1884. IN RE COOK, reference to the case of Lingard v. Messiter (1 B. & C. 308), by which it was decided "that in an action by the assignees of a bankrupt brought to recover property in the bankrupt's possession as reputed owner, the plaintiffs proved that the bankrupt had once been the real owner of the goods in question, and that he continued in possession of them until he committed an act of bankruptcy. Held, that this was primâ facie evidence that he continued in possession as owner, and that it then lay upon the defendant to prove that the bankrupt had ceased to be the reputed owner." In the present case there is nothing to distinguish that the painting in question belonged to Mr. Dudgeon. I may also mention to your Lordship that various claims have been made against the trustee for the delivery of pictures under similar circumstances, and the present is brought forward as a kind of test case, as the trustee feels some difficulty as to the course he ought to pursue in the proper discharge of his duties. MATHEW, J.: I am of opinion that section 44, sub-section (iii) does not apply to the present case. The case is peculiar and exceptional. To my mind there was nothing to lead the public to suppose that the pictures exhibited at the Egyptian Hall were the property of the bankrupt. And, further, such pictures were not advertised in any way for sale as his. If the pictures had been in the shop of a picture dealer the case might have been different. I am clearly of opinion, however, that the trustee has acted quite rightly under the circumstances in bringing the matter to the notice of the Court. I think the proper order to be made in this case will be an order directing delivery of the picture claimed to the applicant with costs out of the estate. Solicitors: Fairfoot, Webb & Rooke for Mr. Dudgeon. Lumley & Lumley for the Trustee. CASE relied upon : Lingard v. Messiter, 1 B. & C. 308. PRACTICE. IN RE J. PEARCE, EX PARTE THE BOARD OF TRADE. Bankruptcy Act, 1883, Section 102; Bankruptcy Rules, Nos. 20, 22, 23, 26 and 49-Motion to commit-Affidavit of Service not mentioned in Notice of Motion. THIS was a motion to commit. On April 7th last (see ante, p. 56), an order was made, upon H. Brett and H. A. Dubois, trustees in the bankruptcy of J. Pearce, directing them to pay over to the Bankruptcy Estates Account at the Bank of England the sum of 1587. 12s. 9d., being undistributed funds and dividends remaining in their hands. (Bankruptcy Act, 1883, section 162.) This order had not been complied with, and the present application was in consequence made for an order of committal. M. D. Chalmers for the Board of Trade: It will doubtless be in your Lordship's recollection that the order was made on April 7th last. The trustees were present in Court, and notice has been personally served on them. [Counsel in support of the application read an affidavit of John Smith, and was proceeding to read the affidavit of one Crowhurst to prove the service of the order.] Johnson, solicitor, for Dubois : I object. I say first that service has not been made. Further, I object to the reading of the affidavit of Crowhurst on the ground that his name was not mentioned in the notice of motion. In the notice the affidavit of John Smith only is mentioned. M. D. Chalmers: The affidavit of Crowhurst merely proves that the notice was served regularly. Rule 49 of the Bankruptcy Rules, 1883, says BEFORE MR. JUSTICE CAVE. 1884. May 26. 1884. IN RE J. PEARCE, EX PARTE THE BOARD OF (1) Where a special time is limited for filing affidavits, no affidavit filed after that time shall be used, unless by leave of the Court. (2) Except by leave of the Court, no order made ex parte in Court founded on any affidavit shall be of any force, unless the affidavit on which the application was made was actually made before the order was applied for, and produced or filed at the time of making the motion. Nothing is said about notice to read the affidavit being required. Johnson: The Rules applicable are Nos. 20 and 22. Rule 20 provides that, "Where any party other than the applicant is affected by the motion, no order shall be made unless upon the consent of such party duly shewn to the Court, or upon proof that notice of the intended motion and a copy of the affidavits in support thereof have been duly served upon such party; provided that the Court, if satisfied that the delay caused by proceeding in the ordinary way would or might entail serious mischief, may make any order ex parte upon such terms as to costs and otherwise, and subject to such undertaking (if any) as the Court may think just; and any party affected by such order may move to set it aside." Rule 22 provides that, "Where the respondent intends to use affidavits in opposition to the motion, he shall deliver copies of such affidavits to the applicant not less than two days before the day appointed for the hearing;" and by Rule 26, "Every affidavit to be used in supporting or opposing any opposed motion shall be filed with the registrar not later than the day before the day appointed for the hearing." (Reference was also made to Rules 77 and 78.) CAVE, J.: It is essential that personal service should be proved. I will therefore adjourn the case that this may be done. Johnson: I submit that your Lordship has no authority to give an adjournment. The motion is made like any other motion. It is dead, and I ask that it be dismissed. It is a motion unsupported by evidence. A person ought not to be sent to prison without some semblance of a case being made out. CAVE, J.: Rule 23 gives me full power to order an adjournment, and I shall do so. The case of H. Brett was also adjourned. Solicitors: The Solicitor to the Board of Trade for the Board of Johnson for Dubois. 1884. IN RE TRADE. IN RE LACY, EX PARTE TAYLOR. Bankruptcy Act, 1883, Section 6, Sub-section (2); Schedule 2, Rules 9, 10, 12a; Section 7, Sub-section (3). Held :—(1) That 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. (2) 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. THIS HIS was the first case under the Bankruptcy Amendment Act, 1884 (Appeals from County Courts). It was an appeal to a Divisional Court, from an order made by the registrar of the County Court at Wandsworth, on May 2nd last, dismissing without costs a bankruptcy petition which had been filed against the debtor. The facts of the case were as follows:-The petition in question was founded on a judgment for 597. 16s. 4d., which had been obtained by Taylor, the petitioning creditor, against the debtor, W. S. Lacy. DIVISIONAL BEFORE CAVE, J., A. L. SMITH, J. 1884. May 28. 1884. At the time the debt was incurred for which the judgment was IN RE LACY, obtained, a charge by mortgage upon certain land was given as security by the debtor to the creditor, and this security was stated to be of the value of 607. EX PARTE In his petition, however, the petitioning creditor valued the security thus held by him at 97. only, and the registrar, on the ground that the security had been wrongly valued for the mere purpose of supporting the bankruptcy petition, made an order directing that it should be dismissed. From this order the petitioning creditor now appealed. Atherley Jones for the petitioning creditor: The point is, whether it is necessary for a petitioning creditor to state in his petition the true value of his security. I submit that the registrar decided the case under a total misapprehension of the provisions of the statute. Section 6, sub-section (2), of the Bankruptcy Act, 1883, provides, that "If the petitioning creditor is a secured creditor he must, in his petition, either state that he is willing to give up his security for the benefit of the creditors, in the event of the debtor being adjudged bankrupt, or give an estimate of the value of his security. In the latter case, he may be admitted as a petitioning creditor to the extent of the balance of the debt due to him, after deducting the value so estimated in the same manner as if he were an unsecured creditor." The position of secured creditors is also dealt with in Schedule 2 of the Act, where it is provided : 66 (9) If a secured creditor realizes his security he may prove for the balance due to him, after deducting the net amount realized. (10) If a secured creditor surrenders his security to the official receiver or trustee for the general benefit of the creditors, he may prove for his whole debt. (11) If a secured creditor does not either realize or surrender his security, he shall, before ranking for dividend, state in his proof the particulars of his security, the date when it was given, and the value at which he assesses it, and shall be entitled to receive a dividend only in respect of the balance due to him after deducting the value so assessed. (12a) Where a security is so valued the trustee may at any time redeem it on payment to the creditor of the assessed value:" The provisions of the new |