« EelmineJätka »
The case bears a considerable analogy to that of Grissell v. Bris. towe, 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 —“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."
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 1809. 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, av 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 1819. 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.
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 clauso.
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. Chuggett (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 quostion 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., “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
WHEN IS THE FILING OF A PETITION IN LIQUI.
DATION AN ACT OF BANKRUPTCY? In a case, Re Helliwell, reported in the Law Trzes of Feb. 10, p. 270, 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 RJones (Weekly Notes 1870, p. 71), in which it was held that the filing of a petition for liquidation was an act of bankruptcy avail
. able 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 peti. tioned 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 bad 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
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.
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 banko ruptcy 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 bank. ruptcy 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 liquidatiou was agreed to, the debtor was not as in Ře Jones made a bankrupt. There a seizure had been made under an esecution, after notice of the filing of a petition for liquidation. It was con. tended (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 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 arailable 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 giren 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 avail. able 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
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 bis muling. 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 adjndication, 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
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 1} per cent., which was the rate per cent. per annum for 1866, shows how remarkoble may be the recovery in the position of a live, at one time struggling almost hope. lessly 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 27 lower since last Thur:day. During the same perio1 Great Northeru A Stock and SouthEastern Deferred has fallen 2}; London and South-Western, Manchester and Sheffield, Lancashire and Yorkshire, and North British 1}; and others in a minor degree. Grand Trunk of Canadia 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 im. proved 2} per cent. Owing to the favourabl mention of the Republic Paraguay by Lord Enfield, in the House of Commons, the Stock has risen * per cent. Brazilian, Argentine, Spanish, and Turkish Stocks are some. what better for the week, but Italian is slower, and the French National 1.
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 divi. dend. 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. Anglu-Mediterranain 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 dis. count 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 prefe. rence 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 saccess 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 dis. tribating “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 rospectability and standing.'
The latest quotations for British Funds are as follows: Consols for Money, 92 to 92}; ditto 1st March Account, 921 to 92}; Reduced and New Three per Cents., 92% to 92}; Exchequer Bills, 28. to 78. prem.; India Five per Cent. Stock, 1094 to 1093; India Four per Cent. Stock, 1047 to 105; ; India Enfaced Paper Four per Cent., 96 to 96}; ditto Five
and a Half per Cent., 1074 to 1084; 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 55%.
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, 27 to 273 ; Illinois, 1084 to 109; and United States Funded Loan 881 to 88; City of New York Scripto dis.
In the Railway Market the prices are :-Caledonians, 115 to 115} ; Great Eastern, 494 to 50 ; Great Northern, 1381 to 1394 ; ditto, A, 159 to 160; Great Western, 1111 to 112; Lancashire and Yorkshire, 157} to 1581; London and Brighton, 74 to 75; London, Chatham, and Dover, 264 to 27; London and North - Western, 158 to 1581; London and SouthWestern, 1101 to 111}; Manchester and Sheffield, 72 to 72} ex. div. ; Metropolitan, 663 to 674 ; Ditto District, 33 to 33; Midland, 142 to 142; North British, 571 to 57% ; 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, 181 to 19}; Great Luxembourg, 16to 17; and Lombardo Venetian, 183 to 185.
The prices of the principal Foreign Stocks are recorded thus:-Argentine, 1869, 931 to 941; do., 6 per cent., 1871, 95 to 95}; Brazilian, 5 per cent., 1865, 97 to 97}; do., 5 per cent., 1871, 931 to 931; Egyptian, 7 per cent., 1868, 83 to 83} ; do., Viceroy Loan, 86 to 88; do., Khedive Mortgage Bonds, 78 to 78} ; French Morgan 6 per cent. Loan, 99 to 994; do., National,
per cent., 7 to 7 pm. ex. div.; Greek Stock, 147 to 154 ; Italian of 1861, 64 to 64%; Mexican, 147 to 15; Paraguay 8 per cent. Loan, 84 to 843; do. Scrip,
4 to 41 pm.; Peruvian, 5 per cent. 1865, 961 to 964; do., 6 per cent. 1870, 795 to 793; Russian, 5 per cent. 1871, 92% to 931 ; do. Nicolai Rail, 75 to
5 751 ; Spanish, 314 to 317 ; do. Quicksilver, 80% to 811; do. 3 per cent. 1871, 31% to 315; Turkish, 5 per cent. 1865, 49 to 493; do. 6 per cent. 1865, 63 to 641; do. 6 per cent. 1869, 591 to 604; and do. 6 per cent. 1871, 72 to 721. In the Telegraph Market, Ånglo-American
Stock is quoted at 118 to 120 ; Anglo-Mediterranean, 163 to 168; British Australian, 81 to 9; British Indian Extension, 11 to 11d; ditto Submarine, 93 to 10%; Chinas, 9 to 94; Cubas, 7% to 8; Falmouths, 10% to 11%; Great Northern, 15} to 16; Marseilles, 83 to 9; Mediterranean Extension, 44 to 54 ; French cables, 24 to 24; Reuters, 10 to 111; and West India and Panama, 61 to 6).
In miscellaneous shares the prices are as follows :-British and Foreign Tramways, 3 to 5 pm. ; Credit Foncier of England, 5 to 51; Crystal Palace Preference Shares, 104 to 109; General Credit and Discount, 24 to 2 pm.; Hooper's Telegraph Works, 24 to 3 pm.; Hudson's Bay, 10 to 104; National Discount, 134 to 14; London and Glasgow Engineering, 17 to 12 disc. ; London Tramways, 113 to 121.; Phosphate Sewage, 35 to 37 ; Telegraph Construction, 33 to 311; and Val de Travera, 19; to 204.
NOTES OF THE WEEK. or on the Continent, between Havre and Ham- | not sold to the debtor, though an acceptance
burgh, both included," and there deliver the cargo, of his was given to Swift in payment for them. JUDICIAL COMMITTEE OF THE PRIVY the freight to be paid on right delivery of the On the 4th July 1871 Swift took out a summons COUNCIL
cargo at the port of discharge. The Teutonia under the 96th section of the Bankruptcy Act Tuesday, Feb. 201h. arrived at Falmouth on 10th July 1870, and received | 1869, rule 171, for the examination of the debtor,
on the ground that within six weeks of the filing Prosent Sir J. W. Colvile, Lord Justice orders to proceed to Dunkirk. On 16th July she JAMES, Lord Justice MELLISH, and Sir M. E. arrived off Dunkirk, and was there boarded of his petition for liquidation the debtor made
by a French pilot in uniform, who informed uver all his household furniture, &c., to his Smith.)
her master that war had broken out between mother-in-law. and on various other grounds. The THE GAUNTLET.
France and Prussia. Her master thereupon Registrar in the first instance granted the appliForeign Enlistment Act 1870 -Naval service
put back to the Downs to make inquiries, and cation, but subsequently he was induced to recon. Towing prize of war. This was an appeal by the Crown from a judg. On the 18th July he got orders from his owner for Swift's application for the examination of the
arrived there on the morning of the 17th July. sider his decision, and made an order dismissing anent of the High Court of Admiralty in a suit in bidding him to go to Dunkirk, and on the 19th July debtor, and for the admission of his proof stituted by the Crown against the steam-tug he put into Dover. On the outbreak of war it became notwithstanding its rejection by the trustee. Gauntlet, for condemnation of the tog on the illegal to trade with enemies. The consignees From this order Swift appealed. ground that her owners had, within British
Svanston, Q.C. and Brough for the appellant. dominions, and without licence, despatched the required the master to proceed to Dunkirk, and
De Gex, Q.C. and Thesiger for the trustee. said vessel having knowledge and reasonable he refused, and they then demanded delivery of
Lord Justice JAMES said that Swift had made cause to believe that she would be employed in the goods at Dover, but the master refused to the naval service with France, then at war with deliver there without payment of freight; this
the out a prima facie case of a right to examine the
Persons other than the trustee were Prussia, but both at peace with her Majesty, in consignees
declined to pay. The learned' judge of debtor.
entitled to examine the debtor in certain cases, towing the Lord Brougham, a Gerinan merchant- the Admiralty Court held that the master was
as where the trustee was unwilling to put the man which had been captured by a French man: justified in the deviation to the Downs and Dover
to make inquiries, and that the time occupied by estate to the expense of an examination, and a of-war, and was then in charge of a French prize the deviation was a reasonable time, and that the creditor was willing to examine at his own risk. crew, from the Downs to Dunkirk, and that, in
master was not bound to proceed to Dunkirk Lord Justice MELLISH was of the same opinion. parsuance of such despatching, the Gauntlet had before the 19th, when it became illegal, and
that actually towed the Lord Brougham, with her prize he was not bound to deliver at Dover except on
Solicitors for the appellant, Harper, Brouil, and
Battock. crew and German prisoners on board, from the Downs to Dunkirk. The judge of the Court of payment of freight pro ratâ itineris, or by way of Solicitors for the trustee, Linklaters, Hackwood, Adiniralty found that the Lord Brougham had compensation for the carriage of the goods from and Addison. been reduced into possession by the French, Pisagua to Dover. From this judgment the conand, although a prize of war, was not a man. signees appealed.
Feb. 15 and 16. Butt, Q.C. and Clarkson for the appellants. of-war, but was rather in the position of a French
Ex parte LÜCKES ; Re Wood. merchantman; that the Gauntlet was employed in
Bhilward, Q.C. and Cohen for the respondents. the ordinary course of her employmeut; and that The Court now upheld the decision of the Ad. Bankruptcy Act 1869, 8. 6, sub-sects. 1 and 2-Frau
dulent conveyance-Past debt-Intent to defeat there was no naval service rendered by the miralty Court as to the question of breach of con.
-Trader and non-trader. Gauntlet to the French Government, and dismissed tract in deviating and in not proceeding to Dan. This was an appeal from an order of the Chief her from the sait, with costs.
kirk, and, as to the question of delivery of the Judge in Bankruptcy, reversing a decision of the The Solicitor-General, the Queen's Advocate, and cargo at Dover, were of opinion that the Teutonia registrar of the Hereford County Court. By a Archibald for the Crown (the appellants).
must be taken to have been in the same position bill of sale, dated the 11th Jan. 1871, Thomas The Admiralty Advocate and Edwyn Jones for
as if she had arrived off Dunkirk after war had Wood, who was a farmer, assigned to his brotherthe respondents.
been declared, and therefore to have been sent to in-law, Sidney Alfred Smith, to secure a past debt, The COURT now reversed the decision in the
a port which eventually became not safe within all and singular the crops of corn, &c., on his court below upon all points, and condemned the the terms of the charter-party, and that the con.
farm at Walford, in the county of Hereford, and Cenntlet to be forfeited. Costs were not given signees were bound to name some other port all the live and dead stock on the farm, and the against her owners, as the law officers of the within the charter, and as they demanded deli- household furniture in the farmhouse; and also Crown contended that the Crown could neither be very at Dover they were not entitled to delivery all the crops, stock, &c., which
might be on the condemned in nor receive costs.
except on payment of full freight, and their said farm, or any other farm of the debtor's, Proctor for the Crown, Queen's Proctor.
Lordships dismissed the appeal with costs. Solicitors for the appellants, Lowless, Nelson Solicitors for the appellauts, Hillyer and Fen. during the continuance of the security. Wood
was adjudicated bankrupt on the 21st Feb. 1871. and Jones.
The registrar of the County Court decided that
whole of the debtor's property, was an act of Present : Sir J. W. COLVILE, Lord Justice
bankruptcy, and void against the trustee nnder MEGLISH, Sir M. E. SMITH, Sir R. COLLIER.)
COURT OF APPEAL IN CHANCERY.
tho bankruptcy. Upon appeal the Chief Judge THE TEUTONIA.
Jan. 27, and Feb. 15.
reversed this decision, and Lückes, the trustee, Non-delivery of cargo-Outbreak of war-Refusal
(Before the LORDS JUSTICER.)
appealed from the decision of the Chief Judge. to proceed - Charter-party-Safe port-Freight Ex parte SWIFT ; Rc SIR WILLIAM RUSSELL.
De Gex, Q.C. and T. E. Winslow for the appel
lant. -Substitution of port.
Bankruptcy Act 1869, s. 96—Rules 166, 167, 171- Little, Q.C. and Miller, Q.C. for the respondent, *Txis was an appeal from a judgment of the High Examination of bankrupt-Right of creditor to the holder of the bill of sale. Court of Admiralty in a suit instituted by the etamine.
Lord Justice MELLISH said that it had been consignees of cargo laden on board the Prussian This was an appeal from an order of Mr. Registrar argued that under the Bankruptcy Act 1869, an vessel the Teutonia, under the 6th section of the Hazlitt. Swift claimed to prove against the assignment of the whole of a debtor's property to Admiralty Court 1861, to recover damages for the debtor's estate for the sum of £2937 10s., for one creditor in consideration of a past debt, was non-delivery of bags of nitrate of soda, the cargo goods sold and delivered by him to the debtor, no longer necessarily an act of bankruptcy, but of the ship. In April 1870 the Teutonia sailed consisting of 500 tons of iron rails, for which he that to make it such it was now necessary to prove from Pisagua with the cargo under charter to call had not received anything except a bill of ex. fraud, as in the 2nd sub-section of the 6th section at Cork, Cowes, or Falmouth for orders, to be change for that amount, dated the 22nd Nov. of the Act of 1869, the words " with intent to defeat given within three days after arrival, and thence 1869, and accepted by the debtor. The trustee * to proceed to any one safe port in Great Britain rejected the proof, and alleged that the rails were former Acts, were omitted. In his Lordship's
or delay his creditors," which occurred in the
opinion those words were omitted simply because Bacon, V.C. : (see 25 L. T. Rep. N. S. 867.) The R. THE BELFAST TRAMWAYS COMPANY they were superfluous and misleading. The word suit was an information at the relation of the
(LIMITED.) " fraudulent” must mean fraudulent as against Commissioners of Sewers of the City of London to Company--Resolution to wind-up voluntarily the creditors or some of them, and the addi. restrain the Great Eastern Railway Company from Petition for compulsory winding.up. tion of the words “ with intent to defraud,”' &c., interfering with the traffic of Sun-street, Bishops. This was an appeal from a decision of Wickens, would have made no difference in the meaning of gate, which street the company claimed to be | V.C., who refused to order a compulsory windingthe subsection. An assignment by a debtor of entitled to stop up permanently under the powers up of the above company under the circumstances all his property to one creditor was, therefore, of their Acts of 1864 and 1870. The Vice Chan. stated in the “ Notes of the Week,” LAW TIMES an act of bankruptcy under the new Act as cellor expressed a strong opinion that the com- of Jan. 20, p. 212 The petitioner appealed from hitherto. Then it had been argued that if it was pany had no such power, and granted an injunc- the Vice-Chancellor's decision. an act of bankruptcy in the case of a trader, it tion till the hearing of the cause. From this Karslake, Q.C., and W. W. Karslake, for the was not so in the case of a non-trader. In his order the company appealed.
appellant. Lordship's opinion there was no distinction be- Sir Roundell Palmer, Q.C., Kay, Q.C., and Greene, Q.C., and Brooksbank, for the com. tween traders and non-traders as to this parti. Smart, for the appellants.
pany. cular act of bankruptcy. The order of the Chief The Solicitor-General (Sir G. Jessel, Q.C.), Hume Williams (of the Common Law Bar) for Judge must therefore be reversed.
Amphlett, Q.C., and Pontifex, for the respondents, other parties. Lord Justice JAMES was of the same opinion. contended that in a matter of such importance as Lord Justice JAMES said that there was no need
Solicitors for the appellant, Lawrarice, Plews, this, which could only be properly and conclusively of putting in motion the expensive machinery of and Boyer, for Osborne, Ross.
determined at the hearing, the company should a compulsory winding-up to distribute the assets Solicitors for the respondent, Courtenay and not be allowed in the mean time to carry on such of this small concorn, which had no debts. The Croome, for William Hebb, Ross.
destructive operations as they would be at liberty petitioner had been too precipitate in presenting to do if the injunction were removed.
his petition, and the Vice-Chancellor's order must
Lord Justice MELLISH concurred.
the Vice-Chancellor had already decided the case Appeal accordingly dismissed with costs. Practice-- Production of documents-Entries of hearing in the first instance. The relators to give on its merits, their Lordships would take the Solicitor for the appellants, Pulbrook.
Solioitors for the respondents, Jacobs, North, private accounts in partnership books. This was an appeal motion from an order of
an undertaking as to damages, and to bring on the and Vincent. Malins, V.C. The bill alleged that the plaintiff hearing with all reasonable speed. The costs of
Jan, 30 and Feb. 19. was interested in a contract made with the de. this appeal to await the result of the hearing. fendant for the supply of saddlery to the French
Solicitor for the appellants, W. H. Shaw.
HARDY V. THE METROPOLITAN LAND AND Governmer t during the late war. By his answer Solicitor for the respondents, A. J. Baylis.
FINANCE COMPANY (LIMITED).
Breach of trust by directors-Suit to recover moneys the defendant stated that he was in partnership with his father, and that the accounts relating to
improperly applied – Money demand - Juris.
diction. the contract in question were entered into the
Saturday, Feb. 17.
This was an appeal from a decision of the Master partnership books, although the defendant was
Re THE IMPERIAL ANGLO-GERMAN BANK. of the Rolls. The suit was one by the trustees of solely interested in the contract, and it was not a
the London Benefit Building Society, who were partnership transaction. The defendant having Inchoate foreign company--Association of more declined to produce the partnership books on the
authorised by the society's rules to sue on its
than seven members-Winding-up-Companies ground that his father refused to allow them to
Act 1862, s. 199.
behalf, to recover from the defendant company
a sum of £375. The society was formed under be produced, a summons was taken out by the This was appeal petition from an order made by the 6 & 7 Will. 4, c. 32. The directors of the plaintiff to compel production, and an order to Malins, V.C., for the compulsory winding.up of society permitted their manager, Joseph Dutton, that effect was made in Chambers, the defendant the above company. In April 1871, a prospectus who was also manager of the defendant company, to be at liberty to seal up the parts of the books was published of a company to be called the to deposit large sums of money belonging to the relating to the partnership. The Vice-Chancellor Imperial Anglo-German Bank, the head office to society with the defendant company, and the bill having confirmed this order, the defendant ap. be in Berlin, with a branch in London. The alleged that the society and its officers had no pealed.
names of the secretary and of twelve directors, power to make such deposits, and that the deGlasse, Q.C. and W. Pearson, for the appellant. seven of whom were resident in England, were Cotton, Q.C. and Harrison, for the respondent. published. The prospectus stated that by the for the sum of £375, being the balance due to the
fendant company had notice of this. A cheque Lord Justice JAMES said that it was quite provisions of the German law under which the society, was on 23rd March 1869, drawn on behalf settled that an order could not be made for pro- company was to be incorporated, applicants for of the company, and handed to Dutton, who misdnction of documents belonging to a partnership shares could not be made liable before the incor. applied it, and never paid it to the society. The where one of the partners was not a party to the poration of the company, and that their money Master of the Rolls dismissed the bill on the suit, and the matter in dispute was not a partner. therefore must be returned in full if the underground that the claim was a mere money demand, ship matter. The consequences of departing taking were not proceeded with. It further stated and that the plaintiffs' remedy was therefore at from this settled rule of the court would be very that one-half of the capital had already been law. From this decision the plaintiffs appealed. serious. The defendant might be ordered to pro subscribed in Germany, and 10 per cent. paid
Southgate, Q.C. and Davey for the appellants. duce copies of the entries in question, but the thereon, and invited subscriptions for the other
Swanston, Q.C. and Cookson for the respondents. order of the Vice-Chancellor must be discharged. half of the capital. Henry De Lacy O'Brien was
Lord Justice JAMES said that the payment to Lord Justice MELLISH concurred.
the promoter of the scheme. This other half of Dutton did not discharge the defendant company, Solicitor for the appellant, Mark Shephard. the capital was subscribed in London, and the Solicitors for the respondent, Harrison, Beale, shares were allotted; but it having been discovered money was trust money placed by an improper
as it never reached the hands of the society. The and Harrison.
subsequently that the first half of the capital had act in the hands of the defendant company, and it not in fact, been subscribed in Germany, the com
was still in their hands; and having been impropany was never incorporated. The promoters perly placed there by trustees, it was competent Re THE EAST OF ENGLAND BANK; Ex parte took a temporary office in London, where on the for the cestuis que trust to file a bill to obtain TILLETT.
20th May the secretary, in the presence of O'Brien, Company - Winding-up — Contributory- Compro- gave a large order
for advertisements to come payment of the money. There must, therefore, be
a decree for payment of £375 with interest at mise--Liquidator-Companies' Act 1862, s. 160 Roberts, an advertising agent, and also an allottee 4 per cent., and the defendants must pay the costs Rule 49.
of shares. Roberts entered the company as his in the court below. "This was an appeal motion from an order of debtor in his books, and alleged that he had exe
Lord Justice MELLISH was of the same opinion. Malins, V.C. The above company was in volun- cuted the order on the credit of the names of the
Solicitors for the appellants, Willoughby and tary liquidation under the supervision of the directors, but he had sent in a bill for the adver
Cox. court. Some of the leading shareholders had paid tisements to O'Brien. On a petition by Roberts
Solicitors for the respondents, Digby, Sharpe. all the debts of the company, and were now seek and two other creditors, Malins, V.C., held that
and Large. ing to enforce contributions from the other con- the court had power under the 199th section of the tributories. A Miss Pearson, who held certain companies Act 1862, to wind-up the company, and
POLLS COURT. shares in the company, and 'who was entitled to accordingly made an order for a compulsory
Feb. 17 and 19. an annuity of £100, offered to pay the liquidator winding-up: (See 25. L. T. Rep. N. S. 895.) From £50 in discharge of her liabilities in respect of this order the provisional directors appealed.
Re STOKES's TRUSTS. her shares. This offer being refused, she moved Cotton, Q.C. and Higgins, Q.C., for the appel. Trustee Act 1850-Appointment of two original that the liquidator might be ordered to accept the lants.
trustees in place of three trustees. £50 in discharge of her liabilities. The Vice
Glasse, Q.C. and A. T. Watson, for the peti. Mr. STOKES, by his will, appointed three trustees, Chancellor made an order to that effect, and from tioners.
with power to increase or reduce the number. In that order the liquidator appealed. Glasse, Q. C. and Cozens Hardy, for the ap- for other parties. Pearson, Q.C. Robinson, Jencken, and Bradford, Jan. last one of the trustees, being desirous of retir.
ing from the trust, a new trustee was appointed in pellant. Babington, for the respondent.
Lord Justice JAMES was of opinion that the Vice his place, but no transfer of the trust property
was made to him. Since such appointment, another Lord Justice JAMES said that he could not Chancellor's order could not be sustained. The
of the trustees wishing to be discharged, and it assent to the view taken by the Vice-Chancellor. company which was sought to be wound-up was The court had no more jurisdiction to compel a the ground. But it was said that certain persons the two trustees who were willing to continue never incorporated; the whole scheme had fallen to being difficult to obtain anyone to act in his stead,
a petition was presented to the court, asking that liquidator to accept a som less than the amount had for certain purposes the name of the com. dne from a contributory than it had to order one of two ordinary litigants to assent to a compro
pany in England; and it was contended that they might be appointed under the Trustee Act in place were an association of seven persons carrying on
of the three trustees, and that the property might mise. The Vice-Chancellor's order must therefore business, and
were therefore liable to be wound be vested in them. be discharged. Lord Justice MELLISH was of the same opinion. 1862. That, however, was not the association
C. Hall in support of the petition. up under the 199th section of the Companies' Act
Lord ROMILLY made the order. Solicitors for the appellant, Sharpe, Parkers which the petitioner sought to wind-up, and the
Solicitors, M. and F. Davidson.
petition ought therefore to have been dismissed
V. C. MALINS' COURT.
Friday Feb. 16.
Re REASTON'S ESTATE.
Practice-8 Vict. c. 18, s. 78% Payment of diri. Practice--Injunction till hearing-Appeal--Merits Solicitors for the petitioners, Linklaters, Hack. dends ordered to trustees-Payment of corpus decided by court below on interlocutory appli- | wood, and Addison.
out of court refused. Solicitors for other parties, Rooks, Kenrick, Willian REASTON by his will, dated 24th March, *This was an appeal motion from an order of 'and Harston.;
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, The question was whether the evidence so tendered after his death on trust for sale, the proceeds to although the point was a novel one, he saw no to the bank was sufficient. be divided among Benjamin's children as and reason why an executor could not mortgage to a Hardy, Q.C. and E. C. Willis, for the motion, when they should attain twenty-four, with main building society. He was of opinion that the contended that all that was necessary was reason. tenance and advancement clauses. During Ben. mortgage was a valid one, so far as it was a secu. able evidence. The evidence tendered was such jamin's life, the North-Eastern Railway Company rity for the advances actually made to the executor, as any court-or at all events the Court of Chan. took part of the real estate comprised in the but that the clauses purporting to secure thé cery-would accept as proof of death in proceeddevise, and paid the purchase money, amounting society his subscriptions as member were inope. ings before it. to £590, into court. Benjamin died in 1871, leaving rative. The vendors were entitled a decree for Cotton, Q.C. and Kekerich, for the six children, of whom four had attained twenty. specific performance, but he should make no order not called upon. four, and two were infants. Shortly after Ben. as to costs.
The VICE-CHANCELLOR said that this court jamin's death the trustees sold the rest of the Solicitors for the vendors, Shaen, Roscoe, and had no doubt sometimes, for the sake of con. property, and paid their distributive shares Massey.
venience, dispensed with evidence that might (amounting to £727 a piece) to the four eldest Solicitors for the purchaser, H. F. and E. Chester. strictly be adduced before it. It did so in the children. Apetition was now presented, praying
exercise of a reasonable discretion reposed in the that the fund in court might be transferred to the
court. But the evidence of this court, as of all trustees to be applied by them upon the trusts of
V.C. WICKENS' COURT.
courts, was more or less conventional, so much so the will, or that the fund might be carried over in
Feb. 9, 16, and 17.
that in some instances this court did not require moieties to the separate accounts of the infants,
even the best evidence it could obtain. The posi. and that the dividends might be paid to the
BAILE v. BAILE.
tion of the bank was, to some extent analagous in trustees.
Solicitor and client-Costs of suit-Property pre: these matters, and how could this court say it was Wiglesworth, in support of the petition.
served— Attorneys' and Solicitors' Acto (23 f. 24 wrong or unreasonable on the part of such a body, G. Williamson for the railway company.
Vict. c. 127), s. 28.
to dec'ine accepting evidence which (possibly) The VICE-CHANCELLOR declined to order the This was a petition, in the above cause, presented this court might consider in some cases suf. fund to be transferred to the trustees, and ordered under the Attorneys' and Solicitors' Act, by the ficient? The bank had a discretion to exercise ; it to be carried over in moieties to the separate widow and executrix of a gentleman who had they had exercised it here. It was indeed accounts of the infants, the dividends to be paid been the solictior for the next friend of the impossible for the court to say that the to the trustees for maintenance.
infant plaintiff in the suit, praying for an order back was wrong in objecting to the evidence Solicitors : Ridslale, Craddock and Ridsdale; charging the plaintiff's real estate preserved sent to them, or in requiring more, unless it held Williamson, Hill and Co.
by the suit, with the solicitor's costs. The last that the Court of Chancery showed the perfection order in the suit which was procured by the of reason in its practice. With every respect for
solicitor was in 1864. He died in 1866. The its procedure, he could not say that; and the Re BRISCOE'S TRUSTS.
infant plaintiff attained his majority in 1867 ; in motion must therefore be refused. Charitable gift-Insufficient description-Latent 1868 he obtained an order to discharge a receiver,
Solicitors, H. G. Nisbet, Rooke and Dar ; Freshambiguity- Parol evidence.
who had been appointed in the cause, and in 1872 fields. Testator bequeathed £1000 to the “ Victoria another order to change his solicitor. The princi. Hospital.”. It appeared that there was no hospital pal questions were, whether the suit was originally
COURT OF PROBATE. which strictly answered this description ; and for the benefit of the plaintiff ; whether the solici.
Tuesday, Feb. 13. the legacy was claimed by two hospitals, the tor had been legally employed by him, or on his
(Before Lord PENZANCE.) City of London Hospital for Diseases of the behalf; and whether he had adopted the suit Chest, which was situate at Victoria Park; and after his majority.
In the Goods of PUNCHARD. the Victoria Hospital for sick Children, which
Lindley, Q.C. and Freeling for the petitioner. Will-No executors named - Trustee - Executor was situate in Chelsea. The executors paid the Greene, Q.C. and Murray Browne, and Oshorne
according to the tenor. money into court, and a petition was presented on Morgan, Q.C. and Balcock, for the respondents. Wm. PUNCHAED, late of 7, Rbeidol-terrace, of St. behalf of the City of London Hospital to have it
The Vice-CHANCELLOR decided that the suit Mary, Islington, in the county of Middlesex, died paid out to them. It appeared that the testator
was originally instituted for the benefit of the Jan. 16, 1872, leaving, duly executed, a will, dated had given donations to this hospitol, that he was plaintiff; that the petitioner's husband was legally Aug. 19, 1871. It devised certain legacies, and a life governor, and that he had taken great in- employed by the next friend on the plaintiff's appointed no executor ; but contained these words terest in its welfare. It was stated that it was
behalf, and that the plaintiff had adopted the suit “I wish P. A. Collins to act as trustee to the sometimes called the Victoria Hospital, and was
after attaining his majority. The petitioner was, estate.” known as such to the testator. On the other hand, therefore, entitled to the order asked.
Searle moved for a grant of probate to Mr. it was alleged on behalf of the Victoria Hospital for
Solicitors : Dobinson and Geare ; Vizard, Crow. Collins as executor according to the tenor, and Sick Children, that the words for sick children" die, and Anstie.
cited In the Goods of Montgomery, 5 N. of C. 9; did not form any part of its name; that this
In the Goods of Collette, Dr. Deane's Ecc. Rep. was the only hospital really known as the Victoria
Saturday, Feb. 17.
484 ; In the Goods of Baylis, L. Rep. 1 P. & M. 21 Hospital, and that letters so directed were always
ATTORNEY GENERAL 7. AKERS.
The COURT held that as there were no duties forwarded by the Post-office authorities to the Husband and wife-Declaration of forfeiture, committed to the trustee he could not be regarded hospital in Chelsea. It was contended, therefore, 4 Geo. 4, c. 76, and 19 f. 20 Vict. c. 119.
as an executer according to the tenor. that inasmuch as thero was one charity only This suit was instituted at the relation of the
Cur, adı, vult. which completely answered the description in the Attorney-General, by the guardian of a young
Attornoy C. J. Rushworth. will, parol evidence was not admissiblo to explain lady, aged sixteen, and possessed of considerable the gift.
property. In 1871 the lady married a footman, Cotton, Q.C. and Romer for the petitioner repre. who, on the occasion of the marriage, swore falsely
Monday, Feó. 19. senting the City of London Hospital for Diseases that the lady was of full age, and had her mother's
HOBSON 2. NicHOLSON. of the Chest. consent to the marriage, and also untruly to other This was a testamentary suit tried at Leeds, at
Will-New trial-Special jury. Pearson, Q.C. and A. E. Miller, Q.C. for the necessary particulars. The object of the suit Victoria Hospital for Sick Children.
was to obtain a declaration, under 4 Geo. 4, 6.76, the last assizes, by a common jury, and a new Speed for the executors. Hemming for the Attorney General.
and 19 & 20 Vict. c. 119, that the husband had trial had been granted to be had in this court. forfeited all right to his wife's property by reason
Inderrick now moved that the case be tried by The VICE-CHANCELLOR said that if the testator of his misconduct, and for a proper settlement
a special jury. had used the words, “ The Victoria Hospital for of it on her.
Tristram objected. The last trial was before a Sick Children,” there would have been no doubt, Horsey appeared for the relator in the suit.
common jury, and this ought to be also before a and parol evidence would have been excluded; Hemming for the Attorney. General.
common jury. but the actual words might refer to either of these
W. Hemings for the husband and wife.
The Court made the order as prayed. two hospitals. It was therefore necessary to The VICE-CHANCELLOR made the order asked,
Tuesday, Feb. 20. been interested in the hospital represented by the
In the Goods of BUCHANAN. petitioners, while he was almost a total stranger
Will-Erecutors dead or absent-Grant to creditor to that represented by the respondents. There
Tuesday, Feb. 20.
to institute Chancery proceedings. could be no doubt that the testator intended the
PROSSER v. THE BANK OF ENGLAND.
G. BUCHANAN died 20th July 1858, having duly legacy for the former. The petitioner was therefore entitled to the money.
Practice-Bank of England.—Evidence of death, executed a will of which John Buchanan and G. Solicitors : Fox and Robinson ; Raren and
Lambert were appointed executors and proved the Bradley. This was a motion in the above suit to restrain and John Buchanan left England 10th Nov. 1858,
will. G. Lambert died intestate in March 1871, the Bank of England from “permitting the name Feb. 13 and 14.
of Catherine Prosser to remain in their books and an affidavit was made that it was not likely CRUIKSHANK Y. DUFFIN.
without the usnal memorandum of death marked that he would ever return.
Dr. Deane moved for a grant of administration
The Court.-The court can only make you An executor took shares in, and became a mem. month. At the time of her death a sum of a limited grant. There is no sum specifically ber of, a building society, to obtain advances for £2960 158. 9d. New Three percent. Bank coming to you. You may take a grant to inthe purposes of his executorship, and mortgaged Annuities, was standing in her name, and in
stitute proceedings in Chancery. certain leoseholds belonging to his testator to the the names of the two plaintiffs, jointly, in the
Attorney, Sand. society, to secure the advances and his subscrip. books of the bank. The burial was duly entered tions on the shares. The society sold the lease in the parish register. An extract from the entry, COURT FOR DIVORCE AND MATRIMONIAL holds under the power of sale in the mortgage, together with a statutory declaration as to the
CAUSES. but the purchaser raised the objection that the identity of Catherine Prosser, was procured mortgage was invalid, and declined to complete by the plaintiffs (who wished to deal with
Tuesday, Feb. 20. his purchase, whereupon the society filed the pre- the fund), and forwarded by them to the bank.
(Before Lord PENZANCE, J.O.) sent bill for specific performance. The object was to enable the bank to affix to the
MALCOMSON V. GIVINS. Cotton, Q.C., and P. Smith Osler for the society. name of Catherine Prosser in their books the Divorce Act, sest. 23-Assessing damages. Glasse, Q.C., and Lindley, Q.C. for the pur: memorandum of her death. That, however, the In this case the petitioner
had instituted a suit in chager.
bank refused to do, on the ground that the statu. the Ecclesiastical Court of Ireland for a divorce The Vice-CHANCELLOR said that it was now tory declaration did not state that the extract had a mensa et thoro, and intended to introduce a bill settled that an executor had power to mortgage been compared with the original register for the into the House of Lords for the dissolution of his his testator's assets for the purposes of the exe. 'parish where Catherine Prosser was interred." marriage. With this view he had presented a