« EelmineJätka »
The case bears a considerable analogy to that of Grissell v. Bristowe, in which the validity of the custom of the London Stock Exchange as to splitting contracts and setting off sales against purchases was in question, and (contrary to the original decision in the Common Pleas) was unanimously affirmed by the Exchequer. Chamber (19 L. T. Rep. N. S. 390).
We can scarcely doubt that the view taken by the senior judges in the appeal in Mollett v. Robinson will be upheld by the House of Lords, to which, as we understand, the case will be carried. A court of law undertakes a most serious responsibility when it declares that a usage of trade, well established and long acted upon by merchants of repute, is illegal. A clear case of unfairness or unreasonableness ought first to be made out. The remarks of Mr. Justice Blackburn in Mollet v. Robinson appear to dispose very satisfactorily of the difficulties in the way of the plaintiff's case:-"In the present case. . . . there is no contract between the sellers and the defendant, a difficulty which would have been avoided if there had been two contract notes. But the custom is to dispense with doing so, and is not of recent origin. I can understand that the dividing of a lot may necessitate some negotiation and trouble, so as sometimes to cause a bargain to be lost which would be made if the whole lot were taken at once; and I can easily imagine reasons why the broker engaged in such a business should desire to have every facility for purchasing entire lots, though the quantity may not precisely correspond with that specified in the order of any of his constituents. And I can also understand why the constituent should be willing to give every facility for uniting his order with that of others, or splitting his order into different parts, if thereby it can be executed more promptly or on more favourable terms. I am not, therefore, at all surprised that a custom has sprung up with the object of enabling the broker to make his contracts more promptly and more cheaply than he could do if obliged to make his contracts for the precise quantity in his order. I should have thought that these objects might have been carried out without losing the advantages derived from the personal responsibility of the principals to each other; for instance, by the delivery of separate notes. But no one not personally conversant with a business can tell what little things are found, in practice, to be important. And the usage of the trade is otherwise; that is, to include all the orders in a contract for the entire quantity, so as not to require a contract between each buyer and the seller. I cannot see any inconsistency between this modification of a broker's duty and his employment as a broker. That employment is, in consideration of his commission, to use reasonable care and skill to purchase the goods as cheaply as he can, not exceeding his constituent's limits, and as a necessary consequence that the broker should not himself have any interest in selling the goods, so as to put his duty to obtain the goods cheap in conflict with his personal interest."
MUTUAL CREDIT IN BANKRUPTCY.
In the case of Turner v. Thomas (40 L. J. 271, C. P.; L. Rep. 6 C. P. 610) a novel question of some nicety was decided-viz., that the mutual credit clause of the Bankruptcy Act 1869 does not extend to the set-off against a principal of a debt due from an agent. The case is also an authority on the question of the set-off of unliquidated damages under the mutual credit clause.
The action was for unliquidated damages for not accepting cotton sold to arrive " by the plaintiff to the defendant. The cotton was sold by a factor in his own name without notice to the buyer of his principal. The defendant pleaded a plea of set-off, founded on the principle of George v. Claggett (7 Term Rep. 359), which decides that if a factor sells goods in his own name, and the buyer knows nothing of any principal, the buyer may set-off against the concealed principal any demand which he might have set-off against the factor. But there was this difference. The factor had become bankrupt, and the set-off claimed was not against the factor, but against his assignees in bankruptcy. It was objected that the action being for unliquidated damages, set-off could not be pleaded. It was admitted that it could not under the statute of set-off; but it was argued that the mutual credit clause extended to this case, and that under that clause set-off of unliquidated damages for breach of contract was allowed. The question was therefore whether the mutual credit clause applied, and, if so, whether under it set-off in a case of unliquidated damages for breach of contract is allowed; "whether," in the words of Willes, J., 66 a mutual credit, not amounting to ordinary set-off, can be set up in an action brought by an unknown principal against a person who contracted with his factor as principal, if the factor becomes bankrupt; i.e., whether the mutual credit clause of the Bankruptcy Act applies as against the principal."
The court held that the clause did not apply. The clause, the court said, was for the settlement of all proceedings between the bankrupt and persons dealing with him; there was no reason for bringing in persons standing outside who could not have the same benefits. It was a settlement appropriate to bankruptcy, not to persons who were solvent. The defence was not a defence against the factor, but only a special mode of settling accounts with his assignees. The principle of George v. Claggett, they said, was that
the right to set off is one of the proximate motives which induced the defendant to deal with the factor; therefore the right ought to be allowed although it turns out that there was a concealed principal. But the bankruptcy of the factor and the peculiar mode of settling accounts on that event was not in contemplation, not a proximate cause of the dealing; there was no reason, therefore, for allowing the peculiar mode of set-off which is permitted in bankruptcy.
The plea was therefore held bad; but it was assumed that if the case had come within the mutual credit clause, although the claim was for unliquidated damages, the set-off might have been pleaded. Willes, J. speaks of the large extension of the law of set-off in the 31st section of the Bankruptcy Act of 1869. That section enacts, as he points out, that "demands in the nature of unliquidated damage, arising otherwise than by reason of a contract, shall not be provable in bankruptcy." It then goes on, save as aforesaid all debts and liabilities to which the bankrupt is subject . . shall be deemed to be debts provable in bankruptcy, and may be proved in the prescribed manner before the trustee in bankruptcy.' Then by sect. 39, "where there have been mutual credits, mutual debts, or other mutual dealings between the bankrupt and any other person proving or claiming to prove a debt under his bankruptcy, an account shall be taken of such mutual dealings . . . . and the balance of such account, and no more, shall be claimed or paid on either side respectively," &c. The question, says the learned Judge, is whether "the extension given by these sections" is to be introduced into the law established by George v. Claggett. This apparently is intended to lay down the principle that whatever can be proved in bank ruptcy can also be set-off in an action by the assigness, and among other things unliquidated damages arising by reason of a contract. This principle, says Bramwell, B., in Stanger v. Miller (L. Rep. 1 Ex. 62), speaking generally, was the effect of sect, 171 (the mutual credit clause) of the Act of 1849. Accordingly, in Mareham v. Crow (15 C. B., N. S., 847), after the passing of the Act of 1861, which allowed unliquidated damages arising by reason of a contract or promise to be proved as a debt after assessment by a jury, in an action by assigness for the price of machinery, a plea of set-off of unliquidated damages for the breach of the contract by the bankrupt was allowed. There may have been no doubt about the matter, but at all events it is satis factory to have an authoritative interpretation of the new Act with respect to the set-off of unliquidated damages for breach of contract.
WHEN IS THE FILING OF A PETITION IN LIQUIDATION AN ACT OF BANKRUPTCY?
In a case, Re Helliwell, reported in the LAW TIMES of Feb. 10, p. 276, which recently came before Mr. Serjeant Tindal Atkinson in the Dewsbury Bankruptcy Court, the learned judge decided that the filing of a petition for liquidation by arrangement or composition, which contained a declaration of the debtor's inability to pay his debts, was not an act of bankruptcy available for adjudication upon the facts of the particular case.
The facts were these:-One Helliwell, on 7th Oct. 1870, filed a petition for liquidation by arrangement or composition, in the usual form, containing a declaration of inability to pay his debts. On the 26th Oct. it was resolved to accept a composition. On the 7th Nov. this resolution was duly confirmed by a second resolution, and on the 12th Nov. this second resolution was registered. Meanwhile, viz., on the 10th Nov., Helliwell assigned all his pro perty to James Helliwell, an unsecured creditor, in consideration of his guaranteeing the payment of the composition. It appears, that notwithstanding the composition, Helliwell was ultimately made a bankrupt, though it does not appear why, for the case came before the court on a motion by the petitioning creditor, to compel James Heiliwell (inter alia) to deliver up the property assigned by the deed of 10th Nov. to the trustee in bankruptcy.
One point insisted on was, that this assignment was bad, the assignee having at the time of the assignment notice of an act of bankruptcy available for adjudication, viz., the filing of the petition for liquidation. There was no question that the assignee had notice; the fact was recited in the deed. The question was, whether, on the 10th Nov., two days before the registration of the resolution for composition, it was an act of bankruptcy available for adjudication.
The learned Judge's attention was directed to the case of Re Jones (Weekly Notes 1870, p. 71), in which it was held that the filing of a petition for liquidation was an act of bankruptcy available for adjudication; but he thought that there was a distinction between the two cases. In Re Jones, he said, the creditors refused to agree to liquidation by arrangement or composition, and petitioned that the debtor might be made bankrupt. Rule 207 therefore applied, by which, if the creditors neglect to pass a resolution for arrangement or composition, the Court may make the debtor bankrupt. But this case differed materially, because here the composition had been accepted and sanctioned by the Court, and had become in law a perfected transaction. Proceedings in bankruptcy were therefore expressly excluded, and to hold that
any step taken in the preliminary stages, such as filing a petition for liquidation, was an act of bankruptcy, would be acting in direct contravention of the statute, and the object of part 7 of sect. 126 (which makes the composition binding on creditors). The filing of the petition for liquidation was not therefore an act of bankruptcy available for adjudication.
Therefore, assenting to Re Jones, and distinguishing this case, the learned Judge ruled in effect that whether or not at the date of the assignment the filing of the petition was an act of bankruptcy available for adjudication, depended on whether or not the proposal for liquidation or composition was accepted ultimately by the creditors (it being remembered that at that date the composi tion not having been registered had no validity (sect. 126, subs. 5,) so that a composition could not be said at that time to have been accepted. Though even it if had been accepted it could, on the principles which we shall hereafter point out, we submit, have made no difference to the decision, whether or not this act was available for adjudication. So that meanwhile it was available not absolutely, but only a contingency, viz., the refusal of the creditors to agree to arrangement or composition.
The learned Judge's attention, probably, was not directed to the case Ex parte Dugnan (40 L. J. 33 Bank. and on app. 68), for in that case this very argument was used, and the same question seems to us to have been decided the other way. There the liquidation was agreed to, the debtor was not as in Ře Jones made a bankrupt. There a seizure had been made under an execution, after notice of the filing of a petition for liquidation. It was contended (1) that it was not an act of bankruptcy at all (2), that if it was, it was not available for adjudication; the seizure, therefore, came within the protection of sect. 95, sub sect. 3. On the second point, it was urged that if the petition was an act of bankruptcy at all, it was so only on the happening of certain contingencies, mentioned in sects. 125, 126 and G. R. 266, 267, viz., where the Court thinks that the liquidation or composition cannot proceed without injustice, or undue delay, or where the creditors neglect to agree to a resolution. But, notwithstanding this argument, the Court held that it was an act of bankruptcy, and that it was available for adjudication, and therefore, that there being notice of it, the seizure was not protected. And the grounds of the judgment are that all through the proceedings for arrangement or composition, the statute and the rules contemplate the possibility of the arrangement or composition being turned into bankruptcy; that to support an adjudication of bankruptcy there must be an act of bankruptcy, and that that act of bankruptcy is the filing of the petition, which therefore is all through the proceedings an act of bankruptcy available for adjudication.
It may be well to give some portions of the judgments explaining this view. The Chief Judge refers to sect. 125, sub-sect. 12, which gives the Court power to adjudge the debtor bankrupt if the liquidation is likely to produce injustice or delay. The rules, he adds, direct that proceedings shall be instituted by a petition containing a declaration of inability of the debtor to pay his debts, and this is similar to the declaration made by sect. 6, sub-sect. 4, an act of bankruptcy. Then he says, "And seeing that the power is given to the court to adjudge a petitioning debtor bankrupt for any sufficient cause, I hold it to be unquestionable that from the moment at which the debtor files the petition for liquidation he has done an act which, in the words of the 95th section, is available against him for adjudication, and by which act alone the court can find the foundation for an order adjudging him bankrupt.' Again, he says, "In all the regulations which are established, the possibility of bankruptcy being adopted instead of liquidation by arrangement, is kept in view, and yet the power of adjudicating in bankruptcy exists only by means of the petition in the form prescribed containing an admission of the debtor's insolvency. The conclusion seems to me to be irresistible that the filing of the petition is an act of bankruptcy." The power so to adjudge the debtor bankrupt, it may be observed, applies to any time during which the liquidation is proceeding. The section says, "if the liquidation" (and it is the same under sect. 126 with regard to composition) "cannot proceed without injustice," &c. The Lord Chancellor says, Moreover, by sub-sect. 12 of sect. 125, if difficulties occur in liquidation by arrangement the court may adjudge the debtor a bankrupt. He must therefore have committed an act of bankruptcy, or that section would be nugatory." And that act of bankruptcy is the filing of the petition.
This case has reference to liquidation by arrangement under sect. 125, but a provision similar to sub-sect. 12 of sect. 125, just referred to occurs in sect. 126, sub-sect. 11, and rules 266, 267, as to making a petitioning debtor bankrupt apply to both sect. 125 and sect. 126. The reasons of the judgment apply equally to a case of composition.
We cannot help thinking, therefore, that if the learned Judge had considered the case of Ex parte Duignan, it would have affected his ruling. It is true that the act of bankruptcy might not be available in the sense that the court might have restrained under Rule 260 a petition for adjudication, but it might also by the same rule have allowed it, "whether in progress at the filing of the petition or subsequently commenced, to proceed on such terms as the court might think fit." It would have been at the
discretion of the court. But however that may be, it seems clear that if the reasoning and the decision in Ex parte Duignan are right, the filing of the petition for liquidation was at the date of the assignment an act of bankruptcy available for adjudication within the meaning of the 95th section.
We observe that notice of appeal was given, so that the point will probably be decided hereafter.
THE STOCK MARKETS.
CITY, THURSDAY, FEB. 22. DULLNESS, inactivity, and rather a tendency to depression have ruled since we last wrote. This is mainly to be ascribed to the caution which is universally manifested not only in these markets, but more or less throughout all departments of business, on account of the feeling of uncertainty that prevails as to the future course of political events, especially with regard to our relations with the United States. It seems to be the general impression, however, in financial circles, and the maintenance of the price of securities at the existing level confirms the view, that as the sober judgment of the two nations comes to the front, and the tendency to discuss the position under the influence of a heated imagination subsides, a friendly arrangement of the difficulty will be found possible. The uncertain poition of affairs in France, and the flat condition of the Paris Bourse, has also contributed to depress the tone here, and to induce operators to confine their engagements within narrow limits. The still easy state of the Money Market, both here and on the continent, has encouraged the introduction of some new undertakings, two of which are referred to below.
Since last Thursday Consols have improved per cent., but, from circumstances to which it is not necessary to refer, some sales of the India Five per Cents. and of the ditto Four per Cents. have caused a fall of and respectively. The Five and Half per Cent. India Eufaced Paper is lower. Bank Stock is 1 higher.
In the American market the principal changes for the week are a fall of in the 5-20 Bonds of 1862; of in Eries; and of in Illinois Shares. The feature in the market for English railway stocks has been the announcement of the dividend on Great Western stock at the rate of 53 per cent., carrying forward £18,300, or £3000 more than upon the last occasion. As compared with the corresponding period of 1870 the dividend shows an improvement of 1 per cent. This, when compared with 14 per cent., which was the rate per cent. per annum for 1866, shows how remarkable may be the recovery in the position of a line, at one time struggling almost hopelessly apparently against financial difficulties. There has been a general fall in the prices of these securities, and notwithstanding a rise of 1 per cent. in Great Western Stock yesterday, it is 23 lower since last Thursday. During the same period Great Northeru A Stock and South-Eastern Deferred has fallen 2; London and South-Western, Manchester and Sheffield, Lancashire and Yorkshire, and North British 14; and others in a minor degree. Grand Trunk of Canada Railway Stock, and Great Western of Canada shares are both 1 lower.
In the Foreign market, attention has been directed more particularly to Greek stock on the statement that the Ministers have under consideration the proposal of some arrangement with the bond holders in connection with the construction of railways in Greece. The price of Greek Stock has improved 2 per cent. Owing to the favourable mention of the Republic of Paraguay by Lord Enfield, in the House of Commons, the Stock has risen per cent. Brazilian, Argentine, Spanish, and Turkish Stocks are somewhat better for the week, but Italian is slower, and the French National . The principal changes in the prices of Miscellaneous Shares have been unfavourable :-Crystal Palace Preference has fallen 1; London and Glasgow Engineering_2, Telegraph Construction 1, on the unfavourable dividend. National Discount Company's Shares have improved, and it is announced that Mr. Thomas Smith has been appointed manager, and Mr. William Hancock assistant-manager of this institution. Anglo-Mediterranean Telegraph Stock is 6 higher for the week.
The price of French Rentes from Paris this morning was 56fr. 32c. Market firm.
There have been no operations in bullion at the bank this day. The discount demand has been moderate.
Applications have been invited during the week by the London and South-Western Bank (Limited) for 200 £50 10 per cent. perpetual preference shares, and 400 £50 ordinary shares, forming part of the capital of the Welsh Ironworks Company (Limited). The price of issue is par, or £50 per share. Interest is guaranteed for the years 1872 and 1873. The preference shares first rank for dividend up to 10 per cent. per annum, then the ordinary shares up to 10 per cent. per annum, after which both classes participate rateably in all surplus profits. It is stated that the due and punctual payment of the interest for two years is secured by a deposit of the amount with the London and South-Western Bank. We are informed that the company has already secured business yielding a profit sufficient to pay the first half-year's dividend.
A new undertaking entitled the Standard Trust Investment Corporation (Limited), with a capital of £250,000 in 50,000 shares of £5 each (with power to increase) has been formed upon the model of other projects which have achieved success so far, and have consequently justified the anticipa tions of their promoters. In this case, however, it is proposed to attempt in addition to the system exclusively adopted in other cases of distributing its capital over a number of sound and paying marketable securities, thus admitting its shareholders into many desirable enterprises to which, individually, they perhaps could not subscribe." To receive money from the public, at fixed rates of interest, and for stated periods, either on loan or deposit; and as a means of keeping the surplus funds of the company constantly employed, it proposes to discount bills of commercial firms of undoubted respectability and standing."
The latest quotations for British Funds are as follows: Consols for Money, 92 to 92; ditto 1st March Account, 923 to 92; Reduced and New Three per Cents., 92 to 921; Exchequer Bills, 28. to 78. prem.; India Five per Cent. Stock, 109 to 109; India Four per Cent. Stock, 104 to 105; India Enfaced Paper Four per Cent., 96 to 961; ditto Five
and a Half per Cent., 1073 to 108; Bank of England Stock, 247 to 249; Metropolitan Three and a Half per Cent., 96 to 97; and French Rentes in this market, 551 to 551.
In the market for American Securities, the United States 5-20 Bonds of 1882 are marked 91 to 923; ditto, 10-40 Bonds, 88 to 88 ex div.; Erie Railway Shares, 271 to 27; Illinois, 108 to 109; and United States Funded Loan 88 to 88; City of New York Scrip to dis.
In the Railway Market the prices are:-Caledonians, 115 to 115; Great Eastern, 49 to 50; Great Northern, 138 to 139; ditto, A, 159 to 160; Great Western, 111 to 112; Lancashire and Yorkshire, 157 to 158; London and Brighton, 74 to 75; London, Chatham, and Dover, 26 to 27; London and North-Western, 158 to 1582; London and South-Western, 110 to 111; Manchester and Sheffield, 72 to 721 ex. div.; Metropolitan, 663 to 67; Ditto District, 33 to 331; Midland, 142 to 142; North British, 574 to 573; North Eastern Consols, 181 to 1821; South-Eastern, 96 to 96; South-Eastern deferred, 76 to 761; Grand Trunk of Canada, 19 to 19; Great Western of Canada, 204 to 20; Antwerp and Rotterdam, 18 to 19; Great Luxembourg, 16 to 17; and Lombardo Venetian, 183 to 18.
The prices of the principal Foreign Stocks are recorded thus:-Argentine, 1868, 931 to 94; do., 6 per cent., 1871, 95 to 95; Brazilian, 5 per cent., 1865, 97 to 97; do., 5 per cent., 1871, 93 to 93; Egyptian, 7 per cent., 1868, 83 to 834; do., Viceroy Loan, 86 to 88; do., Khedive Mortgage Bonds, 78 to 78; French Morgan 6 per cent. Loan, 99 to 994; do., National, 5 per cent., 7 to 74 pm. ex. div.; Greek Stock, 143 to 154; Italian of 1861, G4 to 648; Mexican, 14 to 15; Paraguay 8 per cent. Loan, 84 to 844; do. Scrip,
4 to 4 pm.; Peruvian, 5 per cent. 1865, 961 to 96; do., 6 per cent. 1870,
Torrens's Empire of Asia.
Michael and Will's Law of Gas and Water Supply.
NOTES OF THE WEEK. JUDICIAL COMMITTEE OF THE PRIVY COUNCIL.
Tuesday, Feb. 20th.
Present Sir J. W. COLVILE, Lord Justice
THIS was an appeal by the Crown from a judg.
The Solicitor-General, the Queen's Advocate, and
The COURT now reversed the decision in the court below upon all points, and condemned the Ganntlet to be forfeited. Costs were not given against her owners, as the law officers of the Crown contended that the Crown could neither be
condemned in nor receive costs.
Proctor for the Crown, Queen's Proctor. Solicitors for the appellants, Lowless, Nelson and Jones.
Wednesday, Feb. 21.
Non-delivery of cargo-Outbreak of war-Refusal
THIS was an appeal from a judgment of the High Court of Admiralty in a suit instituted by the consignees of cargo laden on board the Prussian vessel the Teutonia, under the 6th section of the Admiralty Court 1861, to recover damages for the non-delivery of bags of nitrate of soda, the cargo of the ship. In April 1870 the Teutonia sailed from Pisagua with the cargo under charter to call at Cork, Cowes, or Falmouth for orders, to be given within three days after arrival, and thence **to proceed tɔ any one safe port in Great Britain
or on the Continent, between Havre and Hamburgh, both included," and there deliver the cargo, the freight to be paid on right delivery of the cargo at the port of discharge. The Teutonia arrived at Falmouth on 10th July 1870, and received arrived off Dunkirk, and was there boarded orders to proceed to Dunkirk. On 16th July she by a French pilot in uniform, who informed her master that war had broken out between France and Prussia. Her master thereupon put back to the Downs to make inquiries, and On the 18th July he got orders from his owner for arrived there on the morning of the 17th July. bidding him to go to Dunkirk, and on the 19th July he put into Dover. On the outbreak of war it became illegal to trade with enemies. The consignees required the master to proceed to Dunkirk, and the goods at Dover, but the master refused to he refused, and they then demanded delivery of deliver there without payment of freight; this the consignees declined to pay. The learned judge of the Admiralty Court held that the master was justified in the deviation to the Downs and Dover the deviation was a reasonable time, and that the to make inquiries, and that the time occupied by before the 19th, when it became illegal, and that master was not bound to proceed to Dunkirk he was not bound to deliver at Dover except on payment of freight pro ratâ itineris, or by way of compensation for the carriage of the goods from isagua to Dover. From this judgment the consignees appealed.
Butt, Q.C. and Clarkson for the appellants. Milward, Q.C. and Cohen for the respondents. The COURT now upheld the decision of the Admiralty Court as to the question of breach of contract in deviating and in not proceeding to Dunkirk, and, as to the question of delivery of the cargo at Dover, were of opinion that the Teutonia must be taken to have been in the same position as if she had arrived off Dunkirk after war had been declared, and therefore to have been sent to a port which eventually became not safe within the terms of the charter-party, and that the consignees were bound to name some other port within the charter, and as they demanded delivery at Dover they were not entitled to delivery except on payment of full freight, and their Lordships dismissed the appeal with costs. Solicitors for the appellants, Hillyer and FenSolicitors for the respondents, Thomas and
not sold to the debtor, though an acceptance of his was given to Swift in payment for them. On the 4th July 1871 Swift took out a summons under the 96th section of the Bankruptcy Act 1869, rule 171, for the examination of the debtor, of his petition for liquidation the debtor made on the ground that within six weeks of the filing over all his household furniture, &c., to his mother-in-law. and on various other grounds. The Registrar in the first instance granted the application, but subsequently he was induced to reconSwift's application for the examination of the sider his decision, and made an order dismissing debtor, and for the admission of his proof notwithstanding its rejection by the trustee. From this order Swift appealed.
Swanston, Q.C. and Brough for the appellant. De Gex, Q.C. and Thesiger for the trustee. out a primo facie case of a right to examine the Lord Justice JAMES said that Swift had made debtor.
Persons other than the trustee were
entitled to examine the debtor in certain cases, as where the trustee was unwilling to put the creditor was willing to examine at his own risk. estate to the expense of an examination, and a
Lord Justice MELLISH was of the same opinion. Solicitors for the appellant, Harper, Broad, and Battock.
Solicitors for the trustee, Linklaters, Hackwood, and Addison.
Feb. 15 and 16.
Ex parte LÜCKES; Re WOOD. Bankruptcy Act 1869, s. 6, sub-sects. 1 and 2-Fraudulent conveyance-Past debt-Intent to defeat -Trader and non-trader. THIS was an appeal from an order of the Chief Judge in Bankruptcy, reversing a decision of the registrar of the Hereford County Court. By a bill of sale, dated the 11th Jan. 1871, Thomas Wood, who was a farmer, assigned to his brotherin-law, Sidney Alfred Smith, to secure a past debt, all and singular the crops of corn, &c., on his all the live and dead stock on the farm, and the farm at Walford, in the county of Hereford, and household furniture in the farmhouse; and also all the crops, stock, &c., which might be on the said farm, or any other farm of the debtor's, during the continuance of the security. Wood was adjudicated bankrupt on the 21st Feb. 1871. the bill of sale, which substantially comprised the The registrar of the County Court decided that whole of the debtor's property, was an act of bankruptcy, and void against the trustee under the bankruptcy. Upon appeal the Chief Judge reversed this decision, and Lückes, the trustee, appealed from the decision of the Chief Judge. De Gex, Q.C. and T. E. Winslow for the appellant.
Little, Q.C. and Miller, Q.C. for the respondent, the holder of the bill of sale.
argued that under the Bankruptcy Act 1869, an Lord Justice MELLISH said that it had been assignment of the whole of a debtor's property to no longer necessarily an act of bankruptcy, but one creditor in consideration of a past debt, was that to make it such it was now necessary to prove of the Act of 1869, the words "with intent to defeat fraud, as in the 2nd sub-section of the 6th section former Acts, were omitted. In his Lordship's or delay his creditors," which occurred in the
opinion those words were omitted simply because
Lord Justice JAMES was of the same opinion.
Friday, Feb. 16.
HADLEY v. M'DOUGALL.
Practice-Production of documents-Entries of
was interested in a contract made with the de-
Glasse, Q.C. and W. Pearson, for the appellant. Cotton, Q.C. and Harrison, for the respondent. Lord Justice JAMES said that it was quite settled that an order could not be made for production of documents belonging to a partnership where one of the partners was not a party to the suit, and the matter in dispute was not a partnership matter. The consequences of departing from this settled rule of the court would be very serious. The defendant might be ordered to produce copies of the entries in question, but the order of the Vice-Chancellor must be discharged. Lord Justice MELLISH concurred. Solicitor for the appellant, Mark Shephard. Solicitors for the respondent, Harrison, Beale,
Re THE EAST OF ENGLAND BANK; Ex parte
Company-Winding-up- Contributory- Compro-
Babington, for the respondent.
Lord Justice JAMES said that he could not assent to the view taken by the Vice-Chancellor. The court had no more jurisdiction to compel a
Bacon, V.C.: (see 25 L. T. Rep. N. S. 867.) The
Sir Roundell Palmer, Q.C., Kay, Q.C., and
The Solicitor-General (Sir G. Jessel, Q.C.),
Lord Justice JAMES said that the injunction
hearing in the first instance. The relators to give
Solicitor for the appellants, W. H. Shaw.
Saturday, Feb. 17.
Re THE IMPERIAL ANGLO-GERMAN BANK.
Re THE BELFAST TRAMWAYS COMPANY (LIMITED.) Company-Resolution to wind-up voluntarily→ Petition for compulsory winding-up. THIS was an appeal from a decision of Wickens, V.C., who refused to order a compulsory windingup of the above company under the circumstances stated in the "Notes of the Week," LAW TIMES of Jan. 20, p. 212. The petitioner appealed from the Vice-Chancellor's decision.
Karslake, Q.C., and W. W. Karslake, for the appellant.
Greene, Q.C., and Brooksbank, for the company.
Hume Williams (of the Common Law Bar) for other parties.
Lord Justice JAMES said that there was no need of putting in motion the expensive machinery of a compulsory winding-up to distribute the assets of this small concern, which had no debts. The petitioner had been too precipitate in presenting his petition, and the Vice-Chancellor's order must be affirmed.
Lord Justice MELLISH Concurred.
Appeal accordingly dismissed with costs.
Jan. 30 and Feb. 19.
HARDY . THE METROPOLITAN LAND AND FINANCE COMPANY (LIMITED). Breach of trust by directors-Suit to recover moneys improperly applied - Money demand-Jurisdiction.
THIS was an appeal from a decision of the Master of the Rolls. The suit was one by the trustees of the London Benefit Building Society, who were authorised by the society's rules to sue on its behalf, to recover from the defendant company THIS was appeal petition from an order made by the 6 & 7 Will. 4, c. 32. The directors of the a sum of £375. The society was formed under Malins, V.C., for the compulsory winding-up of society permitted their manager, Joseph Dutton, the above company. In April 1871, a prospectus who was also manager of the defendant company, was published of a company to be called the to deposit large sums of money belonging to the Imperial Anglo-German Bank, the head office to society with the defendant company, and the bill be in Berlin, with a branch in London. The alleged that the society and its officers had no names of the secretary and of twelve directors, power to make such deposits, and that the deseven of whom were resident in England, were fendant company had notice of this. A cheque published. The prospectus stated that by the for the sum of £375, being the balance due to the provisions of the German law under which the society, was on 23rd March 1869, drawn on behalf company was to be incorporated, applicants for of the company, and handed to Dutton, who misshares could not be made liable before the incor- applied it, and never paid it to the society. The poration of the company, and that their money Master of the Rolls dismissed the bill on the therefore must be returned in full if the underground that the claim was a mere money demand, taking were not proceeded with. It further stated and that the plaintiffs' remedy was therefore at that one-half of the capital had already been law. From this decision the plaintiffs appealed. subscribed in Germany, and 10 per cent. paid thereon, and invited subscriptions for the other half of the capital. Henry De Lacy O'Brien was the promoter of the scheme. This other half of the capital was subscribed in London, and the shares were allotted; but it having been discovered subsequently that the first half of the capital had not in fact, been subscribed in Germany, the company was never incorporated. The promoters took a temporary office in London, where on the 20th May the secretary, in the presence of O'Brien, gave a large order for advertisements to one Roberts, an advertising agent, and also an allottee of shares. Roberts entered the company as his debtor in his books, and alleged that he had executed the order on the credit of the names of the directors, but he had sent in a bill for the advertisements to O'Brien. On a petition by Roberts and two other creditors, Malins, V.C., held that the court had power under the 199th section of the Companies Act 1862, to wind-up the company, and accordingly made an order for a compulsory winding-up: (See 25 L. T. Rep. N. S. 895.) From this order the provisional directors appealed.
Cotton, Q.C. and Higgins, Q.C., for the appel-
Pearson, Q.C. Robinson, Jencken, and Bradford,
Lord Justice JAMES was of opinion that the ViceChancellor's order could not be sustained. The company which was sought to be wound-up was never incorporated; the whole scheme had fallen to
Southgate, Q.C. and Davey for the appellants. Swanston, Q.C. and Cookson for the respondents. Lord Justice JAMES said that the payment to Dutton did not discharge the defendant company, as it never reached the hands of the society. The money was trust money placed by an improper act in the hands of the defendant company, and it was still in their hands; and having been improperly placed there by trustees, it was competent for the cestuis que trust to file a bill to obtain payment of the money. There must, therefore, be a decree for payment of £375 with interest at 4 per cent., and the defendants must pay the costs in the court below.
Lord Justice MELLISH was of the same opinion.
Feb. 17 and 19.
Re STOKES'S TRUSTS. Trustee Act 1850-Appointment of two original trustees in place of three trustees. MR. STOKES, by his will, appointed three trustees, with power to increase or reduce the number. In Jan. last one of the trustees, being desirous of retiring from the trust, a new trustee was appointed in his place, but no transfer of the trust property was made to him. Since such appointment, another of the trustees wishing to be discharged, and it being difficult to obtain anyone to act in his stead, a petition was presented to the court, asking that might be appointed under the Trustee Act in place of the three trustees, and that the property might vested in them.
liquidator to accept a sum less than the amount the ground. But it was said that certain persons the two trustees who were willing to continue
due from a contributory than it had to order one
Lord Justice MELLISH was of the same opinion.
had for certain purposes used the name of the com-
Lord Justice MELLISH concurred.
Solicitors for the appellants, Argles and
Solicitors for the petitioners, Linklaters, Hack-
Solicitors for other parties, Rooks, Kenrick, and Harston.
C. Hall in support of the petition.
V. C. MALINS' COURT.
Re REASTON'S ESTATE.
WILLIAM REASTON by his will, dated 24th March, 1854, devised real estate to trustees on trust to
pay the rents to his son Benjamin for life, and cutorship, but for those purposes only, and,
Wiglesworth, in support of the petition. G. Williamson for the railway company. The VICE-CHANCELLOR declined to order the fund to be transferred to the trustees, and ordered it to be carried over in moieties to the separate accounts of the infants, the dividends to be paid to the trustees for maintenance. Solicitors: Ridsdale, Craddock and Ridsdale; Williamson, Hill and Co.
Re BRISCOE'S TRUSTS.
Charitable gift-Insufficient description-Latent ambiguity-Parol evidence. TESTATOR bequeathed £1000 to the "Victoria Hospital." It appeared that there was no hospital which strictly answered this description; and the legacy was claimed by two hospitals, the City of London Hospital for Diseases of the Chest, which was situate at Victoria Park; and the Victoria Hospital for Sick Children, which was situate in Chelsea. The executors paid the money into court, and a petition was presented on behalf of the City of London Hospital to have it paid out to them. It appeared that the testator had given donations to this hospital, that he was a life governor, and that he had taken great in
terest in its welfare. It was stated that it was sometimes called the Victoria Hospital, and was known as such to the testator. On the other hand, it was alleged on behalf of the Victoria Hospital for Sick Children, that the words "for sick children' did not form any part of its name; that this was the only hospital really known as the Victoria Hospital. and that letters so directed were always forwarded by the Post-office authorities to the hospital in Chelsea. It was contended, therefore, that inasmuch as there was one charity only which completely answered the description in the will, parol evidence was not admissible to explain the gift.
Cotton, Q.C. and Romer for the petitioner representing the City of London Hospital for Diseases of the Chest.
Pearson, Q.C. and A. E. Miller, Q.C. for the Victoria Hospital for Sick Children. Speed for the executors.
Hemming for the Attorney-General.
The VICE-CHANCELLOR said that if the testator had used the words, "The Victoria Hospital for Sick Children," there would have been no doubt, and parol evidence would have been excluded; but the actual words might refer to either of these two hospitals. It was therefore necessary to ascertain what was in the mind of the testator. The evidence showed that the testator had long been interested in the hospital represented by the petitioners, while he was almost a total stranger to that represented by the respondents. There could be no doubt that the testator intended the legacy for the former. The petitioner was therefore entitled to the money.
Solicitors: Fox and Robinson; Raven and Bradley.
Feb. 13 and 14.
Vendor and purchaser-Mortgage by executor to building society-Exercise of power of saleSpecific performance.
AN executor took shares in, and became a mem
ber of, a building society, to obtain advances for the purposes of his executorship, and mortgaged certain les seholds belonging to his testator to the society, to secure the advances and his subscriptions on the shares. The society sold the leaseholds under the power of sale in the mortgage, but the purchaser raised the objection that the mortgage was invalid, and declined to complete his purchase, whereupon the society filed the present bill for specific performance.
Cotton, Q.C., and P. Smith Osler for the society. Glasse, Q.C., and Lindley, Q.C. for the pur
The VICE CHANCELLOR said that it was now settled that an executor had power to mortgage his testator's assets for the purposes of the exe
Solicitors for the vendors, Shaen, Roscoe, and Massey. Solicitors for the purchaser, H. F. and E. Chester.
V.C. WICKENS' COURT. Feb. 9, 16, and 17. BAILE v. BAILE. Solicitor and client-Costs of suit-Property preserved-Attorneys' and Solicitors' Act (23 24 Vict. c. 127), s. 28.
THIS was a petition, in the above cause, presented under the Attorneys' and Solicitors' Act, by the widow and executrix of a gentleman who had been the solictior for the next friend of the infant plaintiff in the suit, praying for an order charging the plaintiff's real estate " preserved by the suit, with the solicitor's costs. The last order in the suit which was procured by the solicitor was in 1864. He died in 1866. The infant plaintiff attained his majority in 1867; in 1868 he obtained an order to discharge a receiver, who had been appointed in the cause, and in 1872 another order to change his solicitor. The principal questions were, whether the suit was originally for the benefit of the plaintiff; whether the solici tor had been legally employed by him, or on his behalf; and whether he had adopted the suit after his majority.
Lindley, Q.C. and Freeling for the petitioner. Greene, Q.C. and Murray Browne, and Oshorne Morgan, Q.C. and Badcock, for the respondents. The VICE-CHANCELLOR decided that the suit was originally instituted for the benefit of the plaintiff that the petitioner's husband was legally employed by the next friend on the plaintiff's behalf, and that the plaintiff had adopted the suit after attaining his majority. The petitioner was, therefore, entitled to the order asked. Solicitors: Dobinson and Geare; Vizard, Crow die, and Anstie.
Saturday, Feb. 17.
Husband and wife-Declaration of forfeiture
4 Geo. 4, c. 76, and 19 & 20 Vict. c. 119. THIS suit was instituted at the relation of the Attorney-General, by the guardian of a young lady, aged sixteen, and possessed of considerable property. In 1871 the lady married a footman, who, on the occasion of the marriage, swore falsely that the lady was of full age, and had her mother's consent to the marriage, and also untruly to other necessary particulars. The object of the suit was to obtain a declaration, under 4 Geo. 4, c. 76, and 19 & 20 Vict. c. 119, that the husband had forfeited all right to his wife's property by reason of his misconduct, and for a proper settlement of it on her.
Horsey appeared for the relator in the suit. Hemming for the Attorney General. W. Hemings for the husband and wife. The VICE-CHANCELLOR made the order asked, and refused to allow the husband his costs. Solicitors, Raven and Bradley.
Tuesday, Feb. 20.
PROSSER V. THE BANK OF ENGLAND.
Practice-Bank of England-Evidence of
The question was whether the evidence so tendered to the bank was sufficient.
Hardy, Q.C. and E. C. Willis, for the motion, contended that all that was necessary was reason able evidence. The evidence tendered was such as any court or at all events the Court of Chancery-would accept as proof of death in proceedings before it.
Cotton, Q.C. and Kekewich, for the bank, were not called upon.
The VICE-CHANCELLOR said that this court had no doubt sometimes, for the sake of con venience, dispensed with evidence that might strictly be adduced before it. It did so in the exercise of a reasonable discretion reposed in the court. But the evidence of this court, as of all courts, was more or less conventional, so much so that in some instances this court did not require even the best evidence it could obtain. The position of the bank was, to some extent analagous in these matters, and how could this court say it was wrong or unreasonable on the part of such a body, to decline accepting evidence which (possibly) this court might consider in some cases sufficient? The bank had a discretion to exercise; they had exercised it here. It was indeed impossible for the court to say that the back was wrong in objecting to the evidence sent to them, or in requiring more, unless it held that the Court of Chancery showed the perfection of reason in its practice. With every respect for its procedure, he could not say that; and the motion must therefore be refused. Solicitors, H. G. Nisbet, Rooke and Daw; Freshfields.
COURT OF PROBATE. Tuesday, Feb. 13. (Before Lord PENZANCE.) In the Goods of PUNCHARD. Will No executors named - Trustee - Executor according to the tenor. WM. PUNCHARD, late of 7, Rheidol-terrace, of St. Mary, Islington, in the county of Middlesex, died Jan. 16, 1872, leaving, duly executed, a will, dated Aug. 19, 1871. It devised certain legacies, and appointed no executor; but contained these words "I wish P. A. Collins to act as trustee to the estate."
Searle moved for a grant of probate to Mr. Collins as executor according to the tenor, and cited In the Goods of Montgomery, 5 N. of C. 99; In the Goods of Collette, Dr. Deane's Ecc. Rep. 484: In the Goods of Baylis, L. Rep. 1 P. & M. 21 The COURT held that as there were no duties
committed to the trustee he could not be regarded
as an executer according to the tenor.
Attorney C. J. Rushworth.
Monday, Feb. 19.
Cur. adv. vult.
HOBSON 2. NICHOLSON. THIS was a testamentary suit tried at Leeds, at Will-New trial-Special jury. the last assizes, by a common jury, and a new trial had been granted to be had in this court.
Inderwick now moved that the case be tried by a special jury.
Tristram objected. The last trial was before a common jury, and this ought to be also before a common jury.
The COURT made the order as prayed.
Tuesday, Feb. 20.
In the Goods of BUCHANAN. Will-Executors dead or absent-Grant to creditor to institute Chancery proceedings. G. BUCHANAN died 20th July 1858, having duly death-executed a will of which John Buchanan and G. Lambert were appointed executors and proved the will. G. Lambert died intestate in March 1871, and John Buchanan left England 10th Nov. 1858, and an affidavit was made that it was not likely that he would ever return.
Statutory declaration. THIS was a motion in the above suit to restrain the Bank of England from "permitting the name of Catherine Prosser to remain in their books without the usual memorandum of death marked against it." The facts of the case were shortly these. Catherine Prosser died on the 17th Dec.. and was buried on the 22nd Dec. 1871, at Llanvihangel, Crucorney, in the county of Monmouth. At the time of her death a
Dr. Deane moved for a grant of administration to a creditor under the 38 Geo. 3, c. 87, and oited In the Goods of Ruddy (ante 233).
The COURT.-The court can only make you a limited grant. There is no sum specifically coming to you. You may take a grant to ininstitute proceedings in Chancery. Attorney, Sand.
CAUSES. Tuesday, Feb. 20. (Before Lord PENZANCE, J.O.)
£2960 15s. 9d. New Three per Cent. Bank
MALCOMSON v. GIVINS.
Divorce Act, sect. 23-Assessing damages. IN this case the petitioner had instituted a suit in the Ecclesiastical Court of Ireland for a divorce à mensa et thoro, and intended to introduce a bill into the House of Lords for the dissolution of his marriage. With this view he had presented a