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lies for the recovery of the goods in specie (First Bk. 247, 248, 3 Steph. Com. 514, 515, ith edit; 3 L. C. 281; Caunse v. S., 7 Man. & Gr. 903; 17 & 18 Vic. c. 125, s. 78).

VI. Debt on mortgage deed. This is rather a singular question to ask, especially as the distinction of forms of action has been abolished for most practical purposes (1 L. C. 65; First Bk. 238). Debt might have been brought to recover the principal and interest over-due in a mortage deed. So might covenant (see Browne, 245). Indeed, some mortgage deeds omit a covenant to pay interest subsequent to the day appointed for payment of theprincipal; as the subsequent interest does not strictly form part of the debt; it can be recovered as damages only.

VII. Specialty and simple contract.-A specialty is a debt under seal; whilst a simple contract is one by mere writing or without any writing (see Key Exam. Com. L. pp. 32, 33; 3 Steph. Com. ch. 5; 3 L. C. 8, 181, 188, 239).

VIII. Statute of Limitations-Specialties are barred at the end of twenty years, and simple contracts at the end of six years, unless there be some disability or part payment, or an acknowledgment &c. (Key Com. Law 76-80; 3 L. C. 8, 89, 91, 157, 305; 3 Steph. Com. 528, 539, 2nd edit.; First Bk. 268).

IX. Set-off.-There can be no set-off in the case put in this question, for it is a rule that the debt sued for and the debt intended to be set off must be mutual and due in the same right (1 L. C. 327; First Bk. 269; see Gordon v. Ellis, 15 L. J. N. S. C. P. 178).

X. Attesting witness.-An attesting witness to a deed or other document need not be called unless. attestation be requisite to the validity of the document (C. L. P. Act, 1854, s. 26; 1 L. C. 158, 434; First Bk. 272; 3 Steph. Com. 615; 4th edit.).

XI. Defence after plea.-Where a defence arises after plea and before verdict, a defendant may avail himself of it by a plea of puis darrein continuance, which must be put in upon affidavit that the defence arose within eight days before plea, unless dispensed with by order (15 & 16 Vic. c. 76, s. 69; 3 L. C. 138, 189; 3 Steph. Com. 578, note, 4th edit.).

XII. Documentary evidence.—A party to an action having documents intended to be given in evidence should, to entitle him to the costs of proof, serve a notice to admit them on the opposite party (R. G. H. T. 1853, pl. 29, 30; First Bk. 272, 273; 1 L. C. 51; 3 L. C. 190, 296).

XIII. New trial-New notice to admit.-On a new trial, the old notice to admit will suffice as to the documents admitted (2 L. C. 296).

XIV. Nonsuit nolens volens.-A plaintiff in the superior courts cannot be nonsuited against his will.

If he be nonsuited he may bring a fresh action for the same matter; otherwise if a verdict be entered for the defendant (3 L. C. 190; 4 Bing. N. C. 83; 3 Steph. Com. 623, 4th edit.).

XV. Tender-Conditions.-A tender accompanied with a mere condition not affecting the creditor's rights ultra is good; otherwise if the conditions be such as if complied with would affect the creditor's rights (3 L. C. 190; Selw. N. P. 158, 11th edit.; 5 M. & W. 306).

CONVEYANCING (ante, p. 398).

1. Conveyance by feme covert.-A married woman must acknowledge her conveyance of real estate, and her husband must concur in the deed, unless dispensation granted (3 & 4 Will. 4, c. 74; 1 Steph. Com. 475, 557, 4th edit.; Key, Convey. 94, 95; Lassence v. Tierney, 14 Jur. 182).

II. Power of attorney by trustee.-A trustee cannot empower another person, even by power of attorney, to act for him in the trust: for the trust is a delegated office, and the maxim is "Delegatus non potest delegare" (Princ. Com. L. 50).

III. Legatee dying in lifetime of testator.-By sec. 33 of the 1 Vic. c. 26, where a devise or bequest is made to a child or other issue of the testator (for an interest not determinable at the death of such child or issue), who shall die in the testator's lifetime, leaving issue, which issue shall be living at the testator's death, such devise shall not lapse, but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will (1 Steph. Com. 560; Mower v. Orr, 13 Jur. 421; S. C. 7 Hare, 473; Griffiths v. Gale, 12 Sim. 327; S. C. 8 Jur. 235; Johnson v. Johnson, 3 Hare, 157; S. C. 8 Jur. 77). The issue is not substituted: he is the motive but not the object (Winter v. Winter, 11 Jur. 10).

IV. Death of illegitimate person.-If an illegitimate person die intestate leaving no issue or wife, his personal estate belongs to the Crown, as also his real estate, except as to copyholds which belong to the lord of the manor (2 Steph. Com. 304, 305, 4th ed.; 1 Id. 435).

V. Protector of settlement.—The party to be protector of a settlement, whether made subsequently or prior to the statute for the abolition of fines and recoveries (3 & 4 Will. 4, c. 74), is pointed out in that statute; by sec. 22 the owner of the first existing estate under a settlement, being an estate for years determinable on the dropping of a life (no rent being reserved, s. 26), or any greater estate (not being an estate for years), prior to an estate tail under the same settlement, is to be the protector of the settlement. Each of two or more owners of a prior estate

is to be the sole protector as to his share (sec. 23). But it is provided, that where already, on or before the 31st day of December, 1833, an estate under a settlement shall have been disposed of, either absolutely or otherwise, and either for valuable consideration or not, the person who in respect of such estate would, if this act had not been passed, have been the proper person to have made the tenant to the writ of entry, or other writ for suffering a common recovery of the lands entailed by such settlement shall, during the continuance of the estate which conferred the right to make the tenant to such writ of entry, or other writ, be the protector of such settlement (sec. 29). And there is a similar provision for the case of a disposition of a reversion or remainder prior to 31st of December, 1833 (s. 30; Hayes' Convey. 157, 159, 4th edit.). And the settlor may expressly (s. 32) appoint a protector. In the case of settlements prior to the above statute, a bare trustee who would have been the proper person to make a tenant to the writ of entry, &c., shall, during the continuance of the estate conferring on him the right to make the tenant to such writ of entry, be the protector of such settlement (see ss. 27 & 31; and on the discrepancy as to dates, see Hay. Convey. 158, 160, 4th edit.).

VI. Protector lunatic, &c.-Where the protector of a settlement is lunatic, idiot, or of unsound mind, the Lord Chancellor, &c., or other person intrusted by the sign manual with the care, &c., of lunatics, &c., is the protector in the place of the lunatic, &c. (First Book, 38, 184; Re Blewitt, 2 Jur. N. S. 217; 1 Steph. Com. 580, 4th ed.; Browell's R. P. 92, 93). VII. Disposition without protector. —A deed of disentailment where the protector's consent is necessary, but not given, bars the issue only of the tenant in tail, and not persons in remainder, &c. (3 & 4 Will. 4, c. 74, ss. 15, 34). Time may render it valid against the remainder-man (3 & 4 W. 4, c. 27, s. 23; Browell, 93, 94; 1 Steph. Com. 578, 579, 4th ed.).

VIII. & IX. Intestacy-Real and personal estate. -The two daughters of the elder son will take all the real estate to the exclusion of the younger son; the son will take one moiety of the personal estate, and the two daughters the other moiety between them in each case they represent their father, and take what he would have had In the case of an eldest son surviving, he takes the real estate and one moiety of the personalty, the children of the deceased son take the other moiety equally.

X. Death of executor intestate.-Where an executor dies intestate, administration to the original testator must be taken out limited to the goods not administered (2 Steph. Com. 209, 4th ed.).

XI. Term vested in tenant for life.-If a term of years in certain property be assigned to the tenant

for life, it is merged, if there be no intervening estate (Co. Litt. 338; Fearne, 341, 9th ed.; First Bk. 152, 153, 174).

XII. Settlement, post-nuptial.-Settlements made without any consideration whatever, or even those made for good, though not for valuable consideration, are said to be voluntary; and by force of the statute 27 Eliz. c. 4 (made perpetual by 39 Eliz. c. 18, s. 31), voluntary settlements are void as against bona fide purchasers, and also void by 13 Eliz. c. 5, as against creditors, where the settlor is indebted at the time (Bacon's Abr. tit. Fraud, C.; 1 Steph. Com. 462, 1st ed.; Pott v. Todhunter, 9 Jur. 589; Lister v. Turner, 10 Jur. 752; 2 Black. Com. 296; Richards v. Lewis, 15 Jur. 512; Skarff v. Soulby, 13 Jur. 1109; 2 L. C. 309; 1 L. C. 167-170, 304). XIII. Will, marriage.—Marriage merely is an absolute revocation of a will (1 Vic. c. 26, s. 18;. ante, p. 386, which must be taken as applying to the circumstances there stated).

XIV. Succession duty, death, instalments.—In the case of the tenant for life, the instalments not due at his death would cease to be payable; in the case of the tenant in fee-simple, the instalments unpaid at his death are a continuing charge, and payable by the owner for the time being of the property (16 & 17 Vic. c. 51, s. 21; Shelf. Duties, 229, 230).

XV. Settlement-Powers to trustees.-The powers to be inserted in settlements depend very much on the nature of the property, and the mode in which it is settled, and it is very difficult, especially in the case of personalty, to say what powers, beyond the very ordinary ones, should be inserted. With respect to real estate there should be powers of leasing (usually to tenant for life, or with his consent, during his estate), selling, exchanging, enfranchising, and partitioning; the powers of selling, exchanging, or enfranchising, being accompanied by directions to lay out the proceeds in the purchase of lands to be settled in the same manner as the original lands, with sometimes a discretionary power, with consent to discharge incumbrances. In the meantime, the money is directed to be invested in the public funds or on mortgage, with powers to vary. In the case of personalty, if not money in the funds, there is often a provision for conversion, and then for investment, either on real security or in the public funds, with powers to vary. If renewable leaseholds be settled, there should be powers to renew, and to apply any monies derived from any sources to pay the fines and expenses; if no other, their power to raise moneys by way of mortgage. Where the money settled is due from the husband on his covenant, the trustees should be expressly authorised to allow the money to remain until requested by cestui que trust to call same in. The usual

trustees clauses should be inserted in both kinds of settlements—that is, for the appointment of new trustees, their indemnity, reimbursement, settle accounts, and arrange disputes and receipt clause.

BANKRUPTCY (ante, p. 000)).

I. Traders.-The classes of persons liable to be made bankrupts, and who can obtain the benefit of the bankruptcy laws, are traders within the meaning of the bankruptcy statutes, which specify particular traders and have also some general provisions applying to persons using the trade of merchandise by way of bargaining, &c., or seeking their living by buying and selling, &c. (First Bk, 214, 215; 3 L. C. 28, 192; 1 L. C. 75, 140—145, 440; 2 Steph. Com. 147-150, 4th edit.).

II. Attorneys.—An attorney is not a trader within the meaning of the bankruptcy acts, unless he act as a scrivener, that is, if he make it a part of his business to receive other men's moneys or estates into his trust or custody for the purpose of laying them out in securities (1 L. C. 141, 262, 333; exp. Gem, 5 Jur. 683; exp. Dufaur, 21 L. J. Bank. 38; Wise's Bank. 58-60, 2nd edit.). The same acts of misconduct which if committed by an ordinary trader would preclude him from the relief of the bankruptcy laws, will also preclude an attorney from such relief (see Answ. XII.).

III. Principal acts of bankruptcy. The reader is doubtless well aware that though the examiners mention fiats here and elsewhere, they have long since been abolished (Key Bank. pp. 2, 10, 43). The following are the principal acts of bankruptcy:1, departing the realm; 2, remaining abroad; 3, departing from dwelling-house, or otherwise absenting; 4, beginning to keep house; 5, suffering to be arrested or taken in execution; 6, suffering to be outlawed ; 7, procuring to be arrested or taken in execution, or goods, &c., to be taken in execution, &c.; 8, making any fraudulent grant, gift, or transfer of ds, or chattels; 9, lying in prison for twenty-one days after arrest or detention for debt; 10, escaping out of prison; 11, compounding with the petitioning creditor for his debt, to the prejudice of the other creditors; 12, filing a declaration of insolvency, provided a petition for adjudication be filed within two months; 13, filing a petition in the Insolvent Debtors' Court, if an adjudication be obtained before the time appointed for hearing, or within two months from the making of the vesting order; 14, filing a petition for private arrangement if it be dismissed, and the petition for adjudieation be filed within two months thereafter; 15, an assignment for the benefit of creditors even if executed and advertised, as by s. 68 of the Consolidation Act is required, if there be a petition within three

months; 16, not paying, securing, or compounding within seven days after demand, a debt or demand arising by judgment, decree, or order in equity, bankruptcy, or lunacy; 17, not paying, securing, or compounding a debt within seven days after being summoned to the bankruptcy court on an affidavit of the debt, and service of particulars, and of notice requiring immediate payment of the debt; 18, a trader, being a member of Parliament, not paying or compounding within one month after service of a writ of summons (an affidavit of the debt having been filed), or not entering into a bond, with sureties, and thereupon entering an appearance. For more detailed information, see 1 L. C. 189199, 223-229, 251-258, 262, 334, 440; 3 Id. 27-29.

IV. Trader making himself bankrupt.—An insolvent trader may cause himself to be made a bankrupt. The usual course is to file a declaration of insolvency. Assets to the amount of £150 must be shown (First Bk. 217: Pennell v. B., 18 C. B. 209; 1L. C. 136, 379, 380).

V. Obtaining adjudication.-The reader will substitute the word "adjudication" for "fiat," erroneously used by the examiners. In order to procure an adjudication in bankruptcy, a petition must be presented, in the form given in one of the schedules to the 12 & 13 Vic. c. 106, by a creditor to a proper amount. Within seventeen days thereafter -i. e., the three days in which the petitioning creditor has priority, and fourteen days thereafter (unless the time has been specially enlarged), there must be proof of the debt of the petitioning creditor, or other creditor prosecuting the petition, of the trading, and of the act of bankruptcy. The petitioning creditor must personally attend to prove his debt, unless on special cause shown his attendance is dispensed with (Rule 12). The commissioner must examine into the nature and consideration of the debt, and before declaring the party a bankrupt, must cause to be entered on the proceedings a deposition of such petitioning creditor stating the nature and amount of the debt due, and how, and for what consideration the same arose, together with the particular time or times the same became due (see Rule 11). The trading and act of bankruptcy must be proved. Witnesses may be summoned to give evidence though on special cause shown their attendance may be dispensed with (Rule 12; 12 & 13 Vic. c. 106, s. 100). After the proofs of the petitioning creditor's debt, and of the trading and act of bankruptcy by the party against whom the petition was filed, the commissioner may adjudge such person bankrupt, of which he is to have notice before it is advertised (Mont. & Ayrt. Pract. chap. 11; Eden's Bankr. Law, chap.

56

12 & 13 Vic. c. 106, s. 101). A single petitioning creditor's debt must amount to £50 (1 L. C. 262, 284-289, 319-325, 355-359; First Bk. 217).

VI. Proof of debts-Meetings-Companies.-Debts may be proved at the two public meetings appointed by the commissioners for the bankrupt to surrender and conform, or at any adjourned meeting, and likewise at every other meeting appointed by them for proof of debts, whereof ten days' notice shall have been given in the Gazette. The proof may also be made at any dividend meeting, and likewise at a meeting called at the creditors' expense for such proof. By sect. 28 of the Consolidation Act, the commissioner may direct a registrar to take proof of debt (12 & 13 Vic. c. 106, s. 164; Mont. & Ayrt. Bankr. Pract. c. 12, s. 1). If any creditor live remote from the place of the meeting of the commissioners, he may prove by affidavit, sworn before a person authorised to administer an oath in bankruptcy matters. It has been held that though the 164th section of the Consolidation Act does not provide for proof by affidavit, and there is no express provision in the act dispensing with personal attendance, creditors in the country may prove by affidavit. Bodies politic and public companies incorporated, or authorised to sue or bring actions either by charter or act of Parliament, may prove by an agent. Such agent must in his deposition swear that he is such agent, and that he is authorised to make such proof (12 & 13 Vic. c. 106, s. 164).

VII. Priorities of creditors.-One year's assessed taxes must be paid; if the bankrupt has been an officer of a friendly society, and has moneys belonging to the same in his hands, the commissioner may order same to be paid over to the society, as also the payment out of his estate of moneys remaining due in respect of funds received by the bankrupt for such society. The servants and clerks of the bankrupt are entitled to so much of their wages as do not exceed three months, and not being more than £30. The wages of the bankrupt's labourers and workmen are to be paid to the extent of 40s. each. The commissioner may also order any sum to be paid out of the estate in respect of apprentice fees received by the bankrupt with an apprentice (see 12 & 13 Vic. c. 106, ss. 166-170).

VIII. Lease of premises.-The leaseholds of the bankrupt do not vest in the assignees by virtue of their appointment; at least, not so as to render them liable, though they may accept the same if they please. The assignees, however, are not bound to take any steps with regard to the leaseholds, until the landlord or the bankrupt obliges them either to accept or reject same, This is by virtue of

sec. 145 of the Consolidation Act, which enacts that if the assignees of any bankrupt having or being entitled to any lease or agreement for a lease, shall elect to take such lease or agreement for a lease, as the case may be, the bankrupt shall not be liable to pay any rent accruing after the issuing of the fiat or filing of the petition for adjudication of bankruptcy against him, or to be sued in respect of any subsequent non-observance or non-performance of the conditions, covenants, or agreements in any such lease or agreement. If the assignees shall decline to take such lease or agreement for a lease, the bankrupt shall not be liable, if within fourteen days after he shall have had notice that the assignees have declined, he shall deliver up such lease or agreement for a lease to the person then entitled to the rent or having so agreed to lease, as the case may be. If the assignees shall not (upon being thereto required) elect whether they will accept or decline such lease or agreement for a lease, any person entitled to such rent, or having so agreed to lease, or any person claiming under him, shall be entitled to apply to the court, and the court may order them to elect, and deliver up such lease, or agreement for a lease, in case they shall decline the same and the possession of the premises, or may make such other order therein as it may think fit. It has been decided by Commissioner Hill that the assignees of a bankrupt who have declined a lease may be compelled to deliver it up to the bankrupt (Anon. 18 Law Tim. Rep. 42).

IX. After-acquired property.—All the bankrupt's future personal estate, and all property which he may purchase, or which may revert, descend, be devised or bequeathed, or come to him before he shall have obtained his certificate, and all such lands, tenements, and hereditaments as he shall purchase, or which shall descend, be devised, revert to, or come to such bankrupt before he shall have obtained his certificate, will belong to the assignees (12 & 13 Vic. c. 106, ss. 141, 142).

X. Settlement.-A settlement by a trader made before bankruptcy, and in consideration of a future marriage, is valid, even if the husband were then indebted, and even if the property were his own and not his intended wife's (2 Madd. Chanc. Prac. 368; Simmonds v. Edwards, 11 Jur. 592; S. C. 16 Mees. & Wels. 838). But a settlement after marriage (not being in pursuance of written articles prior thereto, which is, indeed, the same as an actual settlement) by a trader being at that time greatly in debt, or becoming so shortly afterwards, is invalid as against the creditors and the assignees unless supported by a valuable consideration (Pott v. Todhunter, 9 Jur. 589; S. C. 2 Coll. C. C. 76; 2 Law Stud. Mag. N. S. Supp. pp. 180, 181). So

much with reference to the bankrupt's own marriage settlement; but in the Consolidation Act there is a provision relating to settlements on his children and other persons (which latter words, it is said, are intended to comprise his wife (Glaister v: Hewer, 8 Ves. 204; but see Colombine v. Penhall, 1 Sm. & G. 228). This is sect. 126 (which is the same as sect. 73 of the 6 Geo. 4, c. 16), and it enacts that if any bankrupt being at the time insolvent, shall (except upon the marriage of any of his children, or for some valuable consideration) have conveyed, assigned, or transferred to any of his children, or to any other person any hereditaments, offices, fees, annuities, leases, goods or chattels, or have delivered or made over to any such person any bonds, bills, notes, or other securities, or have transferred his debts to any other person, or into any other person's name, the commissioners may, notwithstanding, effectually sell and dispose of the same for the benefit of the creditors under the bankruptcy; and every such sale shall be valid against the bankrupt, and such children and persons, and against all persons claiming under him.

XI. Settlement until bankruptcy.-The law does not allow a settlement of the property of a trader on himself until bankruptcy, and then over to be effectual; but if it were of the wife's or third person's property, it would be good (see 7 Bart. Preced. 448, 449, notes; exp. Hinton, 14 Ves. 598; Higginbotham v. Holme, 19 Ves. 88).

XII. Certificate, object, obtaining, opposing, avoiding. The certificate of a bankrupt is an authentic document certifying that the bankrupt has duly conformed to the bankrupt laws, and its object is to free him from future liability of body and goods in respect of the debts proveable under the bankruptcy. Before a bankrupt applies for his certificate he must have passed his last examination (12 & 13 Vic. c. 106, s. 198). The commissioner acting in the prosecution of the bankruptcy grants the certificate of conformity, but any creditor may be heard to oppose same on giving three clear days' notice of his intention to oppose. In order to obtain a certificate the court (commissioner) appoints a public sitting for the allowance thereof; an advertisement thereof is then inserted in the London Gazette, and notice thereof given to the solicitor of the assignees, twenty-one days before the sitting. The assignees, or a creditor, having given due notice, are then heard to oppose, and the court either grants, or refuses to grant, or suspends the certificate (2 Chron. 271). The certificate, if granted, may be (1) one of a first class, which is granted where the bankruptcy has arisen from unavoidable losses and misfortunes; or (2), one of a second class - i. e., where the bankruptcy has not wholly arisen from unavoidable losses and misfortunes;

or (3), the certificate may be of a third class, which is where the bankruptcy has not arisen [in any part] from unavoidable losses or misfortunes (see 12 & 13 Vic. c. 106, s. 199, and Schedule Z). The creditors are not confined in their objections by any restrictive words, but are left quite unlimited, and, any of the causes for invalidating a certificate are sufficient grounds for opposing the allowance. Among the ordinary grounds of opposition are: fraud, concealment, knowingly permitting a fictitious debt to be proved; concealing, destroying, or falsifying books; concealing property; gambling, or stockbroking, against the provisions of the statute; or giving money, or security for money, to any creditor to forbear opposing. Where no dividend has been made it is a circumstance of suspicion, and for requiring explanation. Where there has been any fraud practised on the part of the bankrupt, with a view to obtaining his certificate, it will be a valid objection (see 12 & 13 Vic. c. 106, ss. 201, 256, 207). A certificate, though granted, will be void if any of the matters stated in s. 201 of the Consolidation Act have occurred that is, if the bankrupt has lost by gaming in one day £20, or within a year of his bankruptcy, £200, or £200 by stock-jobbing; or after an act of bankruptcy has concealed or destroyed his books, &c., or made fraudulent entries therein; or has concealed part of his property, or permitted a fictitious debt to be proved.

Previous to the

XIII. Adjudication-Notice of notice of adjudication appearing in the London Gazette, a duplicate of such adjudication must be served on the person so adjudged bankrupt, personally, or by leaving the same at the usual or last known place of abode or place of business of such person. The party so served is allowed seven days, or such extended time, not exceeding fourteen days, as the court shall allow, from the service of such duplicate of such adjudication, to show cause to the court against the validity of such adjudication. On appeal to Lords Justices, the advertisement may be further stayed (2 Law Stud. Mag. N. S. p. 3). If the petitioning creditor's debt, the trading, or the act of bankruptcy appear insufficient, and none other be proved, the adjudication is to be annulled; but if no cause be shown for annulling the adjudication, the notice of adjudication is to be forthwith advertised, and sittings appointed for bankrupt to surrender and conform (12 & 13 Vic. c. 106, s. 104). There is a further time allowed after the adjudication is advertised.

XIV. Wrongful adjudication.-If the petition have been improperly or maliciously filed, the court may, upon the petition of the party against whom it was filed, order satisfaction to the party for the damages by him sustained (12 & 13 Vic. c. 106, s. 267; Wydown's case, 14 Ves. 90: 7 Term Rep. 300).

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