge. In re Belts d- Block, Ex parte the 
 Board of Trade, 4 Morrell, 170— C, A. : and see In re Bidl, 2 Morrell, 
 59— Murray, E, 
 
 Although a Court of Appeal in Bankruptcy will not readily interfere 
 
 with the exercise of the discretion of a County Court Judge refusing the 
 discharge of a bankrupt, yet if the decision of such Judge is founded 
 solely on the report of the official receiver, and on appeal the statements 
 contained in such report are proved to be unfounded and are capable of 
 explanation, the Court of Appeal will vary the order of the County Court 
 and will grant to the bankrupt his order of discharge, subject to such 
 conditions as in the nature of the case it may think fit. Where in the 
 report of the official receiver it was alleged that the bankrupt had com- 
 mitted six of the offences specified in section 28, sub-section 3 of the 
 Bankruptcy Act, 1883, and the discharge was in consequence absolutely 
 refused, but, on appeal, satisfactory explanations were afforded of all the 
 said charges with the exception of the fact that twenty-three years ago 
 the bankrupt had made a statutory arrangement with his creditors. 
 Held : That the discharge of the banlorupt should be granted, subject 
 
THE BANKRUPTCY ACT, 1883. 113 
 
 to a suspension of one day to meet the requirements of the Act in respect 
 of the only offence proved against him. In re Sultzbergcr, Ex parte 
 Sultzherger, 4 Morrell, 82— D. 
 
 On a contention raised that although for the purposes of the dis- 
 charge of a bankrupt under section 28 of the Bankruptcy Act, 1883, the 
 report of the official receiver is prima facie evidence of the truth of the 
 statements therein contained. Nevertheless for the purposes of the ap- 
 proval of a composition or scheme under section 18, sub-section (6) of 
 the Act, such report is not made primd facie evidence, and that the 
 Kegistrar ought not to refuse to approve a composition without having 
 the facts mentioned in section 28, sub-section (3), proved by other 
 evidence. 
 
 Held : That the report of the official receiver is primd facie evidence 
 for the purposes of section 18, sub-section (6), and that the same proof 
 of the facts referred to in section 28, sub-section (3), which is sufficient 
 in the case of the discharge of a bankrupt under that section would also 
 be sufficient proof in the case of the approval of a composition or scheme 
 under section 18, sub-section (6). hi re Wallace, Ex parte Campbell, 
 2 MorreU, 167; L. E. 15 Q. B. D. 213; 54 L. J. Q. B. 382; 53 L. T. 
 208— C. A. 
 
 Report of, in Small Bankruptcy. 1 — ^Where the official receiver reports 
 to the Court under section 121 of the Bankruptcy Act, 1883, that the 
 property of a debtor is not Ukely to exceed in value 300L, such report is 
 prima facie to be acted upon, and the Court ought not, at any rate 
 without some definite reason, to refuse to make an order for summary 
 administration. In re Hornihlow, Ex parte the Official Receiver, 2 
 Morrell, 124; 53 L. T. 155— D. 
 
 Notice to.] — Where, after a receiving order has been made against a 
 debtor on a bankruptcy notice, the petitioning creditor is settled with, 
 and with his assent the debtor appeals for the purpose of having the 
 receiving order set aside, it would appear that notice should be given to 
 the official receiver, and where this was not done the Court discharged 
 the receiving order as prayed, but directed that the order should not be 
 drawn up for four days, and notice be given to the official receiver so as 
 to enable him to come forward if he thought fit. In re Fletcher, Ex 
 parte Fletcher, 4 Morrell, 113 — D. 
 
 Where an application is made to transfer the proceedings in a 
 
 bankruptcy from a County Court to the High Court, or from the High 
 Court to a County Court, notice of such application must be served upon 
 M.D. I 
 
114 DIGEST OF OASES DECIDED UNDER 
 
 the official receiver. In re Jack, 4 Morrell, 150 ; L. E. 18 Q. B. D. 
 682 ; 35 W. E. 735— Cave, J. 
 
 Costs of.] — An official receiver ought not to appear at the hearing of an 
 appeal from a receiving order, unless it is necessary for him to do so for 
 the purpose of bringing some special circumstance to the notice of the 
 Court ; and this special circumstance the Court will take into considera- 
 tion when the costs are applied for. In re Dixon iX- Wilso7i, Ex parte 
 Dixon & Wilson, 1 Morrell, 98; L. E. 13 Q. B. D. 118; 53 L. J. Ch. 
 769 ; 50 L. T. 414 ; 32 W. E. 837— C. A. 
 
 The official receiver will not he allowed his costs of appeal, even if 
 
 he was served with notice of appeal, unless his appearance was necessary. 
 In re White, Ex parte White, L. E. 14 Q. B. D. 600— C. A. 
 
 When the official receiver has made his report upon a composition 
 
 or scheme of arrangement his duty is complete, and, except under very 
 particular circumstances, he should not appear on an appeal : if the 
 appearance of the official receiver is essential, the Court will allow the 
 appeal to stand over for that purpose : and unless his appearance is 
 requisite no costs will be allowed to him. In re Reed, Boiven d Co., Ex 
 parte Reed, Boiven d Co., 3 Morrell, 90 ; L. E. 17 Q. B. D. 244; 55 
 L. J. Q. B. 244; 32 W. E. 493— C. A. 
 
 Where, before a composition is approved by the Court, the business 
 
 of the debtor is carried on by the official receiver, who makes payments 
 out of his own pocket and incurs personal liability for the purpose of 
 carrying on such business, the proper order for the Court to make on 
 approving the composition is, that the official receiver shall forthwith 
 deliver up possession of the debtor's estate to the trustee under the 
 composition, and that such trustee shall pay to the official receiver what 
 may be found due to him out of the first assets which come into his 
 hands. In re Taylor, Ex parte The Board of Trade, 1 Morrell, 264; 
 51 L. T. 711— D. 
 
 An order made by a County Court, on the application of the official 
 
 receiver, setting aside a payment made by a debtor as a fraudulent 
 preference, having been reversed on appeal. 
 
 Held : That the costs of the appellants and of the official receiver in 
 both Courts should be paid out of the debtor's assets, the costs of the 
 appellants having priority. In re Dale, Ex parte Leicestershire Banking 
 Co., L. E. 14 Q. B, D. 48; 33 W. E. 354— D. 
 
 The official receiver acting as trustee of an estate being administered 
 
 in a summary manner under section 121 of the Bankruptcy Act, 1883, on 
 
THE BANKRUPTCY ACT, 1883. 115 
 
 an unsuccessful motion by him, was ordered personally to pay the costs 
 of the respondent, with liberty to take the costs out of the estate, if any. 
 In re Glanrille, Ex parte Jenkins, 2 Morrell, 71 ; 33 W. E. 523 — 
 Cave, J. And see In re Thomas, Ex parte Ystradfodwg Local Board, 
 4 Morrell, 295— Caye, J. 
 
 In June, 1886, the debtor executed an assignment for the benefit 
 
 of his creditors, under which the applicant was employed to prepare a 
 statement of affairs, and it appearing that the landlord was threatening 
 a distress for rent, the applicant, upon the instructions of the creditors, 
 paid the amount due. In July, 1886, a receiving order was made against 
 the debtor, and the official receiver declined to repay the money so 
 advanced by the appHcant without an order of the Court. 
 
 Held : That under the circumstances, and looking to the fact that a 
 majority of the creditors in number and value were of opinion that the 
 payment made by the applicant was beneficial and should be refunded, 
 repayment ought to be allowed. But that the official receiver was 
 entitled to deduct his costs of the hearing from the amount. In re 
 Ayshford, Ex parte hovering, 4 Morrell, 164 ; 35 W. R. 652 — Cave, J. 
 
 Costs of, acting as Solicitor.] — The effect of section 116, sub-section (2), 
 of the Bankruptcy Act, 1883, which provides that no official receiver "shall, 
 during his continuance in office, either directly or indirectly, by himself, 
 his clerk or partner, act as solicitor in any proceeding in bankruptcy," 
 is not limited to cases of the official receiver acting as solicitor by 
 himself, his clerk, or partner, for another person, or on an application 
 for the benefit of the estate, but extends also to cases where the official 
 receiver is acting as solicitor for himself and conducting a ease on his 
 own behalf. In re Taylor, Ex parte the Official Receiver, 2 Morrell, 
 127— D. 
 
 ORDER AND DISPOSITION. 
 
 See cases collected under title Reputed Ownership. 
 
 PARTICULARS —See Bimvery. 
 
 PARTNERS. 
 
 Judgment against Firm.] — Where final judgment is obtained against 
 a firm, a bankruptcy notice cannot be issued against a member of such 
 firm who has not been served with the writ, and has not appeared, or 
 admitted that he is or has been adjudged to be a partner, unless under 
 Order XLII., Eule 10, of the Eules of the Supreme Court, 1883, leave 
 to issue execution against such partner has been obtained. In re Ide, 
 
 I 2 
 
116 DIGEST OF CASES DECIDED UNDER 
 
 Ex^arte Ide, 3 Morrell, 239 ; L. R. 17 Q. B. D. 755 ; 55 L. J. Q. B. 
 484 ; 35 W. E. 20— C. A. 
 
 Banhrwptcy Notice in Name of Partners— Bankruptcy of one Partner 
 before Hearing of Petition.]— Mter one of two partners had filed a 
 liquidation petition and a receiver had been appointed, a judgment was 
 recovered in an action previously commenced in the names of the two 
 partners against a debtor of the firm. A bankruptcy notice in the 
 names of the two partners was then served on the said debtor. He 
 failed to comply with it within the seven days limited for the purpose, 
 and a bankruptcy petition was presented against him in the names of the 
 two partners. Before this petition came on for hearing, the creditors of 
 the partner who had filed the liquidation petition had resolved on a 
 liquidation by arrangement, and had appointed a trustee of his property. 
 
 Held : That though there was a good act of bankruptcy, a receiving 
 order could not properly be made against the said debtor, unless the 
 trustee in the liquidation was joined as a co-petitioner. I?i re Owen, 
 Ex parte Owen, 1 Morrell, 93 ; L. E. 13 Q. B. D. 113 ; 53 L. J. Ch. 
 868 ; 50 L. T. 514 ; 32 W. E. 811— C. A. 
 
 Bankruptcy of — Transfer of Proceedings.] — On February 4th, 1886, a 
 receiving order was made against one partner in the High Court ; and on 
 February 6th, 1886, the other partner presented a petition in a County 
 Court. On an application by the partner against whom a receiving 
 order had been made in the High Court for an order to transfer the 
 proceedings in the County Court against the other partner to the High 
 Court. 
 
 Held: That the application for transfer ought to be made to the 
 County Court. 
 
 That in any event the application was one which ought to have been 
 made to the Eegistrar and not to the Judge in Court. In re Nicholson, 
 Ex parte Nicholson, 3 Morrell, 46 — Cave, J. 
 
 Proof against separate Estate of.] — A testator by his will bequeathed 
 so much of his government securities as would produce 250Z. per annum 
 to trustees for the benefit of his daughter, who subsequently became 
 insane. The trustees, after paying the expenses for the care of the 
 lunatic, allowed a balance to accumulate, and the sum of 564L, received 
 by one of the trustees, was paid by him into a bank in which he was a 
 partner. The partnership firm became bankrupt, and a proof for the 
 564L in question was lodged by the administrator of the said daughter, 
 who was also a trustee under the will, against the separate estate of the 
 banki-upt trustee. 
 
THE BANKRUPTCY ACT, 1883. 117 
 
 Held : That proof against the separate estate must be admitted, but 
 without prejudice to any right which the trustee in the banla-uptcy might 
 have to claim contribution from the bankrupt's co-trustees. In re Ridg- 
 way, Ex parte Mein, 3 Morrell, 212— Cave, J. 
 
 Joint and Several Contract — Double Proof.]— Two partners entered 
 into a joint and several covenant to pay A. B. a certain sum. The firm 
 having become bankrupt, A. B. tendered proof against the joint estate 
 as well as against the separate estates of the partners. 
 
 Held : That there being a joint and several liability, the creditor was 
 entitled to prove against both estates, and that it was immaterial whether 
 the money had been advanced for the purposes of the partnership or 
 not. In re Laine, Ex parte Berner, 56 L. J. Q. B. 153; 56 L. T. 
 170— Cave, J. 
 
 Joint and Several Contract — Joint and Separate Proof.] — Where trust 
 money has been misappropriated by a firm, one of the partners in which 
 is one of the trustees, proof may be made under Eule 18 of the second 
 schedule to the Bankruptcy Act, 1883, both against the joint estate of 
 the firm and also against the separate estate of the member who is a 
 trustee. In re Parker & Parker, Ex parte Sheppard, 4 Morrell, 135 ; 
 L. E. 19 Q. B. D. 84; 56 L. J. Q. B. 338; 57 L. T. 198; 35 W. K. 
 566 — Cave, J. 
 
 And see also cases under title Married Woman. 
 
 PETITION. 
 
 Signature of, hy Attorney.] — A bankruptcy petition presented by a 
 creditor may be signed on behalf of such creditor by his duly constituted 
 attorney. In re Wallace, Ex parte Wallace, 1 Morrell, 246 ; L. E. 14 
 Q. B. D. 22 ; 54 L. J. Q. B. 293 ; 51 L. T. 551 ; 33 W. E. 66— C. A. 
 
 Mere Trustee cannot present.] — Under the Bankruptcy Act, 1883, the 
 old rule in bankruptcy still remains in force, that where a debt is vested 
 in a mere trustee for an absolute beneficial owner who is capable of 
 dealing with the debt as he pleases, the trustee cannot alone present a 
 bankruptcy petition against the debtor, but the beneficial owner must join 
 in the petition. Inre Hastings, Ex parte Dearie, 1 Morrell, 281 ; L. E. 
 14 Q. B. D. 184 ; 54 L. J. Q. B. 74 ; 33 W. E. 440— C. A. And see also 
 In re Ellis, Ex parte Hinshehvood, 4 Morrell, 283 — C. A. 
 
 By Committee of Lunatic.] — The Court gave leave to the committee 
 of a lunatic to file a petition in bankruptcy under section 4, sub-sec- 
 tion 1 (f), of the Bankruptcy Act, 1883, on behalf of the lunatic, upon 
 
118 DIGEST OF CASES DECIDED UNDER 
 
 evidence that it would be for the benefit of the lunatic that he should be 
 made a bankrupt, and that the creditors were willing to make him an 
 allowance. In re James, L. E. 12 Q. B. D. 332; 53 L. J. Q. B. 675 ; 
 50 L. T. 471— C. A. 
 
 Failure to comply ivith Terms of Bayikrwptcy Notice — Creditor entitled 
 to Petition.] — Where by failing to comply with the terms of a bank- 
 ruptcy notice, a debtor has committed an act of bankruptcy under 
 section 4, sub-section 1 (g), of the Bankruptcy Act, 1883, any creditor 
 may avail himself of such act of bankruptcy for the purpose of presenting 
 a petition; and the right to present a petition is not limited to that 
 creditor by whom the bankruptcy notice has been served. In re Hastings, 
 Ex parte Dearie, 1 Morrell, 281 ; L. E. 14 Q. B. D. 184; 54 L. J. 
 Q. B. 74 ; 33 W. E. 440— C. A. 
 
 Notice to Sheriff of.] — The notice to be served on a sheriff of a bank- 
 ruptcy petition having been presented against, or by the debtor under 
 section 46, sub-section (2), of the Bankruptcy Act, 1883, need not 
 necessarily be in writing. Curtis v. Wainbrook Iron Co., 1 C. &E. 351 
 — Grove, J. 
 
 Petition by Creditor — Evidence.] — Where upon the hearing of a 
 bankruptcy petition against a debtor, the evidence requisite under 
 section 7, sub-section (2), of the Bankruptcy Act, 1883, is adduced, it is 
 not necessary, in the event of the hearing being adjourned, to give at 
 such adjourned hearing similar evidence under the said sub-section. 
 In re Winhy, Ex parte Winhy, 3 Morrell, 108 — C. A. 
 
 Right of Debtor to instruct Solicitor to oppose.] — On the presentation 
 of a bankruptcy petition against a debtor, and an order for the appoint- 
 ment of an interim receiver having been made, such debtor instructed 
 his solicitor to oppose the petition, and to move to rescind the interim 
 order, and then paid to such solicitor at his request 251. on account of 
 costs of counsel's fees, and other expenses for that purpose. The 
 application to rescind the interim order was dismissed, and the debtor 
 was subsequently adjudicated bankrupt. The trustee in the bankruptcy 
 thereupon claimed the 251. from the solicitor as money received by him 
 from the debtor with knowledge of the act of bankruptcy on which the 
 receiving order was made. 
 
 Held : That the application of the trustee must be refused ; that it 
 was right that a debtor should have legal assistance and advice against 
 a bankruptcy petition; and that a debtor would be left practically 
 defenceless if money paid to a solicitor for services rendered on such an 
 occasion could afterwards be recovered by the trustee. In re Sinclair, 
 
THE BANKRUPTCY ACT, 1883. 119 
 
 Ex parte Payne, 2 Morrell, 255 ; L. R. 15 Q. B. D. 616 ; 53 L. T. 767 
 — Cave, J. 
 
 Death of Debtor before Service of] — Where a debtor dies after a 
 bankruptcy petition has been presented against him by a creditor, but 
 before the petition has been served, all further proceedings on such 
 petition must be stayed. In re Easy, Ex parte Hill & Hymans, 
 4 Morrell, 281 ; L. R. 19 Q. B. D. 538 ; 56 L. J. Q. B. 624 ; 35 W. R. 
 819— C. A. 
 
 Petition by Debtor — Death of Debtor.] — Where a debtor died two days 
 after presenting his petition in the County Court, and at the subsequent 
 first meeting of the creditors, resolutions were passed that the proceed- 
 ings be continued, and the estate administered by a trustee, as if such 
 debtor were alive, and had been adjudicated bankrupt, but the County 
 Court Judge declined to confirm such resolutions, and stated a case for 
 the opinion of the High Court. 
 
 Held : That the intention of the Legislature in framing section 108 of 
 the Banki'uptcy Act, 1883, which provides for the continuance of pro- 
 ceedings on the death of a debtor by or against whom a bankruptcy 
 petition has been presented, was to meet a case of this nature ; and that 
 the proper course for the Court to pursue, in the absence of any arrange- 
 ment on the part of the representatives of the deceased debtor, was to 
 make an order of adjudication against him, and allow the matter to 
 proceed in the ordinary way. In re Walker, Ex parte Sharpe, 3 Morrell, 
 69 ; 54 L. T. 682 ; 34 W. R. 550— D. 
 
 Withdraical of — Payment in Full.] — In a case where after a petition 
 had been filed by a debtor in the County Court, the unsecured creditors 
 of such debtor had been paid in full, and an application was in con- 
 sequence made to withdraw the petition, which application the County 
 Court Judge refused to grant, on the ground that he was doubtful as to 
 his power to do so. 
 
 Held: That there was clear jurisdiction to grant the application. 
 In re Wemyss, Ex parte Wemyss, 1 Morrell, 157 ; L. R. 13 Q. B. D. 
 244 ; 53 L. J. Q. B. 496 ; 32 W. R. 1002— D. 
 
 Substituted Service of.] — On appeal from an order directing that 
 publication of a notice in the London Gazette, and in the Times news- 
 paper, should be deemed to be good service of a bankruptcy petition upon 
 the debtor. 
 
 Held : That under Rule 154, and Form 16 of the Bankruptcy Rules, 
 1886, the Registrar on being satisfied that the debtor was avoiding 
 personal service, had jurisdiction to make the order in question ; and that 
 
120 DIGEST OF CASES DECIDED UNDER 
 
 upon the facts of the case there was no ground for the appeal. In re 
 Collinson, Ex parte Collinson, 4 Morrell, 161— C. A. 
 
 Presented in tcroncj Court.]— Where a bankruptcy petition is presented 
 in the wrong Court by inadvertence, such Court has jurisdiction to hear 
 the petition, and to make a receiving order. In re Brightmore, Ex parte 
 May, 1 Morrell, 253 ; L. R. 14 Q. B. D. 37 ; 51 L. T. 710 ; 33 W. K. 
 598— D. 
 
 Amendment of.] — At the hearing of a bankruptcy petition, the objection 
 was raised on behalf of the debtor, that the petitioning creditor was a 
 mere trustee for his father ; and the Eegistrar, after hearing the evidence, 
 having come to that conclusion, the petition was dismissed, without leave 
 to amend. 
 
 Held (on appeal) : That although the Eegistrar was justified on the 
 case before him in coming to the conclusion to which he did, yet as a 
 matter of indulgence leave, to amend the petition by joining the father 
 would be granted. 
 
 But such leave must be subject to the condition that all costs thrown 
 away by his not being joined should be paid by the father within one 
 month, including the costs of the appeal. In re Ellis, Ex parte Hin- 
 shehvood, 4 Morrell, 283— C. A. 
 
 And compare In re Hastings, Ex parte Dearie, 1 Morrell, 281 ; L. R 
 14 Q. B. D. 184; 54 L. J. Q. B. 74 ; 33 W. R. 440— C. A. 
 
 Dismissal of.] — After a bankruptcy petition had been presented, but 
 before the day appointed for the hearing, the debtor obtained the consent 
 of the petitioning creditors to an adjournment of such hearing with a 
 view to a settlement, and a form of consent to an extension of time was 
 sent to the County Court Registrar, but on the day appointed for the 
 hearing the Eegistrar dismissed the petition for non-appearance. Notice 
 of appeal having been given by the petitioning creditors the debtor filed 
 his own petition, on which a receiving order was made. When the 
 appeal came on for hearing an adjournment was taken by consent, in 
 order that a scheme of arrangement proposed by the debtor might be 
 considered, but this subsequently fell through, and the petitioning 
 creditors now proceeded with their appeal, a year after notice thereof had 
 been- given. 
 
 Held : That the delay which had occurred was fatal to the appeal ; 
 and that no sufficient reason having been put forward to justify the Court 
 in hearing it, notwithstanding such delay, the appeal must be dismissed 
 with costs. In re Gamlen, Ex parte Ward dt Co., 4 Morrell, 301— D. 
 
THE BANKRUPTCY ACT, 1883. 121 
 
 The fact that, before the presentation of a bankruptcy petition 
 
 against a debtor, a large number of the creditors have assented to a deed 
 of arrangement, is not a "sufficient cause" within the meaning of 
 section 7, sub-section (3) of the. Banlcruptcy Act, 1883, for dismissing 
 such petition presented by a dissenting creditor, however beneficial to 
 the creditors the terms of such arrangement may be ; and, in conse- 
 quence, there is no jurisdiction to adjourn generally the hearing of such 
 petition with a view to its ultimate dismissal if the arrangement should 
 be found to work well. The case of In re Dixon d- Wilson, Ex parte 
 Dixon d Wilson (see IMorrell, 98), approved and explained, to the effect 
 that the decision there did not depend upon the particular terms of the 
 arrangement, but upon the fact that such arrangement was made at the 
 time, and in the manner, and by the persons by whom it was made. /?i 
 re Watson d; Smith, Ex parte Oram, 2 Morrell, 199 ; L. R. 16 Q. B. D. 
 899 ; 52 L. T. 785 ; 33 W. E. 890— C. A. 
 
 POUNDAGE.— See Execution. 
 
 PREFERENTIAL CLAIM. 
 
 For Wages.] — The general foreman and overlooker of a brickyard, in 
 which he also worked, instead of weekly wage, undertook the manufacture 
 of bricks by piecework, and to be paid so much per thousand for bricks 
 produced. For this purpose he continued to employ the men who had 
 been working for the bankrupt at the same rate of wages, other persons 
 being engaged and paid separately by the bankrupt to do part of the 
 work. He also continued exclusively in the service of the banki-upt 
 and to act as general manager of the brickworks, but without special 
 remuneration therefor. He was liable to be discharged at a week's 
 notice by the bankrupt, who had the right to discharge and engage all 
 men working in the yard and to make alterations in the rate paid per 
 thousand for the bricks. 
 
 Seld : That the position occupied by such person was that of a work- 
 man within the meaning of section 40, sub- section 1 (c), of the Bank- 
 ruptcy Act, 1883, and not that of a contractor : and that he was entitled 
 in priority under that section to the wages due to him in respect of 
 services rendered to the bankrupt before the receiving order was made. 
 In re Field, Ex parte Hollyoak, 4 Morrell, 63 ; 35 W. E. 396— Cave, J. 
 
 -Although the words in section 40 of the Bankruptcy Act, 1883, 
 
 which direct the payment in priority of "all wages or salary of any 
 clerk or servant in respect of services rendered to the bankrupt during 
 four months before the date of the receiving order," apply to the four 
 
122 DIGEST OF CASES DECIDED UNDER 
 
 months immediately preceding the date of the receiving order, neverthe- 
 less, looking at the fact that one object of the Act was to secure and 
 protect the wages of such clerks or servants, the Legislature must have 
 intended to designate that date at which a bankrupt is deprived of all 
 control over his property and the receipts cease to go into his hands, by 
 the appointment of the official receiver as interim receiver. There- 
 fore, where a bankruptcy petition was presented against a debtor on 
 March 7th, and the official receiver was appointed interim receiver on 
 March 13th, but it was not until August 21st that a receiving order was 
 made and the debtor adjudicated bankrupt ; and the official receiver on 
 August 27th paid to a servant of the bankrupt wages in full for four 
 months preceding March 13th, and the trustee applied that the money so 
 paid might be refunded by the official receiver, the application for such 
 repayment was refused. 
 
 Held : That the proper course for the trustee to have pursued would 
 have been to report the matter to the Board of Trade in accordance with 
 the provisions of Rule 249 of the Bankruptcy Eules, 1883, and in the 
 event of the Board of Trade declining to take the steps desired, to have 
 moved the Court for an order directing the Board of Trade and the 
 official receiver together to show cause why the moneys should not be 
 refunded. Li re Smith, Ex parte Fox, 3 Morrell, 63; L. R. 17 Q. B. 
 D. 4 ; 55 L. J. Q. B. 288 ; 54 L. T. 307 ; 34 W. R. 535— Cave, J. 
 
 For Local Rate.] — On January 17th, 1887, when a receiving order was 
 made and adjudication took place, the bankrupt was tenant of a house and 
 shop which he held under a lease for twenty-one years. The trustee in 
 the bankruptcy did not disclaim the lease, but on February 1st, 1887, he 
 sold his interest in it, the bankrupt remaining in occupation as tenant 
 under the purchaser. At the date of the receiving order there was due 
 from the bankrupt a local board rate made on October 8th, 1886, for the 
 half-year from September 30th, 1886, to March 25th, 1887, and payable 
 in advance. 
 
 Held : That the 'estate of the bankrupt was liable to pay the rate for 
 the whole half-year; and not merely an apportioned part of it up to 
 the date of the order of adjudication. In re Thomas, Ex parte Ystrad- 
 fodwg Local Board, 4 Morrell, 295 ; 36 W. E. 143— Cave, J. 
 
 PROCESS.— See Ahuse of Process. 
 
 PROOF. 
 
 Amendment o/.]— Where a mortgagee who has valued his security is 
 desirous of amending his valuation and proof under Rule 13 of Schedule 2 
 
THE BANKRUPTCY ACT, 1883. 123 
 
 of the Bankruptcy Act, 1883, leave to amend may be given in a proper 
 case, although such amendment is opposed by a subsequent mortgagee. 
 In re Arden, Ex parte Arden, 2 Morrell, 1 ; L. E. 14 Q. B. D. 121 ; 
 51 L. T. 712 ; 33 W. E. 460— D. 
 
 Where an application made by a secured creditor for leave to with- 
 draw or amend his proof put in from inadvertence for the full amount of 
 the debt, and without mentioning the security, was refused by the County 
 Court Judge. 
 
 Held : That there was clearly no intention to give up the security, 
 and that proof for the full amount of the debt having been put in from 
 inadvertence, leave to amend ought to have been granted. In re King, 
 Ex parte Mesham, 2 Morrell, 119 — D. 
 
 Where a valuation was put upon a security by a creditor which, 
 
 owing to the death of the bankrupt, greatly increased in value, such 
 creditor was entitled to amend his valuation under Eule 13 of Schedule II. 
 of the Bankruptcy Act, 1883, notwithstanding that the trustee in the 
 bankruptcy had stated to the creditor that he intended to purchase the 
 security at his valuation, but the purchase-money had not been paid. 
 The words of the said Eule 13, which provides that a secured creditor 
 may amend the valuation of his security made in his proof of debt " at 
 any time," are to be limited to the extent that the right cannot be 
 exercised after the trustee in the bankruptcy has actually paid for the 
 security at the valuation set upon it by the creditor. A further limitation 
 may also arise if, under Eule 12 (c) of Schedule II., the creditor, by 
 notice in writing, puts the trustee to his election whether he will redeem 
 the security or not, and the trustee has declared his election to purchase 
 the security at the creditor's valuation. In re Sadler, Ex parte N orris, 
 3 MorreU, 260; L. E. 17 Q. B. D. 728 ; 56 L. J. Q. B. 98 ; 35 W. E, 
 19— C. A. 
 
 ■ Although the time allowed for appeal in bankruptcy matters may be 
 
 extended by the Court, yet some ground must always be shown why this 
 should be done, and notwithstanding the fact that when a bond fde 
 mistake has been committed in the estimation of a proof, the trustee in 
 the bankruptcy ought not to be permitted to take a technical advantage 
 of such mistake, where a creditor for more than a year and a half took 
 no steps to reverse the decision of the County Court Judge refusing to 
 allow such creditor to amend or withdraw his proof alleged to be so 
 wrongly estimated, the Court could not permit him to reopen the case 
 for the purpose of setting aside that decision. In re Tricks, Ex parte 
 Charles, 3 Morrell, 15— Cave, J. 
 
12-1 DIGEST OF CASES DECIDED ITNDEK 
 
 For AUmony.l — Where an order is made by tlie Divorce Court for the 
 future payment of alimony by a husband under the statute 29 & 30 Yict. 
 c. 32, s. 1, such payments are not capable of valuation, and cannot there- 
 fore be proved for in the event of the husband being adjudicated bankrupt, 
 but such husband is liable to continue the payments notwithstanding the 
 bankruptcy. In re Linton, Ex iMvte Linton, 2 Morrell, 179; L. E. 15 
 Q. B. D. 239; 54 L. J. Q. B. 529 ; 62 L. T. 782 ; 33 W. K. 714 ; 49 
 J. P. 597— C. A. 
 
 For Contingency.] — The assignee of a lease of certain premises having 
 become banki-upt and rent being in arrear, judgment for the same was 
 recovered against his assignor, who was under covenant to pay such rent. 
 The assignor thereupon proved against the estate of the bankrupt for the 
 amount so paid ; and also sought to prove in respect of his contingent 
 liability for the rent during the time the said lease had yet to run. The 
 last- mentioned proof was rejected by the trustee in the banki-uptcy. 
 
 Held : That the proof must be admitted : and that an estimate must 
 be made by the trustee in the bankruptcy of the value of the liability 
 under section 37, sub-section (4), of the Banki-uptcy Act, 1883. In re 
 Hinks, Ex parte Verdi, 3 Morrell, 218 — Cave, J. 
 
 For Costs.] — On July 15th, 1884, an order was made by consent by 
 which all matters in dispute in an action were referred to arbitration, the 
 costs to be in the discretion of the said arbitrator. On November 15th, 
 1884, during the continuance of the arbitration proceedings, the defen- 
 dant debtor became bankrupt, and on January 21st, 1885, the trustee in 
 the bankruptcy wrote to the arbitrator as follows : — " I give you notice 
 that I as trustee deny any agreement of reference or that any award 
 therein is or will b_e binding on me, and so far as I have the power I 
 revoke your authority." On February 26th, 1885, the arbitrator gave 
 his decision, by which he awarded to the plaintiff in the action a certain 
 sum, and ordered that all costs should be paid by the defendant. A 
 proof for the said costs having been rejected by the trustee in the bank- 
 ruptcy and also by the County Court Judge. 
 
 Held (on appeal) : That the bankruptcy did not operate as a revocation 
 of the submisson : that the trustee had no, power to revoke the authority : 
 and that the creditor was entitled to prove for the costs in question. In 
 re Smith, Ex parte Edwards, 3 Morrell, 179 — D. 
 
 On December 18th, 1886, a receiving order was made against the 
 
 debtor. On December 20th, 1886, verdict and judgment for the defen- 
 dants was given in an action previously brought by the debtor. On 
 February 6th, 1887, a proof for the costs in the action was tendered by 
 
THE BANKRUPTCY ACT, 18 iS, 125 
 
 tlie defendants against the estate, and at a subsequent meeting of 
 creditors, a proposal of the debtor for a scheme of arrangement was 
 rejected by reason of the vote given by the defendants at the meeting, 
 and the debtor became bankrupt. 
 
 Held: (1) That under the circumstances the bankrupt had locus standi 
 to apply to the Court under Rule 25 of the Second Schedule to the 
 Bankruptcy Act, 1883, to expunge the proof. 
 
 (2) That the debt for which proof was made was not a debt provable 
 
 in the bankruptcy, and that the proof must therefore be expunged. In 
 re Bliick, Ex parte Bluck, 4 Morrell, 273 ; 56 L. J. Q. B. 607 ; 57 L. T. 
 419 ; 35 ^Y. R. 720— Cave, J. 
 
 For Re-exchange.} — Where six bills of exchange were drawn in Tobago, 
 accepted by the debtors, and made payable at the London and West- 
 minster Bank, but were subsequently dishonoured, and thereupon sent 
 back to Tobago, and taken up by the drawers, who sought to prove for 
 the re-exchange against the debtor's estate. 
 
 Held : That subject to the damages being proved, the claim ought to 
 be admitted : that the re-exchange mentioned in section 57 of the Bills 
 of Exchange Act, 1882, was simply the difference between English and 
 foreign currency, and that under that Act the claim was still admissible. 
 In re Gillespie, Ex parte Roberts, 2 Morrell, 278 ; L. B. 16 Q. B. D. 
 702 ; 55 L. J. Q. B. 131 ; 53 L. T. 770 ; 34 W. E. 258— Cave, J. And 
 see L. R. 18 Q. B. D. 286 ; 56 L. J. Q. B. 74 ; 56 L. T. 599 ; 35 W. E. 
 128— C. A. 
 
 By Wife.] — Under the provisions of the Married Women's Property 
 Act, 1882, a wife who advances money to her husband out of her separate 
 estate is not entitled, on the bankruptcy of the husband, either to prove 
 or vote until all the other creditors of the bankrupt have been satisfied. 
 In such case it lies on the wife to show that the money has not been 
 advanced to the husband for the purposes of his business. In re Genese, 
 Ex parte the District Bank, 2 Morrell, 283; L. R. 16 Q. B. D. 700; 55 
 L. J. Q. B. 118 ; 34 W. R. 79— Cave, J. 
 
 Section 3 of the Married Women's Property Act, 1882, by which 
 
 the claim of a wife for money lent by her to her husband for the purposes 
 of any trade or business carried on by him is, in the event of the 
 husband's bankruptcy, postponed until all claims of the other creditors 
 have been satisfied, applies only where the husband is a sole trader. 
 Thus, where a married woman lends her own moneys to a trading part- 
 nership of which her husband is a member, she is entitled on the 
 bankruptcy of the partnership to prove against the joint estate in compe- 
 
136 DIGEST OF OASES DECIDED UNDER 
 
 tition with other creditors. In re Tuff & Nottingham, Ex parte 
 Nottingham, 4 Morrell, 116 ; L. E. 19 Q. B. D. 88 ; 56 L. J. Q. B. 440 ; 
 56 L. T. 573 ; 35 W. E. 567— Cave, J. 
 
 Section 8 of the Married Women's Property Act, 1882, by which 
 
 the claim of a wife to a dividend in respect of money lent by her to her 
 husband " for the purpose of any trade or business carried on by him, or 
 otherwise," is, in the event of the husband's bankruptcy, postponed until 
 all claims of other creditors for value have been satisfied, applies only 
 where money has been so lent by a wife to her husband for the purpose 
 of his trade or business. Money lent by a wife to her husband for 
 private purposes may be proved for by her, and she may receive a divi- 
 dend in competition with other creditors. The words " or otherwise " in 
 section 3 of the Married Women's Property Act, 1882, do not refer to 
 the words "for the purpose of any trade or business" in the said section, 
 but they refer to the immediately preceding words " carried on by him." 
 In re Tidsivell, Ex parte Tidsicell, 4 Morrell, 219 ; 56 L. J. Q. B. 548 ; 
 57 L. T. 416 ; 35 W. E. 669— Cave, J. 
 
 By Liquidator.] — On appeal from the rejection by the trustee in the 
 bankruptcy of a proof of debt carried in by the liquidator of a mutual 
 insurance company for the sum of 85Z., the amount due from the bank- 
 rupts as contributors in respect of calls, and also for the estimated sum 
 of 1001. for further calls which had accrued before the date of the 
 receiving order, but had not been then ascertained, the County Court 
 Judge allowed the proof as to the 85Z., and directed the proof as to the 
 lOOL to stand over. On July 30th, 1886, proof for the ascertained sum 
 of 741. in substitution for the lOOL was tendered, and was rejected by the 
 trustee on the ground (1) that the claim was made too late by reason of 
 the fact that on July 9th, 1886, notice to declare a dividend had been 
 inserted in the Gazette, by which July 28th was specified as the last day 
 for claims to be sent in ; and (2) that the alleged claim had already been 
 adjudicated upon by the Court. 
 
 Held : That the notice in question did not prevent the creditor from 
 making the claim ; and that the proof in respect of the further calls was 
 not res judicata and must be allowed. In re Shepherd d Leech, Ex 
 parte Whitehaven Assurance Co., 4 Morrell, 180 — D. 
 
 By Mortgagee.] — In order to enable a mortgagor to obtain a further 
 advance from the first mortgagee on the security of the mortgaged 
 property, the second mortgagee agreed to postpone his charge to a then 
 existing third charge in favour of the first mortgagee, and to the fresh 
 advance. The mortgagor became bankrupt, and when the property was 
 
THE BANKRUPTCY ACT, 1883. 127 
 
 afterwards sold by the first mortgagee, the proceeds of sale were insuffi- 
 cent to pay the whole amount due to him, though they exceeded the 
 amount of the first mortgage. 
 
 Held : That the second mortgagee was entitled to prove in the bank- 
 ruptcy for the amount which he would have received out of the proceeds 
 of the sale if he had not consented to postpone his charge, on the ground 
 that the Court was entitled to infer an implied promise by the bankrupt 
 to indemnify the second mortgagee against any loss which might result 
 from the postponement of his charge. In re Chajipell, Ex parte Ford, 
 L. R. 16 Q. B. D. 305 ; 55 L. J. Q. B. 406— C. A. 
 
 Against Separate Estate.] — A testator by his will bequeathed so much 
 of his government securities as would produce 250?. per annum to trustees 
 for the benefit of his daughter, who subsequently became insane. The 
 trustees, after paying the expenses for the care of the lunatic, allowed a 
 balance to accumulate, and the sum of 564L, received by one of the 
 trustees, was paid by him into a bank in which he was a partner. The 
 partnership firm became bankrupt, and a proof for the 564Z. in question 
 was lodged by the administrator of the said daughter, who was also a 
 trustee under the will, against the separate estate of the bankrupt 
 trustee. 
 
 Held : That proof against the separate estate must be admitted, but 
 without prejudice to any right which the trustee in the bankruptcy might 
 have to claim contribution from the bankrupt's co-trustees. In re 
 liidgicay, Ex parte Mein, 3 Morrell, 212 — Cave, J. 
 
 Joint and Separate.]— Where trust money has been misappropriated 
 by a firm, one of the partners in which is one of the trustees, proof may 
 be made under Rule 18 of the second schedule to the Bankruptcy Act, 
 1883, both against the joint estate of the firm and also against the 
 separate estate of the member who is a trustee. In re Parker, Ex parte 
 Sheppard, 4 Morrell, 135 ; L. R. 19 Q. B. D. 84 ; 56 L. J. Q. B. 338 ; 
 57 L. T. 198 ; 35 W. R. 566— Cave, J. 
 
 Double.] — Two partners entered into a joint and several covenant to 
 pay A. B. a certain sum. The firm having become banki'upt, A. B. 
 tendered proof against the joint estate as well as against the separate 
 estates of the partners. 
 
 Held : That there being a joint and several liability the creditor was 
 entitled to prove against both estates, and that it was immaterial whether 
 the money had been advanced for the purposes of the partnership or not. 
 In re Laine, Ex parte Berner, 56 L. J. Q. B. 153 ; 56 L, T, 170 — 
 Cave, J. 
 
138 DIGEST OF CASES DECIDED U^^DER 
 
 Sworn Abroad.'] — When an affidavit or proof in bankruptcy is sworn 
 abroad before a British Consul or Vice-Consul, a notarial certificate in 
 verification of the signature and qualification of the consul or vice-consul 
 is not required. The notarial certificate is only required when such an 
 affidavit or proof is sworn before a foreign functionary. In re Magee, Ex 
 parte Magee, L. E. 15 Q. B. D. 332 ; 54 L. J. Q. B. 394 ; 38 W. E. 655 
 — Cave, J. 
 
 Reduction of.] — The trustees of a will, who were also residuary lega- 
 tees, made use of the trust estate for their own purposes, and a summons 
 was subsequently taken out in the Chancery Division to get in the estate 
 under which a receiver was appointed. On the day of the hearing of 
 the summons one of the trustees filed his own petition in bankruptcy. 
 An account having been taken of the sum due in respect of the estate 
 which had come into the hands of the trustees, the receiver sought to 
 prove for such sum against the estate of the bankrupt. 
 
 Held : That the bankrupt had at the date of the receiving order a 
 right of set-ofi' to the amount of his own share as legatee, and that the 
 proof in question must be reduced by such amount. In re Chapman, 
 Ex parte Parker, 4 Morrell, 109 ; 35 W. R. 595— D. 
 
 Rejection of.] — Where at the first meeting of the creditors of a bank- 
 rupt, the chairman rejects the proof tendered by a creditor for the sum 
 at which the bankrupt has entered and sworn to the debt in his statement 
 of affairs, and the creditor appeals from such rejection, the bankrupt 
 has no locus standi to appear and oppose the appeal, even though he may 
 have been served with notice of the appeal ; but it would seem that the 
 bankrupt will be entitled to his costs of appearing. In re G. G. Knight, 
 Ex parte Smith cO Go., 1 Morrell, 74 — Cave, J. 
 
 Where the trustee rejects a proof tendered by a creditor, and from 
 
 such rejection an appeal is brought, it is not sufficient to apply to the 
 Court within the twenty-one days limited by Rule 174 of the Bankruptcy 
 Rules, 1883 (see Eule 230, Bankruptcy Rules, 1886), to fix a day and 
 time for the hearing of the appeal, but notice of motion in the usual 
 way must be served on the trustee within the twenty-one days. In re 
 Gillespie & Go., Ex piarte Morrison d Aitcheson, 1 Morrell, 278 ; L. R. 
 14 Q. B. D. 385 ; 52 L. T. 55 ; 33 W. R. 751— Cave, J. 
 
 Where on an appeal from the rejection of a proof by the trustee, the 
 
 objection is taken that such rejection was not made within the fourteen 
 days required by Eule 173 of the Bankruptcy Eules, 1883, the Court 
 will allow such objection, but will treat the application as a motion to 
 expunge the proof on behalf of the trustee, and will deal with the case 
 
THE BA^'KEUPTCY ACT, 1883. I;i9 
 
 accordingly. In re Voght, Ex parte Spamer, 8 Morrell, 164 — Cave, J. : 
 and see In re SissUng, Ex parte Fenton, 2 Morrell, 289 ; 53 L. T. 967 
 — D. : and compare Eules 227, 228, Bankruptcy Rules, 1886. 
 
 Although by section 89, sub-section (1), of the Bankruptcy Act, 
 
 1888, a trustee shall, in the administration of the property of the bank- 
 rupt and in the distribution thereof amongst his creditors, have regard to 
 any directions which may be given by the committee of inspection ; never- 
 theless, if such trustee unreasonably and vexatiously rejects a proof of 
 debt, the Court will order him to pay personally the costs occasioned by 
 such rejection, even though in so doing he acted under the directions of 
 the committee. Where the view taken by a committee of inspection 
 upon any question is frivolous and wasteful of the assets, the trustee is 
 not justified in acting upon it, and cannot set up the directions of such 
 committee as a defence against a personal order upon him to pay costs. 
 A trustee ought not to reject a proof tendered in respect of a debt, for 
 which a judgment by consent has been obtained, merely on the ground 
 that a copy not having been filed as required by section 27 of the Debtors 
 Act, 1869, the judgment or any execution issued or taken out thereon is 
 void ; but in such case the trustee ought to investigate the validity of 
 the alleged debt. In re Smith, Ex parte Brown, 8 Morrell, 202 ; L. E. 
 17 Q. B. D. 488— C. A. 
 
 The father of a bankrupt carried in two separate proofs against the 
 
 estate for 8,000L, which were respectively rejected by the trustee to the 
 extent of 2,000L, and on the application of another creditor were sub- 
 sequently expunged in the County Court. The creditor appealed, but 
 while the appeals were pending a compromise was entered into, according 
 to the terms of which it was agreed that the claim of the creditor should 
 be reduced to the sum of 1,880L, and that all costs should be paid by 
 the trustee. On application to the County Court Judge for an order 
 for taxation in accordance with the terms of this compromise it was 
 refused. 
 
 Held (on appeal) : That the proper course was to come to the Court 
 for its consent to the arrangement ; and that the refusal of the County 
 Court Judge to grant an order for taxation under the circumstances was 
 right. In re Green, Ex parte Edmunds, 2 Morrell, 294; 63 L. T. 
 967— D. 
 
 Appeal from rejection of — Creditor resident Abroad — Security for 
 Costs.'] — The Court has no jurisdiction to order a creditor residing 
 abroad, who is appealing from the rejection of his proof by the trustee, 
 to give security for the costs of such appeal. In re Vanderhaage, Ex 
 parte Izard, L. E. 20 -Q. B. D. 146— Cave, J. 
 
 M.D. K 
 
130 DIGEST OF CASES DECIDED UJ^DER, 
 
 PUBLIC EXAMINATION. 
 
 The public examination cannot be concluded until the adjourned first 
 meeting of creditors has been concluded. In re William Williavis, 1 
 Morrell, 16— Pepys, E. 
 
 The answers of a bankrupt on his public examination are not admis- 
 
 sible in evidence in subsequent motions in the same bankruptcy as 
 against parties other than the banki-upt himself. In re Brunner, Ex 
 parte The Board of Trade, 4 Morrell, 255 ; L. R. 19 Q. B. D. 672 ; 56 
 L. J. Q. B. 606 ; 57 L. T. 418 ; 35 W. E. 719— Cave, J. 
 
 Eight of audience of Solicitor at.] — The provisions of section 17, sub- 
 section (4) of the Bankruptcy Act, 1883, by which at the public exami- 
 nation of a debtor " any creditor who has tendered a proof, or his repre- 
 sentative authorized in writing, may question the debtor concerning his 
 affairs and the causes of his failure," apply to a solicitor representing a 
 creditor who has tendered a proof, and such solicitor, before being 
 permitted to examine a debtor at his public examination, must produce, 
 if so requested, his written authority from such creditor. The Queen v. 
 The Registrar of the Greenwich County Court, 2 Morrell, 175 ; L. E. 
 15 Q. B. D. 54; 54 L. J. Q. B. 392; 33 W. E. 671— C. A. 
 
 Costs of] — The words " any proceeding in Court " in section 105, 
 sub-section 1, of the Bankruptcy Act, 1883, do not include a second 
 meeting of the creditors under a bankruptcy petition, summoned for the 
 purpose of confirming a scheme of arrangement of the debtor's affairs 
 accepted at the first meeting. The Court has in consequence no power 
 to order the costs of the petitioner incidental to such second meeting to 
 be paid out of the debtor's estate. But the words do include the public 
 examination of the debtor, and the Court has power to order costs 
 incidental to such public examination to be paid out of the estate. In re 
 Strand, Ex parte The Board of Trade, 1 Morrell, 196; L. E. 13 Q 
 B. D. 492 ; 53 L. J. Q. B. 563— D. 
 
 Application to rescind Receiving Order before conclusion of] — After a 
 receiving order had been made against a debtor on his ovm petition, all 
 the creditors were settled with, but were not paid their debts in fall. 
 The debtor thereupon, with the consent of the creditors, but before his 
 public examination was concluded, applied to the Court to have the 
 receiving order rescinded. This application was opposed by the official 
 receiver, on the ground that it should not be made until after the public 
 examination of the debtor had taken place, and the County Court Judge 
 refused the application. 
 
THE BANKEUPTCY ACT, 1883. 131 
 
 Held (on appeal) : That it was in the discretion of the County Court 
 Judge whether he would rescind the receiving order or not ; and that, 
 under the circumstances, the discretion was rightly exercised. 
 
 That the official receiver had locus standi to oppose the application in 
 the County Court, and to appear on the appeal. In re Leslie, Ex parte 
 Leslie, 4 Morrell, 75 ; L. E. 18 Q. B. D. 619 ; 56 L. T. 569 ; 35 W. E. 
 395— D. 
 
 "RASH AND HAZARDOUS."— See %cMfofe» 
 
 RECEIVING ORDER. 
 
 The fact that a receiving order in bankruptcy has been made against a 
 plaiatiff is no ground for requiring him to give security for costs. Rhodes 
 V. Dawson, L. E. 16 Q. B. D. 548 ; 55 L. J. Q. B. 134 ; 34 W. E. 240 
 — C. A. 
 
 It is the intention of the Legislature that proposals for a composition 
 
 or scheme of arrangement shall only be entertained after a receiving order 
 has been made. Li re Dixon d- Wilson, Ex parte Dixon dc Wilson, 
 1 Morrell, 98 ; L. E. 13 Q. B. D. 118 ; 53 L. J. Ch. 769 ; 50 L. T. 414 ; 
 32 W. ,E. 837— C. A. 
 
 Made in two Courts.] — On February 19th, 1885, a petition was 
 presented against the debtor in the London Bankruptcy Court, but the 
 hearing of such petition was subsequently adjourned from time to time 
 with the consent of the petitioning creditor. On January 5th, 1886, a 
 receiving order was made on this petition in the High Court at 11 "30 
 o'clock, and on the same day at 1 o'clock, a receiving order was also made 
 against the debtor in the Swansea County Court at the instance of another 
 creditor. On an appeal by the creditor presenting the petition in London 
 to set aside such Order of the County Court. 
 
 Held : That from the evidence it appeared clear that the legitimate 
 business of the debtor was carried on in Swansea, which vras primd facie 
 the place where his business transactions ought to be investigated : and 
 that the petitioning creditor in London having for his own purposes 
 delayed for several months to proceed with bis petition, the proper course 
 for the Court to pursue was not to interfere with the order of the County 
 Court, and application to be made to the London Court to stay the 
 proceedings there. In re Strick, Ex parte Martin, 3 Morrell, 78— D. 
 
 In lieu of Committal.] — See Committal. 
 
 RE-EXCHANGE.-See Proof 
 
 K 2 
 
132 DIGEST OF CASES DECIDED TJNDEB 
 
 REGISTRAR. 
 
 Jurisdiction of.] — See Jurisdiction. 
 
 Duty of.] — Although the Eegistrar may in a case of difficulty refer a 
 matter to the Judge in hankruptoy for his decision, yet there is no 
 authority for him without reason to delegate his work to the Judge, and 
 unless a matter is especially reserved to the Judge, or some difficulty 
 arises, the Registrar ought to deal with it. In re Firbank, Ex parte 
 Knight, 4 Morrell, 50 — Cave, J. 
 
 -It is the duty of the Registrar to hear and decide those cases brought 
 
 before him, and which he is not prevented from so deciding by any order 
 of the Judge, or by the Rules or Statute : and the Eegistrar, without 
 good cause, and except on the ground of novelty or difficulty, ought not 
 to adjourn any such case for the purpose of its being heard before the 
 Judge in Bankruptcy. In re Webster, Ex parte Foster & Co., 3 Morrell, 
 132— Cave, J. 
 
 It is the duty of the Registrar to hear and determine an application 
 
 made ex parte for an injunction, even though at the time of such appli- 
 cation the Judge in Bankruptcy may be sitting. In re Brooks, 3 Morrell, 
 62 — Cave, J. 
 
 An application under section 41, sub-section (1), of the Bankruptcy 
 
 Act, 1888, for the return of an apprenticeship premium paid to a bankrupt 
 as a fee, ought to be made to the Registrar and not to the Judge in Court. 
 In re Richardson, Ex parte Gould, 4 Morrell, 47 ; 35 W. R. 381 — Cave, J. 
 
 -An application for an order to hand over books and papers under 
 
 section 118 of the Bankruptcy Act, 1883, which provides that every 
 British Court having jurisdiction in bankruptcy or insolvency shall be 
 auxiliary to each other, ought to be made to the Eegistrar, and not to the 
 Judge in Court. In re Firbank, Ex parte Knight, 4 Morrell, 50 — Cave, J. 
 
 On application for Discharge.] — Upon application by a bankrupt for 
 his discharge under section 28 of the Banki-uptcy Act, 1883, where any 
 of the offences specified in sub-section (3) of that section are proved to 
 have been committed, the Court must either refuse the order or suspend 
 its operation, or grant an order subject to conditions; and the Court 
 cannot in such case grant an unconditional discharge. In re Heap, Ex 
 parte The Board of Trade, 4 Morrell, 314— D. 
 
 On refusal to Approve a Scheme.]— 1h& debtors put forward two separate 
 schemes of arrangement, to both of which the Court refused its approval, 
 and the official receiver thereupon applied to the Court forthwith to 
 adjudge the debtors banki'upt ; but the Registrar, at the request of the 
 
THE BANKRUPTCY ACT, 1883. 133 
 
 debtors and some of the creditors, adjourned the hearing of the application 
 tor two months. 
 
 Held : That the order asked for was one which, if the necessary facts 
 were made out, the Eegistrar M-as bound to make, unless good reason was 
 shown for an adjournment of the proceedings : that as a matter of fact, 
 in the present case, delay was asked for in an endeavour to force the 
 creditors and the Court into acquiescence of an improper scheme ; and 
 that the debtors must be adjudicated bankrupt forthwith. In re Reed, 
 Bowen cC- Co., Ex parte The Chief Official Receiver, 4 Morrell, 225 ; L. E. 
 19Q.B.D.174; 56L. J.Q.B.447; 56L.T.876; 35 W. E.660— C.A. 
 
 As to obeying order of Court of Appeal.] — Where an order is made by 
 a Divisional Court in Bankruptcy on an appeal from a County Court, and 
 the Eegistrar of the County Court neglects or refuses to carry out such 
 order, the Divisional Court has no original jurisdiction to make an order 
 on the County Court Eegistrar directing him to do so. But where an 
 order is made by a Divisional Court in Bankruptcy on an appeal from a 
 County Court, the Eegistrar of the County Court ought to comply with 
 such order forthwith, and has no right to refuse to comply with it until 
 the time limited for appeal to the Court of Appeal has expired. Thus, 
 where the Divisional Court in Bankruptcy on an appeal from a County 
 Court allowed the appeal, and gave leave to the unsuccessful respondent 
 to appeal to the Court of Appeal, but made an order directing moneys in 
 Court to be paid out, which the Eegistrar of the County Court declined 
 to do until the tim3 limited for appeal to the Court of Appeal had expired, 
 and an order was in consequence made by the Divisional Court directing 
 him to pay out the moneys in question together with costs, from which 
 order the Eegistrar appealed. 
 
 Held : That the Eegistrar had no right to refuse to pay out the said 
 moneys, there having been no stay of proceedings under the order of the 
 Divisional Court pending appeal. 
 
 But the Eegistrar was an officer of the County Court : the order of the 
 Divisional Court upon the appeal from the County Court was to be carried 
 out by the County Court : and the Divisional Court had no jurisdiction 
 to make such an order against the Eegistrar. In re Wise, Ex parte 
 Roidands, 8 Morrell, 174; L. E. 17 Q. B. D. 389 ; 55 L. J. Q. B. 362 ; 
 54 L. T. 722 ; 34 W. E. 711— C. A. 
 
 Discretion of] — The Eegistrar, before rescinding the appointment of 
 a receiver, or granting a stay of proceedings, is not bound to be satisfied 
 that the consent of all the creditors has been obtained ; but he must 
 exercise his discretion as to the sufficiency of the consent obtained in 
 each case. Pending such rescission or stay of proceedings, the debtor 
 
134 DIGEST OF CASES DECIDED UNDER 
 
 should not, even with the consent of the petitioning creditors, he left in 
 unfettered control of the estate ; hut a stay of the advertisement hy the 
 receiver may properly he granted, hi re Carr, Ex parte Carr, 35 W- K. 
 150— C. A. 
 
 -Where a bankruptcy petition is presented by a creditor founded on 
 
 an act of bankruptcy committed by the failure of the debtor to comply 
 with the terms of a bankruptcy notice to pay a judgment debt, and an 
 appeal is pending from such judgment, it is a matter of discretion for the 
 Eegistrar whether he will make a receiving order, or stay the proceedings, 
 and the Court of Appeal will not interfere unless such exercise of dis- 
 cretion is clearly wrong. Li re Rhodes, Ex parte Heyworth, 1 Morrell, 
 269 ; L. R. 14 Q. B. D. 49 ; 54 L. J. Q. B. 198 ; 52 L. T. 201— C. A. 
 And see also as to Discretion of Eegistrar, the cases under titles 
 Discharr/e — Composition — Scheme of Arrangement. 
 
 REHEARING. 
 
 An application to rehear a case cannot be founded upon the same 
 evidence which was presented to the Court on the occasion of the former 
 hearing, but if different materials are discovered which ought to have 
 been then placed before the Court, such application may be made, and 
 the Court will, if it sees fit, allow the case to be reheard. In re Aysh- 
 forcl. Ex parte Lovering, 4 Morrell, 164 ; 35 W. R. 652— Cave, J. 
 
 REPUTED OWNERSHIP. 
 
 Hotel-keeper — Hiring of Furniture,] — The custom for hotel-keepers to 
 hire the furniture of their hotels is so notorious, and has been so often 
 proved, that it need not now be proved, but the Court will take judicial 
 notice of it. And the custom extends not only to furniture in the 
 strictest sense of the word, but to all the articles which are necessary for 
 the furnishing of an hotel for the purpose of using it as an hotel. The 
 effect of the custom is absolutely to exclude the reputation of ownership 
 by the hotel-keeper of all those articles in the hotel, at the time of his 
 bankruptcy, which are within the scope of the custom, without regard to 
 the question whether the particular articles are or are not in fact hired 
 by him. Consequently, articles which are his property, subject to a 
 mortgage by bill of sale, will be excluded from the operation of the 
 reputed ownership clause. In re Parker & Parker, Ex parte Turquand, 
 L. R. 14 Q. B. D. 636 ; 54 L. J. Q. B. 242 ; 53 L. T. 579 ; 33 W. E. 
 437— C. A. 
 
 Artist's Pictures.] — Where a picture was lent by the owner of it to the 
 
THE BAKKRUPTCY ACT, 1883. 135 
 
 artist who had painted it, for the purpose of being exhibited by him in 
 a public gallery amongst other pictures painted by him and exhibited 
 there for sale, such picture did not pass to the trustee in bankruptcy on 
 the artist becoming bankrupt, as being in his order and disposition 
 within the meaning of section 44, sub-section (iii), of the Bankruptcy 
 Act, 1883. In re Cook, Ex parte Dudgeon, 1 Morrell, 108 — Mathew, J. 
 
 Custom in Hop-Trade.] — A custom exists in the hop-trade for hop- 
 merchants to retain in their warehouse hops purchased by their cus- 
 tomers, so as to preyent the operation of the order and disposition clause 
 — section 44, sub-section (iii), — of the Bankruptcy Act, 1883. At the 
 time of the presentation of a bankruptcy petition by the debtor, who 
 carried on business as a hop and seed merchant, there were lying in his 
 warehouse certain pockets of hops which he had sold to the applicant. 
 The hops were left there for the conyenience of the purchaser, and had 
 been duly paid for. It was proved to be the custom of the hop-trade 
 for hops sold to remain in the warehouse of the merchant to the order of 
 the purchaser, and that no person familiar with the hop-trade would 
 suppose that all hops lying in a hop merchant's warehouse were the 
 property of such merchant. 
 
 Held : That the existence of a custom of this nature, shown to be 
 well known amongst persons concerned in the hop-trade, excluded the 
 doctrine of reputed ownership, and that the hops did not pass to the 
 trustee. In re Taylor, Ex parte Dyer, 2 Morrell, 268 ; 53 L. T. 768 ; 
 34 W. K. 108.— Cave, J. 
 
 Agistment.] — Where a cattle-dealer placed certain stock on the lands 
 of a farmer upon an agreement whereby such stock remained the pro- 
 perty of the dealer, who at the end of the fixed period was to sell the 
 stock, and, after deducting the original price, together with a percentage 
 for profit, was to hand over the balance to the farmer : and during the 
 continuance of the agreement the farmer became bankrupt, whereupon 
 the trustee in the bankruptcy claimed the stock in question as being in the 
 reputed ownership of the bankrupt within section 44, sub-section (iii), 
 of the Bankruptcy Act, 1883. 
 
 Held : That the custom of agistment was notorious, and one which 
 the ordinary creditors of the bankrupt might reasonably be presumed to 
 have known : and that such being the case no reputation of ownership 
 could arise with respect to the stock upon the lands of a farmer. In re 
 Woodward, Ex parte Huggins, 3 Morrell, 75 ; 54 L. T. 683— D. 
 
 Shares in Railway Company — Chose in Action.] — Shares in a railway 
 company are " things in action " within the meaning of section 44, sub- 
 
136 DIGEST OF CASES DECIDED UNDER 
 
 section (iii), of the Banla-uptcy Act, 1883, so as to be excepted from the 
 doctrine of reputed ownership. Where a partner in a stockbroking firm 
 purchased shares in a railway company with money of the firm, and sub- 
 sequently deposited the share certificates with the firm's bankers as 
 security or cover for advances made by them to the firm, and before 
 notice of the deposit had been given to the railway company, the firm, 
 and also the members of it, were adjudicated bankrupts. 
 
 Held : That the trustee in the banki-uptcy was not entitled to such 
 shares as being in the reputed ownership of the bankrupts within 
 section 44, sub-section (iii) of the Banki-uptcy Act. 
 
 Queer e : Whether the term "choses in action" does not now include 
 all personal chattels not in possession. Colonial Bank v. Whinney, 3 
 Morrell, 207 ; L. E. 11 App. Cas. 426 ; 56 L. J. Ch. 43 ; 55 L. T. 
 362 ; 34 W. E. 705— H. L. 
 
 Upholstei-er — Patterns.]— There is a custom in the upholstering trade 
 for an upholsterer to have in his possession patterns belonging to the 
 wholesale manufacturer, and, consequently, such patterns are not in the 
 reputed ownership of the trader so as to pass to the trustee on bank- 
 ruptcy. In re Lay, Ex parte Woodward, 54 L. T. 683 — D. 
 
 Furniture Trade— Goods sent "on Sale or Eeturn."] — Upon the 
 evidence given there is no custom in the furniture trade to deliver goods 
 to dealers upon "sale or return " so as to prevent the operation of the 
 reputed ownership clause — section 44, sub-section (iii) — of the Bank- 
 ruptcy Act, 1883. The applicants deposited with the debtor certain 
 Oriental antiquities and curiosities, carpets, rugs, and other articles 
 upon the terms of " sale or return," which goods were in the posses- 
 sion of the debtor at the time of the bankruptcy, and were retained by 
 the trustee. 
 
 Held ; That when a custom is sought to be established, it lies upon 
 the persons who affirm the existence of the custom to make it out ; and 
 that although a practice is undoubtedly creeping into the furniture trade 
 of sending goods on sale or return, the evidence given was not sufficient 
 to justify the Court in saying that the custom is an established one, and 
 so common and notorious that a person making enquiry of those cogni- 
 zant of the trade would be told there was no doubt of such custom. In 
 re Horn, Ex parte Nassau, 3 Morrell, 51 — Cave, J. 
 
 Hiring of vans in Grocery Trade]. — Upon appeal from decision of the 
 County Court Judge that no custom exists for a grocer and provision 
 merchant to hire vans used in the business, so as to prevent the operation 
 
THE BANKEUPTCY ACT, 1883. 137 
 
 of tlie reputed ownership clause — section 44, sub- section (iii) — of the 
 Banki-uptcy Act, 1883. 
 
 Held : That upon the evidence on af&davit before him it was open to 
 the County Court Judge to come to the conchision to which he did, and 
 that being so his decision would not be set aside. 
 
 That where the fact of a custom existing in a particular trade has to 
 be decided, the case is one proper to be tried with the assistance of a 
 jury and with witnesses, and not upon affidavit evidence alone. In re 
 Jensen, Ex parte Calloiv, 4 Morrell, 1 — D. 
 
 " Trade or Business " — Sale of surplus Produce of Farm.] — In a case 
 where a banki-upt took a house with 79 acres of land, at a rent of iOOl. a 
 year, and subsequently rented other land to the extent of 100 acres (part 
 of which he sublet), and farmed the land so taken for pleasure, and out 
 of the returns supplied his hoiise, and sold the surplus farm and garden 
 produce, and also bred horses. 
 
 Held : That the house and land were taken for pleasure and enjoy- 
 ment, and not for the pui-pose of business ; that this intention was never 
 changed into such a purpose as that of holding them for business only ; 
 and that the bankrupt had not carried on business as a farmer or market 
 gardener so as to entitle the trustee in the bankruptcy to claim certain 
 goods against a bill of sale holder, as being in the order and disposition 
 of the bankrupt in his trade or business under section 44, sub-section (iii) 
 of the Bankruptcy Act, 1883. In re Wallis, Ex parte The Trustee, 2 
 Morrell, 79; L. E. 14 Q. B. D. 950; 52 L. T. 625; 83 W. E. 733— 
 Cave, J. 
 
 " Trade or Business " — Shares in Company.'] — In a case where the 
 bankrupt who carried on business as a stockbroker, silversmith, and 
 watchmaker, deposited in the year 1878 the certificates of thirty shares 
 in a wagon company with a bank in order to secure his overdrawn 
 account, but such shares continued to be registered in the name of the 
 bankrupt, and in 1884 a receiving order was made against the bankrupt, 
 whereupon the trustee appointed in the bankruptcy laid claim to the said 
 thirty shares, and the County Court Judge decided that the said shares 
 were in the order and disposition of the bankrupt in his trade or business 
 at the time of the bankruptcy, and directed the bank to hand them over 
 to such trustee. 
 
 Held : That the shares in question were not in the bankrupt's posses- 
 sion in his trade or business ; that they had in fact been registered in 
 the name of the bankrupt for six years, and were held by him simply as 
 an investment and not for the purpose of selling to his customers ; and 
 that the order of the County Court Judge directing the bank to hand 
 
138 DIGEST OF CASES DECIDED UNDER 
 
 over such shares to the trustee in the bankruptcy must be reversed. In 
 re Jenkinson, Ex parte Nottingham Bank, 2 Morrell, 131 ; L. E. 15 
 Q. B. D, 441 ; 54 L. J. Q. B. 601— D. 
 
 REQUEST. 
 
 Order of, to Irish Court.'] — An application was granted by the Court 
 for an order of request to the Court at Dublin to enforce an order of the 
 High Court with respect to the payment of certain costs by a creditor 
 who had failed in an appeal from the rejection of his proof by the trustee 
 in bankruptcy. In re Bell, 2 Morrell, 291 — D. 
 
 From Foreign Court in Aid."] — An application for an order to hand 
 oyer books and papers under section 118 of the Bankruptcy Act, 1883, 
 which provides that every British Court having jurisdiction in bankruptcy 
 or insolvency shall be auxiliary to each other, ought to be made to the 
 Registrar, and not to the Judge in Court. Although the Registrar may 
 in a case of difficulty refer a matter to the Judge in Bankruptcy for his 
 decision, yet there is no authority for him without reason to delegate his 
 work to the Judge; and unless a matter is especially reserved to the 
 Judge, or some difficulty arises, the Registrar ought to deal with it. In 
 re Firbank, Ex parte Knight, 4 Morrell, 50~Cave, J. 
 
 REVIEW. 
 
 Where, on the refusal of an application by the Registrar, application 
 was subsequently made to the Judge sitting in bankruptcy to review the 
 decision. 
 
 Held : That there was no power to accede to the request, and that in 
 the event of the Registrar declining to review his own decision, the 
 proper course was by way of appeal to the Court of Appeal. In re Moore, 
 2 Morrell, 78— Cave, J. 
 
 An application by the Board of Trade for a review of taxation of the 
 
 costs of a solicitor under Rule 104 of the Bankruptcy Rules, 1883, can 
 only be made for the benefit of the estate, and where there is no estate 
 and no trustee such rule will not apply. In re Rodway, Ex parte 
 Phillips, 1 Morrell, 228— Wills, J. And see Rule 124 of the Bank- 
 ruptcy Rules, 1886 ; and compare Rule 209, Bankruptcy Rules, 1886. 
 
 SALARY. 
 
 Where a bankrupt was a commercial traveller at an annual salary of 
 lOOL, paid weekly, the engagement being terminable at a week's notice. 
 Held : That such bankrupt was in the receipt of a salary, within the 
 
THE BANKRUPTCY ACT, 1883. 139 
 
 meaning of section 53, sub-section (2) of the Bankruptcy Act, 1883, out 
 of which the Court had power to direct payment of a certain sum by 
 monthly instalments to the trustee in bankruptcy, for the purpose of 
 distribution amongst the creditors. In re Brindley, Ex parte Brindley, 
 4 Morrell, 104 ; 56 L. T. 498 ; 35 W. K, 596— D. 
 
 SALE. 
 
 By Official Receiver.] — Before the appointment of a trustee by the 
 creditors, the official receiver who is, by section 54 of the Bankruptcy 
 Act, 1883, the trustee for the purposes of that Act until a trustee is 
 appointed, has power, after an adjudication in bankruptcy has been made 
 against a debtor, to exercise the powers given by section 56 of the Act 
 to the trustee. Such official receiver, therefore, may sell the property 
 of the bankrupt. In re Parker d- Parker, Ex parte The Board of Trade, 
 2 Morrell, 158 ; L. E. 15 Q. B. D. 196 ; 54 L. J. Q. B. 872 ; 52 L. T. 
 670— C. A. Affirmed L, E. 11 App. Cas. 286 ; 55 L. J. Q. B. 417 ; 
 65 L. T. 30— H. L. 
 
 Of Mortgaged Property.] — The provisions of Eules 78 to 81 of the 
 Bankruptcy Eules, 1870 (compare Nos. 65 to 69 of the Bankruptcy 
 Eules, 1883), were not intended to fetter the Court in cases where an 
 application has been made to the Court by a mortgagee of property of 
 the bankrupt for a sale of such property, as provided by the rules, so as 
 (1) to compel the Court to give the conduct of- such sale to the trustee 
 in the bankruptcy : or (2) to compel the Court to give the trustee a first 
 charge on the proceeds of the sale for his costs and expenses in cases 
 where the conduct of the sale has been taken away from him. In re 
 Jordan, Ex parte Lloyd's Banking Co., 1 Morrell, 41; L. E. 13 Q. B. D. 
 228 ; 58 L. J. Q. B. 554 ; 50 L. T. 594 ; 33 W. E. 153— Cave, J. And 
 compare Eules 73 to 77 of the Bankruptcy Eules, 1886. 
 
 Of Goods to Debtor.] — Where goods had been sold to a debtor, and 
 there was no evidence to show that such goods were sold as to sample, 
 the mere fact that a letter is subsequently written by the vendee to the 
 vendor stating that he could not accept the goods, but would hold them 
 for the vendor and try to sell them for him (and to which letter no answer 
 is returned by the vendor) will not constitute the vendee a trustee for 
 the vendor under section 44, sub-section 1, of the Bankruptcy Act, 1888, 
 so as to prevent the trustee in the bankruptcy claiming such goods as 
 part of the estate in the event of the vendee subsequently becoming a 
 bankrupt. In re Landrock, Ex parte Fabian, 1 Morrell, 62 — Cave, J 
 
140 DIGEST OF CASES DECIDED UNDEE 
 
 SCHEME OF ARRANGEMENT. 
 
 It is the intention of the Legislature that proposals for a composition 
 or scheme of arrangement shall only be entertained after a receiving order 
 has been made. In re Dixon d- Wilson, Ex parte Dixon d Wilson, 1 
 Morrell, 98 ; L. E. 13 Q. B. D. 118 ; 53 L. J. Ch. 769 ; 50 L. T. 414 ; 
 82 W. E. 837— C. A. 
 
 The fact .that, before the presentation of a bankruptcy petition 
 
 against the debtor, a large number of the creditors haye assented to a 
 deed of arrangement, is not a " sufficient cause " within the meaning of 
 section 7, sub-section (3), of the Bankruptcy Act, 1883, for dismissing 
 such petition presented by a dissenting creditor, however beneficial to 
 the creditors the terms of such arrangement may be ; and, in conse- 
 quence, there is no jurisdiction to adjourn generally the hearing of such 
 petition with a view to its ultimate dismissal if the arrangement should 
 be found to work well. The case of In re Dixon & Wilson, Ex parte 
 Dixon <£• Wilson (see 1 Morrell, 98), approved and explained to the effect 
 that the decision there did not depend upon the particular terms of the 
 arrangement, but upon the fact that such arrangement was made at the 
 time, and in the manner, and by the persons by whom it was made. In 
 re Watson d Smith, Ex parte Oram, 2 Morrell, 199; L. E. 15 Q. B. D. 
 399 ; 62 L. T. 785 ; 33 W. E. 890— C. A. 
 
 Pmvers of Trustee under — Discovery.] — The term " trustee " in 
 section 27 of the Banki-uptcy Act, 1883, which provides that the Court 
 may, on the application of the official receiver or trustee, at any time 
 after a receiving order has been made against a debtor, summon before 
 it persons for the purpose of discovery of the debtor's property, does not 
 include a trustee under a scheme of arrangement of a debtor's affairs 
 accepted by the creditors and approved by the Court under section 18 of 
 the Act. In re Grant, Ex parte Whinney, 3 Morrell, 118; L. E. 
 17 Q. B. D. 238 ; 55 L. J. Q. B. 369 ; 54 L. T. 632 ; 34 W. E. 539 
 — C. A. 
 
 Attempt to incorporate Section 27 as to Discovery — Reasonableness — 
 Approval of Court.]— The powers given by section 27 of the Bankruptcy 
 Act, 1883, in respect of discovery of a debtor's property, cannot be 
 incorporated into a scheme of arrangement accepted Iby a majority of the 
 creditors under section 18 of the Act. A scheme of arrangement must be 
 both reasonable and calculated to benefit the general body of creditors • 
 and where a proposed scheme gave to the creditors no advantage which 
 they would not have if bankruptcy proceedings were allowed to go on, but 
 by reason of the inability to apply the provisions of section 27 as to 
 
THE BA.NKRTJPTCy ACT, 1SS3. 141 
 
 discovery, such scheme gave to the creditors even less advantage than a 
 bankruptcy. 
 
 Held : That the scheme in question was not reasonable, and was not 
 calculated to benefit the general body of creditors ; and that the approval 
 of the Court ought not to be granted. In re Aylmcr, Ex parte Bischoffs- 
 lieim, 4 Morrell, 152 ; L. E. 19 Q. B. D. 33 ; 56 L. J. Q. B. 460 ; 
 56 L. T. 801 ; 35 W. R. 532— C. A. 
 
 Ajiproval of Court — Reasonableness.] — In a case where a scheme of 
 arrangement of the debtor's affairs, duly agreed to and confirmed by the 
 creditors in accordance with the provisions of section 18 of the Bank- 
 ruptcy Act, 1883, contained a clause to the effect that " the debtors shall 
 be discharged when the committee of inspection so resolve." 
 
 Held : That such provision dealing with the discharge of the debtors 
 was unreasonable, and not in accordance with the intention and scope of 
 the Act ; and that a scheme containing such a provision ought not to be 
 approved by the Court, even though the debtors themselves asked that 
 such approval should be given. In re Clarke, Ex parte Clarke, 1 Morrell, 
 143; L. R. 13 Q. B. D. 426; 53 L. J. Ch. 1062; 51 L. T. 584; 
 82 W. R. 775— C. A. 
 
 Approval of Court — Wishes of Creditors — Proper Books — Business 
 left under Control of Debtors — Duty of Official Receiver.] — The action of 
 the Legislature by section 18 of the Bankruptcy Act, 1883, in taking 
 away from the majority of creditors the power which they formerly 
 possessed, and in putting into the hands of the Court the controlling 
 power in the case of a composition or scheme of arrangement, was for the 
 purpose of protecting such creditors themselves against their own reck- 
 lessness : for preventing a majority of creditors from dealing recklessly 
 not only with their own property but with that of the minority of 
 creditors ; and for the purpose of enforcing, so far as the Legislature could, 
 a more careful and moral conduct on the part of persons who eventually 
 become insolvent debtors. In deciding as to the granting or refusing the 
 approval of the Court to a composition or scheme of arrangement, the 
 question whether the debtor has kept proper books is one of primary 
 importance : and the neglect of a trader to have books properly kept 
 and balanced from time to time, so that the real state of his affairs may 
 at once appear, is a serious offence. Where, by the provisions of the 
 proposed scheme, the control of the business is left in the hands of the 
 debtors who have been proved to have previously carried on their business 
 in a reckless and improper manner, the Court ought to refuse its 
 approval to such scheme, on the ground that it would not trust with the 
 control of the business persons who had shown themselves unworthy to 
 
142 DIGEST OF CASES DECIDED UNDER 
 
 be trusted to carry on any business with reasonable care and attention. 
 When the official receiver has made his report upon a composition or 
 scheme of arrangement his duty is complete, and, except under very 
 particular circumstances, he should not appear on an appeal ; if the 
 appearance of the official receiver is essential, the Court will allow the 
 appeal to stand over for that purpose ; and unless his appearance is 
 requisite no costs will be allowed to him. Li re Reed, Bowen & Co., 
 Ex x>arte Reed, Bowen <& Co., 3 Morrell, 90 ; L. R. 17 Q. B. D. 244 ; 
 55 L. J. Q. B. 244 ; 34 W. R. 493— C. A. 
 
 Approval of Court — Wishes of Creditors — Proper Boohs — Discretion 
 of Registrar — Report of Official Receiver.] — On a contention raised that 
 although for the purposes of the discharge of a bankrupt under section 28 
 of the Bankruptcy Act, 1883, the report of the official receiver is prima 
 facie evidence of the truth of the statements therein contained, never- 
 theless for the purposes of the approval of a composition or scheme under 
 section 18, sub-section (6) of the Act, such report is not made prinut 
 facie evidence, and that the Registrar ought not to refuse to approve a 
 composition without having the facts mentioned in section 28, sub- 
 section (3), proved by other evidence. 
 
 Held : That the report of the official receiver is prima facie evidence 
 for the purposes of section 18, sub-section (6), and that the proof of the 
 facts referred to in section 28, sub-section (3), which is sufficient in the 
 case of the discharge of a bankrupt under that section, would also be 
 sufficient proof in the case of the approval of the composition or scheme 
 under section 18, sub-section (6). 
 
 That in deciding as to the granting or refusing the discharge of a 
 bankrupt or the approval of a composition or scheme of arrangement, 
 the question whether the debtor has kept proper books is one of primary 
 importance. 
 
 That it is no ground to set aside the decision of the Registrar 
 refusing to approve a composition because a large majority of the creditors 
 of a debtor are desirous of accepting it, but that the object of the Bank- 
 ruptcy Act, 1883, being to prevent reckless debtors from escaping the 
 consequences of their conduct by the payment of a nominal dividend, it is 
 the duty of the Court to protect such creditors from themselves. Li re 
 Wallace, Ex parte Campbell, 2 Morrell, 167; L. R. 15 Q. B. D. 213; 
 54 L. J. Q. B. 382 ; 53 L. T. 208— C. A. 
 
 Duty of Registrar as to Approving — Discretion.] — On the question of 
 granting or refusing the approval of the Court to a composition or scheme 
 of arrangement, the Registrar must not take a one-sided view, but look 
 
THE BANKRUPTCY ACT, 1883, 14-3 
 
 at all the circumstances. He must consider on the one side the conduct 
 of the debtor, and on the other the interests of the creditors, and he must 
 exercise his discretion both with regard to his duty to the public on the 
 one hand, and his duty to the creditors on the other. The Registrar must 
 consider all the circumstances, and exercise his discretion thereon. In re 
 Barlow, Ex parte Thornier, 3 Morrell, 804— C. A. 
 
 Where application is made to the Court for approval of a composition 
 
 or scheme, the Registrar must exercise a judicial discretion on the whole 
 case, and the Court of Appeal will not disapprove of his decision, except 
 on the clearest ground. The Registrar ought to look both at the interests 
 of the creditors, and the conduct of the debtor ; and so far as the effect 
 of the approval of the composition or scheme will be to release the debtor 
 from liability, his conduct ought to be carefully examined ; but regard 
 must also be had for the interests of the creditors, and if the composi- 
 tion or scheme is clearly the best thing for the creditors, the Registrar 
 ought to have due regard for that fact. The Registrar must look closely 
 into all the circumstances, and exercise his discretion thereon. In re 
 Genese, Ex parte Kearsley d; Co., 8 Morrell, 274 ; L. R. 18 Q. B. D. 
 168 ; 56 L. J. Q. B. 220; 56 L. T. 79— C. A. 
 
 On an appeal by the petitioning creditor from an order of the Court 
 
 approving a scheme of arrangement put forward by the debtor, on the 
 gi'ound that by reason of the conduct of such debtor the Court, if he were 
 adjudged bankrupt, would be required to refase his discharge ; or that, 
 at any rate, such facts had been proved against him as would justify the 
 Court in the case of bankruptcy in refusing, qualifying, or suspending 
 the discharge. 
 
 Held : That there was no evidence of any offence committed by the 
 debtor which would under the Act require the Court to refuse the 
 discharge. 
 
 That the words of section 18, sub-section (6), of the Bankruptcy Act, 
 1883 — " If any such facts are proved as would under this Act justify the 
 Court in refusing, qualifying, or suspending the debtor's discharge, the 
 Court may, in its discretion, refuse to approve the composition or scheme" 
 — show that in such case it is in the discretion of the Court whether it 
 will refuse to approve a scheme or not ; that all matters must be duly 
 weighed by the Court, and discretion exercised ; and that the decision of 
 the Court wUl not be set aside on appeal unless it is manifestly wrong. 
 In re Postlethwaite, Ex parte Ledger, 3 Morrell, 169 — C. A. 
 
 -The debtors put forward two separate schemes of arrangement, to 
 
 both of which the Court refused its approval, and the official receiver 
 
Hi DIGEST or CASES DECIDED UNDER 
 
 thereupon applied to the Court forthwith to adjudge the debtors bank- 
 rupt ; but the Eegistrar at the request of the debtors, and some of the 
 creditors, adjourned the hearing of the application for two months. 
 
 Held : That the order asked for was one which, if the necessary facts 
 were made out, the Eegistrar was bound to make, unless good reason was 
 shown for an adjournment of the proceedings ; that as a matter of fact in 
 the present case delay was asked for in an endeavour to force the creditors 
 and the Court into acquiescence of an improper scheme ; and that the 
 debtors must be adjudicated bankrupt forthwith. In re Reed, Bowen 
 d; Co., Ex ixirte The Chief Official Receiver, 4 Morrell, 225 ; L. E. 
 19 Q. B. D. 174; 56 L. J. Q. B. 447; 56 L. T. 876; 35 W. E. 660— 
 C. A. 
 
 Failure of Scheme — Injustice to Creditors — Adjudication.} — A debtor 
 having filed a banki-uptcy petition against himself, the creditors accepted 
 a scheme of arrangement for the payment of a composition of 20s. in the 
 pound, as a security for which the debtor assigned to a trustee for the 
 creditors all his property, except certain property included in a post- 
 nuptial settlement made by himself under which he had a life interest. 
 The value of the property so assigned proved to be much less than the 
 debtor's estimate of it, and was insufficient to pay the creditors 20s. in 
 the pound, and they thereupon applied for an adjudication of bankruptcy 
 against the debtor, with the view of testing the validity of the settle- 
 ment made by him, and of obtaining possession of the debtor's life 
 interest. 
 
 Held : That although it could not be said that the debtor had been 
 guilty of fraud, yet he had misled the creditors by over-estimating the 
 value of his assets ; that it would be unjust to the creditors that they 
 should not get 20s. in the pound ; and that the Court had jurisdiction 
 under section 18, sub-section (11), of the Bankruptcy Act, 1883, to make 
 an order of adjudication under the circumstances. 
 
 That although the Court would not make an order of adjudication, 
 if no benefit could possibly result from it to the creditors, yet as it was 
 possible that they might get something more by means of the adjudica- 
 tion in the present case, the order ought to be made. In re Moon, 
 Ex parte Moon, 4 Morrell, 263 ; L. E. 19 Q. B. D. 669 ; 56 L. J. Q. B. 
 496 ; 35 W. E. 743— C. A. 
 
 Resolution to accept Scheme after Adjudication — Confirmation at 
 Second Meeting.'] — Where the creditors of a bankrupt after adjudication, 
 by special resolution resolve, under section 23 of the Bankruptcy Act, 
 1883, to entertain a proposal for a composition or scheme of arrange- 
 ment of the bankrupt's affaii-s, such special resolution must be confirmed 
 
THE BANKRUPTCY ACT, 1883, 145 
 
 at a second meeting of the creditors in the same manner as a special 
 resolution under section 18 of the Act, resolving before adjudication to 
 entertain a like proposal. In re Genese, Ex parte Kearslcy X- Co., 
 3 Morrell, 274 ; L. E. 18 Q. B. D. 168 ; 56 L. J. Q. B. 220 ; 56 L. T. 
 79— C. A. 
 
 Court Fees on.] — The proposal put forward by a debtor provided, that 
 all the property of such debtor divisible among his creditors should vest 
 in a trustee, and, subject to the provisions of the scheme, be administered 
 according to the law of bankruptcy ; that, in addition, the sum of lOOZ. 
 a year, out of a pension of 297Z., belonging to the debtor, should be paid 
 to the trustee under the scheme until, with the rest of the debtor's 
 property, all the costs relating to the bankruptcy should have been paid, 
 and the creditors should have received 15s. in the pound upon the amount 
 of their debts ; that after payment of 15s. in the pound to the creditors 
 upon their debts, and of all the costs, charges, and expenses, the trustee 
 should hand over to the debtor the surplus of the estate ; and that as 
 from the date of the confirmation of the scheme by the Court the debtor 
 should be released and discharged from all the debts provable under the 
 bankruptcy. On the debtor applying to the Court for its approval, the 
 Registrar was in doubt whether such proposal required to be stamped as 
 a composition, or a scheme of arrangement, and the question was referred 
 to the Judge for decision. 
 
 Held : That the arrangement in question had more of the elements of 
 a scheme than of a composition ; and that the fee must be paid on the 
 estimated value of the 1001. a year as an asset. In re Griffith, 3 Morrell, 
 111— Cave, J. 
 
 Application by Trustee for Directions — Eight of Debtor to be heard.] 
 — Where a trustee in a liquidation applied to the County Court for 
 directions as to the acceptance of an offer for the purchase of the debtor's 
 property, and notice was given to the debtors, but at the hearing of the 
 application the County Court Judge refused to hear the solicitor for the 
 debtors or to receive evidence on their behalf. 
 
 Held : That notice having been given to the debtors they ought to have 
 been heard ; and that an appeal lay from such refusal of the County Court 
 Judge to do so. 
 
 Qucere : Whether when a trustee applies to the Court for directions in 
 any particular matter the debtor is in any event entitled to appear and be 
 heard. In re Webb d Sons, Ex parte Webb d Sons, 4 Morrell, 52 — Cave, J. 
 
 SECURED CREDITOR— See Creditor. 
 
 M.D. L 
 
146 DIGEST OF CASES DECIDED UXDER 
 
 SET-OFF. 
 
 As a general rule, and in the absence of special circumstances where 
 there are mutual dealings between a debtor and his creditors, the line as 
 to set-off must be drawn at the date of the commencement of the bank- 
 ruptcy. Li re Gillespie, Ex 'parte Eeid d Son, 2 Morrell, 100 ; L. R. 14 
 Q. B. D. 963; 54 L. J. Q. B. 342; 52 L. T. 692; 83 W. R. 707— 
 Cave, J. 
 
 Eight of.] — The trustees of a will, who were also residuary legatees, 
 made use of the trust estate for their own purposes, and a summons was 
 subsequently taken out in the Chancery Division to get in the estate 
 under which a receiver was appointed. On the day of the hearing of the 
 summons one of the trustees filed his own petition in bankruptcy. An 
 account having been taken of the sum due in respect of the estate which 
 had come into the hands of the trustees, the receiver sought to prove for 
 such sum against the estate of the bankrupt. 
 
 Held : That the bankrupt had at the date of the receiving order a right 
 of set-off to the amount of his own share as legatee, and that the proof 
 in question must be reduced by such amount. In re Chapman, Ex parte 
 Parker, 4 Morrell, 109 ; 35 W. R. 595— D. 
 
 SETTLEMENT. 
 
 Voluntary.] — A settlement which leaves the settlor still able to pay his 
 debts, although his means of paying them may be in part derived from 
 the interest he takes under the settlement, is not within the meaning of 
 section 47 of the Bankruptcy Act, 1883, which provides that a voluntary 
 settlement shall, if the settlor becomes bankrupt within ten years of its 
 execution, be void against the trustee in the bankruptcy unless the 
 parties claiming under it can prove that the settlor was, at the time of 
 making the settlement, able to pay all his debts without the aid of the 
 property comprised in the settlement, and that the interest of the settlor 
 in such property had passed to the trustee of such settlement on the 
 execution thereof. Section 47 must be read to mean " without the aid of 
 the property which by the settlement passes to other persons." In re 
 Loinides, Ex parte the Official Receiver, 4 Morrell, 139 ; L. R. 18 Q. B. 
 D. 677 ; 56 L. J. Q. B. 425 ; 56 L. T. 575 ; 35 W. R. 549— D. 
 
 Only those parts of section 47 of the Bankruptcy Act, 1888, which 
 
 are identical with section 91 of the Bankruptcy Act, 1869, have a 
 retrospective effect; and therefore section 47 does not so apply to the 
 case of non-traders, or as regards the requirement of proof by parties 
 claiming under the settlement that the interest of the settlor passed to 
 
THE BANKRUPTCY ACT, 1883. 147 
 
 the trustees of such settlement on the execution thereof. In 1877 the 
 bankrupt executed a deed, whereby, after reciting his title to certain shares, 
 it was agreed that the trustees therein mentioned should stand possessed 
 of the said shares as soon as the same should be transferred to them 
 upon trust for the settlor's wife during her life, and after her death on 
 further trusts for the benefit of the settlor and his children. The deed 
 contained no covenant or obligation binding the settlor to carry out its 
 provisions, and no actual transfer of the shares to the trustees was 
 executed until February, 1886. In April, 1886, the settlor was 
 adjudicated bankrupt. 
 
 Held : That the instrument executed in 1877, inasmuch as it imposed 
 no obligation on the settlor in respect of the shares, was not a settlement ; 
 but that the transfer executed in 1886, was a settlement within the 
 meaning of section 47, sub-section (3), of the Bankruptcy Act, 1883) 
 which includes in the said term any conveyance or transfer of property ; 
 and that such settlement was therefore void against the trustee in the 
 banki'uptcy under sub-section (1) of section 47, in that the settlor became 
 bankrupt within two years after the date thereof. In re Ashcroft, Ex 
 parte Todd, 4 Morrell, 209 ; L. E. 19 Q. B. D. 186 ; 55 L. J. Q. B. 431 ; 
 35 W. E. 676— C. A. 
 
 Where, in the year 1880, the bankrupt gave to his son a sum of 
 money for the purchase of shares in a ship, which were so purchased by 
 the son. 
 
 Held : That the transaction was a voluntary settlement within section 
 47 of the Banki-uptcy Act, 1883, and void as against the trustee. In re 
 Player, Ex parte Harvey, 2 Morrell, 261 ; 54 L. J. Q. B. 553— D. 
 
 Where in the year 1882, more than two years before the bankruptcy, 
 
 a bankrupt had advanced to his son the sum of 650L, to enable the son 
 to set up and carry on business, and the son himself brought in 150Z. and 
 carried on the business. 
 
 Held: That the transaction was not a voluntary settlement within 
 section 47 of the Bankruptcy Act, 1883. In re Player, Ex parte Harvey, 
 2 Morrell, 265; L. E. 15 Q. B. D. 682; 54 L. J. Q. B. 554— D. 
 
 Section 47 of the Bankruptcy Act, 1883, which deals with the avoid- 
 
 ance of voluntary settlements, does not apply where the estate of a person 
 dying insolvent is being administered in bankruptcy under section 125 of 
 the Act. In re Gould, Ex parte Chief Official Pieceiver, 4 Morrell, 202 ; 
 L. E. 19 Q. B. D. 92 ; 56 L. J. Q. B. 333 ; 85 W. E. 569— C. A. 
 
 Marriage.] — Where by a marriage settlement the settlor covenanted 
 that he, during his life, or his representatives within twelve months after 
 
 l2 
 
M DIGEST OF CASES DEUIDEU UJNJJJiK 
 
 lis death, would pay the sum of 5,000Z. to the trustees to he held by 
 hem on the trusts of the settlement, and the settlor subsequently became 
 lankrupt. 
 
 Held, following the decision of the Court of Appeal in the case of Ex 
 larte Bishop, In re Tonnies (L. E. 8 Ch. App. 718) : That a covenant 
 or payment of a sum of money not specifically earmarked was not within 
 ection 47, sub-section (2), of the Bankruptcy Act, 1883, as a covenant 
 or the future settlement of money or property in which the settlor had 
 10 interest at the date of his marriage, and that the trustees were 
 ntitled to prove against the estate. In re Knight, Ex parte Cooper, 2 
 d:orrell, 223— D. 
 
 SHARES. 
 
 In Railway Company — Chose in Action.] — Shares in a railway 
 ompany are "things in action " within the meaning of section 44, sub- 
 ection (iii.), of the Bankruptcy Act, 1883, so as to be excepted from the 
 octrine of reputed ownership. Colonial Bank v. Whinney, 3 Morrell, 
 ;07; L. E. 11 App. Cas. 426; 56 L. J. Ch. 43; 55 L. T. 362; 84 
 V. E. 705— H. L. 
 
 Where in the year 1880, the bankrupt handed to his son a sum of 
 
 loney to be invested in shares in a ship which were registered in the 
 ame of the son at the time of and sold by him subsequently to the 
 ankruptcy. 
 Held : That the transaction was a voluntary settlement within section 
 7 of the Bankruptcy Act, 1883, and void as against the trustee. In re 
 Hayer, Ex parte Harvey, 2 Morrell, 261 ; 54 L. J. Q. B. 553— D. 
 
 Charging Order on.] — A charging order upon shares, made under 
 Statute 1 & 2 Vict. c. 110, s. 14, does not fall within section 45 of the 
 bankruptcy Act, 1883, and the words in the said section, " an execution 
 ■gainst the goods of a debtor," which is to be completed by seizure and 
 ale, do not include such an order. In re Hutchinson, Ex parte Plowdeu 
 & Co., 3 Morrell, 19 ; L. E. 16 Q. B. D. 515 ; 55 L. J. Q. B. 582 ; 54 
 '->. T. 302 ; 34 W. E. 475— D. 
 
 SHERIFF. 
 
 See Execution— Elegit — Arrest — Attachment — Bankruptcy Notice. 
 
 SHORTHAND WRITER. 
 
 Costs of.] — As a general rule the application to allow the costs of 
 shorthand writers' notes of evidence as the costs of a successful appellant 
 should be made at the hearing, but the mere omission to make the appli- 
 
THE BANKRUPTCY ACT, 1883. 149 
 
 cation then does not prevent its being made subsequently. SeinhJe, if 
 the application is made on a subsequent day and is successful, the Court 
 ought to make the applicant pay the costs of the application, as they 
 were caused by his own omission. Where the shorthand writer is 
 appointed at the instance of one party he cannot recover the costs of the 
 notes unless under special circumstances. Where the appointment is 
 made by both parties, the costs should be paid by the unsuccessful party. 
 In re Day, Ex parte Steed, 1 Morrell, 251 ; 33 W. E. 80— Cave, J. 
 
 It is the invariable practice of the Bankruptcy Court to refuse the 
 
 costs of shorthand writers' notes unless the application is made at the 
 commencement of the case. In re Gillespie, Ex parte Reid, 33 W. K. 
 707 — Cave, J. And see now the " Eegulations " dated March 25th, 
 1885, Eule 9. 
 
 SOLICITOR. 
 
 Right of aidience of.] — Under the Bankruptcy Act, 1883, and the 
 Bankruptcy Appeals (County Courts) Act, 1884, a solicitor has the same 
 right of audience in the Divisional Court sitting as a Court of Appeal 
 from orders of the County Courts in Bankruptcy matters as that formerly 
 possessed under the Bankruptcy Act, 1869, in the case of an appeal from 
 the County Court to the Chief Judge in Bankruptcy. In re Barnett, Ex 
 parte Reynolds, 2 Morrell, 122; L. E. 15 Q. B. D. 169; 54 L. J. Q. B. 
 354 ; 63 L. T. 448— D. 
 
 The right of audience given to a solicitor in bankruptcy matters by 
 
 section 151 of the Bankruptcy Act, 1883, is limited to the High Court, 
 and does not extend to the Court of Appeal. In re Elderton, Ex parte 
 Russell, 4 Morrell, 36— C. A. 
 
 Right at Public Examination.] — The provisions of section 17, sub- 
 section (4), of the Bankruptcy Act, 1883, by which at the public exami- 
 nation of a debtor " any creditor who has tendered a proof, or his repre- 
 sentative authorized in writing, may question the debtor concerning his 
 affairs and the causes of his failure," apply to a solicitor representing a 
 creditor who has tendered a proof, and such solicitor, before being 
 permitted to examine a debtor at his public examination, must produce 
 if so requested, his written authority from such creditor. The Queen v. 
 The Registrar of the Greemoich County Court, 2 Morrell, 175 ; L. E. 15 
 Q. B. D. 54 ; 54 L. J. Q. B. 392 ; 33 W. E. 671— C. A. ' ' 
 
 Costs o/.]— Where, after the presentation of a bankruptcy petition, 
 proceedings are carried on by a debtor, from which the official receiver 
 comes to a clear conclusion that substantial advantage has accrued to 
 
150 DIGEST OF CASES DECIDED UNDER 
 
 the debtor's estate, such ought to be looked upon in the light of salvage 
 and the costs attendant upon the proceedings in question should be 
 allowed out of the estate. In re F. H. Johnstone, Ex parte Angler, 1 
 Morrell, 213 ; 32 W. R. 1001— Cave, J. 
 
 -An application by the Board of Trade for a review of taxation of the 
 
 costs of a solicitor under Rule 104 of the Bankruptcy Rules, 1883, can 
 only be made for the benefit of the estate, and where there is no estate 
 and no trustee such rule will not apply. In re Eodway, Ex parte 
 Phillips, 1 Morrell, 228— Wills, J. And see Rule 124 of the Bankruptcy 
 Rules, 1886 ; and compare Rule 209, Bankruptcy Rules, 1886. 
 
 ^Where an agreement entered into by a solicitor to conduct certain 
 
 banki-uptcy proceedings on the terms that his costs should not exceed 
 101. had been declared void by the County Court Judge on the applica- 
 tion of such solicitor, and an appeal from this decision having been 
 brought to the Divisional Court in Bankruptcy, the preliminary objection 
 was taken that the Court, sitting as a Court of Appeal in banki-uptcy 
 matters only, had no jurisdiction to deal with the question at all. 
 
 Held : That the Court had jurisdiction to hear the appeal. 
 
 That the fact that the agreement did not contain a provision that the 
 solicitor so employed might continue the bankruptcy proceedings to the 
 end did not make such agreement unfair or unreasonable, and that the 
 order of the County Court Judge setting aside such agreement must be 
 reversed. In re Oiven, Ex parte Peyton, 2 Morrell, 87 ; 52 L. T. 
 628— D. 
 
 On August 20th, 1885, in accordance with a resolution passed at a 
 
 meeting of creditors, the debtor executed a deed of assignment vesting 
 his estate in a trustee for their benefit. On October 28th, 1885, a bank- 
 ruptcy petition was presented against the debtor, the act of bankruptcy 
 alleged being the execution of the deed of assignment. On October 31st, 
 1885, the trustee under the deed paid out of assets in his hands the sum 
 of 20Z. 7s. Qd. to a firm of solicitors, being the amount of their bill 
 of costs incurred in connection with the meeting of creditors and in 
 preparing the deed of assignment, and also in collecting certain book 
 debts. On January 20th, 1886, a receiving order was made against the 
 debtor, and the trustee under the deed sent to the official receiver the 
 balance of assets in his hands, after deducting the amount so paid to the 
 solicitors, together with an account of receipts and payments in connec- 
 tion with the estate. The trustee appointed in the bankruptcy applied 
 for an order for payment of the 20L 7s. 8d. 
 
 Held ; That the application must be granted, but that certain items 
 
THE BANKRUPTCY ACT, 1883. 151 
 
 for collecting book debts, amounting together to 21., would under the 
 circumstances be allowed, and an order made for payment of 181. Is. Bd. 
 In re Forster, Ex parte EawU7igs, 4 Morrell, 292 ; 86 W. E. 144— 
 Cave, J. 
 
 Taxation of Costs of.] — "WTiere, in an ordinary taxation of the costs of 
 the solicitor to the trustee in the banlu-uptcy, the amount of the solicitor's 
 bill is reduced by more than one-sixth, there is no rule in the Court of 
 Banki-uptcy that such solicitor shall pay the costs of the taxation. The 
 provisions of the Attorneys and Solicitors Act (6 & 7 Yict. c. 73) do not 
 apply in an ordinai-y reference to tax such costs, but the taxation is 
 regulated by the practice of the Court of Bankruptcy. In re Marsh, Ex 
 paHe Marsh, 2 Morrell, 232 ; L. K. 15 Q. B. D. 340 ; 54 L. J. Q. B. 
 657 ; 53 L. T. 418— C. A. 
 
 Costs as between solicitor and client.] — The Court by three orders gave 
 costs " as between party and party." Subsequently an application was 
 made that such costs might be " as between solicitor and client ; " which 
 application was refused. 
 
 Held (on appeal) : — That the application ought to have been made to 
 the Court at the time when the costs were awarded ; and that the words 
 of Eule 98 of the Bankruptcy Eules, 1883 — "the Court in awarding 
 costs" — mean at the time when the Court makes the order. In re 
 AngeU, Ex parte Shoolbred, 2 Morrell, 5; L. E. 14 Q. B. D. 298; 54 
 L. J. Q. B. 87 ; 51 L. T; 678 ; 33 W. E. 202— C. A. 
 
 Where a form of order by consent in a motion contained an agree- 
 ment by one of the parties — the trustee in the bankruptcy — to pay the 
 costs of the other " as between solicitor and client." 
 
 Held : That such a form of order could not be approved by the Court. 
 In re Guy, Ex parte Scantlehury, 4 Morrell, 300 — Cave, J. 
 
 Money paid to by bankrupt.] — On the presentation of a bankruptcy 
 petition against a debtor, and an order for the appointment of an interim 
 receiver having been made, such debtor instructed his solicitor to oppose 
 the petition, and to move to rescind the interim order, and then paid to 
 such solicitor at his request 251. on account of costs of counsel's fees, • 
 and other expenses for that purpose. The application to rescind the 
 interim order was dismissed, and the debtor was subsequently adjudicated 
 bankrupt. The trustee in the banki-uptcy thereupon claimed the 251. 
 from the solicitor as money received by him from the debtor with 
 knowledge of the act of bankruptcy, on which the receiving order was 
 made. 
 
 Held : That the application of the trustee must be refused ; that it 
 
52 DIGEST OP CASES DECIDED UNDER 
 
 'as right that a debtor should have legal assistance and advice against a 
 ankruptcy petition ; and that a debtor vrould be left practically defence- 
 jss if money paid to a solicitor for services rendered on such an occasion 
 ould aftervcards be recovered by the trustee. In re Sinclair, Ex parte 
 'ayne, 2 Morrell, 255 ; L. K. 15 Q. B. D. 616 ; 53 L. T. 767— Cave, J. 
 
 Where the solicitor of the petitioning creditor, as his agent, had 
 
 3ceived from the debtor between the date of the act of bankruptcy and 
 ae adjudication various sums of money in consideration of several 
 Jjournments of the hearing of the petition, such solicitor was personally 
 able to refund such money to the trustee in the banki-uptcy, even 
 bough it had been paid over or accounted for by such solicitor to the 
 etitioning creditor before the date of the order of adjudication. In re 
 Viapman, Ex parte Edwards, 1 Morrell, 238 ; L. E. 13 Q. B. D. 747 ; 
 1 L. T. 881 ; 33 W. R. 268— C. A. 
 
 SPECIAL MANAGER. 
 
 The power of appointing a special manager given by section 12 of 
 ae Bankruptcy Act, 1883, to the official receiver is entirely a discre- 
 Lonary power ; and the Court has no authority to interfere to compel an 
 fficial receiver who refuses to make such appointment. In re Frederick 
 Vhitaker, 1 Morrell, 36 ; 50 L. T. 510— Cave, J. 
 
 SPECULATION, 
 
 Hash and Hazardous.] — The term " rash and hazardous speculations " 
 a section 28, sub-section 3 (d), of the Bankruptcy Act, 1883, is not 
 onfined to rash and hazardous speculations in trade, but the term also 
 icludes other speculations of a rash and hazardous nature, such as 
 ambling, betting, and Stock Exchange transactions. Jn re Barloiv, Ex 
 urte Thornher, 3 Morrell, 304— C. A. 
 
 In a case where a debtor within the space of about eighteen months 
 
 lad allowed a debt due to him from a person whom he knew to be in 
 lecuniary difficulties to increase from 32,000Z. to more than 60,000L, 
 nd it appeared that to the amount of 11,000Z. this increase was due to 
 accommodation bills, and such debtor subsequently stopped payment, 
 iud presented a bankruptcy petition, and a composition was accepted by 
 he creditors. 
 
 Held : That the debtor had been guilty of rash and hazardous specu- 
 ations ; and that, even if the composition were reasonable, the Court 
 lught to refuse its approval. In re Rogers, Ex parte Rogers, 1 Morrell, 
 .59 ; L. R. 13 Q. B. D. 438 ; 33 W. R. 354— D. 
 
THE BANKRUPTCY ACT, 1883. 153 
 
 In a case where a debtor, as the managing director of a mining 
 
 company, the mines being undeveloped, advanced both his own and 
 borrowed money to the company, which subsequently became insolvent, 
 and a petition in bankruptcy was presented against the debtor, and a 
 composition accepted by his creditors. 
 
 Held : That the debtor had been guilty of rash and hazardous specu- 
 lations ; and that the Eegistrar was quite right in refusing to approve 
 the composition offered. In re Young, Ex parte Young, 2 Morrell, 37 — 
 C. A. 
 
 Where the bankrupt, who was a solicitor without capital, entered 
 
 into heavy building speculations on borrowed money, to which specula- 
 tions his insolvency was attributable. 
 
 Held: That the bankrupt had been guilty of rash and hazardous 
 speculations : and that the order of the Eegistrar refusing an absolute 
 discharge was a right order. In re Salaman, Ex parte Salaman, 2 
 Morrell, 61 ; L. K. 14 Q. B. D. 986 ; 54 L. J. Q. B. 288 ; 52 L. T. 
 378— C. A. 
 
 STAT OF PROCEEDINGS. 
 
 In Chancery Dimsion.] — ^When receivers, appointed in an action for 
 dissolution of partnership, are discharged by order of the Judge in 
 Bankruptcy, their office is to determine from the date of the order by 
 which they are discharged. The remuneration of such receivers shall 
 be assessed by the Eegistrar. In re Parker dt Parker, Ex parte the 
 Official Receiver, 1 Morrell, 39 — Cave, J, 
 
 Where appHcation was made by a bankrupt who had failed to pay 
 
 over certain trust moneys in accordance with an order of the Chancery 
 Division for an order restraining further proceedings on a motion for 
 attachment. 
 
 Held : That the application must be refused. If the application had 
 been made by the trustee in the bankruptcy for the benefit of the 
 creditors, there might be some grounds for the Court to interfere. In re 
 Mackintosh d; Beauchamp, Ex parte Mackintosh, 1 Morrell, 84 ; L. E. 
 13 Q. B. D. 235 ; 51 L. T. 208; 33 W. E. 140— Cave, J. 
 
 On Creditors' Petition on Death of Debtor.'] — ^Where a debtor against 
 whom a creditors' petition in bankruptcy has been presented dies before 
 service of the petition upon him, there is no power under section 108 of 
 the Bankruptcy Act, 1883, or the Bankruptcy Eules, to dispense with 
 service, or to order substituted service of the petition, and the bank- 
 ruptcy proceedings mast necessarily be stayed. In re Easy, Ex parte 
 
154 DIGEST OP CASES DECIDED UNDEE 
 
 Hill d- Hymans, 4 Morrell, 281 ; L. E. 19 Q. B. D. 538 ; 56 L. J. Q. B. 
 624; 35 W. R. 819— C..A. 
 
 Consent of Creditors — Discretion of Registrar.] — The Registrar, before 
 rescinding the appointment of a receiver, or granting a stay of proceed- 
 ings, is not bound to be satisfied that the consent of all the creditors 
 has been obtained ; but he must exercise his discretion as to the 
 sulficiency of the consent obtained in each case. Pending such rescission 
 or stay of proceedings, the debtor should not, even with the consent of 
 the petitioning creditors, be left in unfettered control of the estate; but 
 a stay of the advertisement by the receiver may properly be granted. In 
 re Carr, Ex parte Carr, 85 W. E. 150— C. A. 
 
 Where an appeal jjending from a Judgment on ivhich a Banlcriiptcy 
 notice is founded — Discretion.] — Where a bankruptcy petition is presented 
 by a creditor founded on an act of bankruptcy committed by the failure 
 of the debtor to comply with the terms of a bankruptcy notice to pay a 
 judgment debt, and an appeal is pending from such judgment, it is a 
 matter of discretion for the Registrar whether he will make a receiving 
 order, or stay the proceedings, and the Court of Appeal will not interfere 
 unless such exercise of discretion is clearly wrong. In re Rhodes, Ex 
 parte Heyworth, 1 Morrell, 269 ; L. R, 14 Q. B. D. 49 ; 54 L. J. Q. B. 
 198; 52 L. T. 201— C. A, 
 
 STOPPAGE IN TRANSITU. 
 
 A firm of merchants in London, acting as agents for a merchant at 
 Oporto, bought from the applicants certain barrels of cement, which was 
 stated to be wanted for the New York market. At the time of the 
 purchase the vendors were informed that the cement in question was to 
 be shipped in a vessel lying in the West India Docks about to be 
 purchased on behalf of the principal abroad, and they were afterwards 
 instructed to send the cement alongside such vessel, which was done. 
 Mate's receipts for the cement were given to the vendors, and handed by 
 them to the London firm, who gave all necessary directions to the master 
 of the ship and took bills of lading making the cement deliverable at New 
 York to their order. The firm of merchants in London subsequently 
 became bankrupt, and the vendors thereupon claimed to exercise the 
 right of stoppage in transitu over the cement, which had not then arrived 
 at New York. 
 
 Held : That an actual delivery to the firm of merchants in London had 
 taken place ; that when in possession of the mate's receipts there was 
 nothing as between that firm and the applicants to prevent bills of lading 
 being taken for another port and a fresh destination impressed upon the 
 
THE BANKEUPTCY ACT, 1S83. 155 
 
 goods ; and that the goods having got into the possession of the Tendees 
 in such a way that they could have altered their destination, the transitus 
 was at an end. In re Bruno, Silva d- Son, Ex parte Francis & Co., 4 
 Morrell, 146— Cave, J. 
 
 SURETY. 
 
 Payment to.] — On application by the trustee to declare void, on the 
 ground of fraudulent preference, an assignment of certain patent rights 
 and also the payment of a sum of money made by the debtor within three 
 months of a bankruptcy petition being presented against him, to his 
 uncle who had guaranteed the payment of a debt due from such debtor 
 to another person, the objection was raised that the payment now sought 
 to be set aside had been made in consequence of the guarantee and not 
 "in favour of any creditor." 
 
 Held : That the assignment was clearly a fraudulent preference ; and 
 that, on the facts of the case, the uncle of the debtor at the time of the 
 payment of the said money to him being independently of the guarantee, 
 a creditor for goods sold, such payment was also void under the section. 
 
 Qucere : Whether if a debtor, within the time limited by the section, 
 makes a payment to a person who has guaranteed a debt due from him 
 to a third party, and which the surety has not then paid, such transaction 
 can be set aside as being a payment made in favour of "any creditor" 
 within section 48 of the Bankruptcy Act, 1883. In re Bear, Ex j^ai'te 
 Official Receiver, 3 Morrell, 129 — Cave, J. 
 
 SUSPENSION OP PAYMENT.— See Act of Banhnipky. 
 
 TAXATION.— See Costs— Solicitor. 
 
 TIME. — See Delay — Appeal — Proof— Disclaimer — Act of Bankruptcy. 
 
 " TRADE OR BUSINESS."— See Reputed Ownership. 
 
 TRANSFER OP PROCEEDINGS. 
 
 Of Action pending in another Division.] — When application is made 
 under section 102, sub-section 4, of the Bankruptcy Act, 1883, for the 
 transfer of an action pending in another Division of the High Court, 
 some proof must be afforded that advantage is likely to be derived by 
 reason of such transfer to the Judge in bankruptcy. 
 
 Qucere : Whether in a case where a receiving order has been made, 
 but the debtor has not been adjudicated a bankrupt, the Court has any 
 jurisdiction under section 102, sub-section 4, of the Bankruptcy Act, 
 
156 DIGEST OP CASES DECIDED UNDER 
 
 1883, to make an order to transfer. In re White & Co., Ex parte the 
 Official Receiver, 1 Morrell, 77 — Cave, J. 
 
 Under section 125 for Administration of Deceased Debtor's Estate.] — 
 Where an order has been made under sub-section (4) of section 125 of 
 the Banki'uptcy Act, 1883, transferring proceedings for the administra- 
 tion of a deceased debtor's estate from the Chancery Division of the 
 High Court to the Court exercising jurisdiction in bankruptcy, the latter 
 Court may make an administration order on an ex parte application by a 
 creditor. But such order cannot be made until the expiration of two 
 months from the date of the grant of probate or of letters of administra- 
 tion, unless either the legal personal representative of the deceased debtor 
 consents thereto, or unless such debtor has committed an act of bank- 
 ruptcy within three months prior to his decease. In re J. A. May, Ex 
 parte E. May, 1 Morrell, 232 ; L. R. 13 Q. B. D. 552— D. 
 
 Where a testator, having previously carried on business in England, 
 
 svas for more than six months previous to his death an inmate of a 
 lunatic asylum in Scotland, and died insolvent and an administration 
 iction was commenced by a creditor ; on motion on behalf of the plaintiff. 
 Held : That the Court had jurisdiction under section 125, sub-section 
 [4) of the Banki'uptcy Act, 1888, to make an order transferring the pro- 
 ;eedings to the County Court within the jurisdiction of which the testator 
 "ormerly carried on his business. Senhouse v. Maivson, 52 L. T. 745 — 
 V.-G. B. 
 
 The power given by section 125 of the Banliruptcy Act, 1888, to 
 
 iransfer the proceedings in an action brought for the administration of 
 m insolvent estate to the Court of Bankruptcy, is a discretionary one, 
 md it will not be exercised where the estate is small, the number of 
 5reditors is small, and considerable expense has been already incurred in 
 Chambers in the proceedings under an administration judgment. Seville, 
 .hat an application for transfer can only be made by a creditor who has 
 ibsolutely proved his debt. In re Weaver, Higgs v. Weaver, L. R. 29 
 Dh. Div. 236; 54 L. J. Ch. 749; 52 L. T. 512; 38 W. R. 874— 
 !*earson, J. 
 
 From County Court to High Court or vice versa — Parties to he Served.] 
 —Where an application is made to transfer the proceedings in a bank- 
 ruptcy from a County Court to the High Court, or from the High Court 
 ;o a County Court, notice of such application must be served upon the 
 )facial receiver. In re Jack, 4 Morrell, 150 ; L. R, 18 Q. B. D. 682 • 
 !5 W. R. 785— Cave, J. ' 
 
THE BANKRUPTCY ACT, 1883. 157 
 
 Fram County Court.] — ^Where the Judge of a County Court refused to 
 grant a certificate under Rule 16 of the Bankruptcy Rules, 1883, that 
 "in his opinion a bankruptcy proceeding would be more advantageously 
 conducted in some other Court," such refusal was held to be equivalent 
 to an order to retain the proceedings, and from it an appeal would Ho. 
 If the Court to which the appeal was made was of opinion that such 
 certificate ought to have been granted, it would not refer the matter 
 back to the County Court, but would grant the certificate itself. In re 
 Walker, Ex parte Soanes, 1 Morrell, 193 ; L. R. 13 Q. B.D.484— D. 
 And compare now Rules 18 to 26 of the Bankruptcy Rules, 1886. 
 
 In Lieu of Committal.] — ^Where the Judge of a County Court, not 
 having jurisdiction in bankruptcy, at the hearing of a judgment summons 
 for a committal, was of opinion that a receiving order should be made 
 in lieu of a committal, and ordered the matter to be transferred to the 
 Bankruptcy Court under Rule 268 (1) (a), of the Bankruptcy Rules, 
 1885 (see Rule 359, Banki-uptcy Rules, 1886) it was held that notice of 
 the subsequent proceedings under the order of transfer must be served 
 on the judgment debtor. The Court of Bankruptcy in such a case is not 
 bound to adopt the opinion of the County Court Judge, and to make a 
 receiving order as a matter of course, but must exercise its own judicial 
 discretion at the hearing. In re Andreics, Ex parte Andretos, 2 Morrell, 
 244 ; L. R. 15 Q. B. D. 335 ; 54 L. J. Q. B. 672— Cave, J. 
 
 On Bankruptcy of Partners.] — On February 4th, 1886, a receiving 
 order was made against one partner in the High Court; and on 
 February 6th, 1886, the other partner presented a petition in a County 
 Court. On an application by the partner, against whom a receiving order 
 had been made in the High Court for an order to transfer the proceedings 
 in the County Court against the other partner to the High Court. 
 
 Held : That the appHcation for transfer ought to be made to the 
 County Court. 
 
 That in any event the application was one which ought to have been 
 made to the Registrar, and not to the Judge in Court. In re Nicholson, 
 Ex parte Nicholson, 3 Morrell, 46 — Cave, J. 
 
 Where Receiving Order made tender Section 103.J — On the hearing of 
 a judgment summons in the County Court, a receiving order was made 
 against the debtor under section 103, sub-section (5), of the Bankruptcy 
 Act, 1883, and the proceedings were thereupon transferred under Rule 
 360 (1) of the Bankruptcy Rules, 1886, to the London Bankruptcy Court, 
 as being the Court to which a bankruptcy petition against the debtor 
 would properly be presented. The debtor paid the debt, and appealed 
 to the Divisional Court in Bankruptcy to rescind the receiving order. 
 
158 DIGEST OP CASES DECIDED UNDER 
 
 Held : That under the circumstances the proper course for the debtor 
 to pursue was to apply to the County Court Judge for a rehearing. In re 
 Hughes, Ex parte Hughes, 4 Morrell, 73 — D. 
 
 TRUSTEE. 
 
 Approval of. — The fact that a trustee has been proposed by the brother 
 of the bankrupt ; and that such trustee has previously voted in favour of 
 a composition and scheme of arrangement of the debtor's affairs; and 
 that no committee of inspection is appointed, will not justify the Board of 
 Trade in objecting to the appointment of such trustee under section 21, 
 sub-section (2), of the Bankruptcy Act, 1883, even though the majority 
 in number of the creditors are desirous that such objection should be 
 made. In re George Games, Ex 'parte the Board of Trade, 1 Morrell, 
 216— Cave, J. 
 
 Application hy, for directions.] — Where a trustee in a liquidation 
 applied to the County Court for directions as to the acceptance of an 
 offer for the purchase of the debtors' property, and notice was given to 
 the debtors, but at the hearing of the application the County Court 
 Judge refused to hear the solicitor for the debtors or to receive evidence 
 on their behalf. 
 
 Held: That notice having been given to the debtors they ought to 
 have been heard ; and that an appeal lay from such refusal of the County 
 Court Judge to do so. 
 
 Qucere : Whether when a trustee applies to the Court for directions in 
 any particular matter the debtor is in any event entitled to appear and 
 be heard. In re Webb d Sons, Ex parte Webb d Sons, 4 Morrell, 52 — 
 Cave, J. 
 
 Conduct of] — On August 4th, 1886, the agent on behalf of a banking 
 company took possession of a quarry under a sub-lease previously granted 
 by the debtor, the original lessee, as security for a loan. On August 11th, 
 1886, the debtor was adjudged bankrupt, and such agent was appointed 
 trustee in the bankruptcy, but he nevertheless continued in possession of 
 the said quarry on the part of the bank, which was worked for the bank's 
 benefit. On November 6th, 1886, the agent, as trustee in the bankruptcy, 
 applied to the County Court for unconditional leave to disclaim the lease. 
 This application was opposed by the landlord, and refused by the County 
 Court Judge, but without prejudice to the trustee to apply for leave to 
 disclaim on terms. 
 
 Held : That the County Court Judge was right in refusing uncondi- 
 tional leave to disclaim : that the trustee had taken upon himself two 
 utterly irreconcilable duties: and that, having regard to his conduct. 
 
THE BANKRUPTCY ACT, 1883. 159 
 
 and to the fact that no evidence was before the County Court Judge to 
 enable him to come to a proper conclusion as to terms, the order made 
 by him was right. In re Crotcther, Ex parte Buff, 4 Morrell, 100 — D. 
 
 Costs of.'] — See Costs. 
 
 Criminal proceedings against.] — Where after the annulment of bank- 
 ruptcy proceedings, application was made by the bankrupt for an order 
 against the trustee to deliver up books and papers and a statement of 
 account, the said trustee, with the solicitors and committee of inspec- 
 tion, having been indicted by the banlaupt for conspiracy in bringing 
 about the bankruptcy Tvith intent to defraud, which indictment was then 
 pending. 
 
 Held : That in the face of the criminal proceedings the application 
 could not then be allowed ; and that the proper course under the circum- 
 stances was to order the case to stand over until after the trial upon the 
 indictment had taken place, or until his abandonment. In re Palmer, 
 Ex parte Palmer, 3 Morrell, 267 — C. A. 
 
 Disohedience of to order of Board of Trade.] — ^Although a trustee 
 under a scheme of arrangement has been removed from office, the Board 
 of Trade has power to demand a statement of his receipts and payments 
 as such trustee, and to apply to the Court under section 102, sub-sec- 
 tion (5), of the Banki'uptcy Act, 1883, to enforce that order in case of 
 neglect and refusal to comply with it. In re Rogers, Ex parte the Board 
 of Trade, 4 Morrell, 67 ; 35 W. E. 457— Cave, J. 
 
 Where no estate has come into the hands of a trustee under a 
 
 scheme of arrangement, such trustee must himself provide the stamp 
 necessary to be af&xed to the af&davit of no receipts required to be for- 
 warded to the Board of Trade under Eule 291 of the Bankruptcy Rules, 
 1886. In such case an unstamped affidavit cannot be accepted, nor the 
 amount necessary for the said stamp provided from the Bankruptcy 
 Estates' Account. In re Roivlands, Ex parte the Board of Trade, 4 
 Morrell, 70 ; 35 W. E. 457— Cave, J. 
 
 Duty of on appeal.] — ^Where, in a case of any legal difficulty, a trustee 
 in a bankruptcy has obtained the decision of the Court, if such trustee 
 appeals from the decision given and does not succeed, the order for costs 
 will be made against him personally. A trustee, therefore, before 
 appealing from such decision, ought to obtain the consent of the creditors 
 to do so, and also to obtain a guarantee from such creditors for his own 
 protection in the event of the appeal being decided against him. In re 
 
160 DIGEST OF CASES DECIDED UNDER 
 
 Maiden, Gibson & Co., Ex parte James, 3 Morrell, 185 ; 55 L. T. 708 
 — D. 
 
 Motion to declare rights of.] — When a trustee in a bankruptcy is of 
 opinion that a motion to declare his rights should not be made and a 
 creditor desires the motion to be made, the proper course is to make a 
 preliminary motion to the Court for leave to use the name of the trustee 
 on giving him an indemnity. In re Genese, Ex parte Kearsley d; Co., 
 3 Morrell, 57 ; L. E. 17 Q. B. D. 1 ; 55 L. J. Q. B. 325 ; 34 W. E. 
 474 — Cave, J. 
 
 Action by — Neiv Trustee appoirited.] — When a trustee in bankruptcy 
 suing in his official name is removed, and a new trustee appointed, the 
 new trustee must obtain an order to continue the action and give notice 
 thereof to the other parties under Order XVII., Eules 4 and 5. Pooley's 
 Trustee v. Whetliam, L. E. 28 Ch. Div. 38 ; 54 L. J. Ch. 182 ; 51 L. T, 
 608 ; 33 W. E. 423— C. A. 
 
 Relation back of Title of — Payment of Bankrupt's Money to procure 
 withdrawal of Criminal Prosecution.'] — Where money belonging to a 
 debtor was paid to procure the withdrawal of a criminal prosecution 
 against him, and the debtor was subsequently adjudged bankrupt under a 
 petition founded on an act of bankruptcy of which the party to whom the 
 money was paid at the time of receiving it had notice. 
 
 Held: That the consideration for which the money was paid was 
 illegal ; and that the trustee in the banki-uptcy was entitled to recover 
 it. In re Campbell, Ex parte Wolverhampton and Staffordshire 
 Banking Co., 1 Morrell, 261; L. E. 14 Q. B. D. 32; 33 W. E. 
 642— D. 
 
 Under Scheme of Arrangement.] — Held : That the term " trustee " in 
 section 27 of the Bankruptcy Act, 1883, which provides that the Court 
 may, on the application of the official receiver or trustee, at any time 
 after a receiving order has been made against a debtor, summon before it 
 persons for the purpose of discovery of the debtor's property, does not 
 include a trustee under a scheme of arrangement of a debtor's affairs 
 accepted by the creditors and approved by the Court under section 18 of 
 the Act. In re Grant, Ex parte Whinney, 3 Morrell, 118 ; L. E. 
 17 Q. B. D. 238 ; 55 L. J. Q, B. 369 ; 54 L. T. 632 ; 34 W. E. 
 539— C. A. 
 
 See also Bisclaimer — Sale — Official Receiver — Proof— Petition — Costs 
 — Board of Trade, 
 
THE BANKRUPTCY ACT, 1883. 161 
 
 VESTING ORDER. 
 
 In the case of In re Parker d- Parker, Ex parte Tiirquand, 1 Morrell, 
 275 ; L. E. 14 Q. B. D. 405 ; 51 L. T. 667 ; 83 W. R. 752, a doubt 
 was expressed by Cave, J., whether, on a disclaimer of leaseholds by a 
 trustee in bankruptcy under section 55, sub-section (6), of the Bank- 
 ruptcy Act, 1883, the landlord had such an interest in the " disclaimed 
 property " as to be entitled to a vesLing order under the sub-section. 
 
 It was further held, that where in such a case a mortgagee does not 
 appear on the trustee's application to disclaim, the proper course is to 
 order that the mortgagee be excluded from all interest in and security 
 upon the property unless he shall, by a short date, declare his option to 
 take a vesting order in the terms of the sub-section. 
 
 And see now the case of In re Cock, Ex parte Shilson, 36 W. R. 187, 
 where leave having been given to the trustee in a bankruptcy to disclaim 
 the bankrupt's interest in certain leases, it was ordered, on the 
 application of the landlord, that unless the executor of a mortgagee by 
 sub-demise of the bankrupt's interest should within seven days elect to 
 accept an order vesting in him the disclaimed property, subject to the 
 same liabilities and obligations as the bankrupt was subject to under the 
 leases, he should be excluded from all interest in and security upon the 
 property. 
 
 Held : That the Court had power to make the order on the application 
 of the landlord ; and that, subject to a formal amendment, the order made 
 was right. — D. 
 
 VIVA VOCE EVIDENCE.— See ^OT^«n«. 
 
 VOLUNTARY SETTLEMENT.-See Settlement. 
 
 WAGES. — See Preferential Claim. 
 WIFE. — See Married Woman — Proof. 
 
 WITNESS. 
 
 Examination of — Refusal to Answer — Tendency to Criminate.] — 
 Where a question is in form an innocent one, it is not a sufficient ground 
 of refusal to answer for a witness to say that he believes his answer to 
 such question will or may criminate him : but he must satisfy the 
 Court that there is a reasonable probability that it would or might do so. 
 A witness in such a case must satisfy the Court by some fact outside the 
 question that his answer will or may put him in jeopardy. In re Genese, 
 Ex parte Gilbert, 3 Morrell, 223— C. A. 
 
 M.D. M 
 
163 DiasST OP CASES UNDER BANKRUPTCY ACT, 1883. 
 
 Power to Summon — Scheme of Arrangement.'] — The term "trustee" 
 in section 27 of the Bankruptcy Act, 1883, which provides that the 
 Court may, on the application of the official receiver or trustee, at any 
 time after a receiving order has been made against a debtor, summon 
 before it persons for the purpose of discovery of the debtor's property, 
 does not include a trustee under a scheme of arrangement of the debtor's 
 affairs accepted by the creditors and approved by the Court under section 
 18 of the Act. In re Grant, Ex parte Whinney, 3 MorreU, 118 ; L. E. 
 17 Q. B. D. 238; 55 L. J. Q. B. 369; 54 L. T. 632; 34 W. R. 539— 
 C. A. 
 
 Under Section 125 — Insolvent Estate.] — Where an order of commit- 
 ment was made against the widow and son of a deceased debtor, whose 
 estate was being administered in bankruptcy under the provisions of 
 section 125 of the Bankruptcy Act, 1883, on the ground that they had 
 refused to comply with an order of the County Court, directing them to 
 attend for the purpose of being examined with regard to the estate of 
 such deceased debtor under section 27 of the Act. 
 
 Held : That section 27 of the Banki'uptcy Act, 1883, does not apply 
 to section 125 of the Act ; that the powers under Order XXXVII., Rule 5, 
 of the Supreme Court Rules, 1883, as to the examination of witnesses, 
 only exist where some litigation is in progress ; and that the Rule 58 of 
 the Bankruptcy Rules, 1883, did not give any such power as was sought 
 for in the present case. In re Hewitt, Ex parte Hewitt, 2 Morrell, 184 ; 
 L. R. 15 Q. B. D. 159 ; 54 L. J. Q. B. 402 ; 53 L. T. 156— D. 
 
 Refusal of, to produce Letter-book.] — A witness was examined before 
 the Registrar under section 27 of the Bankruptcy Act, 1883, and produced 
 certain letters torn from a letter-book in his possession, but refused to 
 produce the book itself, as he swore that it contained no letters relating 
 to the debtor, his dealings or his property, other than those produced. 
 On an application being made to commit the witness under Rule 88 of 
 the Bankruptcy Rules, 1886. 
 
 Held : That the answer of the witness must be accepted, as the object 
 of the section was not to enable a trustee by cross-examination to make 
 out a case. In re Purvis, Ex parte Rooke, 56 L. T. 579 — Cave, J. 
 
 And see also cases under title Discovery. 
 
 THE END. 
 
 ERADBDRT, AOHEW, & CO., PRINTEES, WHITEFBIAE3.