ankruptcy Act 1883 for the power to transfer given by under a verbal promise made would go and live with the t of kin-Grant ad colligende woman domiciled in Canada- nt to the attorney of the children had died intestate, domiciled in Goods of Babin, deceased.) nt the Chief Official Receiver Sureties dispensed with.-Where a grant of letters of administra ef Official Receiver in Bankruptcy, ed that he should enter into the e due and proper administration sed, but in view of the or the Court Inevitable accident-Costs-Special circumstances. As a general rule a defendant relying upon and succeeding upon the defence of inevitable accident in a case of collision is entitled to his costs, but there may be exceptions to this rule where, in addition to such defence, the defendant alleges facts inconsistent therewith, and fails in establishing their truth. (The Batavier.)... 406 -Lights-Obscuration Regulations for Preventing Collisions at Sea, art. 6-Merchant Shipping Act 1873.-In a collision action where either party has infringed the Regulations for Preventing Collisions at Sea, he is deemed to be in fault unless he can establish that the infringement could not possibly have caused or contributed to the collision; and it is the duty of the judge to determine upon the evidence whether or not the party committing the breach has satisfied the burden of proof that the breach could not possibly have occasioned or contributed to the collision. The steamship A. collided with the sailing ship B., striking her on the port bow. The red light of the sailing ship was obscured by the foresail to a vessel substantially right ahead. The steamship approached the sailing ship on a bearing never less than one point to two and a half points on the port bow, and the red light of the sailing ship was in fact always open to the steamship. Held, that, on the proper construction of sect. 17 of the Merchant Shipping Act 1873, although the sailing ship had infringed the regulations as to lights, the court was bound to consider the evidence as to whether such infringement could in fact have contributed to the collision, and that, as in the circumstances the infringement could not possibly have contributed to the collision, the owners of the sailing ship were not to blame. (The Duke of Buccleuch.) Lightship at anchor-River Mersey-Merchant Shipping Act 1873-Merchant Shipping Act Amendment Act 1862.-In considering whether a breach of the regulations for preventing collisions could possibly have contributed to a collision, the court must take into consideration the whole of the evidence even where there is a confliet, subject to the qualification that the onus of proof lies on those infringing the regulations; and if upon such evidence the court comes to the conclusion that the breach could not possibly have contributed to the collision, the ship committing it is not to be deemed to blame in respect thereof. The steamship H. at night ran into the barque E. at anchor in the river Mersey. By Order in Council of the 5th Jan. 1881, every vessel when at anchor in the river Mersey shall carry two white lights, the after light being carried double the height of the foremost light. The E. exhibited two anchor lights both of which were about ingroaco wiek of mallis buyer in one of the departments at a ANCIENT LIGHTS. Obstruction-Damages or injunctioncourt-Mandatory injunction-Form mandatory injunction will be gran removal of a building which obstr lights, notwithstanding that such been completed before the issue of th action. An action was brought by certain tenements, claiming damages mandatory injunction against the d respect of an interference with the ancient lights attached to the pro access of light had been diminished by of a new building, which at the tim mencement of the action was not quit After the action was begun the def tinued and hurriedly finished the paid 50%. into court as sufficient to cor plaintiffs for the injury which was have been caused to their property. in exercising the discretion given to sect, 2 of Lord Cairns' Act (21 & 22 V award damages in substitution for a in the case of a substantial interferes plaintiffs' ancient lights, the court into consideration all the circumst case; and that, as the defendants m to be acquainted with their own building having been completed brought, they could not complain subsequently ordered by the court to Held also, that à fortiori where th admitted that they were wrong, and into court by way of damages, having brought completed their building, equity to resist a mandatory injunc rence v. Horton.) ANTICIPATION. Married woman-"Without power of a -Gift over "on her anticipating her life interest.-Atestator gave his r the residue of his personal estate to trust out of the rents and income the a certain annuity, and to pay the the rents and income to M., a mar "for her separate use, free from th control of any husband, without pow pation, and for and during the term o life, and from and after her decease anticipating the same rents and in part thereof," upon trust as to t estate for all the children of M. equal in common, with a gift over in case be no such child who should attain At the date of the testetor's will M. v woman, and her husband was still was one child only of the marriage. an assignment of the life interest by gage. Held, that the word "anticip include "attempt to anticipate," and quently the clause in the will di interest in the event of her anticipat had not, in the events that had hap effect. (Re Wormald; Frank v. Muz APPEAL. Criminal cause or matter - Contem On an application to the D T. was ordered to pay a fine as of a contempt of court in publishing newspaper comments upon the c party to a divorce suit pending Court of Justice. T. appealed. artments at a fixed salary, entered the service of a universal purveyors next inted to a salaried post in artment. Held that, withthe meaning of the words the defendant had done ent intended he should not nst be granted. (Watts r. ... ... page 453 NT LIGHTS. or injunction-Discretion of nction-Form of order.-A will be granted for the g which obstructs ancient ng that such building has the issue of the writ in the as brought by the owners of aiming damages, and also a n against the defendants in ence with the enjoyment of hed to the property. The en diminished by the erection hich at the time of the comtion was not quite completed. s begun the defendants cony finished the building, and As sufficient to compensate the jury which was admitted to their property. Held, that, scretion given to the court by ns' Act (21 & 22 Vict. c. 27), to substitution for an injunction, stantial interference with the lights, the court would take all the circumstances of the the defendants must be taken with their own rights, their been completed after action ld not complain if they were red by the court to pull it down. fortiori where the defendants were wrong, and paid money of damages, having since action d their building, they had no mandatory injunction. (Law Without power of anticipation her anticipating "-Mortgage of Atestator gave his real estate and personal estate to trustees upon rents and income thereof to pay v, and to pay the remainder of come to M., a married woman, te use, free from the debts and pashand, without power of antici nd during the term of her natural ad after her decease, or on her e same rents and income, or any upon trust as to the said trust children of M. equally as tenants a gift over in case there should 1 who should attain twenty-one. e testetor's will M. was a married r husband was still living. There nly of the marriage. M. executed of the life interest by way of mortThat the word "anticipate" did not mpt to anticipate," and that conse clause in the will divesting M.'s event of her anticipating the same, he events that had happened, taken ormald; Frank e. Muizen.) or matter - Contempt of court pplication to the Divorce Court to pay a fine as being guilty Conduct of s in publishing in a certain High the a I had been built in 1867, and from 1888 enjoyed an access of light to over an adjoining piece of land. authority acquired the adjoining under the Artisans' Dwellings A 1886 let it to the defendant, who houses which obstructed the pl Held, that the plaintiffs had not a scriptive right to the light they ha cause their inchoate right which a ten years' enjoyment from 1867 to guished by sect. 20 of the Act, and same section they were entitled to for the extinguishment. (Barlow Ross.)... ASSAULT. Complainant not appearing before Charge dismissed-No evidence -"Hearing upon the merits"-Ce missal-Power to grant such certifi such certificate is a bar to subsed ceedings-Sect. 44 of 24 & 25 Vict that, upon the hearing of any case battery "upon the merits," if the the offence not to be proved, they sl complaint and shall give to the whom the complaint was preferre stating the fact of such dismissal provides that the person who has "shall be re certificate of dismissal further or other proceedings, civil Held, that a ma the same cause." jurisdiction under sect. 44 to grant the dismissal of a summons for ass complainant does not appear and wh on oath is taken, as such hearing i ing upon the merits," and if the n grant a certificate, such certificate ing certificate, both parties not present, and the case not having be decided on the facts. That if in su magistrate grants a certificate of judge in a subsequent action for dam of the same assault, is not bound ficate, but has power to go behind and to inquire into the facts, and whether facts which gave the ma diction to grant the certificate. (R ATTACHMENT. Trustee-Breach of trust - Non-co order to pay cash into court as t quent bankruptcy of trustee Debtors Act 1869.-By an order n April 1889 the defendant was direct to pay two sums of cash, which he have misapplied, into court on or May 1889. He failed, however, to that order. On the 13th May 18 order was made against him on his and he was adjudicated a bankrupt, yet obtained his discharge. The pl for liberty to issue a writ of attac him, the notice of motion being April 1890. Held, that the propert the debtor were protected by sect. ruptcy Act 1883; and that the cour diction to direct a writ of attack against him. (Re Simes; Simes v. Bailor's title-Termination of-Jus 67, and from E ess of Cre ece of land. 33 the a Dwellings A 27 lefendant. Wh: 1 ructed the pa tiffs had not aest e light they had e right which are ht from 1867 to 15 of the Act, and that the vere entitled to epasts ment. (Barlow and s ASSAULT. pearing before mas No evidence take the merits"-Certificate f rant such certificate-Wether a bar to subsequent of 24 & 25 Vict. c. 1. etats ring of any case of assa = merits," if the justices deem e proved, they shall dismiss the all give to the party arast nt was preferred a certificate of such dismissal; and sect. 45 person who has obtained soch Assal" shall be released from all roceedings, civil or criminal, for Held, that a magistrate bas 20 sect. 44 to grant a certificate c summons for assault, when the not appear and when no evidence as such hearing is not a "hearts," and if the magistrate does Je, such certificate is not a birdboth parties not having been case not having been argued and ets. That if in such a case the ts a certificate of dismissal, the uent action for damages in respect ult, is not bound by such certi wer to go behind the certificate Into the facts, and to determine hich gave the magistrate juris the certificate. (Reed r. Nutt.). ATTACHMENT. of trust - Non-compliance with sh into court as trustee-Subsetey of trustee - Jurisdiction69.-By an order made on the 5th efendant was directed, as trustee, s of cash, which he was alleged to d, into court on or before the 6th failed, however, to comply with n the 13th May 1889 a receiving e against him on his own petition. dicated a bankrupt, and he had not s discharge. The plaintiffs moved issue a writ of attachment against e of motion being dated the 22nd eld, that the property and person of re protected by sect. 9 of the Bank3: and that the court had no jurisFect a writ of attachment to issue Re Simes; Simes r. Newberry. BAILMENT. Termination of Jus tertii-When led from setting up.-In an action for ention of certain goods brought by st bailees, who were warehousemen aged to hold the goods to the plainbe defendants sought to administer es as to whether the plaintiffs had date of the bailment, sold the goods rm, and whether they had not received the same and had not indorsed and delivery orders for such goods. The claimed the goods from the defen was admitted by the defendants thst SUBJECTS OF CASES. BANKER. Broker-Loan-Deposit of Securities-Negotiable securities-Purchaser for value-Notice-Duty to inquire-Damages-Evidence given in another action-Admissions.-The ruling of the House of Lords in Earl of Sheffield v. London Joint Stock Bank (58 L. T. Rep. N. S. 735; 13 App. Cas. 333), that in the case of advances by bankers to their customers, money-dealers, on the deposit of negotiable securities to bearer, it is the duty of the bankers to inquire into the customer's title, applies also where the customer is a stockbroker. Where, in such a case the title of the bankers failed on action brought against them by the plaintiff, being the real owner, who had bought the securities merely with a view of selling on a favourable opportunity, and the value bad fluctuated while they were held by the bank: Held, that it could not be presumed against the bank that the plaintiff would have realised when the securities had reached their highest price, and that, as regards some of the securities which the bank had sold before demand by the plaintiff, they were liable for the price at which they had sold with interest at 4 per cent., and, as regards those still in their possession, which had depreciated, for the differences between their value on the date of the plaintiff's demand and the date of recovering judgment, with any dividends received in the meantime. The bank manager had in a previous action by another plaintiff given evidence of the practice of the bank in making such loans to customers. Held, that the manager being a person authorised to make admissions on the part of the bank, his evidence might be read on the part of the plaintiff in this action so far as relevant to the matters now in question. (Simmons r. London Joint Stock Bank; Little v. Same.) ... BANK OF ENGLAND. Transfer of stock into joint names of a corporation and an individual-Refusal of bank to register transfer-Mandamus-Joint tenancy and tenancy in common-Incidents of, as regards both real and personal estate-Upon an application by an action at the suit of the plaintiffs for a mandamus to compel the Bank of England to register in their books a transfer of stock in the joint names of the trustees: it was held that the plaintiffs, being a corporation and an individual, were tenants in common of the stock in question, and that the Bank was entitled to decline to register the transfer, being exonerated, by their ordinary course of practice and the terms of the National Debt Act 1870, from recognising or registering trusts or tenancies in common, and therefore the mandamus must be refused. (The Law Guarantee and Trust Society Limited and Hunter v. The Bank of England.) ... BANKRUPTCY. Action-Meaning of word-Motion is not an action. -The word "action" in sects. 53 and 54 of the County Courts Act 1888, being the sections which require notice and other formalities to be gone through before proceedings can be taken against a person for anything done in pursuance of that Act, will not be enlarged so as to include a motion by a trustee in bankruptcy against a high bailiff, under sect. 46 of the Bankruptcy Act 1883, for a declaration that he was entitled as against the high bailiff to certain goods taken in execution, on the ground that the execution had not been completed by seizure and sale. (Re Locke; Ex parte Poppleton.) 427 496 942 Act of bankruptcy-Assignment for the benefit of creditors generally-Assignment not by deed.By sect. 4, sub-sect. 1, of the Bankruptcy Act 1883 it is provided that: A debtor commits an act of bankruptcy in each of the following cases : (a) If in England or elsewhere he makes a conveyance or assignment of his property to a trustee or trustees for the benefit of his creditors generally." Held, that an assignment within this section must be a formal assignment by deed of the whole, or substantially the whole, of the debtor's property. (Re Spackman; Ex parte Foley.) ...page 849 Bankruptcy notice-Right to include interest on judgment debt.-Where a creditor seeks to issue a bankruptcy notice on a judgment debt, he is entitled to add to the judgment debt the interest which has accrued due upon it, and to have a bankruptcy notice issued for the full amount. (Re Lehmann; Ex parte Hasluck.) Bill of sale "True owner"-Partnership property -Bill of sale by one partner over-Bills of Sale Act (1878) Amendment Act 1882-Bankruptcy Act 1883.-The words "true owner " in sect. 5 of the Bills of Sale Amendment Act 1882 are used in their popular sense, and a man does not cease to be the true owner of goods merely because his ownership is to some extent qualified by rights existing over the goods in other persons. One of two partners, with the assent of his copartner, executed a bill of sale of partnership goods to secure a loan of money which was used for the benefit of the two partners. The firm went into bankruptcy, and the bill of sale was set aside by the County Court judge. Held, on appeal, that the grantor was to the extent of his share in the partnership goods assigned by the bill of sale the true owner within the meaning of sect. 5; and that the bill of sale was to that extent valid, but that as to the rest of the goods which belonged to his copartner it was void. (Re Tamplin; Ex parte Barnett.) 941 261 Deposit on appeal-Abandonment of appeal.-Where an appellant who has paid the 201. into court as security for the costs of his appeal under the provisions of rule 131 of the Bankruptcy Rules 1886, afterwards abandons his appeal and pays the costs, such moneys will be paid out to him on his application, and will not be made subject to a claim for costs incurred by the appellant at an earlier stage of the litigation which remains unpaid at the time of abandoning his appeal. (Re Scott and Mitchell; Ex parte Scott.) 840 Discharge-Considerations affecting.-On the application by a debtor for his discharge the County Court judge, upon the report of the official receiver being of opinion that the debtor had committed two offences under sect. 28, and had otherwise been guilty of misconduct, refused the debtor his discharge, but gave him liberty to apply again on his proving that he had paid to the official receiver such a sum as would, with the dividend already paid, make up a dividend of fifteen shillings in the pound. The evidenee showed that the debtor was in receipt of a small salary, and that a sum of 4000l. would be necessary to make up the required dividend. Held, on appeal, that the order was too severe, and that, under the circumstances, the proper order to make was to suspend the discharge for a period of three years. As a general rule an order suspending a debtor's discharge for a period of three months or six months should not be made, inasmuch as such period of suspension amounts to more than a nominal punishment, and yet is not sufficiently severe to be of any effect in discouraging debtors from committing offences. (Re Freeman; Ex parte Freeman.) On an application by a bankrupt for his discharge the official receiver reported that the bankrupt had committed four of the offences specified in sect. 28 of the Bankruptcy Act 1883. The County Court judge modified a previous order which had been made, and refused the bankrupt absolutely his discharge, but gave him liberty to apply again so soon as he had paid a further dividend of 18. 367 |