(2) Held: That where a trustee seeks to disclaim a lease under section 35, 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 . p. 244 FRAUDULENT PREFERENCE.]-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 p. 65 FUNDS AND DIVIDENDS UNDISTRIBUTED.]—See In re James Pearce, Ex parte The Board of Trade p. 56 "final judg GARNISHEE ORDER.]-A garnishee order absolute is not a ment" 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 Chinery p. 31 INJUNCTION.]-Held: That 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. II. Johnstone, Er parte Abraham p. 32 INSOLVENT ESTATE, Administration in Bankruptcy of.]—Held: 1. That where an order has been made under sub-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. 2. 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 committed an act of bankruptcy within three months prior to his decease. In re J. A. May, Ex parte E. May . JUDGMENT.]—See Final Judgment. p. 232 JURISDICTION-Of Registrar.]-On application to the registrar on behalf of the trustee in a bankruptcy 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. p. 17 Of Bankruptcy Court.]-(1) On an appeal from decision of registrar, refusing rehearing of a bankruptcy petition, with a view to the adjudication obtained under the Bankruptcy Act, 1869, being discharged, on the ground that at the time of the presentation of the bankruptcy 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 bankruptcy 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. In re May, Ex parte May. p. 50 (2) Where application 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 v. Beauchamp, Ex parte Mackintosh p. 84 (3) 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 by section 72 of the Bankruptcy Act, 1869. In re Lowenthal, Ex parte Beesty p. 117 (4) Held: That 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 p. 253 Held: That notwithstanding the provisions of section 146 of the Bankruptcy Act, 1883, a writ of elegit still extends to leaseholds. Richardson v. Webb Forfeiture of.]-See In re Walker, Ex parte Gould, Official Receiver P. 40 LIQUIDATION.]-(1) Held: That where proceedings in liquidation were pending on January 1st, 1884, which afterwards came to an end, proceedings to obtain an adjudication against a debtor founded on the act of bankruptcy committed by him by filing the liquidation petition might be taken under the Bankruptcy Act, 1883. In re Pratt, Ex parte Pratt p. 27 (2) Held: That in determining whether it shall give sanction to a composition or liquidation by arrangement entered into under sections 125 and 126 of the Bankruptcy Act, 1869, in accordance with the provisions of section 170 of the Bankruptcy Act, 1883, the Court or registrar is not bound by the statement of affairs of the debtor put forward and agreed to by the creditors; but that such Court or registrar is entitled to inquire into the statement, for the purpose of seeing whether such composition or liquidation is reasonable and calculated to benefit the general body of creditors. In re McAlpine, Ex parte McAlpine MANAGER.]-See Special Manager. p. 126 MEETING OF CREDITORS.]—(1) Held: That the public examination cannot be concluded until the adjourned first meeting of creditors has been concluded. In re William Williams P. 16 p. 196 MORTGAGE.]-Held: That the provisions of Rules 78 to 81 of the Bankruptcy Rules, 1870 (compare Nos. 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 Company p. 41 OFFICER.]-Held: That the onus of proof of domicil is, in the first instance, on the creditor presenting the petition. That 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 headquarters 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 . p. 137 OFFICIAL RECEIVER.]—(1), Held: That 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 p. 36 (2) Held: That an official receiver ought not to appear at the hearing of an p. 98 (3) Held: That where, before a composition is approved by the Court, the (4) The Court does not sit to assist the official receiver or the trustee in simple The official receiver must be prepared to undertake the proper responsibility p. 272 PARTNERS.]-Bankruptcy Act, 1883, section 4, sub-section 1 (g), and sections PAYMENT.]-See Suspending Payment. p. 93 PETITION.]—(1) In a case where after a petition had been filed by a debtor Held: That there was clear jurisdiction to grant the application. In re p. 157 p. 246 p. 253 the trustee cannot alone present a bankruptcy petition against the debtor, but the beneficial owner must join in the petition. In re Hastings, Ex parte Dearle p. 281 (5) Held: That where by failing to comply with the terms of a bankruptcy notice a debtor has committed an act of bankruptcy under section 4, subsection 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 Dearle. POUNDAGE.]-See Execution. . p. 281 PROOF.]—(1) Held: That 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 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. C. Knight, Ex parte Smith & Co. P. 74 (2) Held: That 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, 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 & Co., Ex parte Morrison & Aitcheson p. 278 PUBLIC EXAMINATION.]—(1) Held: That the public examination cannot be concluded until the adjourned first meeting of creditors has been concluded. In re William Williams p. 16 (2) Held: That a solicitor appearing for a creditor at the public examination of a bankrupt, for the purpose of examining the bankrupt as to his affairs, need not be authorized in writing. In re C. G. Landrock p. 21 (3) Held: 1. That the words " any proceeding in Court" in section 105, subsection 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. 2. That 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. 3. 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 . REGISTRAR.]-See Jurisdiction. p. 196 REPUTED OWNERSHIP.]—Held: That where a picture was lent by the owner of it to the 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 |