(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
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.
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
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.
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-
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...
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
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
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
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...
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
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-
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-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...
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.
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
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