Page images
PDF
EPUB

assignee of the policy? Give reasons for your answer, and refer, if you can, to any decision on the subject.

No. The assignee is entitled because the bankrupt is not the real owner of the policy, so that he has no interest therein which could

pass under sect. 15 (3) of 32 & 33 Vict. c. 71, and it cannot pass under sect. 15 (5) as being part of goods and chattels in the possession, order or disposition of the bankrupt, because the policy, although a chose in action, is not a debt due to the bankrupt in the course of his trade or business, and therefore comes within the exception contained in sect. 15 (5). (Ex parte Ibbetson, Re Moore, L. R. 8 Ch. D. 519; 39 L. T. 1; 26 W. R. 843; Baldwin's Bankruptcy, 77.)

16. Has there been any, and, if any, what recent alteration in the law in reference to goods being in the order and disposition of a bankrupt? Refer to any statute upon the subject.

A bill of sale prior to the Bills of Sale Act, 1878, which came into operation on the 1st January, 1879, was always invalid so far as the order and disposition clause of the Bankruptcy Act, 1869, sect. 15, was concerned if the grantor was a trader, although it was registered under the Bills of Sale Acts, 1854 and 1866.

By the Bills of Sale Act, 1878, it was enacted (sect. 20) in effect that a bill of sale, so long as it was duly registered under that Act, should prevail against the order and disposition clause of the Bankruptcy Act, 1869, if the grantor was a trader.

Now, however, sect. 20 of the Bills of Sale Act, 1878, is repealed by the Bills of Sale Act of 1882, sect. 15. The Bills of Sale Act of 1882, however, only applies to bills of sale given by way of security for the payment of money, so that it may be held that sect. 20 of the Bills of Sale Act, 1878, is still in force as to bills of sale not given by way of security for the payment of money, as post-nuptial settlements. At any rate, the law now is as to bills of sale given “by way of security for the payment of money,” that if the grantor is a trader and his affairs are either liquidated by arrangement or in bankruptcy, the bill of sale, though duly attested and registered, is of no avail against the title of the grantor's trustee as regards any goods in the possession, order or disposition of the grantor within the meaning of the Bankruptcy Act, 1869, sect. 15. (Indermaur's Bills of Sale Acts, p. 91, and Appendix.)

17. A. contracts a debt payable upon a contingency, and afterwards, and before the happening of such contingency, becomes bankrupt. Can the person with whom such debt has been contracted take any, and what, steps to entitle him to receive dividends on the debt before the contingency happens, and is there any, and what, exception to the right to take such steps ?

Provided the creditor had no notice of any act of bankruptcy committed by the debtor available for the particular adjudication made (Ex parte Crosbie, Re Bedell, L. R. 7 Ch. D. 123; 47 L. J. Bcy. 10) before or at the time of the debt being contracted, such creditor should at once make a proof of his debt by making an affidavit of his debt, together with his own estimation of its value, and send it to the trustee under the bankruptcy. If the trustee is not satisfied with the creditor's estimate, and there are no rules of the Bankruptcy Court for the time being in force applicable to the creditor's claim, the trustee has a discretion to fix his own estimate of its value, and the creditor, if he feels aggrieved at the trustee's estimate, may appeal to the Court within fourteen days. The Court, without a jury, with the consent of the creditor and of the trustee, can assess the plaintiff's proof. If they will not consent, the Bankruptcy Court will either send it with a request to the High Court of Justice, Queen's Bench Division, to be ascertained before that Court and a jury, or will assess its value before the Bankruptcy Court and a jury. If it is incapable of being fairly estimated the Bankruptcy Court may by order so declare, and thereupon the creditor's debt will be deemed to be a debt not provable in the bankruptcy, and for which, therefore, the bankrupt would be liable, even after his discharge subsequently obtained. The proof will not, if admitted, be allowed to disturb any dividend declared before it was made. (See Re Kit Hill Tunnel, Ex parte Williams, 50 L. J. Ch. 303; and see Ex parte Waters, Re Hoyle, L. R. 8 Ch. 562 ; Baldwin's Bankruptcy, 147—8.)

18. A building contract contains a clause that if the contractor become bankrupt before the completion of the work, the architect may

appoint other persons to complete it, and that he, the architect, shall have power to seize and retain all materials, implements, and plant. The contractor, after executing part of the work, files his petition for liquidation, and afterwards, and before the appointment of trustee, the architect takes possession of the materials, implements, and plant.

What are the rights of the employer and trustee in bankruptcy respectively, with reference to the possession thereof?

It is not clearly stated whether the contractor files his liquidation petition and is afterwards adjudicated bankrupt, or files his liquidation petition and a trustee is appointed thereunder, though for the purposes of answering the question it is immaterial whether liquidation is resolved upon by his creditors and a trustee is appointed thereunder, or a bankruptcy petition is presented by a creditor and an adjudication in bankruptcy ensues and a trustee is appointed by the creditors thereunder.

In either case the architect acquires a right of user of the materials, implements, and plant seized for the purposes of completing the contract; but the employer has no right to seize or retain such materials, implements, or plant, on the ground of his having a set-off against the contractor in respect of the subject matter of the contract, as there is no mutual dealing within the Bankruptcy Act, 1869, sect. 39.

The trustee will take the materials, implements, and plant, subject to the architect's right of user, to complete the contract as above stated. (In re Winter, Ex parte Bolland, 47 L J. Bcy. 52; L. R. 8 Ch. D. 225; Ex parte Newitt, In re Garrud, 51 L. J. Ch. D. 381; and see Booth v. Hutchinson, 42 L. J. Ch. 492; L. R. 15 Eq. 30.)

It is true that these cases were both decided prior to the commencement of the Bills of Sale Acts, 1878 and 1882, but we do not think they will be construed to alter the case for want of registration of the contract under the former Act. Such a contract might be held to confer a right in equity to personal chattels in the abstract; but, on the other hand, such contracts are so common in practice that we think this unlikely.

BILLS OF EXCHANGE AND PROMISSORY NOTES.

19. The holder of a bill of eechange, which is dishonoured after the appointment of a trustee in bankruptcy of the drawer, sends notice of dishonour to the drawer by post to his last known address, which he had left for some months. Is such notice sufficient so as to entitle the holder to prove in the bankruptcy in respect of the bill ? Refer, if you can, to any lecision on the subject.

Yes. The decision of the Court of Appeal to the point (and which is probably the one referred to) is E.c parte Baker, Re Bellman, 46 L. J. Bey. 60.

The law on the subject is now, however, governed by the Bills of Exchange Act, 1882, sect. 49, sub-s. (10), which er.acts that where the drawer or indorser is bankrupt, notice may be given either to the party himself or to the trustee.

20. Can the holder of u bill of exchunge prove against the estate of the acceptor, drawer, or inlorsee who has become bankrupt before the bill becomes due? If so, upon any and what condition? Apply this question also to the right of the holler of a promissory note, payable on demand, where no demand has been made before the act of bankruptcy.

Yes, he can do so against the estate of either one, subject to a rebate of interest at the rate of £5 per cent. per annum from the declaration of a dividend to the time at which the bill would have become payable according to the terms upon which it is drawn. (Bankruptcy Rules, 77; Baldwin's Bankruptcy, 145).

In the case of the promissory note, he can prove for the full amount at once, the tender of the proof being a sufficient demand.

21. Bill of exchange accepted by B. at the request and for the accommodation of C., the drawer, the latter undertaking to find funds to meet the bill at maturity. Bill endorsed by C. and discounted. Before it arrives at maturity B. and C. both become bankrupt. The holder proves on both estates and receives dividends from both estates. Has B. a right to prove on Ci's cstute for the amount received by the holder from B.'s estate ?

C

No. B. has no such right, as such a proof, if allowed, would constitute a double proof against C.'s estate for the same debt. This is the rule in bankruptcy and in the winding up of companies (In re The Oriental Commercial Bank ; E.c parte The European Bank, 41 L J. Ch. 217; L. R. 7 Ch. App. 99, reversing decision of V.-C. Bacon in L. R. 12 Eq. 501). The Bills of Exchange Act, 1882 (45 & 46 Vict. c. 61), contains no provision on the above point.

22. A foreign bill of exchange is refused acceptance or payment. What steps should be taken, and when, in this country, in order to charge the drawer ? Describe the nature or purport of any document that is necessary.

As soon as possible after the non-acceptance or non-payment, it must, in order to charge the drawer, be protested. The protest is a solemn declaration, written by a notary under a copy of the bill, stating that payment or acceptance of it has been demanded and refused, the reason (if any) assigned for such refusal, and that the bill is consequently protested. This formality is required in case of dishonour of a foreign bill in conformity with the laws of most other countries, and because satisfactory evidence of dishonour is thus afforded to the drawer or indorser; for foreign Courts give credit to the acts of public functionaries in like manner as a protest under the seal of a foreign notary is good evidence of dishonour in our Courts (Broom's Common Law, 5th ed , 464; Byles on Bills, 11th ed., chap. 19; Smith's Man. Com. Law, 315). If the bill is not protested, the drawer and indorsers are discharged. (See the Bills of Exchange Act, 1882 (45 & 46 Vict. c. 61), sects. 51 and 94.)

BILLS OF SALE.

23. First Case.-B. purchases certain household goods, and takes from the vendor an inventory and receipt for the purchasemoney endorsed thereon.

The Vendor, by the consent of B., remains in possession.

Second Case.Goods seized by the sheriff' under a writ of fi. fa., and sold by him, and he delivers an inventory and receipt for the

« PreviousContinue »