Not for public benefit.

AGREEMENT.

(See Company-Railway-Parol Agreement-Practice: Equity.)
AGREEMENT FOR LEASE

Lease of wife's freehold-Specific performance-Statute of
Frauds-Part performance-County Court appeal.-W.
was lessee in possession of freehold premises belonging
to E.'s wife for a term of ten years. On the expiration
of the term, W., who continued in possession, verbally
agreed with E.'s wife for a new lease for thirty years.
W. then verbally agreed to grant to L. an underlease of
L. entered and
the new term at an increased rent.
expended money on improvements; the improvements
consisted of a wooden stable, boiler, and gas and water
pipes, all of which were moveable. E., having refused
to grant the lease to W., W. filed a plaint against E.
alone in the County Court for specific performance of his
agreement with E.'s wife: Held, on appeal, that the
expenditure by L. was not such as would have been made
by a mere tenant from year to year; and that it must
be considered as made by W., or by his authority, and
that W. was entitled to a decree for specific perform-
ance. Observation on Frame v. Dawson (14 Ves. 386).
The objection that E.'s wife was not made a party to
the plaint was not taken in the court below, and the
only question submitted by the County Court Judge for
the opinion of the appeal court was whether the expen-
diture by L. entitled W. to specific performance: Held,
that the point not submitted by the County Court Judge
...Page 359
could not be argued on appeal

(See Mines.)

AGREEMENT TO PAY.
Failure of consideration-Application to set aside agree-
ment-Breaking ground.-The S. Company having ob-
tained power to make the C. railway from Y. to W.,
transfers the powers to the B. Company, which is at the
same time authorised to run through and use the station
W. of the S. Company, so as to have free communication
with the E. S. R. The consideration to be paid for these
rights was fixed at £400 per annum. This agreement to
pay was to take effect from the time that the B. Company
should begin to break ground within six feet of any of the
sidings in the W. yard. Ground was broken in 1870:
Held, that the words "to break the ground" mean" to
commence work," and do not include preparations for
the execution of work. Held, further, that inasmuch as
the payment of the rent was made to depend upon the
happening of a certain event, there was no room to
modify the agreement to pay by a reference to con-
siderations upon which payment was not dependent

AGREEMENT TO REPAIR.

(See Landlord and Tenant.)

AMENDMENT.

(See Practice: Common Law.)

ANCIENT LIGHTS.

Alteration of easement-Damages-Relief in equity.-
Bill filed to restrain the defendant from building so as
to interfere with the access of light to the plaintiff's
dwelling. The defendant intended to erect on an ad-
joining piece of land a building 36ft. high, within 5t.
of the plaintiff's messuage. The alleged ancient lights
were eight windows, some of which were on the ground
floor, and the remainder on the first floor, and it appeared
that in 1846 the windows in question had been enlarged:
Held (affirming the decision of the Master of the Rolls),
that the right of an owner of ancient lights to protection
is not affected by the circumstance that he has altered or
enlarged his ancient windows, or opened new ones near
them. The Prescription Act has not taken away any of
the modes of acquiring easements which existed before
the statute was passed; and where the evidence is clear
of a right to the light from time immemorial, that right
Wherever an action
is not taken away by the statute.
can be maintained at law, and really substantial damages
can be recovered, an injunction will generally be granted
in equity
Mandatory injunction-Damages.-The Court of Chancery
will not, in general, grant a mandatory injunction to pull
down buildings alleged to obstruct ancient lights if the
defendant has completed such buildings before the bill is
filed. But if the plaintiff's premises appear to have been
rendered substantially less enjoyable or comfortable, the
court will grant an inquiry as to damages, though such
relief was not asked for by the bill

ANNUAL VALUE.
(See Water-rate.)

APPRENTICE.

...

Power of master to discharge for misconduct.-By an ap-
prenticeship agreement the defendant took the plaintiff's
son as an apprentice for three years, to learn the business
of a tea broker, and in consideration of the sum of 2001.

338

345

248

he agreed to teach the son such business by the best
means in his power, and further agreed to pay him a
salary each year; provided always that he obeyed all
commands, and gave his services entirely to the business
during office hours. The defendant pleaded to an action
for not teaching the apprentice, and for dismissing and
refusing to retain him, that the apprentice misconducted
himself by disobeying the defendant's lawful orders, by
neglecting his duties, and absenting himself from the
service, wherefore the defendant discharged him. Held,
on demurrer, that this plea was good

Motion to set aside award-Informality.-A reference to
arbitration under the Lands Clauses Consolidation Act
1845 is not a reference by consent within the meaning of
the 17th section of the Common Law Procedure Act 1854.
Where the amount of compensation for lands alleged to
be injuriously affected was referred to arbitration under
the 68th section of the Lands Clauses Consolidation Act
1845, and the umpire ascertained the amount, and awarded
that the company "do pay" that sum: Held, that the
latter part of the award was merely an error in form, and
must be read as though it contained the additional words,
"assuming the company is liable to pay," it not being
within the jurisdiction of the umpire to decide the ques-
tion of liability; and that the omission to set out such
words did not make the award bad

Poor rate-Reference to arbitration-Refusal to abide by
award-Replevin bond.-An assesssment committee made
a poor rate upon the plaintiff's property in excess of the
amount which the plaintiffs considered to be the rateable
value. The plaintiffs gave notice of appeal. Both parties
then agreed to refer the matter to arbitration, and to be
bound by the decision of the umpire. The umpire did
not make his award for three years, during which time
the plaintiffs were compulsorily obliged to pay the poor
rate. The umpire made his award and declared that the
plaintiffs were overrated and that the defendants should
repay to them the sums in excess which they had been
obliged to pay under compulsion. The defendants re-
fused to consider the award as valid, and when the next
rate was made distrained upon the plaintiff company
under a magistrate's warrant. The company replevied,
and afterwards moved that the replevin bond might be
delivered up. Held, that the proceedings of the de-
fendants were against good faith, they having agreed to
be bound by the award, and that the replevin bond
might be given up at the plaintiff's instance. London
and North Western Railway v. Bedford (17 Q. B. 978),
followed.
Referring back award-Admission by arbitrator of mistake.
-The general rule that the court has power to send back
an award to an arbitrator for reconsideration only in
case of fraud or corruption, and where an error appears
necessarily on the face of the award, is subject to the
further exception upheld in Flynn v. Robertson (L. Rep.
4 C. P. 324), viz., where there is a mistake admitted
It is
by the parties and by the arbitrator himself.
not, however, enough to bring a case within this last
exception, that the arbitrator should have admitted
the grounds of his decision, and that those grounds
should be manifestly erroneous. It is only where the
arbitrator himself comes to crave the assistance of the
court to enable him to rectify his own mistake, that the
court has power to send back the award to him for that
purpose

Temporary assignment of service-Return to original
master.-During the period of service for which the
applicant was duly articled, he and his service were
assigned for fifteen months to another attorney, and at
the end of that period he returned to his original service
under his articles. He faithfully performed his duties
under both masters. Held, upon application to reckon
the service under the assignment as part of the period re-
quired by the statute for qualification as attorney, that
this case did not fall within the exceptions in sect. 13 of
6 & 7 Vict. c. 73; and that these fifteen months could not
451
be counted in the employment required by sect. 12
Unstamped articles, service under-6 & 7 Vict. c. 73, ss.
8, 9-Under what circumstances allowed service to count
from date of execution...
... 33, 560, 568, 728, 729

ASSIGNMENT.

Life policy-Bankruptcy of assured-Sufficiency of notice
of assignment of policy.-The notice of the assignment
of a policy of life insurance given to the insurance office
so as to take the policy out of the order and disposition
of the assured in the event of his subsequent bankruptcy
need not, previous to the statute 30 & 31 Vict. c. 144, be
in writing, and need not be formal in the sense of being
given in the course of a transaction upon the insurance
itself; there must, however, be such an amount of for-

Lien-Fruit of judgment-Garnishes order-23 & 24 Vict.
c. 127, s. 28-Common Law Procedure Act 1854, s. 61.-An
ex parte garnishee order under s. 61 of the Common Law
Procedure Act 1854, does not override an attorney's
particular lien upon a judgment debt under 23 & 24 Vict.
c. 127, s. 28. P., having obtained an award in his favour
in an action against M., to the effect that M. should pay
him certain sums of money, the attorney of P. in the
action obtained an order for his costs under 23 & 24 Vict.
c. 127, s. 28, upon these sums. Three days afterwards B.,
who had recovered judgment against P., obtained an e
parte garnishee order binding the same sums in the hands
of M. Held, that the claim of P.'s attorney was to be
preferred to the claim of B., and a rule calling on the
garnishee to pay the debt to B, and to rescind an order of
Brett, J. in favour of P.'s attorney refused...

AWARD.

(See Arbitration.)

BANKERS.

...

495

802

432

Appeal-Time for-Computation of-Practice-Sundays.-
The twenty-one days within which an appeal must be
entered under r. 143 of the Bankruptcy Rules 1870, must
be reckoned exclusive of Sundays
Act of bankruptcy-Assignment of all property-Bond-fide
present advance. An assignment of a person's whole pro-
perty for a bond fide present advance is not an act of bank-
ruptcy, though exorbitant interest is charged and strin-
gent conditions imposed. E. by deed assigned all his
farming stock, &c.. to defendant to secure payment of
£175 by instalments at two and three months. Only £135
was advanced; afterwards £85 more was advanced, and a
receipt for £100 payable in one month endorsed on the
deed. The deed contained, among other stringent condi-
tions, a power to seize and sell after acquired property,
and a clause prohibiting E. from selling any of the stock,
&c. Defendant sold under the deed and the property
realised £608. Held, that the assignment was not an act
of bankruptcy, and that E.'s trustee in bankruptcy could
not recover in trover, but could recover the overcharges
on the sale as money received
. 717
-Trader-Levy over 501.-Notice of-Second levy
over 501. at suit of same creditor-Adjudication-The
Bankruptcy Act 1869, ss. 87, 95.-A creditor who himself
does the very thing which by force of the statute con-
stitutes an act of bankruptcy on the part of his trader
debtor, must be regarded as having notice of that act of
bankruptcy. Consequently, if the act of bankruptcy be
an execution levied by seizure and sale for more than 50%.,
and the same creditor afterwards levies a second execu-
Sion for more than 501., the creditor cannot retain the
proceeds of the second levy as against the trustee in
bankruptcy even though the sheriff may have, after the
fourteen days have expired, and without notice of any
proceedings in bankruptcy, paid over the proceeds of the
second levy to such creditor

Bankruptcy and liquidation proceedings pending together-
Adjudication-Stay of proceedings-Discretion of court
-Bankruptcy Act 1869 (32 & 33 Vict. c. 71), s. 80, sub-s. 10
-Bankruptcy Rules 1870, Rule 266.-When a debtor
against whom a bankruptcy petition has been presented
files a liquidation petition before the hearing of the bank-
ruptcy petition, the court has a discretion either to post-

103

pone the adjudication till after the meeting of the
creditors under the liquidation petition, or to make an
adjudication and suspend the proceedings under it till
after the meeting of the creditors, or to make a simple
adjudication. The last course ought to be adopted where
it appears that the liquidation petition is not a bond fide
one...

...

...page 313

Bankrupt permitted (by trustee) to trade for benefit of
creditors-Purchase of furniture with proceeds-Execu-
tion upon furniture by judgment creditor-Claim of fur-
niture by trustee-Interpleader-Recognition of equit-
able rights in.-If a trustee in bankruptcy allow a bank.
rupt to trade for the benefit of the creditors, the rights
of an execution creditor in respect of a debt contracted
after and without notice of the bankruptcy will be pre-
ferred to the rights of the trustee in bankruptcy.
Although such rights are purely equitable, a court of law
will recognise them upon an interpleader issue. An
advertising agent became bankrupt in 1870, and after-
wards the plaintiff was appointed trustee. The bankrupt,
not having yet obtained his discharge, was allowed to
carry on his trade for the benefit of his creditors, and in
the course of such trade contracted a debt, in respect of
which the defendant, who had no notice of the bank-
ruptcy when he gave credit, obtained judgment, and
issued execution against him, in pursuance of which the
sheriff levied upon his furniture. Possession of the
house in which the furniture was had been yielded up T.
an agent of the trustee a few days before the sheriff
entered, but the bankrupt, who had bought the furniture
with the proceeds of the permitted trading, had not dis.
closed his ownership of it to the trustee until about a
fortnight before that time. Held on an interpleader issue
that the rights of the execution creditor ought to be pre-
ferred to the right of the trustee in bankruptcy, and a rule
to set aside a verdict for the trustee in bankruptcy made
absolute. Held also (dubitante Duman, J.), that a court
of law may, in interpleader, notice equitable rights... 831
Billholders - Shipbuilding contract- Builder's lien-
Insolvency of contractor and contractee.-A. agreed
to build for B. an iron steamship for 76001. The money
was to be paid by instalments as the building of the ship
progressed, partly in cash and partly by bills, and from
the time of paying the first instalment the ship was to
be the property of B. to the extent of his payments on
account, subject to A.'s lien for any unpaid instalments.
B. gave his acceptances from time to time to the amount
of 27001., to A., who discounted them with his bankers in
the ordinary course. Before the ship was completed, A.
and B. both became insolvent; the bills were conse-
quently dishonoured at maturity. The creditors of B.
accepted a composition, and their resolution was duly
registered. B. subsequently abandoned the contract,
and the trustee under A.'s bankruptcy finished the ship.
The bankers, the holders of the bills, then claimed to
stand in B.'s place, and to be entitled to a lien upon the
ship for the moneys they had advanced on the bills:
Held, on appeal, that the doctrine of Ex parte Waring
(19 Ves. 345) did not apply, and that the bankers were
not entitled to the lien claimed by them

Rights of-Doctrine of Ex parte Waring-Shipbuild-
ing contract - Vendor's lien for unpaid purchase-
money-Double insolvency. A. contracted to build an
iron steamship for B. for 76001. The money was to
be paid by instalments at specified periods, as the
building of the ship progressed, partly in cash and
partly in bills, and from the time of paying the first
instalment the ship was to be the property of B.,
to the extent of his advances, subject to A.'s lien for
any unpaid instalments. B. gave his acceptances from
time to time to the amount of 27001. to A., who dis-
counted them with his bankers in the ordinary course.
Before the ship was completed, A. and B. both became
insolvent, and the bills were consequently dishonoured at
maturity. B.'s creditors resolved to accept a com-
position, and their resolution was duly registered. B.
subsequently abandoned the contract, and the trustee
under A.'s bankruptcy finished the ship. The bankers,
the holders of the bills, which were expressed to be
drawn "for value received in iron screw steamer now
building," claimed to stand in B.'s place, and to be entitled
to a lien upon the ship for the moneys they had advanced
on the bills: Held (affirming the decision of the Chief
Judge in Bankruptcy), that the doctrine of Ex parte
Waring (19 Ves. 345) did not apply, and that the bill
holders were not entitled to the lien claimed by them 330
Bill of sale-Mortgage by means of
Composition-Trustee appointed for receipt and distribution
of composition-Balance in trustee's hands-Jurisdiction
to take account as between trustee and debtor-Rights of
creditors not bound by composition-Bankruptcy Act
1869 (32 & 33 Vict. c. 71), ss. 72, 126-Bankruptcy rules
1870, rule 279.-Where a trustee has been appointed under
the 279th of the Bankruptey Rules 1870, for receipt and
distribution of a composition, and, after all the creditors
have been paid, a balance remains in the trustee's hands,
the Court of Bankruptcy has jurisdiction to take an
account as between the trustee and the debtor in order
to ascertain the amount of the surplus, and to order the
surplus so ascertained to be paid over by the trustee to
the debtor. A creditor whose claim is not mentioned in

First meeting of creditors-Offer of composition rejected
-Resolution not reduced into writing-Subsequent re-
solution to adjourn-Bankruptcy Rules 1870, rule 275.-
In proceedings under the 126th section of the Bankruptcy
Act 1869, when once a proposal to accept a composition
has been put to the vote and rejected, the meeting of the
creditors is at an end, and a subsequent resolution to
adjourn the meeting is invalid. The provision of the
275th Rule, that only such resolutions as are reduced
into writing and are signed by or on behalf of the statu
tory majority of the creditors assembled at a meeting
shall be taken cognisance of by the court," only applies
te resolutions in favour of liquidation or of a composi-
tion, and does not preclude the court from taking cog-
nisance of the rejection of a resolution which has not
been reduced into writing

...

Bill of exchange-Drawer's name inserted in debtor's
statement Rights of holder of bill. A trader,
who had accepted two bills of exchange, filed a petition
for liquidation by arrangement, and in his statement
inserted the drawer as his creditor for the amount of the
bills, without stating that the debt was due on bills of
exchange. The creditors resolved to accept a composition,
and their resolution was confirmed on the 8th Oct. 1874.
The holder of the bills, which had been negotiated with-
out the acceptor's knowledge, received no notice of the
meeting of the creditors, and on the 5th Nov. he com-
menced an action on one of the bills of exchange. Held,
that the holder of the bills was not bound by the composi-
tion, and was entitled to pursue his remedies irrespective
of it; and that the first instalment of the composition
having become payable two months after the action was
commenced, and the debtor having taken no steps to
correct the mistake in the list of his creditors, it was now
too late for him to do so under the 126th section (sub-
sect. 8) of the Bankruptcy Act 1869...
Composition of 3d. in the pound-No available assets.-The
mere fact that there are no available assets for distribu-
tion amongst the creditors does not justify the registrar
in refusing to register resolutions whereby the creditors
accept a very small composition, when the proceedings
have, in all respects, been regular, and there are no dis-
sentient creditors
Contempt-Motion to commit-Notice.-A notice of motion
to commit for a contempt of court must be served three
clear days, exclusive of Sunday, before the day appointed
for the hearing...
Debt-Assignment of-Petition by assignee alone.-An
equitable assignee of a debt can present a bankruptcy
petition against the debtor without making the assignor
a co-petitioner ...
Debtor's summons for larger amount than due-Stay of
proceedings-Default in giving security-Adjudication-
Receiver-Costs.-On an application for an adjudication
of bankruptcy against a debtor who had failed to comply
with a debtor's summons, the registrar made an order
under the 9th section of the Bankruptcy Act 1869 for the
stay of proceedings, on the debtor within seven days
giving security for payment of the amount which should
be recovered in an action of law. Seven days having
elapsed without security being given, the petitioning
creditor renewed his application to the registrar who,
without investigating the debt, which was alleged to be
due on a balance of account, adjudicated the debtor a
bankrupt: Held, that the order of adjudication must be
discharged, and that the registrar ought to have in-
vestigated the accounts to ascertain whether there was
a sufficient debt due before making an order of adjudica-
tion. The matter was accordingly referred back to the
registrar, who of an alleged debt of £517 found only
£246 to be due, and again adjudicated the debtor a
bankrupt. On appeal, the Lords Justices thought that
only £109 was proved to be due: Held that, as the
amount claimed was so greatly in excess of that proved
to be due, the publication of the order of adjudication
should be postponed for a fortnight, and if the £109 were
paid by the debtor during that time all proceedings
should be stayed, and the receiver who had been ap-
pointed must be discharged, and his costs paid by the
petitioning creditor

...

Debtor's summons by several creditors-Petition by one.-
Quare, whether several creditors are at liberty to join in
one debtor's summons; but if they do so they must go on
together in the subsequent proceedings, and cannot
severally present petitions in bankruptcy founded on the
failure of the debtor to comply with the summons ...
Debtor's summons-Creditor resident abroad-Application
to dismiss summons-Right of debtor to examine credi-
tor.-Two merchants who carried on business in partner-
ship in Spain, issued a debtor's summons against a broker
in London in respect of a sum due on a balance of ac-
count, and their London agent made an affidavit in
support of the summons. The debtor disputed the debt,
and gave the creditors notice to attend on the hearing of
bis application to dismiss the summons, for the purpose
of being examined as to the alleged debt: Held (reversing
the decision of one of the registrars) that the debtor

-

had no right to require the personal attendance of the
summoning creditors, as they had made no affidavit on
which they could be cross-examined.
Execution creditor - Injunction-Damages - Action by
creditor against sheriff-Res judicata.-A creditor sued
out execution against his debtor for a debt exceeding £50,
and the sheriff took possession of the debtor's goods.
Before sale of the goods, the debtor filed a liquidation
petition, under which a receiver was appointed, who ob-
tained an injunction staying the execution on giving an
undertaking for damages. The debtor was subsequently
adjudicated bankrupt, and the sheriff gave up the goods
to the trustee in the bankruptcy. In an action by the
execution creditor against the sheriff it was held that the
bankrupt was a trader, and that consequently the trustee
was entitled to the goods. The execution creditor then
applied to the Court of Bankruptcy for an inquiry as to
damages under the undertaking given by the receiver:
Held, that the matter was res judicata by the action at
law, and that the Court of Bankruptcy could not enter-
tain the application...
Infant-Contract-Ratification-Judgment by default.-
Before the Infants' Relief Act 1874, came into operation,
an infant drew a bill of exchange for 501., and endorsed it
to a creditor in payment for jewellery. The Act came into
operation before the bill of exchange matured, and the
creditor, after the infant came of age, brought an action
against him on the bill, and recovered judgment by de-
fault. He then issued a debtor's summons, the proceed-
ings on which were stayed on the debtor undertaking
to pay the debt within three days. Payment not
having been made, the debtor presented a bankruptcy
petition against the debtor: Held, that the 2nd section
of the Infants' Relief Act rendered the ratification (if
there had been any) of the contract void, and that conse-
quently there was no debt to support the bankruptcy
petition
Jurisdiction-Scotch creditor Dividend received by-
Notice of motion-Service out of jurisdiction-Irregu-
larity, waiver of.-When a foreign creditor comes in and
proves his debt under an English bankruptcy, and re-
ceives a dividend in respect of his debt, he thereby
submits to the jurisdiction of the court, and is as much
bound by all the proceedings, and the court has as much
authority over him as though he were resident in Eng-
land. An objection of want of jurisdiction taken by the
respondent at the hearing of a motion, notice of which
had been served upon him out of the jurisdiction, upon
the ground that he was a domiciled Scotchman, having
been overruled by the court, he asked for time to meet
the case upon the merits, which was granted. Held, that
the conduct of the respondent amounted to a waiver of
the irregularity in the service of the notice of motion ... 697
Lease-Disclaimer by trustee-Effect on the rights of sub.
lessee.-A lessee of a house agreed to sublet two rooms
for a part of his term taking a fine, he afterwards became
bankrupt, and his trustee disclaimed the lease. The
landlord commenced an action of ejectment against the
sub lessee. The sub-lessee filed his bill to restrain the
action, and to compel the landlord to grant him a lease
according to the terms of his agreement with the first
lessee. The provisions of the agreement differed from
those of the lease. Held, that the sub-lessee had no
equity to enforce the provisions of the agreement against
the landlord
"Labourer or workman"-Preferential claim for wages-
The Truck Act (1 & 2 Will. 4, c. 37), s. 35-The Mines
Regulation Act 1872 (35 & 36 Vict. c. 76) ss. 17, 18, 19.
-In determining whether a person is a "labourer or
workman" within the meaning of sect. 32 of the Bank-
ruptcy Act 1869, the principles laid down in the authori-
ties decided under the Truck Act are not applicable.
Therefore, a miner who is employed to get ironstone out
of a mine, and for which he is paid by the yard or by the
ton, and who has under him to assist in the work other
men for whose wages he alone is responsible, but who
is bound to conform to the regulations in force at the
mine, by which he is obliged to work himself a stated
number of hours per day, and is subject to be dismissed
at a moment's notice for misconduct, and cannot leave
or absen himself without the consent of the manager,
is a "labourer or workman" within the meaning of the
Bankruptcy Act 1869, s. 32, sub-s. 2...
Liquidation-Composition-Fraudulent preference.-The
plaintiff, one of the largest creditors of a debtor, was
present at the first meeting of creditors, at which it was
resolved to accept a small composition, but did not prove
his debt or assent to the resolution. Prior to the second
meeting the defendant, the brother of the debtor, agreed
with the plaintiff (in effect) to pay him a larger composi-
tion in consideration of his staying away from the second
meeting and not opposing the confirmatory resolution.
-This agreement was not made known to the creditors
present at the second meeting: Held, that the agree-
ment was void, as a fraud upon the other creditors...

Resolution to accept-Registration. - In proceed.
ings under sect. 126 of the Bankruptcy Act 1869, the
court will not take cognizance of any resolution passed
at a meeting of creditors other than such as has been
reduced into writing in accordance with Rule 275 of the
Bankruptcy rules, 1870

...

...page 875

Resolutions for-Alleged partnership-Debtor and
creditor - Insufficient accounts - Evidence- Adjudi-
cation of by court. In cases where resolutions for
liquidation by arrangement have been passed and regis-
tered, and the court is of opinion from the evidence
before it that the liquidation cannot proceed without in-
justice or undue delay to the creditors, it is not necessary
to present a bankruptcy petition to obtain an adjudication
against the debtor, for the court has jurisdiction under
sect. 125, sub-sect. 12, to adjudge the debtor a bankrupt
forthwith
-Debtor not discharged-Second petition after three
years-No notice to creditors under first liquidation.-
More than three years after a liquidation had been closed
the debtor, who had not received his dis charge, filed a
second petition for liquidation. Under the prior liquida-
tion a dividend of less than ten shillings in the pound had
been paid to the creditors. Held, that it was not requisite
to give notice to the creditors under the first liquida.
tion of the proceedings under the second petition
Liquidation, close of-Discharge of debtor-After-acquired
property.-Property acquired by or devolving upon a
liquidating debtor, after he has obtained his discharge,
but before the liquidation had been closed, is not divisible
amongst his creditors under the liquidation 4, 650, 652

(See Bill of Sale.)

Petition-No notice to dispute-Subsequent purchase by
bankrupt-Delivery of goods purchased-Adjudication-
Vendor's right to rescind-Title of trustee.-On the 1st
Dec. 1874, a trader knowingly committed an act of bank-
ruptcy, upon which a bankruptcy petition was filed
against him. It was served on the 3rd. No notice to
dispute was given. On the 5th he bought some wool at
an auction, which was delivered to him without payment
being demanded. On the 14th Dec. he was adjudicated
bankrupt. The vendor becoming aware of the bankruptcy
on the 19th, claimed the return of the wool from the
trustee in bankruptcy upon the ground that the conceal-
ment of the bankruptcy petition by the trader at the time
of the purchase was such a fraud as entitled him to
rescind the contract. Held, on appeal, that the contract
was perfected by delivery of the goods to the bankrupt,
and that the legal title to them being then vested in him,
passed to the trustee upon adjudication. Semble, that
frand in such cases must not be inferred, but is a question
of fact for a jury

No notice of, to debtor -Ex parte adjudication
annulled.-The Bankruptcy Rules 1870, rr. 266, 267, do not
dispense with the usual and proper evidence being ad-
duced in support of the application for adjudication, and
notice thereof to the debtor. An adjudication obtained
under those rules, upon the ex parte application of a credi-
tor, will be annulled

699

102

208

Practice-Defect in debtor's statement-Omission to dis-
tinguish between joint and separate assets and liabilities
-Fresh first meeting-Discretion of court-Bankruptcy
Act 1809, s. 126. Where, at the first meeting of the credi-
tors of a debtor who has filed a petition for liquidation of
his affairs by arrangement, the resolutions passed by the
creditors have been invalid, owing to an involuntary
omission made by the debtor in his statement of affairs,
the court has a discretionary power to order a fresh first
meeting to be summoned, and will make such an order
unless the creditors, on the defect being pointed out,
have, by refusing to adjourn the meeting, shown that
they do not wish the debtor's estate to be wound-up in
liquidation. Where a liquidating debtor has been formerly
in partnership, his statement of affairs must show which
are his joint and which are his separate assets and liabili-
lities, and if the statement produced at the first meeting
of the creditors does not show this, the resolutions passed
at the meeting are invalid, and will not be registered.
Er parte Cockayne, re Cockayne (28 L. T. Rep. N. S. 123;
L. Rep. 16 Eq. 219), approved
... 293
Proof of debt-Proof on behalf of deceased creditor's
estate-Receiver appointed by Court of Chancery-Dis-
pated amount of debt-Adjournment of choice of trustee
-Bankruptcy Rales, 1870, rules 67 and 68-Bankruptcy
Act 1869 (32 & 33 Vict. c. 71), s. 16.-A creditor of a bank-
rupt died intestate, and a suit was instituted for the ad-
ministration of his estate, his administratrix being made
defendant. The Court of Chancery appointed a clerk of
of the plaintiff's solicitor to prove the debt in the bank-
ruptcy and to vote at the meetings of the creditors:
Held, that the person so appointed was in effect a receiver
for this particular asset, and that he was entitled to prove
the debt and to vote for the appointment of a trustee.
The amount claimed was larger than that of all the other
proofs, but it was disputed: Held, that the appointment
of a trustee by the creditors must be adjourned till the
registrar had investigated the claim
Protected transaction-Notice of act of bankruptcy-Non-
compliance with debtor's summons-Bankruptcy Act 1869
(32 & 33 Vict. c. 71), s. 6, sub-sect. 6; s. 95, sub-sect. 1.
The act of bankruptcy defined in the 6th sub-section of
the 6th section of the Bankruptcy Act 1869, is complete
upon the debtor's failure to comply with the summons
during the time limited by the sub-section, and notice of
such an act of bankruptcy is sufficient to take a payment
out of the protection of s. 95, sub-sect. 1 of the Act...

291

316

Purchase of goods after service of petition-Concealment-
Misrepresentation-Delivery of goods purchased-Claim
by vendor to rescind-Trustee's title.-On the 1st Dec.
1874 a trader knowingly committed an act of bankruptcy,
upon which a bankruptcy petition was filed against him.
It was served on the 3rd, and he gave no notice to dispute.
On the 5th he bought some wool at an auction without
disclosing his circumstances, and the wool was delivered
to him without payment being demanded, the auctioneer
being ignorant of his circumstances. On the 14th he was
adjudicated bankrupt. The vendor, becoming aware of
the bankruptcy on the 19th, claimed the return of the
wool from the trustee in the bankruptcy upon the ground
that the concealment of the bankruptcy petition by the
trader at the time of the purchase was such a fraud as en-
titled him to rescind the contract. Held (affirming the
decision of the Chief Judge in Bankruptcy), that the
trader was under no obligation to disclose his circum-
stances: that, as there had been no misrepresentation on
his part, the contract could not be rescinded; that the
contract was perfected by the delivery of the goods to the
trader, and that the legal title to them, being then vested
in him, passed to the trustee upon adjudication... ...page 443
Receiver-Injunction against mortgagee-Undertaking as to
damages-Personal liability of receiver-Bankruptcy Act
1869, s. 72. Where a mortgagee took possession of a
brewery and stock-in-trade under a mortgage (not regis-
tered under the Bills of Sale Act), and on the following
day the mortgagor filed a petition for liquidation under
which a receiver was appointed and ordered to take
possession of the fixtures and stock-in-trade at the
debtor's brewery, and on the joint application of the
mortgagor and the receiver, an injunction was granted
to restrain the creditor from interfering with the assets,
the mortgagor and the receiver undertaking to be
answerable to the creditor for any damages occasioned to
him by the injunction. Held, that the receiver, who had
taken possession of the brewery and carried on the
business at a loss, was the agent of the creditors and not
of the mortgagee, and that he could not charge the
mortgagee with the expense of carrying on the business;
and that he was personally liable to pay the amount of
damages caused by the deterioration of the property;
and that the debtor's liability upon his undertaking was
a liability provable in the liquidation. Subsequently to
the appointment of a trustee in the liquidation the debtor
had, on an application to continue the injunction, re-
newed his undertaking to be answerable for damages:
Held, that he must be discharged from this further under-
taking

288

Possession.-The status of a receiver in bank-
ruptcy is the same as that of a receiver in Chancery, and
no one, however good his title may be, except a landlord
distraining for arrears of rent, has a right to disturb the
possession of a receiver in bankruptcy without the per-
mission of the court. Ex parte Till (L. Rep. 16 Eq. 97),
explained.
508
Receiver and manager-Valuation by-Allowances to-Em-
ployment of debtor by.-The duty of a receiver and
manager, whether appointed by the court, or the cre-
ditors, is to investigate the debtor's affairs and report
thereon at the first meeting of creditors; and, in
passing his account, he will be allowed expenses properly
incurred by him in so doing, and also in managing the
debtor's business, although such expenses may have been
incurred without the previous sanction, or direction of
the court, or of the creditors
644
Secured creditors-Proof by-Policy of assurance-Right
to surplus. Under the liquidation of A. a secured credi-
tor valued his security, a policy of assurance for 12001.
upon the life of A. at 2001., the then surrender value of
the policy, and proved for the balance of his debt for the
purpose of receiving a dividend. The trustee accepted
the valuation and admitted the proof, and the policy,
which the trustee had no intention of redeeming, was re-
tained by the creditor. A. died before the close of the
liquidation, and the assurance company paid to the
creditor the amount secured by the policy, which was in-
sufficient to satisfy all the moneys due to him from A.
Hell, that the trustee under the liquidation was entitled
to the balance of the money recived by the creditor after
deducting the amount at which he had valued his
security, and the premiums paid by him to keep it on
foot
505

Specific appropriation of remittances to cover bills-Insol-
vency of both parties-Rights of acceptor, drawer, and
bill holders.-A merchant in Spain was in the habit of
drawing upon a firm of London merchants bills which
they accepted for his accommodation, receiving from
him a commission for so doing. To provide for the pay.
ment of these acceptances at maturity, and to keep the
acceptors out of cash advances, the drawer used to remit
to them other bills, which were specifically appropriated
to meet the acceptances. The acceptors filed a liquida-
tion petition, under which their creditors resolved to
accept a composition. At the date of the filing of the
petition, specifically appropriated remittances to a large
amount were in the possession of the liquidating debtors,
and came into the hands of the receiver appointed under
their petition. The merchant in Spain had also become
insolvent, but no bankruptcy proceedings had been insti-

b

tuted against him. Held, that the liquidating debtors
were only entitled to be indemnified by means of the re-
mittances against all liability on their acceptances; that,
as their creditors had resolved to accept a composition,
the only liability they had incurred on their acceptances
was the amount of the composition, and that, therefore,
the merchant in Spain was entitled to have his remit-
tances returned to him, subject to the amount of the
composition thereon. Semble, that the bill holders could
have no right to the remittances under the doctrine of
Ex parte Waring, as there were not two insolvent estates
under judicial liquidation. Some of the remittances were
sent with letters announcing drafts for acceptances,
which were not accepted as they arrived after the filing
of the liquidation petition. Quare, whether the liquida.
ting debtors could in any case be entitled to these remit.
tances except on the condition of accepting the drafts
sent therewith: (Trimingham v. Maud, 19 L. T. Rep.
N. S. 554; L. Rep. 7 Eq. 201, questioned)
...page 677
Voluntary settlement-Liquidation-The Bankruptcy Act
1869, s. 91-The Bankruptcy Repeal Act 1869, s. 20.-Sect.
91 of the Bankruptcy Act 1869 applies to voluntary settle-
ments executed before as well as after the passing of the
Act, by a trader who becomes bankrupt after the 1st Jan.
1870, when the Act came into operation...

BARRATRY.

(See Bill of Lading.)

BEQUEST.

(See Will.)

BETTING.

...

Betting-Action by betting agent for money paid-Plea
that paid in contravention of act-Evidence-Club.-
Money paid in discharge of a lost bet made for another
person is recoverable at law from such other person. A
club whose members habitually bet is not within the
meaning of the Betting Houses Act. The plaintiff was a
betting agent and member of a club, of which W. was also
member, and in whieh bets were habitually made. For
and at the request of the defendant, who was not a mem-
ber of the club, the plaintiff made a bet with W., which
he lost and paid. Suing the defendant to recover the
money as paid to his use, he was met by the pleas that
the money was paid in discharge of a wagering contract,
and also that the bet was made in a house used in contra-
vention of the Betting Houses Act. Held, that the plain-
tiff was entitled to recover, and a rule to enter a verdict
for the defendant as to the wagering contract refused,
and as to the alleged contravention of the Betting Houses
Act discharged...

...

101

825

BILLS OF EXCHANGE.
Appropriation-Country banker and customer-London
agent.-The plaintiff, a merchant at Southwell, was a
customer of W. and Co., bankers at Southwell, whose
London agents were the defendants, R. and Co. On the
11th Dec. 1874, the plaintiff, having accepted bills, payable
at the defendant bank (which would become due on the
following day), paid to W. and Co. £900 in bank notes,
and certain undue bills of exchange endorsed by him, for
the purpose of meeting his acceptances. On the evening
of the 11th Dec. W. and Co., in the ordinary course of
business, wrote a letter to the defendant bank, advising
them of the plaintiff's drafts, and remitting to them the
endorsed bills, some of the notes, and other moneys. On
the following morning the defendant bank received the
letter and remittances, but refused to pay the accept-
ances, and the plaintiff was obliged to pay them. At this
time W. and Co. had overdrawn their general account
with the defendant bank, and shortly afterwards failed.
Held, that the defendants were entitled, as against the
plaintiff, to retain the bills, and apply their proceeds in
liquidation of their general balance with W. and Co.
Composition by acceptor-Position of drawer as a creditor 631
(See Bankruptcy.)

Damage to cargo-"Quality and quantity unknown".
Burden of proof.-A bill of lading, stating goods to have
been shipped in good order and condition, but indorsed
by the master with the words "quality and quantity un-
known," does not admit as against the shipowner that
the goods were shipped in good order and condition.
There is no rule of law by which the consignee of goods
under a bill of lading, stating goods to have been shipped
in good order and condition, but containing the words
"quantity and quality unknown," is bound to show that
he goods were shipped in good order and condition, or
fail in his suit against the shipowner for damage done to
the cargo; but failing proof of the condition of the cargo
when shipped, the consignee is bound to show that the
damage which it sustained is tracable to causes for which
the shipowner is responsible.

446

677

511

Damage to cargo-Perils of the seas-Barratry.-A ship-
owner carrying goods under a bill of lading, by which he
contracts to deliver in good order and condition, certain
perils excepted, is bound to deliver in that condition, un-
less prevented by those perils, and is responsible for any
danage to goods occasioned otherwise than by those
perils. Injury to cargo damaged by sea water during a
voyage, in consequence of the barratrous act of the crew
in boring holes through the sides of the ship for the
purpose of scuttling her, is not a loss by perils of the seas,
within the meaning of the exception in a bill of lading,
such as will exempt the shipowner from his liability for
the damage under his contract to deliver in good order
and condition. Even if such a loss would come within
the meaning of the words, "perils of the sea," in a policy
of insurance, it is not included in those words as used in
a bill of lading..
page 838
Contract for master's signature to bill of lading-Signature
by master for more tons than delivered.-The signature
of the master to the bill of lading does not estop the ship.
owner. Declaration that it was agreed between the plain-
tiffs and the defendants by charter-party that the plain-
tiff's ship should take on board, at Cardiff, a full cargo of
coal, to be provided by the defendants, and proceed there.
with to Buenos Ayres, "the master of the ship to sign
bills of lading for weight of the said cargo put on board as
presented to him by the defendants without prejudice to
the tenor of the charter-party," and that the ship was
loaded by the defendants with a cargo of 573 tons. Breach,
that the defendants presented to the master bills of
lading for a weight of 605 tons, whereby the plaintiffs
were rendered liable and forced to pay the consignees of
the cargo a certain sum in respect of the difference
between the cargo as indicated in the bill of lading and as
actually shipped. Held, on demurrer to the breach, a bad
declaration, inasmuch as the plaintiffs were not bound to
pay the consigueee such difference, and there was no
warranty on the part of the defendants that the bill of
lading was indisputably correct...
621

Parcels by reference to inventory-Inventory including
other property-Construction.-A trading firm conveyed
by way of mortgage their foundry, all the engines,
fixtures, machinery, tools, and working plant therein,
"more particularly enumerated and specified in an in-
ventory of even date herewith, to be signed by the parties
hereto, and read and construed as forming part of these
presents." No mention was made in the deed of stock-in-
trade. The deed and inventory were duly signed and
registered. The inventory contained twenty-one pages,
the first twenty of which gave a detailed description of
the engines, fixtures, machinery, and working plant, &c.
At the bottom of page 20 was the following clause: "The
stock-in-trade consists of bolts, brasswork, wrought and
cast iron work, brass and other work, both finished and
in preparation." And at the top of page 21 were these
words: "Also all cast and wrought iron, steel, timber,
and all other stock in-trade in and upon the before-men-
tioned foundry, workshops, and premises." Then came
this clause : "The contents of the twenty preceding
sheets is a complete and exact inventory of the fixtures,
machinery, utensils, and things in, upon, or about the
foundry mortgaged by us this day to the mortgagee."
This was immediately followed by the signatures of the
mortgagors. Held (affirming the decision of the Chief
Judge in Bankruptcy), that the stock-in-trade was not
included in the mortgage
681

...

Renewed within twenty-one days-Registration-Seizure
-Claims of holders.-A debtor renewed bills of sale on his
goods to plaintiff from time to time, so as to evade the
necessity for registration under the Bills of Sale Act 1854;
and after seizure by the sheriff on a judgment against the
debtor, plaintiff duly registered his last bill. Before the
execution of this last bill, but after that of plaintiff's pre-
vious bills, the defendants had, without the plaintiff's
knowledge, obtained and registered another bill of sale
from the debtor. Held, upon an interpleader issue, that
plaintiff was entitled to the goods, notwithstanding the
defendants' previously registered bill of sale
Unregistered collateral agreement-" Defeasance or condi-
tion." A bill of sale of farming stock was given to se-
cure the payment of 1301. by certain instalments. The
bill of sale recited that 1301. had been advanced, but the
sum advanced was really only 100l. The bill of sale was
duly registered. At the same time that the bill of sale
was executed, the mortgagor signed an agreement, which
was not registered, staung that the 130, included a sum
of 301., the mortgagee's charge for making the advance,
which sum was to be paid in full, notwithstanding that

556