her costs were only taxed de die in diem when she was respondent in the suit. Here she is the moving party, and, if unsuccessful, will not be entitled to her costs; but once the money is paid to her the respondent will never recover it, although he succeeds. As to the costs of the application, his Honour has made it a rule not to allow costs unless a demand has been made before the application, and it was on that ground that he refused them.
THE CHIEF JUSTICE. I am of opinion that the appeal should be sustained. It seems that the petitioner, the wife of a man who is apparently in a good position, and who owns carriages and horses, is the possessor of separate estate from which she is receiving twenty-five shillings a week, which is all she has to live on. She has had to leave her home, and a woman in her station of life cannot earn her own living. On the other hand, I think it clearly appears that the husband is in a position to pay both his own and his wife's costs. It is quite clear from Belcher v. Belcher (1), that, when a wife has separate property, the Court will take the amount of it into consideration, and notwithstanding its existence may make an order against the husband, unless the property of the wife is sufficient both for her own support and for the payment of her costs. In that case the husband was a captain in the navy, and his income was 510l. a year, the wife having an income of 236l., and it was held that, although the wife had sufficient to support herself, she had not enough to pay her costs, and the husband was ordered to pay them.
Upon the facts of this case, I think it is clear that the discretion of the Judge below has been exercised erroneously, and that the wife's application ought to have been granted. As to the costs of the application, it may no doubt in many cases be desirable to enforce the rule that a demand shall have been made before applying to the Court, but such a rule cannot be enforced in a hard and fast manner. In the present case it would not have been the least use to make a demand. For these reasons I am of opinion that the preliminary objection as to security
taken by Mr. Ralston must be overruled, and that the appeal should be allowed with costs.
STEPHEN, J. I agree upon the ground that the position of the husband is better than that of the wife.
COHEN, J. I am of the same opinion. It is laid down in. Allen v. Allen (1), that the question for consideration, in such a case as this, is whether the wife has sufficient property to prevent the order being made, and that to arrive at a decision the relative incomes of the parties must be taken into consideration. Here the husband can raise money upon the property of which he has the fee simple in possession, whilst the wife cannot raise money upon her life estate, except perhaps, if she is a good life, by a policy of life insurance being added to the life estate.
Appeal sustained. 40l. to be paid by the respondent within a fortnight. Appellant to have her costs of the application and of this appeal.
Solicitor for the petitioner: Lewis Levy.
Solicitors for the respondent: Curtiss & Barry.
Common Law, Equity, Bankruptcy and Probate, and Divorce.
The defendants held a bill of sale over certain
goods of G. On the 29th December they had notice
that G. had committed an act of bankruptcy.
On the 30th December they seized the goods
under the bill of sale. On the 4th January they
assigned the goods absolutely to the plaintiffs.
In the deed of assignment they covenanted that
ADVERTISING RIGHTS-Creation of-Lease or they had not been party or privy to any act"
license-See LEASE.
ARREST See DISTRICT COURT-PROHIBITION.
ATTACHMENT OF DEBTS - Lien-Attachment
of money due on a judgment-See ATTORNEY.
whereby they were prevented from assigning
the goods absolutely to the plaintiffs. On the
13th January G. became bankrupt, and the goods
were subsequently claimed by G.'s official
assignee. Held, that the defendants having
notice of the act of bankruptcy, were party or
privy to an act whereby they were prevented
from assigning the goods, and had therefore
committed a breach of the covenant.
The defendants assigned to the plaintiffs the
goods comprised in a bill of sale given by G. to
Attachment of debts-Garnishee them. These goods were claimed by the official
order-Attachment of money due on a judgment assignee of G.'s estate, and on a motion under
-Attorney's lien for costs.] The judgments. 130 of the Bankruptcy Act, 1887, the plaintiffs
creditor attached money due from the garnishee
to the judgment debtor under a judgment
recovered against him, and the garnishee paid
the money into Court. The attorney who acted
for the judgment debtor claimed a lien on the
fund for costs incurred in the action after the
order for attachment had been made. Held,
that though the attorney would have been
entitled to a lien for costs properly incurred, as
the costs were improperly and erroneously in-
curred, he had no lien. VAUGHAN v. CHENHALL
BILL OF SALE-See BANKRUPTCY-COMPANY.
BANKRUPTCY-Bankruptcy Act, s. 4 (1) (h)
Notice of suspension of payment-Bill of sale-
Bankruptcy Acts Amendment Act, 1896, s. 33-
Bill of sale-Covenant for title-" Party or
privy to act"-Notice of an act of bankruptcy
Estoppel-Judgment of Bankruptcy Court
Bankruptcy-Order and disposition-Possession
of second bill of sale holder.] A debtor in the
course of conversation with one of his creditors
said, "I will have to file." Held, that the
creditor had notice that the debtor was about
to suspend payment of his debts.
Sect. 33 of the Bankruptcy Act Amendment
Act, 1896, is not retrospective, and does not
apply to bills of sale given before the passing of
the Act.
(in which they set up the title to the goods
through the defendants) were ordered to pay the
value of them to the official assignee. Held,
that the judgment of the Bankruptcy Court did
not prevent the defendants from setting up
that they had a good title to the goods, when
they transferred them to the plaintiffs in an
action brought by the plaintiffs against them
for breach of the covenant for title, inasmuch
as they were not parties to the bankruptcy
proceedings.
G. gave a bill of sale over certain goods
to the defendants, and subsequently gave a
second bill of sale over the same goods to the
plaintiffs. The defendants seized the goods
with notice of an available act of bankruptcy
committed by G., and afterwards assigned the
goods to the plaintiffs. In an action brought
by the plaintiffs against the defendants for
breach of covenant for title, the defendants in
order to shew that the goods were not in the
order and disposition of the bankrupt when they
had notice of the act of bankruptcy, sought to
give in evidence the plaintiffs' bill of sale and
to give evidence that at that time the goods
were not in the order and disposition of the
bankrupt, because the plaintiffs had previously
seized under their bill of sale without notice
of an available act of bankruptcy, and this
evidence was rejected. Held, that the evidence
should have been admitted. The possession of
a second bill of sale holder who seizes without
notice of an available act of bankruptcy may
enure for the benefit of the first bill of sale
holder. DENHAM V. FOLEY
414
2.- ·Bankruptcy Act, 1887 (51 Vic. No. 19),
8. 4 (2); R. 80-Reasonable and probable cause
-Motive-Abuse of process of the Court-Bank-
ruptcy notice.] Proceedings which are an abuse
of the process of the Court are instituted "with-
out reasonable and probable cause," but the
mere motive with which such proceedings are in-
stituted, not amounting to fraud, will not make
them an abuse of the process of the Court; it
must be shewn that in the circumstances the
remedy sought would be unsuitable.
Rule 80 (which is the same as Rule 51 of the
General Rules of 1887) enabling a Judge to declare
that no act of bankruptcy has been committed,
is ultra vires.
The decision of the Registrar on a bank-
ruptcy petition does not constitute res judi-
cata with respect to the sufficiency of the
petitioning creditor's debt, and his reasons for
such decision are immaterial upon any issue as
to the same. King v. Henderson (18 N.S.W.
L.R. 1) affirmed; In re Vitoria ([1894] 2 Q.B.
387; 1 Man. 236). KING v. HENDERSON - 234
3.-Act of bankruptcy-Notice of suspension.]
Sub-s. 1 (h) of s. 4 contemplates the case of a
debtor dealing with his creditors as a body.
To constitute an act of bankruptcy under that
sub-section, a mere declaration of insolvency is
not enough, unless it be accompanied by some
words from which the intention of the debtor
as to the future conduct of his business can be
gleaned. Re BRADY -
- B. & P.
6
4.-Intent to defeat or delay creditors-Sale by
bankrupt- Bona fide advance.] "Bona fide
in s. 18, sub-s. (e), of the Bankruptcy Act
Amendment Act, 1896, means in good faith
towards the other creditors of the bankrupt. A
bankrupt with intent to defeat or delay certain
of his creditors, sold his property to one of his
creditors in consideration of 153/., of which 521.
were a past debt. The purchaser at the time of
the transaction knew of, and was a party to the
carrying out of the bankrupt's intention. Held,
that the transaction was void within the mean-
ing of s. 17 of the Bankruptcy Act Amendment
Act, 1896, and that the payment of the 1017.
was not bona fide within the meaning of s. 18,
sub-s. (e), of the Bankruptcy Act Amendment
Act. Re MOONEY
B. & P. 12
5.-Annulment of sequestration order-Pay
ment in full.] Payment in full in s. 43 of the
Bankruptcy Act means payment of twenty
shillings in the £. Re TAYLOR, Ex parte TAYLOR
B. & P. 31
6.—Property Sequestration of estate of un-
discharged bankrupt-Right of official assignee to
impeach transaction by bankrupt-Trustee-
Costs.] An undischarged bankrupt acquired
assets, and voluntarily assigned them to his wife.
His estate was shortly afterwards again seques-
trated. Held, that the official assignee in the
8.-Costs of unsuccessful motion to set aside
sale by bankrupt.] On application by an official
assignee to set aside a sale made by the bank-
rupt as fraudulent under the statute 13 Eliz., c.
5, Held, that the official assignee, though un-
successful, ought not, under the circumstances,
to be ordered to pay the costs of the application,
notwithstanding that examinations of various
witnesses, including the parties to the sale, had
been held under s. 30 of the Bankruptcy Act,
and that the official assignee had not been mis-
led by the evidence given on such examination.
Re WALTERS
B. & P. 1
9.-Creditor's petition-Objections to validity
of bankruptcy notice.] Rule 95 of the Bank-
ruptcy Rules of 1896, which provides that where
the act of bankruptcy relied on in a creditor's
petition is non-compliance with a bankruptcy
notice, no objection to such bankruptcy notice
shall be entertained at the hearing of the
petition if such objection could reasonably have
been taken before the expiration of the time
specified in the endorsement on the bankruptcy
notice for that purpose is intra vires. Re KELLY,
Ex parte CALEDONIAN COAL Co. B. & P.
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10-Creditor's petition - Domicil-Proof of
judgment.] A creditor's petition was presented
against the debtor resident at Perth, West
Australia, and described in the petition as “late
of Sydney, but at present of Perth." The
alleged act of bankruptcy was non-compliance
with a bankruptcy notice served on the debtor's
attorney here, W., under an order granting
leave to effect service out of the jurisdiction,
and substituted service on W. Certain objec
tions to the making of the sequestration order
were taken on the hearing of the petition, but
no objection was taken that the Court had no
power to order service of the bankruptcy notice
out of the jurisdiction. Held, on appeal (affirm-
ing the decision of Henry, R.), that in the
absence of evidence to the contrary there was,
from the statutory affidavit verifying the peti-
tion and the order granting leave to serve the
bankruptcy notice out of the jurisdiction suffi
cient evidence of domicil in New South Wales
and that the order sequestrating the estate of
the debtor was rightly made. Re KERLE; Er
parte SIMPSON -
B. & P. 26
12.-Certificate of discharge-Application for
--Right of official assignee to appear-Practice.]
Upon an application to review the refusal of the
Registrar to grant a certificate of discharge, it
is the duty of the official assignee to appear
where creditors are not otherwise represented.
In re Reed, Bowen & Co. (3 Morr. 90) discussed.
Though the Court has upon such application full
power to consider questions of fact, as being a
re-hearing, it will not lightly interfere with the
discretion of the Registrar. Re Goldstein (4
B.C. 18) followed. Re RUSH, Ex parte RUSH
13-Witness-Examination of-Representation
by solicitor or counsel-Prevarication-Evasion
Committal of witness Several committals
Term of imprisonment-Practice.] A witness sum-
moned for examination, under s. 30 of the Bank-
ruptcy Act, 1898, is not entitled as a matter of
absolute right to be represented on such exami-
nation by either solicitor or counsel. Prevari-
cation and evasion, as dealt with in s. 31 of the
Act, are not contempts of Court, but special
statutory offences created by the section. A
witness may be committed for prevarication or
evasion at any time during the course of his
examination under s. 30 for any term not
exceeding 14 days, and the committal may be
repeated in the case of the same witness from
time to time. Re HORTON; Ex parte WILSON
B. & P. 50
CIVIL SERVICE-See PUBLIC SERVICE.
CLUB-Personal liability of members-Ratifica-
tion-Principal and agent-Contribution-Lia-
bility of members to indemnify trustee for liabi-
lities incurred in excess of their authority-Class
suit-Form of decree-Costs.] A person, joining
a club, paying subscriptions, and using the club
premises, does not thereby become liable on
previous contracts of the committee. At a
meeting of a club held in December at which a
quorum was not present, the meeting purported
to pass a resolution appointing trustees and
empowering them to lease premises on behalf of
the club. At the following meeting of the club
in January, which was duly convened and held,
the minutes of the December meeting were read
and confirmed. The trustees, in their own
names, entered into a ten years' lease of pre-
mises for the club, which was shortly afterwards
dissolved. Held, that the members present at
the January meeting were bound to indemnify
the trustees against their liability under the
lease, but that existing members who were not
present were not so bound in the absence of
conduct amounting to ratification; ratification
was implied by members who knew of the exis-
tence of the lease, and discussed the indemnifi-
cation of the trustees and the disposal of the
lease, and generally treated the lease as an
asset of the club. PERPETUAL TRUSTEE Co. v.
A'BECKETT
Eq. 177
COAL MINES REGULATION ACT, 1896 (60
Vic. No. 12), ss. 38, 40-Miner's wages—
weight.] Sect. 38 of the Coal Mines Regulation
Payment by weight-Actual weight Average
Act, 1896, provides that miners who are paid
by weight shall be paid according to the actual
mineral shall be truly weighed as near to the
weight of mineral gotten by them, and such
pit mouth as practicable. Held, that all the
mineral must be weighed, and that it is an
offence to weigh a limited number of skips and
arrive at the gross amount by averaging, even
though the weighing machinery of the mine, by
Continuous use, is not capable of weighing the
whole output. DIXON ». ROGERS
COMPANIES Companies Act (37 Vic. No.
19), s. 68 (2) Contract- Formalities-Seal-
Managing director - Implied authority to con-
tract on behalf of company-Part performance.]
The plaintiffs, by what purported to be a deed
under the Leases Facilitation Act, let certain
premises to the defendants, a trading corpora-
tion, on whose behalf the lease was signed by their
managing director, but without affixing to it the
seal of the company. The defendants entered
under the lease and paid rent for part of the
term, but ceased to occupy before it expired,
and, in answer to an action on the covenant for
the rent due for the remainder of the term, set
up that the lease was not sealed with the com-
pany's seal, or signed by two directors as
required by the articles of association. Held,
that since, under the articles of association, the
directors had power to take a lease, and to
delegate their powers to the managing director,
who, in fact, signed it, the plaintiff was entitled
to assume that the managing director had the
authority of the company to sign it, and that
the lease was binding on the company. PLOMLEY
v. STEANES
2.--Scheme of arrangement-Distinct class-
Separate meetings Joint Stock Companies
Arrangement Act, 1891 (55 Vic. No. 9), s. 3—
Principles.] In an action by a company against
a member for calls, the defendant set up a
special agreement with the company that his
calls were to be paid out of deposits with the
company; to this the company replied that a
scheme of arrangement between the company
and its depositors had been duly sanctioned;
the defendant rejoined that there was no
separate meeting held of depositors who had a
special agreement as to calls to this the plain-
tiff company demurred. Held, by the Court
(G. B. SIMPSON, J., dissentiente), that the mere
fact of there being no such separate meeting, no
prejudice to the defendant being alleged or
proved, was not a fatal objection to the scheme
sanctioned; in any case the point should have
been raised before the Judge who sanctioned the
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