Page images
PDF
EPUB

night have been, he found that he had no alterna. whether it was filed within the six days required of £500. He had shown that he was animated tive in the matter, seeing that his learned friend by the rales of the court. On the matter being by a desire honestly to go on with and have the the Attorney-General insisted upon every witness argued, Lord Coleridge discharged the rule, thereby petition tried, Ho (the Commissioner) did not, who could throw any light upon the inquiry being deciding in favour of the respondent, that the list therefore, look upon his conduct as being in any placed in the box. Under these circumstances he could not be received. The question now arose way tinctured by frivolity or insincerity. The should reserve any further comments upon the how far that decision would affect the proceedings 7th rule provided that the list of objections evidence until after the witnesses were called at the hearing of the petition. Mr. Ambrose ro. should be filed six days before the day of trial. The first witness he proposed to call was the viewed the history of the election, and explained That meant that one day should be included, and Attorney-General himself.

how the order had been obtained from the County another excluded, and therefore if the particulars Sir Henry James, examined by Giffard, ex. Court judge to inspect the documents. There had had been filed on the 13th they would have been plained the circumstances under which he first been some delay in inspecting the documents, in time. The clerk who tendered them volun. undertook to contest the borough in 1868. He owing to the illness of the town clerk, and it was tarily took them away again, but if he had in.. was invited by some of the constituents to come not till near Christmas that the documents were sisted upon their being received, the question down, and undertook to do so on the distinct inspected. This delay had arisen from the lauda. would have arison whether the tender was not in understanding that no corrupt practices would ble desire of the town clerk, as custodian of the fact a filing. No doubt the petitioner drove the be resorted to, that he should not be required to documents, to be present. It was, therefore, not thing to the last moment. It was a pity that attend a meeting at any public-house, and that no till Christmas that the marked registers were in he was not more liberal in his views, and did committee-room should be held at a public-house. spected. Then followed the New Year holidays, not file his particulars in ample time, but he Those conditions were complied with, and he came and then the petitioners addressed themselves to did nothing more than he was lawfully justified down to Taunton. He was soated' on petition. tho getting up of the case. By the 7th rule, in doing. The particulars, however, were not Mr. Lane acted as his agent, but was since dead. which had been issued by the judges, it was strictly filed, and the respondent had a right to Mr. Burman, a tradesman, was then appointed, enjoined that six days before the trial a list of rely upon that, and so far he had the advantage and acted for him in 1873. There was very votes objected to, with heads of objections, should of retaining his seat. He could not shut his eyes little drunkenness during the contest, and only be handed to the master and the respondent. to the fact that this was a bona fide petition.. on two occasions was he asked for drink This had been driven to the last moment, and a There were on both sides a great many questioneach time by a woman. One voter wrote a letter question had arisen as to the construction of the able matters for the consideration of the court, to him asking for £5. His canvass was purely a rule. By the 25th section of the Corrupt Prao- but it was impossible for him to suggest which personal one. He was not accompanied in it by tices Act, it was provided that in reckoning the side would have been victorious. Here, however, Mr. Burman. His canvass was highly successful, time for the purposes of the Act, Sunday Christ. was a bona fide petition, honestly presented, and and throughout the polling he had no reason to mas Day, or any day set apart for fast or public he could not look upon it as being in any way believe that he was ever at the bottom of the poll. thanksgiving should be excluded, and the judges frivolous. It failed to some extent on a techni. One of his agents told him after the polling that were authorised to make rules, which should be of cality. He thought the petitioner had the moral he was beaten, and that was the first time he had the same force as if they were enacted in the body merits of the case, and did not think that he was any reason to suppose that his opponent had a of the Act.

called upon to visit him with the costs, he there. chance of success. It turned out, however, to be Cottingham wished the court to take note of fore made no order as to costs, and should certify & mistake on the part of his agent, and was soon recent judgment of the Lord Chief Justice of the that Mr. Batty had been duly elected. rectified. In regard to Rollings, he knew nothing Common Pleas.

Cottingham thought the Commissioner had. of him further than as an active member of the Ambrose contended that the court had decided power to reserve a point of law, and he wished Land and Labour League, and never employed on the simple question that they had not left the point in reference to the construction of the him as an agent or canvasser.

the notice at the rule office on the sixth day. Act of Parliament on the question of the time of After some further evidence, the court ad. The question whether the six"clear” days was notice to be reserved. journed. not touched upon, because it was a custom with

The COMMISSIONER said his discretion as to the court never to decide upon a point which did MANCHESTER SESSIONS COURT.

not arise. The trial was to be on the 20th. The costs was unfettered, and Mr. Cottingham could list was tendered on the 13th, but not left till the hardly go to the Court

of Common Pleas

with a Tuesday, Jan. 20.

case as to how he exercised his discretion. 14th. For his part, if it had been left on the (Before T. W. SAUNDERS, Esq., Recorder of Bath, 13th, he was convinced that it would have been Grundy (who represented the Mayor).-I under Commissioner.)

in time. When the list was tendered on the 13th, stand you to dismiss the question of costs with Be BATTY (A Councillor of Exchange Ward.)

the legal agents of the petitioner in London con regard to Mr. Batty and to grant costs to the Municipal petition-Technical objection-Lists clerk it should have been delivered on the 12th. sidered it was in time, but he was told by the Mayor ?

Ambrose said he must consent to an order that not delivered.

Unfortunately, in pursuance of that suggestion, the returning officer should have his costs. He At the election for Exchange Ward, in November the clerk did not press the matter; and if the rule must also consent to the costs of the town clerk

1873, B. and N. received an equal number of clerk had refused to accept the list, he (Mr. being allowed. votes, and the returning officer gave his casting Ambrose) should have felt in a different position. vote 'in favour of B. N. presented a petition As it was, the rule clerk simply gave advice, objections were made to votes upon which the

The COMMISSIONER remarked that a number of against B.'s return, on various grounds, and which was accepted, namely, that a summons register was conclusive. For instance, yoters claimed the office on the ground that he had a should be taken out, which was done. No majority of lawful votes. In accordance with order was made on this summons, and appli. the ward sufficiently long, or because they were

were objected to because they had not resided in the Act of 1872. (35 & 36 Vict. c. 33), the peti- cation was then made to the Court of Com. tioner prepared a list of the votes objected to, mon Pleas with the result above

not duly rated to the poor. The court had nothing

stated. to do with these questions. which had to be delivered to the Master, and He had offered in the Court of Common Pleas, Ambrose said these objections were made on the respondent, six days before the day ap; and before the judge, and was now prepared to both sides, and a question would have arisen as to pointed for trial. The trial was appointed offer to pay the costs of the adjournment if the them. for the 20th January, and, on the 13th the respondents would waive the objection taken in "list was taken to the Rule Office, when the respect of the lists not being delivered in time,

The proceedings then terminated. clerk there said it was too late, and advised and he was prepared with evidence of the most an application to the Court of Common reliable character in support of his list of objec, Pleas for leave to file the list. The list was not tions; and he ventured to think that he should

REAL PROPERTY AND pressed upon him, but it was delivered on the lay such evidence before the judge as would en

CONVEYANCING. 14th, and an application was made to the court title him to a verdict in his favour. as suggested, and a rule nisi was granted. The Cottingham refused to accede to the sugges. court discharged the rule on the hearing, on the tion. He argued that the petitioners tried, by the

NOTES OF NEW DECISIONS. ground that the list had not been delivered six ruse of keeping back the information as long as BILL OF SALE-COVENANT TO PAY days before the day appointed for trial, but did they could,' to put the respondent to a disadvan. DIATELY ON DEMAND"-REASONABLE TIME FOR not decide whether the list would have been de tage, and as they had not complied with the law, PAYMENT-CONSTRUCTION.--By a bill of sale livered in time if delirered on the 13th. they must abide by the consequences.

dated the 15th April 1873, the plaintiff assigned The case now came on for hearing before the com

A long discussion then ensued on the question all his goods, &c., to the defendant to secure & missioner appointed under the Act. The peti. of costs, Cottingham contending that the costs sum of £100, upon the express condition that if tioner's counsel offered no evidence, as the list should fall on the defeated party.

the plaintiff did not "immediately upon demand was excluded.

Ambrose said that all precedents tended to show thereof in writing," delivered to the plaintiff or The commissioner refused to dismiss the petition that the costs in a case under these peculiar cir- left for him at his home, pay the money due, it

under the circumstances, and determined simply cumstances should not fall on the petitioner, who shall be lawful for the defendant to seize and sell to certify that B. was duly elected. He refused was ready to go on with his case, but was met by the goods comprised in the bill of sale. On the to grant costs to the respondent, on the ground a frivolous technical objection.

27th April 1873, the defendants went with bailiffs that the petition was bona fide, and was simply Cuttingham said if the petition had been with to the plaintiff's house and there saw the plain. defeated by a technical objection, but granted drawn altogether no conrt would have refused to tiff's wife and son, who told him that the plaintiff the costs of the returning officer,

give the respondent costs, and the petitioner said was from home, they knew not where, and that Ambrose, barrister, for the petitioner,

he would have withdrawn if he had had time to he might be gone to America for aught they Cottingham, barrister, for the respondent.

knew. The defendant then read and delivered to Grundy (of Grundy and Kershaw), for the mayor, Ambrose contended that the commissioner had a the wife and son a written demand for payment, the returning officer.

discretion in the matter of costs, and that there which not being complied with, he at once put the In this case a petition bad been lodged by Mr. were special circumstances in this case calling for bailiffs in possession, and after an interval of Nield against the return of Mr. Batty for Exchange the exercise of that discretion in favour of the eight days sold the goods. The plaintiff returned Ward in November last, at which election there petitioner. The petitioner had offered long ago to to his home on the 8th May, and said he had had been a tie between these two candidates, and pay the costs of a postponement, and the offer started with the £100 to go to s. on business, but the mayor, who was the returning officer, gave his had been renewed that morning, but it was not had gone to R., had got drunk, and remained casting vote in favour of Mr. Batty. The petition accepted, and this was a case of an inquiry being away on a spree.”. In an action against the dedeclared that the respondent was not duly elected defeated on a purely technical objection. At all fendant for so seizing

and selling the plaintiff's by a majority of lawful votes, and therefore & events, it was a case in which the respondent was goods, it was held by the Court of Exchequer scrutiny was prayed for. A rule nisi had been entitled to no indulgence from the court; on the (Kelly, C.B., and Bramwell and Pollock, BB.) that applied for and obtained by Mr. Ambrose in the contrary, it was a case having special circum. the defendant was under the circumstances per Court of Common Pleas, calling upon the respon- stances which would justify the commissioner in fectly justified by the terms of the bill of sale in dent, Mr. Batty, to show cause why the petitioner depriving him of his costs.

seizing

the goods as he did, immediately upon the should not be at liberty to give evidence against Cottingham having briefly replied.

demand having been made as above stated. Toms V. the list of voters tendered at the rule office, and The COMMISSIONER said this was a peculiari Wilson and another in the Q.B. and Ex. Chamber why the said list should not be filed. It appeared case, and he was sorry it fell to his lot to adju. 7 L. T. Rep. N. S. 421, 8 ib. 799 ; 3 B. & S. 422 that the petitioners had deferred the filing of the dicate upon it in the first:instance. The earnest. and 455; 30 L. J. 32 and 382, Q.B.), and Massey , list to the last moment, and it was a question dess of the petitioner was shown by the deposit Sladen and others in the Exchequer

(L. Rep. 4 Ex.

IMME.

do so.

13 ; 38 L. J. 34, Ex.), discussed and distinguished : generally. A dissentient creditor is as much conclusive evidence that the capital has been sub(Wharlton v. Kirkwood, 29 L. T. Rep. N. S. 644. bound by such extraordinary resolution as he was scribed : (Ystalufera Iron Company v. The Neath Ex.)

by the resolution accepting the original composi. and Brecon Railway Company, 29 L. T. Rep. VOLUNTARY SETTLEMENT—WORDS OF LIMI. tion. The word “ persons” in clause 5 of sect. N. S. 662. M. R.) TATION IN GRANT-LIFE ESTATE.-A., by & volun. 126 the Bankruptcy Act 1869 does not mean UNREGISTERED ASSOCIATION-WINDING-UP. tary settlement, in 1838 conveyed freeholds to creditors,” but“ persons” other than creditors, In reply to circular issued by M. and D., setting trustees upon trust (together with a sum of stock whose interests may be affected by the proceed forth a project for acquiring and remodelling & already transferred) for himself for life, and after ings : (Ex parte The Liquidators of the Radcliffe theatre at the cost of £12,000, with the intention his death in trust for his reputed son, W., when Inves'ment Company (Limited); Re W.H. Glover of selling it to a company, to be formed for the and in case he attained twenty-one, with a trust and Co., 29 L. T. Rep. N. S. 694. Bank.)

purpose, for £40,000, which would enable a return for maintenance if W.should be under twenty-one WILL — ADEMPTION BEQUEST OF LEASE- | to be made of £300 for every £100 subscribed, at the settlor's death. And in case W. should die HOLDS NOTICE TO TREAT FOR SERVED ON several persons, exceeding seven in number, subander twenty.ono, or die in the settlor's lifetime, TESTATOR - No WRITTEN AGREEMENT—CON scribed to the project. The theatre was at first without leaving issue living at his decease, then VEYANCE BY EXECOTRIX-MESNE BENTS.-A carried on by M. and D., and afterwards by three over. There were no words of limitation in the testator bequeathed two leasehold houses to A., of the subscribers. A creditor, on the grounds trust for W. There was a power of sale in the and appointed B. his executrix and residuary that the subscription to the project constituted settlement, but no trust to invest the proceeds legatee. Previously, to his death the testator the subscribers partners, presented a petition to in land. A. died in 1849, having made his will in was served, by a railway company with notice to wind-up the partnership under the 199th section 1843, which recited the settlement and confirmed treat for the sale of the leaseholds. No written of the Companies Act 1862. Held, that the subit, except as to the stock which had been sold. agreement was executed, but surveyors assessed scribers were partners, and being more than seven W. attained twenty-one, and died in 1872. Held, the amount of the purchase money, and it was in number, came within the Act, and the order that W. took a life estate only in the freeholds arranged that the testator should continue to was accordingly made : (The Royal Victoria Palace under the settlement, and that there was a result- receive the rents until the completion of the pur. Theatre, 29 L. T. Rep. N. S. 668. V.C. B.) ing trust for the settlor : (Middleton v. Barker, chase. Nothing more was done until after the VOLUNTARY WINDING-UP CONTINUATION 29 L. T. Rep. N. S. 643. V.C.B.)

death of the testator, when B., as executrix, con. UNDER SUPERVISION PRACTICE.— The 147th MINES EXCEPTED OUT OF GRANT OF SURFACE veyed the property to the company. Held, that section of the Companies Act 1862, empowers -RIGHT OF OWNER TO SUBTERRANEAN WATER. the bequest was adeemed, but that A. was enti. the court, notwithstanding the opposition of un-In a case in which mines were altogether tled to the rents received from the testator's paid creditors to order a voluntary winding-up to excepted out of a demise of the surface, held death to the date of the conveyance : (Watts v. be continued under supervision. Where, therefore, (reversing the judgment of the court below), that Watts, 29 L. T. Rep. N.S. 671. V.C. H.).

the creditors of a company, in the course of volunthe rights of the owner of the surface, and the DOMICIL OF ORIGIN - ABANDONMENT OF-tary liquidation, presented petitions for windingowner of the mines did not in any way differ from WILL-GIFT OF RESIDUE — ADEMPTION.-In up the company, the court declined to make a those of the owners of adjoining closes, who are 1858, the testator, a native of Montreal, where, compulsory order, but directed the voluntary strangers in title, each of whom is entitled to the up to that time he had carried on the business of winding-up to be continued under supervision. water found upon his land, but neither of whom a merchant, sold his house, and also a piece of Where successive petitions were presented for is entitled to complain of the loss of that water by ground that he had there purchased in the burial winding-up a company, in ignorance of prior petinatural percolation set in motion by his neigh- ground, and accompanied by his family went to tions, the court, in making the order, allowed one bour's excavations; for it makes no difference Paris for the education of his children, where he set of costs on all petitions : (Re Owen's Patent whether the respective closes are adjacent verti- resided until 1868, when he came to England and Wheel, &c. Company, 29 L. T. Rep. N. S. 672. cally or laterally, and the grant of the surface purchased the lease, having thirteen years uner. V.C. H.) cannot carry with it more than the ownership of pirod, of a house, which he furnished, and in which the entire soil would : (The Ballacorkish fc., he lived until his death in May 1871. Testator on

COURT OF APPEAL IN CHANCERY. Mining Company v. Dumbell, 29 L. T. Rep. N. S. several occasions returned to Canada for the 658. Priv. Co.) transaction of business, and on one of such occa

Saturday, Jan. 17. RIGHT OF WAY-SUBSTITUTED WAY. -The sions made his will in the French language, and Ex parte THE NEATH AND BRECON RAILWAY grantor of a right of way over a towing path in the form usual in Lower Canada, describing

COMPANY. along & private canal built a bridge over the himself as of Montreal, merchant, and appointed Lands Clauses Act-Money deposited by company canal, which entirely blocked up the towing path, four executors, of whom three were resident in

Purchase money paid Payment out of and obliged the grantee to go through the grantor's Canada ; and on another such occasion made a land around the foot of the bridge in order to codicil to his will, describing himself in the same This was

deposit.

an appeal from a decision of Vicerejoin the towing path. Purchasers from the manner. While residing in England, testator's Chancellor Bacon." The above railway company grantor of the land over which this right of way daughter married an Englishman, and he also in 1865, being desirous of entering on some lands existed, attempted to prevent the grantee from established his son in business in England. Held, belonging to Mr. John Lloyd Vaughan Watkins, using the substituted way which the building of that the testator had acquired an English domicil. I which they required to take for the purposes of the bridge had obliged him to use. Held, that the Testator, by his will made in 1853, gave all his their railway, before any agreement for purchase grantee was entitled to an injunction rostraining property, subject to an annuity, to his wife (who was come to, paid into the bank, under the provithe purchasers from interfering with his use of predeceased him) for life, to be divided equally sions of sect. 85 of the Lands Clauses Consolidathe substituted way: but that the injunction between his two children. In 1869. testator, on tion Act, 1845, the sum of £154€ 78. 4d., and must be limited to the period during which the the occasion of the marriage of his daughter, entered into the usual bond. The sum was afterobstruction of the towing path by the bridge covenanted to pay to the trustees of her marriage wards invested in Consols. The sum of £1700 might continue, and was not to extend so as to settlement the sum of £8500, and in the meantime was subsequently awarded for the purchaseauthorise the grantee to use the substituted way to pay to them the annual sum of £525, upon money of the land, and another sum of £1700 for for any other purpose than towing barges. Order trust for his daughter for life for her sole and of Bacon, V.C., varied : (Selby v. Nettlefold, 29 inalienable use, with remainder to her children as interest, were paid by the company, and on the

These sums, with

compensation for severance. L. T. Rep. N. S. 661. L.C. and L.JJ.).

she should appoint, and in default of appointment 10th June, 1873, a conveyance of the lands to the TESTAMENTARY SUIT-MARRIED Woman's for all her children who should attain 21 or WILL

company was executed. The company then peti. SETTLEMENTS — Costs. — A married marry. Testator also advanced to his son a sum woman executed a will by virtue of a power, by of £2000 for the purpose of placing him in busi. in court. The Vice-Chancellor ordered the vendor's

tioned for payment to them of the sum deposited which she appointed A., her husband, her universal ness. Held, that the sums settled by the testator costs and expenses of the purchase to be paid out legatee. A. did not prove the will, but dealt with tett estate, which was all included in the marriage his lifetime to his son, must respectively be of this sum, and

the balance to be paid to the settlement. On the intermarriage with B., his taken into account in estimating the shares to adopted daughter, with C., he settled on her a

Eddis, Q.C. and W. D. Gardiner were for the which they respectively were entitled under the sum of £5000, in which he included a certain testator's will (Stevenson v. Masson, 29 L. T. company portion of his wife's estate. B. and C. proved the Rep. N. S. 666. V.C. B.)

Kay, Q.C., Cracknall, and Whately, were for will of the testatrix, which was opposed by her

the landowners and others interested. next of kin, and the court, in decreeing costs out

Lord Justice JAMES was of opinion that the of her estate, held, that no portion of the fund

Vice-Chancellor's order was not in accordance settled at the marriage of B. and C. was liable to

COMPANY LAW.

with the Act. The money was paid into the bank the costs of the litigation : (Adamson v. Adanson

to answer a particular purpose-viz., to secure and Hammond, 29 L. T. Rep. N.S. 700. Prob.)

NOTES OF NEW DECISIONS.

the payment of the purchase-money with interest; EJECTMENT FOR FORFEITURE-NONPAYMENT RAILWAY-COMPULSORY POWERS-NOTICE TO that purpose having been answered the LegislaOF RENT-CONSTRUCTION OF COMMON FORM-TREAT-DELAY EVIDENCE.-A railway com. ture had said that the money was to be paid out MEANING OF

BEING DEMANDED." -The defen- pany, incorporated by an Act of Parliament, which to the company. It would be unlawful for the dant was tenant to the plaintiff under an agree passed on the 29th July 1869, limiting the time court to do anything else with it. The Vicement containing a condition for re-entry if defen. for the exercise of the compulsory powers to Chancellor's order must be discharged. dant should make default in payment of the rent three years, and the time for the completion of Lord Justice MELLISH was of the same opinion. within twenty.one days after it should have the railway to five years, served a notice to treat The money was deposited as security for the perbecome due being demanded." The defendant for certain lands belonging to the plaintiff com. formance of the condition of the bond. If the made default on the 25th March, and the plaintiff pany on the 21st April 1866. By an Act of matter stopped there, it would be a strange thing made demand on the 9th April, but the defen. Parliament of the 26th July 1869 (against which to apply the money to any other purpose. But dant failed to pay. The plaintiff waited twenty- plaintiff company petitioned), the railway the Act went on to say, in sect. 87, that on the one days, and then brought ejectment: Held, company was dissolved, and its undertaking was condition of the bond being fully performed it that the demand being made before the expiration amalgamated with that of the defendant company, should be lawful for the Court of Chancery to of twenty-one days, was not a good demand and by the same Act the time for completing the order the money to be repaid to the promoters within the meaning of the agreemet, and a rule works was extended for three years; but the period of the undertaking. The court was bound in that to set aside a verdict for the plaintiff in ejectment within which the compulsory powers given by the case ex debito justitiæ to make an order for paymade absolute : (Phillips v. Bridge, 29 L. T. Rep. first Act were to be exercised was not extended. ment to the company. If any of the costs N. S. 792. C. P.)

On} the 18th Aug. 1871, the defendant company claimed were costs under sect. 80 of the Act, that BANKRUPTCY — COMPOSITION — SUBSEQUENT took possession of the lands, whereupon the land section only said that it should be lawful for the RESOLUTION TO REDUCE-WHEN PERMISSIBLE- owners filed a bill to restrain them from con- court to order them to be paid to the promoters ; ACTION BY DISSENTING CREDITOR-INJUNCTION tinuing in possession. Held, that the time for it did not say that they were to be paid out of the -POWERS OF CREDITORS-32 & 33 Vict. c. 71, completion of the works having been extended by money deposited. 8. 126, CLAUSES 1, 5, AND 6.-Under seot. 126 of the Act of 1869 (of which the plaintiff company A discussion then arose as to the costs of the the Bankruptcy Act 1869, creditors have power by had notice) to the 29th July 1872, the notice to petition, and an extraordinary resolution to reduce the amo treat was not in va ted by lapse of time. Held Lord Justice JAMES said that if the respondents of a composition previously accepted by them also, that the magistrate's certificate under 88. had simply appeared, they would have been entiwhen the circumstances require it, and it will be 16 & 17 of the Lands Clauses Consolidation Act tled to their costs; but as they had chosen to for the benefit of the debtor and the creditors 1845 must, in the absence of fraud, be taken as raise a litigation, no costs would be given.

:

MARITIME LAW.

The port being named, she must be in it, but for by a neutral in contemplation of war, unless may be moved about in it:

delivered before the declaration of war. Clark v. Westmore, Selw. N. P. 1008.

Ibid. Phillips, sect. 792. NOTES OF NEW DECISIONS.

In policies at and from, the general words "in NOTE.-But it imported into a neutral country it is DAMAGE TO CARGO-GOODS CARRIED

INTO port
refer to the port where the voyage is to

Deutral during its subsequent passage by re-ex. ANY PORT OF ENGLAND AND WALES-SHIP commence. The ship must be in that port on the

portation to a belligerent country.

Arn, 4th edit. 568.
CALLING FOR ORDERS-GOODS DETAINED AT A specified day :
FOREIGN PORT.-When a foreign ship carrying Co by v. Hunter, 1 Mood. & Malk, si.

The shipment of goods after notice of the cargo, acting in pursuance of the contract of “ Lawful trade;"

breaking out of a war which makes them contraaffreightment, which gives the option of several Relates to the employment of the ship by the band, although in pursuance of a prior contract, ports of call, English and foreign, puts into an owners. A loss by barratry is recoverable under is not within the warranty: English port of call for orders, she carries her a policy containing this warranty:

Phillips, sect. 793. cargo into the English port within the meaning of Harolock v. Hancill, 3 T. R. 277.

Good shipped by a belligerent, to be delivered the Admiralty Court Act 1861 (24 Vict. c. 10), s. 6;

“ Sailed":

to a neutral only on conditions and contingencies and, though she be ordered to a foreign port, Means unmoored and got under way in com- other than the general right to stop in transitu, and there discharge her cargo, the Court of Admi- plete preparation for the voyage, with the intention are not within the warranty:

Phillips, sect. 794. ralty has jurisdiction to entertain against her a of proceeding to sea without further delay at the

But a declaration of war after the policy is suit by the assignees of the bills of lading of the port of departure. cargo, for damage to cargo, and to arrest her on The warranty to sail is not complied with by made does not change the character of the sub

ject from neutral to belligerent, so as to take it her return to this country: (The Pieve Superiore, leaving harbour imperfectly equipped. 29 L. T. Rep. N.S.702. Adm.)

Graham v. Barras, 3 Ner. & Man. 125; Pettegrew v.

out of the warranty: Pringle, 3 Barn, & Ad. 514.

Eden v. Parkinson, Dougl. 732; Tyson v. Gurney, 3 The risk under the policy having commenced

Term. 477 ; Salonica,v. Johnson, Park, 8th edit.,

716. SPECIMENS OF A CODE OF MARINE before the time fixed for the sailing, the war. But where goods are, shipped by a belligerent, INSURANCE LAW.

ranty is complied with if the ship is ready to sail, conditionally to become those of a neutral, and By F. O. CRUMP, Barrister-at-Law.

and is only prevented by a peril insured against the latter complies with the condition before a

by the policy: (Continued from page 201.)

capture, they thereby from that time are within 1 Phillips, p. 427, s. 772. .

the warranty:
WARRANTIES.
But if the risk is to commence only at the sail-

Phillips, sect. 795.
WARRANTIES are :

ing of the ship, the warranty is not complied with If a consignor becomes a belligerent by the I. Express; and

unless the vessel actually sails within the time breaking out of war during the transit, he cannot JI. Implied. warranted.

by assignment to a neutral screen them from capI. EXPRESS.

Ibid. An agreement expressed in the policy whereby An involuntary detention after sailing does not thre, and they will not therefore thereby be within

the warranty: the assured stipulates that certain facts are or affect the policy :

NOTE.-Whether such is the object of the transfer shall be true, or certain ao.s shall be done relative

Bond v. Nutt, 2 Cowp. 607; Horr v. Whitmore, 2 is to be gathered from the circumstances.

Cowp. 784; Thellusson v. Fergusson, Doug. 346; to the risk.

Phillips, sect. 796, and n. 5.

Earle v. Harris, Doug. 357. Phillips, sect. 754. “ To depart:

[Doubtful.] It may relate to an existing or past fact, or Means to leave a port: not merely to get under during transit of the goods, the national char

If an owner changes bis national character be promissory and relate to the future.

way without leaving it: Phillips, sect. 754.

acter of his property in transit does not change :

Moir v. Roy. Ex. Ass. Co.1 Marsh, 576; 6 Taunt. 241; The fact or act warranted need not be material

3 M. & S. 461; 4 Camp. 84.

Phillips, sect. 797; 1 Duer, Mar, Ins. 437. to the risk.

“ To sail with convoy Ibid.

Proofs of neutrality. The effect of a warranty may be restricted by vided by the Goverment for vessels bound on the warranty the ship must be furnished with all those The convoy must be the regular convoy pro

In order to be neutral within the meaning of the providing that it shall be construed as a repre- voyage insured. sentation.

The vessel insured must sail with the convoy herself and her cargo required to be on board

documents and proofs of the neutral character of 2 Duer, 645.

and continue with it until the end of the voyage either by the law of nations or by the regulations Form.

unless separated by necessity. The warranty may be written in any manner on

of international treaties : the face of the policy or be contained in docu- with convoy : The captain must have sailing orders to keep

Arn. 569, 4th edit; Phillips, sect. 802.

NOTE.-These should comprise the flag, the passport, ments expressly referred to in the policy.

Arn, 4th edit, 563; Phillips, ss. 780, 781.

sea-brief, sea-letter, or pass; the register, or cerA formal expression is not necessary, Any

tificate of registry; the muster-roll, the charter. direct or even incidental allegation of a fact relat

NEUTRALITY.

party, the log book, the bill of health ; proofs of ing to the risk may constitute a Warranty.

An engagement on the part of the assured the national character of the cargo; ex. gr. invoices, Phillips, sect. 757. that the property is owned by persons resident in

bills of lading, certificates of origin: But every recital of a fact is not necessarily a

Arn. 570, 571, 4th edit; Phillips, sect. 802, ct seq. a country at peace when the risk begins, and who warranty, particularly if it be evident that it can. have the commercial character of subjects of such

A magter forfeits the neutral character of his not have any relation to the risk.

country, and that it shall be accompanied with ship by covering belligerent goods on board as Ibid. sect. 758. The rule of a mutual insurance society merely conducted by the assured and their agents, as to consent of the shipowner :

such documents, and shall be so managed and neutral, even though without the knowledge or directory to its committee is not an express be entitled as far as depends on them to all the

, warranty: protection and privileges of property belonging to captain does not forfeit the neutral character of

The forfeiture of neutrality by the shipowner or Harrison v. Douglas, 5 Nev, & M. 180 ; 3 Ad. & E. 396. The warranties in the memorandum are simply the subjects of such country:

Phillips, sect. 783.

goods shipped by another neutral, and duly docuagreements relieving the underwriter from lia.

mented as such : bility for loss or damage under a certain per

Extent of warranty.

Phillips, sect. 811. centage.

The warranty is that the subject is neutral at

In general the concealment of papers amounts Construction.

the commencement of the risk, and that it shall to a breach of warranty: Warranties are strictly construed.

Marshall, C.J., in Livingstone v. Maryland Ins. Co., continue to be neutral so far as depends upon the Note.-The English courts have required literal assured, or he is responsible :

7 Cranch, 536. compliance. American opinion is in favour of a

Semble, also, carrying a material paper written I b. sect. 784; Arn. 4 edit. 565. construction which gives the assured the benefit

in sympathetic ink : of substan.ial compliance : (Phillips, sect. 702; Part owners insuring their interest with a

Phillips, sect. 809. see Emerg, c. 6, s. 3; Pothier, n 106.)

warranty as to neutrality the warranty extends Throwing papers overboard is not of itself a The construction of the language is determined to their interest only:

breach of the warranty, although raising a strong by usage and common acceptation.

Phillips, sect. 789.

presumption of enemy's property: A warranty will not be extended by construction Belligerent ownership of a part of the property Bernardi v. Motteux, Dougl. 581; The Pizzaro, 2

Wheaton 227. to include anything not necessarily implied in its insured at the outset will defeat the policy as to

the whole : terms.

Breaches of the warranty.
Non-compliance : Its operation.
Phillips, sect. 788.

All voluntary illegal acts forfeiting the characNon-compliance with an express warranty is

Character of the Property.

ter of a neutral are breaches of the warranty. excused only

The character of the subject is fixed by the Ex. gr.-Resisting the right of search when (1) When the state of things contemplated by domicil of the owner :

properly exercised(a). Rescuing, or attempting the warranty ceases; and

Tabbe v. Bandslack, 3 B. & P. 207 n. ; 4. Esp. 109; to rescue, a neutral vessel sent in for examination (2) When a subsequent law makes compli- Arn. 565, 4th edit.

by an authorised belligerent captor. Violating ance illegal.

If the subject of a belligerent state reside and blockade(b). Carrying hostile despatches(c). Failure even temporarily to comply with the carry on business at the time of insurance in a (a) As to what is a proper exercise of the Warranty at any stage of the risk is fatal to the neutral country, his property will be considered right of search, see policy. neutral owned,

Phillips, s. 819, 820; Árn, 580, 4th edit.; The Maria, American Law.--It relieves the underwriter McConnell v. Hector, 3 B. & P. 113.

1 C. Rob. Adm. 340. from liability for subsequent loss. American Law.-A neutral character cannot be

(6) Blockade must be effective, and neutral The breach of warranty need not be connected acqạired by migration flagrante bello. [This is

nations must have had notice of it. with the loss : obviously good law.]

(c) “A distinction has been made between Hibbert v. Pigou, 1 Marshall Ins. 375. 2 Wheaton, 76.

carrying despatches of the enemy between When the warranty relates to a period antece- Property connected with a commercial establish

different parts of his dominions and dent to the risk insured, the breach of it, ment in a hostile country by whomsoever owned

carrying despatches of an ambassador although remedied before the ship sails on the cannot be neutral so as to be within the warranty.

from a neutral country to his own sove. voyage insured, is fatal : Arn. 4th edit. 566.

reign. The effect of the former despatches De Hahn v. Hartley, 1 T. R. 343. But the property of a resident in a neutral

is presumed to be hostile ; but the neutral country carrying on business also in a belligerent

country has a right to preserve its relaIllustrations. country is within the warranty, whatever his

tions with the enemy, and it does not “ All well,” &c.: national character by birth.

necessarily follow that the communicaA warranty that a ship is all well or all safe on a Arn. 4th edit. 567.

tions are of a hostile nature.” particular day is satisfied if she is safe or well at Neutral goods shipped with a hostile destina- Kent 1, s. 153. any time of such day :

tion and enemy owned goods shipped with a neutral Attempting to disguise belligerent goods as Blackhurst v. Cokell, 3 T, R. 360. destination, are not within the warranty.

neutral, and carrying them as such with the “ In port":

Arn. 4th edit. 563.

neutral part of the cargo, is a breach of the Under time policies the warranty is complied The produce of a hostile country the property warranty of neutrality, and will avoid the policy with if the ship is any port:

of a neutral resident in a neutral country is not as to the whole of the neutral cargo : Kenyon v. Berthon, Dougl. 12, n.

within the warranty. A fortiori if contracted Arn, 576, 4th edit.

(a) It

[ocr errors]

Goods may be put on board the merchant ship seems to be supported by the English cases, in When pilotage is compulsory or customary, a of a belligerent without any breach of the war. which it was decided, after much conflict, that pilot shonld be on board (a): ranty:

there was no warranty of seaworthiness in a time

policy. Ph. 8. 624.

Phillips, sect. 717.

Essentials. Nor is it a breach of the warranty of the neu.

Phillips v. Headlam, 2 B. & Ad. 380; Law v. Hollings

worth, 7 T. R. 160. trality of the ship that she carries a belligerent The materials of which the ship is made ;

appears that failure in this respect would not cargo : Its constrnction;

por se discharge tbe underwriters. Ibid. The qualifications of the captain;

The person engaged in navigating the vessel If during war neutral property be engaged in The number and description of the crew;

need not be an authorised pilot if he possesses a any branch of the colonial or coasting trade of the The tackle, sails, and rigging;

competent knowledge of the ground : enemy that is open to foreigners in time of peace, The stores, equipment, and outfit generally, Phillips, sect. 713. such property loses its character of neutrality : must be such as to render the ship in every NOTE.-If a pilot cannot be procured, and it is 1 Kent, comm. 81–86 ; The Immanuel, 2 C. Rob. respect fit for the proposed voyage or service:

prudent to enter the port rather than wait, the Ad. R. 186. Phillips, s. 695.

underwriter will not be discharged if the master NOTE.-This rule is confined to trade between the The cargo must be properly stowed;

enters without a pilot. enemy's colony and the mother country, and is

Arn. 617, 4th edit. There must be sufficient ballast. not applicable where the produce of a hostile If the existing

state of things does

not comply skill when the vessel sails :

The crew must be adequate and of sufficient colony is bona fide imported into a neutral country, and thence re-exported into the mother country :

with the warranty, the policy is void, although (Arn. 574, 4th edit.)

the owners have acted honestly and fairly and in Hicks v. Thornton, Holt's N. P. 30; Forshaw v. Property despatched to a neutral in pursuance ignorance of any defect.

Chabert, 3 Br. & B. 158. of a contract with a belligerent government, or The warranty requires seaworthiness in con.

If the master takes on board a person repre. employed by him in a trade for which a privilege formity with the standard at the time for the senting himself to be a qualified pilot, although is given by a belligerent, does not answer to a contemplated service at the port to which the in fact he is not so, the warranty is satisfied : Warranty of neutrality :

vessel belongs, unless some other standard is re- Phillips, sect. 374, citing Law v. Hollingsworth, 7 T. The Anna Catherina, 4 C. Rob. Adm. 107. ferred to expressly or by implication :

Rep. 160. A warranty that a vessel is neutral is not for

Phillips, sect. 719.

A sufficient crew being shipped originally, an feited merely by the supercargo being a belli

A vessel seaworthy for one stage of the voyage occasional disability or absence of the men does gerent :

may be unseaworthy for another, and unless she not violate the warranty: Mayne v. Walker, 3 Dougl. 79. The employment of a neutral vessel in a service enters upon it, the warranty is not complied with.

is fit for each stage of the voyage when she Busk v. Roy. Ex. Ass. 2 B. & Ald. 73, per Bayley, J. auxiliary to the hostile operations of a belligerent forfeits its neutral character: [Ex. gr., a boiler efficient in fresh water,

(3) Legal Conduct. Phillips, sect. 825. cracked in salt water-case cited infra.?

An illegal act committed by the assured, or on NOTE. --This is so, although the master be not The enumeration as excepted from the policy his behalf, is a violation of this implied waraware of the belligerent character of the service: of some losses of the same kind as those resulting ranty. (Ibid.)

from defects which constitute unseaworthiness, The illegality must induce loss by a peril insured Blockade.

does not exclude the general implied warranty: against to violate the warranty. To be binding a blockade must be :

The Quebec Mar. Ins. Co. v. The Commercial Bank of But if the act arise out of negligence or mistake (1) Effectual.

Canada, L. Rep. 3 P. C. 234.

the insurers are not exonerated from consequent (2) Notified to neutral nations,

Unseaworthiness arising after the commence loss by perils insured against.
Violation.

ment of the voyage, and produced by a peril The vessel must be furnished with all proper

insured against, does not of itself discharge the evidence of her national character, for want of To constitute a violation of a blockade there underwriter. It imposes upon the assured the which she might be condemned if taken by a must be : (1) Actual or constructive knowledge of its exist- and negligence in that respect may discharge the duty of using reasonable diligence to repair it, belligerent:

Phillips, sect. 745; Arn. 619, 4th edit. ence on the part of the assured ; and (2) An intention to violate it, and some act done in insurer from any loss arising from the want of NOTE.-This is necessary, although there is no warpursuance of such intention. such due diligence :

ranty of neutrality in the policy :
Kent. Comm., sect. 288.

Steel v. Lacy, 3 Taunt, 285,
Observations.

If the vessel proves to be leaky or defective, Sailing for a blockaded port after notice is or becomes disabled soon after the time to which prima facie evidence of an intention to violate the warranty has reference, when there can evi.

MERCANTILE LAW. the blockade :

dently have been no intervening injury, it is See 1 Kent., s. 148.

inferred that the unseaworthiness existed preIf the assured has actual or constructive notice viously :

NOTES OF NEW DECISIONS. of a blockade, declared upon sufficient authority Phillips, sect. 725.

BILL OF EXCHANGE-BILLS OF LADINGand maintained by an adequate force, an attempt Unseaworthiness produced after the commence.

ACCEPTANCE -- MISREPRESENTATION. - The U. on his part to carry property warranted neutral

ment of the voyage by the mistakes or negligence Bank presented a bill of exchange to B. and Co., to or from the blockaded port

is a violation of the of the master and crew, without fraud, is at the the drawees, for their acceptance, accompanied by a risk of the underwriters:

a ticket representing that the bank held bills of A neutral vessel having entered the port before Phillips, sect. 733.

lading to cover it. B. and Co. thereupon acthe blockade, may come out in ballast, or with a

The risk is suspended by temporary unsea- cepted the bill, relying on the statement that the cargo taken on board hefore the blockade began worthiness imputable to the assured, whereby the bank held bills of lading which both parties but not with one taken on board after notice of perils

insured against are greatly affected. The thought to be genuine. The bills of lading had the blockade : Phillips, s. 830.

risk revives on the navigability of the vessel being been forged by the drawer of the bill of exchange. restored :

Held, that B. and Co. were not entitled to demand So she may bring away from a blockaded port

Phillips, sect. 734.

from the bank genuine bills of lading before the cargo imported in her before the declaration of blockade and still remaining on board :

The remedy of a defect after sailing-unless paying the amount of the bill of exchange : Ibid.

(Barter v. Chapman, 29 L. T. Rep. N. S. 642. with the consent of the underwriters-does not

V.C. B.) It is a violation of blockade to sail with intent aid owners of a ship unseaworthy at the time of

FACTOR-SALE BY-SET-OFF AGAINST PRINto proceed to the mouth of the harbour for the sailing ; purpose of inquiring whether the blockade is

Forshaw v. Chabert, 3 Br. & B. 158: The Quebec CIPAL,"MEANS OF KNOWLEDGE

Marino Ins. Co. v. The Commercial Bank of Canada, THAT HE DEALT WITH AN AGENT-PLEADING. raised.

L. Rep. 3 P. C. 234 [in which Lord Tenterden's -To a declaration for goods sold and delivered, the Ph. s. 822; 1 Kent, s. 149.

dictum to the contrary (in Woir v. Aberdeen, 2 defendants pleaded, that the goods were sold and Note.-Kent says, “It is a presumption almost de B. & Ald. 320) is dissented from]. jure that the neutral, if found on the interdicted “ At and from a port"

delivered to the defendants by S. and Co., agents waters, goes there with an intention to break the

of the plaintiffs in that behalf, and entrusted by blockade.”

A ship would appear to answer the warranty if the plaintiffs with the possession of the said A master being informed during a voyage to a capable of being moved about in port: port that it is blockaded, violates the blockade if Parmeter v. Cousins, 2 Camp. 257; Annen v. Wood-goods, as apparent owners thereof, and that s.

and Co. sold and delivered the goods to the he continues his voyage.

man, 3 Taunt. 259. NOTE.-The pursuit of the voyage is, however, open If the ship arrives at the port so shattered as to defendants as their own, with the consent of the to explanation.

be a mere wreck, or in such a state as to be unable plaintiffs, and at the time of the said sale and Phillips, s. 838. Sailing to a port with a design to enter, if the perly repaired and equipped for the voyage, the the said and Co to be the owners of the said

to lie there in reasonable security till she is pro- delivery of the said goods, the defendants believed blockading squadron should be blown off by the policy does not attach: winds is a violation of the blockade.

Arn, 604, 4th edit.

the owners of the said goods, or of any of them,

or were interested therein, or that S. and Co. II. IMPLIED.

As to Freight and Cargo.

were agents in that behalf ;

and the plea An implied warranty is that which necessarily A ship whose condition complies with the war. ayerred a set-off against S. and Co. First results from the nature of the contract.

ranty in a policy on ship may yet fail to comply replication, that before, &c., the defendants had Examples :

with the warranty in a policy on cargo and freight. the means of knowing that S. and Co. were (1) That the ship shall be seaworthy when she The policy being on cargo and freight the war. merely the apparent owners of the goods, and sold sails.

ranty of seaworthiness is not complied with if the them as agents for the plaintiffs ; secondly, (2) That she shall be navigated with reasonable cargo is put on board for the voyage when the the like, but averring means of knowledge skill and care.

ship is in so defe ive a state that the cargo must that S. and Co. were agen generally. On de (3) That the voyage is lawful, and shall be per- be relanded in order to make the necessary repairs, murrer to the plea and replications : Held, that formed according to law, and in the usual course and the policy therefore does not attach on the the plea was good, without any allegation negaand without wilful deviation.

cargo if the risk is to commence at the time of tiving" means of knowledge" on the part of the (1) Seaworthiness. loading:

defendants that S. and Co. were agents; and that Phillips, sect. 723, vol. 1, p. 391.

the replications, being therefore immaterial, were This term expresses the relation between the

bad : (Borries and others v. The Imperial 'Otto. state of the ship and the perils it has to meet in

Lighters.

man Bank, 29 L. T. Rep. 689. C. P.). the situation in which it is.

The doctrine of seaworthiness does not apply to Seaworthiness is implied only in voyage poli- lighters engaged in loading or unloading the cargo. cies.

Lane v. Nixon, L. Rep. 1 C. P. 412. In time policies the utmost that can be said is

THE will of Mr. Thomas Wontner, late of No. that there is an implied condition that the ship

(2.) Navigation.

3, Cloak-lane, solicitor, who died on the 19th ult., is in existence, capable of navigation, and has not

The captain must be competent to conduct the at Weston-green, Thames Ditton, was proved on sustained actual damage.

vessel in safety through all the ordinary perils of the 3rd inst. by Mr. Russell Wontner, the son, the NOTE.-This is a doctrine established by an the voyage, and in long voyages-not in all sole executor, the personalty being sworn under American authority (Capen v. Washington Ins. Co., 1 voyages--there should be a competent mate : £5000. The provisions of the will are in favour 12 Cush, Mass, 517; 2 Phillips, p. 397, s. 727), and Arn, 615, 4th edit. ; 3 Kent. Com. p. 337, n. e.

of testator's wife and four sons.

OF BUYER

as

&

an

COUNTY COURTS.

such approval certified by this court as a scheme extent of S. E. Sichel and Co.'s engagement with of settlement of the debtor's affairs under the the creditors under the liquidation, apon the faith

28th sect. Bankruptcy Act 1869. The acceptances of which the composition was accepted by them. BRADFORD COUNTY COURT.

for £780 and £780 at six and nine months from Buckley, as trustee for receipt of the composition, (Before W. T. S. DANIEL, Q.C., Judge.) the 24th March last, were duly delivered to has proved for the whole amount of the composi. Ex parte SICHEL; Re MOORE.

Buckley, indorsed by the debtor, and the tion against the bankrupt's estate, and that Bankruptcy.

arrangements provided for by the agreement were amount includes the two acceptances for £780 Liability on an accommodation acceptance and transferred to the debtor, Buckley, as trustee for proof in respect of either of those sums-the

duly completed. The estate was in effect re- and £780. There can, therefore, be no further unliquidated damages for breach of contract on the receipt and distribution of the composition, only question is how is the trustee's proof to be I mutual credit account under bankruptcy of taking from the debtor his personal covenant for dealt with? S. E. Sichel and Co.'s liability de drawer and vendor.

payment of the costs, cbarges, and expenses, pends entirely upon the effect of their written A surety for the debtor upon a bill of exchange three several instalments before mentioned, col. opinion that it extended no further than the

preferential debts, and the composition by the engagement of the 7th March, and I am of deposited as security for a larger debt, if he pay laterally secured as to the second and third payment of £780 towards any composition the the amount for which he is liable is entitled to instalments by the two acceptances of £780 and creditors might accept, and that payment having the benefit, pro tanto, of the creditor's proof, £780. The legal and equitable effect of this been made, s. E. Sichel and co.'s engage if made for the whole debt : (Ex parte Holmes, transaction was to rehabilitate the debtor as a ment towards the creditors under the liquidation 8 L. J., N. S., 44, Bank: see also Hobson v. trader discharged from all his provable debts has been performed, and their liability towards Bass, L. Rep. 6 Ch. App. 792.)

at the time of his liquidation, and he ac- them discharged. The respective rights and Killick (Wood and Killick) for the motion. cordingly forthwith resumed business

liabilities of S. E. Sichel and Co. and the bank. Robinson (C. Berry and Robinson) opposed. stuff merchant. On the 24th June last the rupt, and those of Buckley as trustee, for receipt His Honour. This is an application made in first instalment of the composition became due, of the composition, and the bankrapt are wholly the bankruptcy of William Moore, of Pudsey, and was not paid. And the trustee, therefore, separate and independent of each other, and are in the parish of Calverley, in the county of applied to and obtained from this court an order unaffected as between themselves by the bankYork, stuff manufacturer, bankrupt, by Syl. for payment by Moore, which was duly served on ruptcy: If Moore had remained solvent, s. vester Emil Sichel and John Groves, of Brad. him, and payment not being made, an execution E. Sichel and Co. having paid the acceptance, ford, stuff merchants, trading as S. E. Sichel was issued against his goods under which they would have become creditors of Moore for the and Co., for order directing that time were seized; but upon sale Moore filed a declara. amount of £780 as money paid by them at proof made by, Charles Joseph Buckley upon tion of insolvency, and thereupon a petition for his request and for his use. And if Buckley had this estate may be reduced to the extent of £180, adjudication was presented by a creditor in re. sued Moore upon the covenant for payment of the the amount of the bill of exchange accepted by spect of a debt incurred since the previous liqui. instalments contained in the composition agreethe said S. E. Sichel and Co., and set out in each dation, and the debtor was adjudicated bankrupt ment, Moore could have pleaded payment of the of the proofs made by him. And for an order by consent on the 4th July. Buckley was after. £780 as a payment pro tanto in satisfaction of the that the decision of the trustee in this matter, wards appointed truste under the bankruptcy, covenant. Now what is the effect of the bank. rejecting the proof of the said S. E. Sichel and thus filling the two characters of trustee for ruptcy upon these rights ? They are plainly John Groves, upon the estate of the said bankrupt, receip and distribution of the composition, and these : S. E. Sichel and Co., having paid the £780 may be reversed or varied; and that the trustee trustee under the bankruptcy. At the date of the as security for the bankrupt would be entitled to may be directed to admit the said S. E. Sichel and bankruptcy there was an open account between prove for that sum against his estate, if proof had John Groves as persons entitled to prove upon the bankrupt and S. E. Sichel and Co. for goods not been already made by the holder of the acceptthe estate of the said bankrupt for £628 178., manufactured and delivered by the bankrupt to ance; that proof has been already made by or such other sum as the court shall direct, or for them, upon which a balance was due from S. E. Buckley, as trustee, for receipt of the composi. an order declaring that the said Charles Joseph Siehel and Co. This balance, after some inter- tion, and ho, having already received the full Buckley is a trustee for and on behalf of Mr. change of accounts, was agreed by the trustee at amount of the acceptance, must be deemed to be 6. E. Sichel and John Groves, in respect of the £384 0s. 6d., and the trustee applied to this court a trustee of such proof to the extent of the debt dividend or dividends to be received by him upon by motion for an urder on S. E. Sichel and Co. (not exceeding £780), due upon the balance of the so much of the amount proved by him as is equal for payment, which was resisted by them on the mutual credit account to be taken between S. E. to or represents the said sum of £628 178., or ground that under the 39th section of the Bank. Sicheland Co. and the bankrupt's estate, the £780 such other sum as the court shall direct ; and ruptcy Act 1869 they were entitled to set-off, forming an item in that account. The case of for an order that the trustee of the pro- among other items, as a mutual credit, their lia- Ex parte Holmes (8 L. J., N. S., 44 Bank.), after. perty of the said bankrupt do pay it out of the bility upon the acceptance for £780, treating it as wards affirmed on appeal by Lord Cottenham, estate of the said bankrupt, and that the said an accommodation acceptance not yet due. It relied upon by Mr. Killick, is an authority er. C. J. Buckley do personally pay, the costs of the being quite clear upon the authorities that such pressly in point; and the recent case of Holson said S. E. Sichel and John Groves of and inci. an acceptance is a credit within the meaning of v. Bass (L. Rep. 6 Ch. App. 792), recognises and dental to this application, and the orders to be the statute (see Robson on Bankruptcy, p. 312, supplies the principle. In the present case no made thereon. The application arises out of the note x.), the motion was dismissed. *s. E. Sichel dividend has been received, and the order will following circumstances: Wm. Moore, the banks and Co. having paid to Buckley, as trustee for therefore be as follows: Declare that though rupt, in Feb. last, presented a petition to this receipt of the composition, the sum of £780 upon C. J. Buckley is a trustee for and on behalf of court for liquidation under the 125th section of the acceptance when it arrived at maturity, after. S. E. Sichel and John Groves, in respect of the Bankruptcy Act 1869, and at the first meeting of wards carried in a proof for £628 178. as the dividend or dividends to be received by him upon creditors, held on the 4th March last, resolutions balance due upon an account as stated by them, so much of the amount proved by him as his equal were passed for liquidating his affairs by arrange- claiming on the one side the £780 as money paid to represent the sum of £628 17s., or such other ment and not in bankruptcy, and Buckley was for the use of the bankrupt, the sum of £70 sum as shall be agreed to be the balance due appointed trustee. These resolutions were duly as a premium agreed to be paid by the bankrupt upon the mutual credit account between S. E. registered, and Buckley's appointinent duly cer- to S. E. Sichel and Co. for the accommodation Sichel and Co. and the bankrupt's estate, after tified. Shortly afterwards the debtor Moore made given by them to him by the acceptance, and the ascertaining the sum to be allowed for damages an offer to Buckley to repurchase his estate upon sum of £162 17s. 6d. for damages in respect of in respect of goods supplied by the bankrupt to the terms of paying the trustee's costs, charges, inferiority of goods sold by the bankrupt to them, S. E. Sichel and Co. since the date of his petition and expenses, all the debtor's preferential making a total of £1012 178. 6d. Against this for liquidation, such balance to be ascerta ned and creditors in full, aud a composition of 6s. in the sum credit was given for the aforesaid balance settled by the registrar in case the parties shall pound to all his other creditors by three equal in the goods account, £384 Os. 6d., leaving the be unable to agree upon and to offer the same. instalments, at three, six, and nine months from sum of £628 178. as 'due. The trustee rejected Buckley to pay the costs of the said S. E. Sichel the acceptance of said offer, the second of such the proof altogether, as to the £780, becanse it and John Groves of and incident to this

applicainstalments to be secured by the acceptance by had already been proved upon the estate, and S. tion, and to be allowed the same, and to restrain the firm of S. E. Sichel and Co. of the debtor's E. Sichel and Co. were not entitled to receive his own costs out of the funds on his hand as draft for £780 at six months, and the third of dividends thereon antil the full amount of the trustee for receipt of the composition. The costs such instalments to be secured'in like manner by composition, for which the same was part security, to be taxed by the registrar. the aceeptance by Wm. Sharp of the debtor's was paid ; as to the £70, that there was no such draft for the further sum of £780 at nine months. agreement to pay that sum as alleged ; and as to

BRISTOL COUNTY COURT.
And on the 7th March last the said firm of S. E. the £162 17s.6d., that there were no such damages
Sichel and Co. addressed and sent to the trustee as alleged. As to the last item it has been arranged

Tuesday, Jan. 15. under the liquidation the following offer: “We that, subject to the question of S. E. Sichel and

(Before E. J. LLOYD, Q.C., Judge.) hereby offer to become surety for the payment of Co. being entitled by law to set-off unliquidated ARTHUR V. BRISTOL AND EXETER RAILWAY any composition which the creditors may accept damages, the amount due shall be ascertained

COMPANY. to the extent of £780, such security to be our by reference to a skilled person mutually agreed Railway Company-Delay-Damage-Liability. acceptance of the debtor's draft for £780, dated upon. Upon the question of the right to set-off His Honour gave judgment in this case, which on the day of the acceptance of the composition such damages, I am clearly of opinion that such was a claim for £40 odd for damages sustained by by the creditors, and payable six months after right has been created by the Bankruptcy Act the plaintiff, a hop merchant living at Portishead, date. This bill to be deposited with the person 1869, as the necessary consequence of making in consequence of his being unable to attend á who may be appointed trustee for the receipt and unliquidated damages proveable debts. These hop market in the Borough, London, through the distribution of the composition." On the 24th damages will, therefore, be assessed by the delay of a train on the defendants' line. The March last, at a meeting of creditors duly referee, but the inquiry before him will be limited plaintiff had a yearly ticket over the Bristol and held under the liquidation by a special reso to damages in respect of goods delivered subse- Portishead Railway, which is worked by the lution then passed, the trustee was duly quently to the date of the petition for liqui. defendants; and in September last he was desirous authorised to accept the offer of the debtor dation. Damages in respect of any goods of proceeding to London by the express which on the terms and conditions contained in delivered previously, would constitute a prove. leaves Bristol at 7.50 a.m. The first train from an agreement produced at the meeting, and able debt under the liquidation, and be barred Portishead departs at 6.50 in the morning, and it executed and signed by the chairman and trustee, by the order of discharge. As regards the arrives at Bristol, according to the time tables, at and the committee of inspection are thereby £70, that is a question of fact depending 7.40; and the plaintiff sent to the station master authorised to sign the same as a general scheme upon the evidence, and having considered the evi. at Portishead to inquire whether the 6.50 train of settlement of the affairs of the debtor. And dence I have come to the conclusion that the fact would reach Bristol in time for the 7.50 express to at the same meeting resolutions were duly passed is established, and the £70 will therefore be London. He was informed it would unless there whereby the immediate discharge of the debtor allowed. As to the other ground of objection by were some coal trucks to be picked up on the line. was granted; the liquidation was closed, and the trustee, that the £780 have already been The plaintiff went by the 6.50 train, but on the Buckley as trustee was released as from the 24th proved upon the estate, and that S. E. Sichel and way the train was stopped at Ashton to pick up March last. And Buckley was appointed trustee Co. are not entitled to recover dividends thereon some coal trucks, and was detained twenty or for the receipt and distribution of the composi. until the full amount of the composition for which thirty minutes. In consequence of this delay the tion. On the 1st April last the agreement referred the acceptance as part security has been paid, that plaintiff failed to catch the express, and had to to in the said resolutions was duly approved, and depends upon the question what was the nature and wait until the 12.9 train to Paddington; and in.

« EelmineJätka »