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Action by Trustee in Liquidation. Claim by 1. The above-named A. M. and L. M. (hereinafter called trustee in liquidation
the debtors), in the years 1871 and 1872, carried on busifor money lent by debtor. against the property of a bankrupt in any case where he had at the time Set-off.
of giving credit to the bankrupt, notice of an act of bankruptcy com
mitted by such bankrupt, and available against him for adjudication. What
It has been held that this section includes a claim for unliquidated
damages. (Booth v. Hutchinson, L. R. 15 Eq. 30.) The expression “set-off.” “ mutual credit," applies to where the credits are such as must from their
nature end in debts. (See Naorogi v. Chartered Bank of India, L, R. 3 C. P. 444; Astley v. Gurney, L. R. 4 C. P. 714, Ex. Ch.) And, therefore, where there is a mere depusit of property without authority to turn it into money the section does not apply. The section applies, although the bankrupt has a lien for the amount of the debt due to him. (Ěx parte Barnett, L. R. 9 Ch. 293.) The section only applies with reference to claims between the bankrupt himself and his creditor. (Turner v. Thomas, L. R. 6 C. P. 610.) It does not apply to cases where one only of several joint debtors becomes bankrupt. (New Quebrada Co. v. Carr, L. R.
4 C. P. 651.) Actions by Action by trustee under liquidation.]—The title of a trustee under a trustee in liquidation relates back to the filing of the petition. (Ex parte liquidation. Duignan, 40 L. J. Ch. 33 ; and his title will relate back to an act of
bankruptcy prior to the filing of the petition in analogy to the case of bankrupts. (Ex parte Eyles, L. R. 16 Eq. 99; Ex parte Schulte, 9 Ch. 409.) His title therefore is good against an execution creditor, who seizes the goods with notice of filing of the petition. (Ex parte Duignan, supra.) Property acquired by the debtor during the liquidation proceedings until he has obtained his discharge vests in the trustee. (Re Jones' Estate, 10 W. N. (1875), p. 47.)
Actions by or against bankrupts.)-See ante, p. 154, as to what causes
of action do not pass to the trustee on his appointment. When
Bankruptcy is no defence to an action against the bankrupt until after bank
he has obtained his order of discharge, as sect. 12 only prevents the enruptcy is
forcement of any remedy against the person and property of the bankrupt a defence. except in accordance with the Act, but does not prevent his being sued
for a debt provable under his bankruptcy. (Marshall v. King, 31 L. T. N. S. 511.) If the bankrupt obtained his discharge after action it could only be pleaded in bar to the further maintenance of the action. (Jones v. Hill, L. R. 5 Q. B. 230.) In such a case now, if the defence arises after the statement of defence has been delivered it can be pleaded with leave by way of amendment (see pp. 87, 88, ante). If it arises after action and before the delivery of the statement of defence, it will be set out like any other ground of defence.
A discharge granted to a debtor who is a member of a firm, in his separate bankruptcy, releases him from his joint as well as his separate debts. (Ex parte Hammond, L. R. 16 Eq. 614.)
Where a verdict for breach of contract is obtained against the bankrupt before the commencement of the bankruptcy, but judgment is not signed or costs taxed until afterwards, the whole claim is barred, as it is
provable. (Ex parte Peacock, L. R. 8 Ch. 682.) When a
Defence of composition, &c., under Bankruptcy Act, 1869.]—A resolution composi. for a composition duly passed under sect. 126 of the Bankruptcy Act, 1869, tion is a
is a bar to any creditor bound thereby, so long as there has been no defence. default on the part of the debtor to perform his part of the agreement.
(Slater v. Jones, and Capes v. Ball, L. R. 8 Ex. 186.) But upon such default or upon his failing to pay an instalment of the composition, the
ness as financial agents at in the City of London. They Action by filed their petition in the London Bankruptcy Court for the trustee in
liquidaliquidation of their affairs by arrangement or composition with tion. their creditors on the 2nd day of December, 1874, and the plaintiff was duly appointed trustee of their property.
2. On and between the 2nd October, 1871, and the 27th August, 1872, the said debtors lent and advanced divers sums of money to the defendant, and paid divers sums of money for the defendant at his request, and the defendant became in
creditor may sue for the whole balance of the debt remaining due,
When a to £27 168. 10d. it was the balance remaining due on a joint and several promissory note, made by the defendant, and H. carrying on business as
tion a co-partners to secure a debt due from them to the plaintiffs, that defen
defence. dants instituted proceedings under ss. 126, 127 of the Bankruptcy Act, 1869, and that an extraordinary resolution of the creditors was passed for accepting a composition payable by instalments, to be secured by joint and several notes. Held, Kelly, C. B., dissentiente, that assuming the plaintiffs were not parties to the resolution, and had not adopted it or received any instalment under it, the facts alleged offered no defence to the action. (Simpson v. Henning, 44 L. J. Q. B. 143, Ex. Ch.) A creditor who has attended the meetings under sect. 126 of the Bankruptcy Act, 1869, and who has voted at the resolutions, is bound thereby, though his debt is omitted from the debtor's statement. (Campbell v. Im Thurn, 45 L. J. C. P. 482.)
In order that a resolution to accept a composition should be a bar to an action against the debtor, the statement must show a definite amount admitted to be due ; and therefore where after the amount of the credi. tor's (the plaintiff's) claim, it was stated to be disputed under legal advice, and referred to arbitration, this debt was held not to be barred. (Melhado v. Watson, 46 L. J. 502, on Appeal, reversing the decision of the Court below.)
Where a debt was contingent and was omitted from the debtor's statement, it was held not to be barred by a resolution to accept a composi. tion. (Wilson v. Breslauer, 46 L. J. 593, App.)
The release of a debtor by resolution for composition does not release his co-debtor. (Ex parte Jacobs, L. R. 10 Ch. 211.)
In liquidation by arrangement under sect. 125, a creditor is, in the absence of fraud, bound by the resolutions passed, if duly registered under sect. 127, though he has no notice of the proceedings, and though his name and debt be omitted from the list of creditors; and no subsequent promise to pay will support an action founded on a debt from which the debtor is released by virtue of the Bankruptcy Act, 1869. (See Leather v. Webb, 46 L. J. 89.)
By sect. 15 of 32 & 33 Vict. c. 62 (Debtors Act, 1869), where a debtor A bankrupt makes any arrangement or composition with his creditors under the pro after his visions of the Bankruptcy Act, 1869, he shall remain liable for the unpaid discharge balance of any debt which he incurred or increased, or whereof before remains the date of the arrangement or composition he obtained forbearance by liable for any frand, provided the defrauded creditor has not assented to the debts inarrangement or composition otherwise than by proving his debt and curred by accepting dividends. (See Ex parte Halford, L. Ř. 19 Eq. 436.) fraud.
Action by trustee in liquida tion.
debted to the said debtors for interest upon moneys due from the defendant to the said debtors. The defendant also became indebted to the plaintiff, as trustee as aforesaid, for further interest on the said moneys.
3. The following are the particulars of the plaintiff's claim against the defendant (the credit side of the account showing the amounts which the plaintiff admits to have been received in reduction of the claim) :
[Here follows a balance-sheet.]
4. The said balance of £10,000 has not, nor has any part thereof, been paid to the said debtors, nor to the plaintiff as trustee as aforesaid.
The plaintiff, as trustee as aforesaid, claims :
Action by trustee for breach of contract.
Action by a Trustee in Bankruptcy for damages for breach
of a Contract made with the Bankrupt. 1. The defendant is a general merchant at M.
2. On the 3rd of October, 1874, C. F., of Y., agreed to buy, and the defendant agreed to sell to him, fifty bags of flour, to be delivered within three months at the warehouse of the said C. F., and to be paid for at the rate of £5 per bag, by promissory notes, payable three months after date, and to be made by the said C. F. and given to the defendant one month after the said 3rd of October, 1874.
3. All things happened and times elapsed necessary to entitle the said C. F. to a performance by the defendant of his said contract, and to receive delivery of the said fifty bags of flour, yet the defendant has not delivered the same or any part thereof.
4. After the making of the said contract C. F., being a debtor unable to pay his debts within the meaning of the 125th and 126th sections of the Bankruptcy Act, 1869, presented a petition according to the form in the schedule to the Bankruptcy Rules, 1870, made in pursuance of the said Act, to the County Court of Y., holden at C., having jurisdiction in that behalf, and the plaintiff was duly appointed trustee of the property of the said C. F.
The plaintiff, as such trustee, claims :-
out in the 2nd paragraph of this claim.
Action by Trustee under a Scotch Sequestration Registered in Statement London Bankruptcy Court for Debt due to Sequestered of claim
by trustee Estate.
of Scotch 1. The plaintiff is trustee of the sequestrated estate of the sequestralate partnership or firm of Messrs. W. & Co., engineers, of G., and of the several estates of the partners of the said firm, by virtue of an act and warrant made in the Scotch Sequestration on the — day of — 1875, and duly registered in the London Bankruptcy Court.
2. The defendant is an engineer, carrying on business in London, under the style of B. & Co.
3. Previously to the agreement hereinafter mentioned, a claim had been made by the plaintiff against the defendant for moneys alleged to be due from the defendant to the firm of W. & Co., which claim was disputed by the defendant, and the plaintiff and the defendant had entered into negotiation for the compromise and arrangement of such claim. 4. On the day of
1875, and the
1875, in consideration that the plaintiff would compromise the above claim, the defendant offered the plaintiff, in writing, to agree to admit a liability of £500.
5. On the day of — 1875, the plaintiff wrote to the defendant, with reference to the said offer, a letter in the words and figures following :
“12, St. V. Place, G.,
25th 1875. "T. B., Esq., London. “ Dear Sir,
“W. & Co.'s Seqn. “ I have the pleasure of informing you that at a meeting of Commissioners, held on the 22nd instant, I was authorised to accept the offer contained in your letters of the 21st 30th of and 15th
and I now beg to put in writing the terms of the bargain : “(1) You are to pay me £500 sterling as early as possible,
but at latest £250 on or before January, 1876, and
£250 within three months thereafter.
claims at the instance of the estate, but if you do not
whole claim is to revive. I, of course, am not to be trustee of
bound to do anything to assist you in obtaining Scotch sequestra
delivery of the machines. tion.
· Yours truly,
(Signed) “N. S.” 6. The defendant accepted the terms contained in the said letter of the 25th day of 1875. The defendant also knowingly induced the plaintiff to believe that the defendant had accepted the same, and to act on the said belief, and to give time to the defendant ; and the plaintiff did so believe, and did act on the said belief, and gave time to the defendant accordingly.
7. All reasonable times have elapsed and all conditions been fulfilled necessary to entitle the plaintiff to sue.
8. The plaintiff, as trustee as aforesaid, and without prejudice to his original claim, should it become necessary to enforce it, claims :
(1.) £500 due under the letter of 25th 1875.
endorsed on the writ.
DEFENCES AND REPLIES.
Creditors accepted a Composition which has been Paid. Defence to 1. On the 24th day of May, 1875, the defendant duly filed a statement
petition for liquidation of his affairs by arrangement or by of claim (not given) composition with his creditors, under the provisions of the
Bankruptcy Act, 1869, and a special resolution was duly passed fendant's creditors by a statutory majority of the said creditors, that a composiaccepted
tion of 2s. in the £ should be accepted in satisfaction of the composition. debts due to the creditors from the defendant, that such com
position be payable within a month after the registration of the resolution of the second meeting, and that H. B. be appointed trustee in the interim for the receipt and distribution of the composition.
2. The resolution was afterwards duly confirmed by a statutory majority of the said creditors at a subsequent general meeting, duly held in accordance with the provisions of the said Bankruptcy Act, 1869.