recently been a member, and for a large sum due from him under Held, that he had been guilty of an "undue preference" within the meaning of section 8 of the Bankruptcy Act, 1890, so as to justify the suspension of his discharge. The private creditors might, but they would not necessarily, have priority in an administration in bankruptcy, as the representatives of the deceased partners could, by paying off the joint debts, acquire the right to come in and compete with them. In re Bryant, Ex parte Bryant. (C. A.). DISCLAIMER-Lease-Measure of Damages-Assignee-Depreciation of Premises Dilapidations—Bankruptcy Act, 1883 (46 & 47 Vict. c. 52), 8. 55. Where the assignee of a repairing lease had become bankrupt, and his trustee had disclaimed the premises, which had become depreciated in letting value, the Court allowed the assignor under his covenant of indemnity to prove as damages (i.) two quarters' rent from the date of disclaimer so as to allow him time to repair and re-let; (ii.) the diminution in letting value for the residue of the term; (iii.) the amount of the dilapidations. In Re Carruthers, Ex parte Tobit of Lease-Mortgagee--Vesting Order--Terms-Bankruptcy Act, 1883 (46 & 47 Vict. c. 52), s. 55, subs. 6—Bankruptcy Act, 1890 (53 & 54 Vict. c. 71), s. 13. The intention of the Legislature in the disclaimer sections of the Bankruptcy Acts is, while relieving the estate, to interfere as little as possible with the rights of the lessor and third parties, and to substitute for the personal liability of the trustee a right of proof by the lessor against the estate. Therefore a mortgagee or under-tenant can, as a rule, only get a vesting order under section 55, subsection 6 of the Bankruptcy Act, 1883, subject to the same liabilities and obligations as the bankrupt was subject to. Section 13 of the Bankruptcy Act, 1890, is only meant for the relief of the under-tenant or mortgagee in hard cases. It enables the Court to put the lessor on terms. In re Walker, Ex parte Mills. DISTRESS-Agreement for Readjustment of Rent-Non-payment-Distress for full Rent-Recovery of Difference-Bankruptcy Act, 1883, 8. 42. Where a landlord had, on an assignment of the lease, assented to a readjustment in the mode of paying the rent, and the tenant made default in payment at the reduced rate, and subsequently became bankrupt when the landlord distrained for the full rent reserved under the lease, the Court held that the tenant's trustee in bankruptcy could not recover from the landlord the difference between PAGE 37 172 60 the full and reduced rent, the landlord's rights having revived on non-performance by the tenant of the terms of the agreement. Fitzgerald v. Lord Portarlington explained. In re Smith & Hartoggs, Ex parte The Official Receiver v. Leverson DISTRESS-Conversion-Damages-Measure of. Where a landlord is in lawful possession under a distress at the commencement of the tenant's bankruptcy, and the possession subsequently becomes tortious, the trustee in bankruptcy of the tenant may recover damages for the conversion; but in arriving at the true measure the landlord must be allowed what the trustee, if he had asserted his title at the commencement of the bankruptcy, would have had to pay to obtain possession. Cox v. Liddell Proportionate Part-Right to Prove-Trustee-Privity of Estate— Bankruptcy Act, 1883 (46 & 47 Vict. c. 52), ss. 9, 42, and sched. ii. r. 19—Apportionment Act, 1870 (33 & 34 Vict. c. 35), ss. 2, 3. Where a tenant becomes bankrupt during the currency of a quarter, the landlord is entitled, on the expiration of the quarter, to distrain for rent accrued due up to the commencement of the bankruptcy by virtue of section 42 of the Bankruptcy Act, 1883, and for rent accrued due between the commencement of the bankruptcy and the end of the current quarter by virtue of the trustee's common law liability as assignee by privity of estate. In re Wilson, Ex parte Lord Hastings, explained and distinguished. In re Howells, Ex parte Mandleberg EXECUTION, 23. See Act of Bankruptcy. Attachment of Debt-Money in Hunds of Sheriff-Money ordered to be Paid into Court-Costs of Action-" Debt or liability incurred by means of fraudulent breach of trust”—Bankruptcy Act, 1883 (46 & 47 Vict. c. 52), s. 30, subs. 1—Bankruptcy Act, 1890 (53 & 54 Vict. c. 71), 8. 11, subs. 2-R. S. C. 1883, Order XLII. rr. 3, 4; Order XLV. r. 1. A garnishee order cannot be made attaching a debt to answer a sum of money ordered to be paid into Court, orders for payment into Court being excepted by the latter part of Order XLV. r. 1 from the operation of the former part of the same rule, by which "all debts owing or accruing" from the garnishee may be attached. Money in the hands of the sheriff may be attached by a garnishee order, apart from section 11, subsection 2 of the Bankruptcy Act, 1890. The effect of that enactment is to place a temporary stop on the money the execution creditor's right to it is vested, but is liable to be divested in the event of bankruptcy supervening within fourteen days. The costs of an action against a fraudulent trustee are not “ a debt or liability incurred by means of a fraudulent breach of trust" PAGE 400 212 192 within the meaning of section 30, subsection 1 of the Bankruptcy Where an executrix carries on her testator's business for a reasonable time for the beneficial winding up of the same with the assent of the testator's creditors, the new creditors by virtue of the executrix' right of indemnity against the whole estate, will have priority over the testator's creditors, and it makes no difference whether the will contained a power to carry on the business or not. In re Millard FACTORS ACT, 130. See Assignment for Benefit of Creditors. HIRE-PURCHASE AGREEMENT, 130. See Assignment for Benefit of INFANT PARTNER-Receiver, 151. See Partnership. JOINT DEBT-Death of one Creditor-Validity of Petition presented by Survivors. Where one of three creditors to whom a joint debt is due has died, a bankruptcy petition may be presented against the debtor by the two survivors. In re W. Tucker, Ex parte J. W. Tucker. LANDLORD-Distress for Rent, 400, 212, 192. See Distress. MARRIED WOMAN-" Carrying on business separately from husband" Married Women's Property Act, 1882 (45 & 46 Vict. c. 75), 8. 1, subs. 5. A married woman does not "carry on business separately from her husband" within the meaning of section 1, subsection 5, of the Married Women's Property Act, 1882, because she has an interest in the business which is carried on, which is her separate property. The test is whether she is trading independently of her husband, and without being accountable to him for the profits of the business. In re Florence Edwards, Ex parte Harvey ·MUTUAL DEBTS"-Set-off, 386. See Set-off. NOTICE OF ACT OF BANKRUPTCY. See Act of Bankruptcy. OFFICIAL RECEIVER-Costs of, 41. See Costs. ORDER AND DISPOSITION, 371. See Reputed Owner. PARTNERSHIP-Receiving Order against Member of Firm-Transfer of Where a receiving order has been made against members of a firm other than an infant partner, and after the date of such receiving PAGE 350 56 358 182 order the debtor executed an instrument dissolving the partnership and transferring the assets to the solvent infant partner, the Court, on the application of the trustee in the bankruptcy, declared the transfer void as against the trustee and appointed him (but by consent) receiver of the partnership assets. In re Beauchamp Brothers, Ex parte Carr & Beauchamp PENSION-Indian Officer-Payment to Trustee in Bankruptcy-Discretion of Court-Bankruptcy Act, 1883 (46 & 47 Vict. c. 52), s. 53, subs. 2. The Court has a discretion to order payment to the trustee in bankruptcy of a portion of a pension enjoyed by the bankrupt under the Indian Pensions Act, 1871; but no hard-and-fast rule can be laid down to fetter the exercise of that discretion. In re Saunders, Ex parte Saunders PETITION--Attendance of Petitioning Creditor—Cross-examination— Discretion of Registrar--Judgment Debt-Bankruptcy Rules, 1886, rr. 162-164. PAGE 151 201, 361 A petitioning creditor in bankruptcy must personally attend the hearing none the less that his debt is a judgment debt, for the Court may wish to go behind the judgment, or satisfy itself of the bona fides of the petitioner. If the petitioner fails to do so, or refuses to submit to cross-examination on the demand of the debtor, without such attendance or cross-examination having been dispensed with by the registrar, the receiving order will be set aside as irregular. In re Purrett, Ex parte Purrett . Debt of Petitioning Creditor-Judgment obtained by Compromise of a hopeless Action-Power of the Court to inquire into the Fairness of Compromise untainted by Fraud. Where a bankruptcy petition is founded upon a judgment which is the result of the compromise of an action brought by the petitioning creditor against the person whom he is seeking to make bankrupt, the Court can go behind both the judgment and the compromise, and will inquire whether, considering the circumstances, the compromise was a fair one; if the Court think that the compromise was not a reasonable one and ought not to have been made, although it was not fraudulent, a receiving order will not be made upon it. (Lord ESHER, M.R., and LOPES, L.J.) Per RIGBY, L.J.: Before the Court will go behind such a compromise it must be satisfied that it is tainted with fraud; mere inequality in the position or knowledge of the parties, or the improvidence of one of them, is not sufficient. In re Hawkins, Ex parte Troup. (C. A.) Foreigner not domiciled in England-" Having a dwelling-house' within the Jurisdiction during the Year immediately preceding the Petition-Bankruptcy Act, 1883 (46 & 47 Vict. c. 52), s. 6, subs. 1 (d). 403 14 A foreigner not domiciled in England who holds the lease of a dwelling-house in this country, and before the expiration or sale of the lease gives up his residence here and goes abroad with no intention of returning, at the same time attempting to sell his furniture and get rid of the lease, is not a person who has a dwelling-house in England within the meaning of section 6, subsection 1 (d) of the Bankruptcy Act, 1883. The right to return to the house does not make it his dwellinghouse, and a debtor, although still tenant of the house within a year of the presentation of a bankruptcy petition against him, may have previously so abandoned the house as his residence as to take himself out of the section. In re Nordenfelt. (C. A.). PETITION-Grounds for Dismissal-Presentation for Purpose of Extortion-Forfeiture of Assets on Bankruptcy-Bankruptcy Act, 1883 (46 & 47 Vict. c. 52), s. 7, subs. 3. It is a sufficient cause for dismissing a bankruptcy petition that the real object of the creditor in presenting it was not to obtain an adjudication, but to extort money from the debtor. It is also a sufficient cause for dismissing a petition that an adjudication would destroy the only available asset. In re Otway, Ex parte Otway. (C. A.) by Joint Creditors, 358. See Joint Debt. by Liquidator-Form-Misfeasance Moneys-" Final Judgment "”Bankruptcy Notice-Companies (Winding-up) Act, 1890 (53 54 Vict. c. 63), 8. 10-Companies (Winding-up) Act, 1893 (56 & 57 Vict. c. 58), 8. 1-Joining Claims in Petition-Amendment. A bankruptcy petition presented by a liquidator in respect of a debt due to the company should be in the name of the company and should be headed "Ex parte The Company," and a bankruptcy notice likewise. Where on a misfeasance summons by the liquidator of a company, an order had been made on a person to pay moneys under section 10 of the Companies (Winding-up) Act, 1890, and the liquidator afterwards served a bankruptcy notice in his own name as liquidator" of the company, based on such order as constituting a "final judgment," under section 1 of the Companies (Winding-up) Act, 1893, and also presented a petition in the same form, the Court held that the petition had rightly been dismissed as irregular and refused leave to appeal. To join with such a claim for misfeasance moneys a claim for the costs of an appeal from the order made on the misfeasance summons will render the petition bad. In re Low, Ex parte Central Argentine Gold Fields followed. In re Bassett, Ex parte Lewis PROOF-Practice as to, 70. See Secured Creditor. 177 |