Ball

1922 G.L.R. 259;

committee-Subscription

1922

paid for tickets-Cloak-room-Liability for garment lost.-A committee of persons met and decided to organise a ball, and became elected on the ball committee. The committee hired a hall, and tickets were sold. A room was provided for a cloak-room, and a caretaker of this room hired at a remuneration paid by the committee. When the respondent presented his numbered ticket corresponding to the number placed on his coat, it was found that another coat had been substituted for his. Held, that as regards the caretaker there was no implied contract between him and the respondent. As regards the members of the committee, they were indistinguishable from the mass of subscribers who took tickets, and any contract they might make was a contract on behalf of the whole body, including the respondent. Wellington Racing Club v.

Symons ([1923] N.Z.L.R. 1; [1922] G.L.R. 259), distinguished. CORBETT v. JAMIESON, 1923 N.Z.L.R. 374. [New Zealand.]

Bailment-Loss of thing bailed-Duty of bailee-Onus of proof-Loss due to acts of bailee's servant not in course of employmentForm of action-" All care taken, but no responsibility accepted "-Observations as to effect.-PATERSON V. MILLER, 1923 V.L.R. 36; 29 A.L.R. 3. [Victoria.]

Same case, 44 A.L.T. 105; 1922 Digest, col. 38.

Negligence-Bailment of goods on approval, sale or return-Return of goods-Loss through insufficient packing.-Plaintiff claimed from defendant the value of one fur coat and one fur necklet. Plaintiff had left a parcel of five fur coats and the necklet with the defendant firm at I., on approval, sale or return. Defendant retained the fur coats for some days, and, after selecting one, handed the remainder, packed in a cardboard box, to an express company to be forwarded to plaintiff at W. On delivery of the box at W. one of the coats was missing. Defendant alleged that the necklet had been delivered to the person from whom it was received. Held, on the facts, that defendant had not exercised due care in packing the coats so as to ensure safe delivery, and that it had not discharged the onus of proof of delivery of the necklet. GEORGE & DOUGHTY LTD. v. LEWIS LTD., 18 M.C.R. 18. [New Zealand.]

rooms.

Goods stored for reward-Delivery by bailee to auctioneer-Sale by auctioneer-Delivery and sale procured by fraud of third personRights of bailee against auctioneer-Right of action against auctioneer. The owner of certain furniture sent it to the plaintiff's warehouse for storage for reward. Shortly afterwards a person, falsely representing himself to be the owner of the furniture, instructed the defendant, an auctioneer, to sell the furniture, which, he said, would be sent by the plaintiff to the defendant's auction Afterwards the plaintiff, acting upon the fraudulent representations of one of its employees, sent the furniture, in respect of which all charges for storage had been paid, to the defendant's auction rooms under such circumstances as to raise an implication that the plaintiff had no further interest in the furniture and that the defendant should account to the owner for it. The defendant sold the furniture and paid the purchasemoney to the person who had falsely represented himself to be, and whom the defendant still believed to be, the owner. Held, that the plaintiff could not maintain an action against the defendant either for conversion or for money had and received. Grace Bros. v. Lawson (22 S.R. 460; 39 W.N. 142) affirmed. GRACE BROS., LTD. v. LAWSON, 31 C.L.R. 130; 40 W.N. 4; 29 A.L.R. 77. [High Court.]

Oral bailment of herd of dairy cowsWhether cows purchased by bailee the property of the bailor-Security given by

bailee Validity of.-In 1917 the respondent was the owner of a herd of dairy cows depasturing on his freehold farm. In that year he agreed to lease the farm and stock to G., and G. was given the right to purchase the farm and stock at any time during the term. Instructions were given for the preparation of the necessary documents but the solicitors were not supplied with the particulars required, and the documents were never prepared. In pursuance of the agreement, the respondent gave G. possession of the farm and stock. In 1921, G. gave a security over the herd to the appellant company. In 1922 the respondent recovered possession of the land and of the herd of cows, and shortly afterwards the appellant company seized and sold the cows under its security. The herd delivered to G. in 1917 comprised 27 cows. The herd seized by the appellant company consisted of 9 cows of the original herd and 25 cows purchased by G. in the interval. The remainder of the original herd had either died or been sold by G. On appeal from a verdict for damages for the seizure and sale of the herd, held that the onus was on the respondent of proving that the after-acquired stock became his property, before the appellant company obtained its security, that the respondent had not proved that the bailment contained a provision express or implied having that effect and that the judgment must be varied accordingly. NORFOLK CO-OPERATIVE DAIRY CO. LTD. v. ALLEN, 1923 G.L.R. 396. [New Zealand.]

Hire-purchase agreement-Sale by bailee with approval of bailor-Purchase-money paid to bailor-Bailee's cheque accepted by bailor for balance-Cheque dishonoured— Whether cheque accepted conditionally— Whether purchaser liable.-M. purchased a milking-machine and engine from a company, of which defendant was manager, under a hire-purchase agreement which provided that no property in the chattels passed until the whole of the purchase-money had been paid, and that the bailee would not part with the possession thereof without the written consent of the company. Plaintiff, being desirous of purchasing a milking-machine, was told by the company's representative that M. had one for sale. Plaintiff arranged with M. to purchase the machine without the engine for £60. They met at the office of the company's agents, where it was found that M. owed the company £22 18s. 10d. in addition to the £60. Plaintiff handed his cheque for £60 to the agents, and M. gave them his cheque for the remainder. Plaintiff then took possession of the machine, which was erected on his farm by the company's servants. M's. cheque was dishonoured. The company sued him on the cheque and later obtained an order on a judgment summons, and M. became bankrupt. The company then applied to plaintiff for payment, and later defendant with others, went to plaintiff's farm and, plaintiff having refused to pay the amount of M's. cheque with interest, £23 10s. 9d., proceeded to

take down the machine, whereupon plaintiff gave his cheque for the amount, and the machine was reinstated. In an action to recover the amount so paid and damages, Held, that M's. cheque was not accepted conditionally, and that the property in the machine had passed to plaintiff. PLANK v. TAYLOR, 18 M.C.R. 16. [New Zealand.]

Carriage of Goods-Storage-Neglect of storeman-Liability of carrier-Negligence. See CARRIER.

Hire-purchase agent-Milking plant-Rescission Measure of damages. See DAMAGES.

BANKER AND CUSTOMER.

Cheque in favour of drawee bank-Disposal-Duty of banker-Authority-Negligence. See BILL OF EXCHANGE, col. 27

BANKRUPTCY.

Act of bankruptcy-Intent to defeat or delay creditors-Dominant object-Question of fact.-On a petition for the sequestration of a debtor's estate, where the act of bankrutpcy relied upon is a disposition of property with intent to defeat or delay creditors within the meaning of s. 4 (1) (b) of the Bankruptcy Act 1898, it is not sufficient to show that in the result creditors were prejudiced by what was done. The question for the Court is one of fact, namely, what was the dominant intention of the debtor, i.e., what was the substantial object which he desired to achieve? New Prance & Garrard's Trustee v. Hunting ([1897] 2 Q.B. 19); Sharp V. Jackson ([1899] A.C. 419); Muntz v. Smail (8 C.L.R. 262) applied. Re CHAPMAN, HOOKER & HOOKER; Ex parte PARBURY, HENTY & Co., 23 S.R. 397; 40 W.N. 69. [New South Wales.]

Bankruptcy notice-Application to set aside Counter-claim, set-off or cross demand. On an application to set aside a bankruptcy notice on the ground that the debtor had a cross-demand in excess of the judgment debt, which could not have been set up in the action, it appeared that the debtor's claim (if any) was not against the judgment creditor separately, but against him and his wife jointly. Held, that a cross demand to come within the meaning of s. 4(1) (g) of the Bankruptcy Act 1898, must be a cross demand against the judgment creditor solely. Re BROWN, 40 W.N. 73. [New South Wales.]

Insolvency-Person making discovery or giving information to trustee-RewardAmount of reward-Time for ascertaining value of property discovered.-Sect. 120 of the Insolvency Act of 1874 provides : Any person who shall make discovery or give to the trustee information which shall lead to

the discovery of any concealed property of an insolvent not before come to the knowledge of the trustee shall be entitled to such reward not exceeding one-tenth of the value of the property so discovered as the Court may allow." The applicant claimed a reward for giving information to the trustee of an insolvent concerning (i) land devised upon trust for A. for life, for B. for life, and then to the children of B. living at his decease : the insolvent was one of such children; (ii) land devised upon trust for A. for life, for C. for life, and in event of C. dying without leaving any child him surviving in trust for B. for life, and after B.'s decease for the children of B. living at his issue; the insolvent was one of the children of B. Held, on the facts as to (i) no discovery was made by the appellant, and his claim to reward failed; and, as to (ii) he was entitled to a reward which was fixed at five per centum of the value of the insolvent's interest in the property discovered. The time at which the value of the property discovered should, for the purposes of s. 120, be ascertained, is the time of discovery, or shortly afterwards. Sect. 120 should be liberally construed. In re HAYES; Ex parte DAVIES, 1923, S.R. (Q.) 15. [Queensland.]

Proof of debt of opposing creditor-Evldence of creditor's debts-Evidence receivable on charges-Rights of insolvent in making defence. A person who, as a creditor, desires to be heard respecting the certificate, the commission of offences or the punishment to be awarded to an insolvent, must establish in some way in the proceedings that he is a creditor of the insolvent. The amount of the creditor's debt is not material. It is not necessary that he should give such a proof as is contemplated by ss. 195, 197, 199, or s. 120 The schedule of of the Insolvent Act 1886. the insolvent is evidence of the debt of a creditor who opposes the granting of a certificate to the insolvent and lays charges against him, and the adjudication of insolvency furnishes conclusive evidence of the petitioning creditor's debt. In re Nancarrow ([1916] S.A.L.R. 198) followed. An insolvent was examined in Chambers, and acknowledged the correctness of the evidence then given at an adjournment of the sitting for his last examination. Further witnesses were called on behalf of creditors at the last examination, but before any charges were laid. The insolvent had no opportunity of cross-examining those witnesses with reference to any charge. Held, that their statements ought not to be considered in relation to the charge on which the insolvent convicted. Rights of insolvent making his defence and evidence to be regarded in relation to charges discussed. In re IRWIN, 1922, S.A.S.R. 135. [South Australia.]

was

in

Husband bankrupt-Title to property in husband's name.-Defendant, who was possessed of a sum of £49, admittedly her own money, purchased a certain land in P.N.

for £110. The title to the land was taken in

The

the husband's name. A cottage was erected and a mortgage of £150 raised. This paid for everything except £60 for timber, which was met by a loan of £35 from the wife's brother to her and £25 out of her savingsbank account. This account represented savings on wages received from the husband This and the wife's profits from boarders. house was sold, and the wife received £40. Default was made by the purchaser, and a second sale resulted in a sum of £102. cheque was made out in the husband's name. The defendant arranged for purchase of a section at W. and paid with this cheque a sum of £78, receiving £24 change, which she The paid into her savings-bank account. title was again taken in the husband's name. A house was built on the land purchased. The wife still continued to receive the savings from her husband's wages, and, the house being let, collected the rent and paid all outgoings. Later on the husband went into business, obtained £100 from his wife, and induced her to consent to the house being mortgaged. The husband became bankrupt. On a claim by the Official Assignee against the moneys in the bank and the property, held, that a declaration must be made that the lands were held by the In husband in trust for the wife. McGrath (17 N.Z.L.R. 646) distinguished. OFFICIAL ASSIGNEE OF MCWILLIAM V. MCWILLIAM, 1923 N.Z.L.R. 561; G.L.R. 74. [New Zealand.]

re

Bankruptcy Act, 1898 No. 25, ss. 40 (a) (d) (r), 27 (4) (5), 52 (c)—Omission to keep booksContracting debts without probable expectation of paying-Obtaining credit without disclosing insolvency-Disposal of after acquired property to prejudice of creditorsRefusal of certificate of discharge.-Re CHARLES JAMES FLEMING, 32 S.R. 169. [New South Wales.]

Same case, 39 W.N. 272; 1922 Digest, col. 26.

Debtor's

petition-Attachment order in favour of judgment creditor-Order paid a few minutes before filing of petition-Claim by Official Assignee-Date of adjudication.A few minutes before the filing of a debtor's petition in bankruptcy a debtor of the bankrupt, in obedience to an attachment order made by the Magistrate's Court on the same day, paid the amount of the attached debt to a judgment creditor of the bankrupt. amount so paid was claimed by the Official Assignee under s. 80 of the Bankruptcy Act. Held, that the date of adjudication mentioned in the section referred to the day of adjudication and did not mean "Time of adjudication," and that the Official Assignee was entitled te recover the sum claimed. In re REES, 1923 N.Z.L.R. 779; G.L.R. 318. [New Zealand.]

The

Native Money paid by bankrupt prior to bankruptcy as rebate of purchase money of lease Whether consideration-Whether re

coverable.-T., a native, was the lessee under a Native lease of land subject to Part XVI. of the Native Land Act, 1909. He agreed to sell his lease to the defendant on terms, but the District Maori Land Board required the whole purchase money to be paid in cash. Of the purchase money £300 was to be paid to the vendor, and the balance of the purchase money was to be held pending approval of the Native Minister. Immediately after payment of the £300 the vendor paid the defendant in pursuance of a secret agreement between them the sum of £200 as rebate off the purchase price. This amount was claimed by the plaintiff. Held, 1. That a transfer by a native of a lease of native freehold land was not an alienation of land within the definition of these words in the Native Land Act 1909. Nuku v. Phillips ([1920] N.Z.L.R. 446; G.L.R. 250) followed. In re Brown ([1916] N.Z.L.R. 580; G.L.R. 271) not followed. 2. That the conditions imposed by the Maori Land Board were ultra vires the Board. 3. That the £200 was paid voluntarily by T., in pursuance of an agreement to do so, and in consideration of the defendant going on with the transaction, and was irrecoverable by the plaintiff, the Official Assignee. OFFICIAL ASSIGNEE OF TAMAO ONEKAWA v. SMITH, 1923 N.Z.L.R. 412. [New Zealand.]

66

wife

Fraudulent disposition- Gift to Whether gift a settlement-Sale of property by bankrupts as mortgagees-Purchase by bankrupts' wives. In 1919 bankrupts sold a farm known as "Whitehall," and a few days after the sale one of them handed to his wife bonds to the value of £400, and later paid over £452 to his solicitor to enable him to complete the purchase of a house in his wife's name. Bankrupt stated that his wife was a partner in the farm, and that the above payments were her share of the proceeds of the sale. The Court found that it was not proved that bankrupt's wife had any legal or equitable right to any portion of the proceeds of the sale of the farm, but that a complete and absolute gift was established from her husband on the occasion mentioned. The bonds were subsequently handed back to the husband for safe keeping. At the time bankrupts were not under any monetary obligations, and had a first mortgage for £2,000, a second mortgage for £3,500, three £100 bonds, and a few hundreds of pounds, proceeds of sale of stock. Held, 1. That the handing back of the bonds to bankrupt by his wife and the collection of interest by him did not regative the gift as an absolute one. 2. That the gift, not being hedged about with conditions, was not a settlement within the meaning of s. 75 of the Bankruptcy Act 1908. In re Plummer ([1900] 2 Q.B. 790, 808) applied. 3. That the gift was not void under the statute 13 Eliz. c. 5 as, having regard to the financial position of the bankrupts at the time, there was no intention on the part of donors to defeat or delay their creditThompson v. Webster (4 Drew, 628); and Re Lane Fox; Ex parte Gimblett ([1900]

ors.

2 Q.B. 508) applied. Bankrupts later purchased a property which subsequently proved most unprofitable. In the meantime the Whitehall" farm, over which bankrupts held a mortgage for £3,500, was going back, and interest on both first and second mortgages was unpaid. The first mortgagee was threatening to exercise his powers under his mortgage. Bankrupts, upon the advice of their solicitor, eventually had the “ Whitehall" farm put up for sale at auction in December, 1921, having first arranged with the owner to surrender his equity to the bankrupts on the latter discharging him from all liabilities in connection with the farm. At the sale, bankrupt's wife bought the property for £300, which amount was raised by the sale of the £400 bonds and paid into bankrupt's account. Both bankrupts and defendants went to live at "Whitehall," shortly after the purchase, and bankrupts subsequently became bankrupt in November 1922. It was contended on behalf of the Official Assignee that the arrangement made whereby Thomassen was to forfeit his equity in "Whitehall" to the nominees of the bankrupts, and whereby the defendants ultimately became the registered proprietors of the" Whitehall property, was a fraudulent disposition of the bankrupt's property with the intention of defeating their creditors. Held, that the purchase was made in good faith and for valuable consideration. OFFICIAL ASSIGNEE OF BRAITHWAITE V. BRAITHWAITE, 1923 N.Z.L.R. 1186. [New Zealand.]

66

Insolvency-Damages-Order for payment into Court-Failure to pay damages into Court-Contempt of Court AttachmentApplication for release " Debt or demand provable in insolvency ". "Creditor ". Right to order for discharge-Stay of execution. In a suit for divorce the jury awarded £500 damages against the co-respondent. The Court, under s. 148 of the Marriage Act 1915, ordered the co-respondent to pay the £500 damages into Court, and also ordered that when paid in the amount was to be paid out to the petitioner. Subsequently the co-respondent was attached for failing to pay any part of the £500 into Court, and thereupon he voluntarily sequestrated his estate and applied to be released from custody. Held, (1) That the damages were a debt provable in insolvency within the meaning of s. 175 of the Insolvency Act 1915. O'Gorman; Ex parte Bale ([1899] 2 Q.B. 62) followed. (2) That the petitioner was a creditor within the meaning of s. 180 of the Act. (3) That the petitioner would be entitled to come in as a creditor" by virtue of s. 186 of the Act, even if there had been no order for the payment of the money out of Court to the petitioner. Wood v. Wood and Stanger ([1868] L.R. I.P. & D. 467) applied. (4) That the provision in s. 153 of the Act that further execution of any process

66

66

In re

be

against the person . . of an insolvent shall after an order of sequestration stayed," does not apply to cases in which execution of the process of attachment has been

completed and the defendant lodged in gaol. (5) That by reason of his insolvency the corespondent was entitled to an order of a Judge of the Court of Insolvency for his release under s. 175 of the Act, either absolutely or on such conditions as such Judge should think fit. In re ADDISON v. ADDISON AND HOWARD ; Ex parte HOWARD, 1923 V.L.R. 668; 29 A.L.R. 454; 45 A.L.T. 75. [Victoria.]

Application by insolvent for certificate of discharge Opposition by creditors. On application by an insolvent under s. 167 of the Insolvency Act of 1874 for a certificate of discharge on the grounds "that the insolvency has arisen from circumstances for which the insolvent cannot justly be held responsible." Larkin, J. expressed the opinion that a creditor was not entitled to appear to oppose an application of this nature unless he had requested the trustee in insolvency to oppose on his behalf, and the trustee had refused. The trustee was thereupon requested by the creditors' counsel to allow the creditor to oppose in his name and at the creditor's own cost, and the trustee consenting to the request, the creditor's counsel appeared to oppose the application in the name of the trustee and at the creditor's own cost. Held, on the facts that the application for the certificate should be granted. Re ALLAN, 1923 Q.W.N. 34. [Queensland.]

Undischarged bankrupt suing-Claim by bankrupt for property allegedly obtained by fraud-Action for possession, or alternatively, for damages.-TIMMINGS v. TREADGOLD, 1923 N.Z.L.R. 73. [New Zealand.]

Same case, 1922 G.L.R. 372; 1922 Digest, col. 28.

Land sold subject to mortgage-Covenant to indemnify vendor against claims under mortgage-Vendor bankrupt-Rights of assignee. See MORTGAGE.

Covenant by tenant not to assign or part with possession-Insolvency on lessee's petition-Right to relief.-See LANDLORD AND TENANT, col. 242.

Lease-Covenant by lessee to pay ratesBankruptcy of lessee-Payment by ownerRights of owner against official assignee.See LANDLORD AND TENANT, col. 244.

BARRISTER.

See LEGAL PRACTITIONER.

BASTARDY.

See DESERTED WIVES AND CHILDREN.

BETTING.

See GAMING AND WAGERING.

BILL OF EXCHANGE.

66

99

Interest- "Sum certain in money Interest until arrival of payment in London— Custom- Unconditional order to pay-"Documents against acceptance."-Sect. 8 (1) of the Bills of Exchange Act 1909 provides that A bill of exchange is an unconditional order in writing, addressed by one person to another signed by the person giving it, requiring the person to whom it is addressed to pay on demand, or at a fixed or determinable future time, a sum certain in money to or to the order of a specified person, or to bearer." Sect. 14 (1) provides that "The sum payable by a bill is a sum certain within the meaning of this Act, although it is required to be paid— (a) with interest, &c. A document purporting to be a bill of exchange drawn by a company in the United States of America upon the defendants in Melbourne was in the following terms : Sixty days after sight pay to the order of "the company a specified sum of money "with interest at the rate of 8 per cent. per annum until arrival of payment in London to cover. Held, that the document was not a bill of exchange within the meaning of the Bills of Exchange Act 1909, since the document was not an order in writing requiring a sum certain in money to be paid at a fixed or determinable future time. Held, also, that the evidence did not establish a custom that, where a document purporting to be a bill of exchange contained a similar provision for payment of interest, the acceptor should pay on the due date the specified amount and interest thereon until the due date and also interest for a period arrived at by adding 35 days to the period between such date and the then advertised date of departure of the next following English mail. Quaere, whether the fact that the words "documents against acceptance were upon the document prevented it from being an unconditional order to pay money. Commonwealth Bank of Australia v. Rosenhain & Co., ([1922] V.L.R. 155; 43 A.L.T. 165) reversed. ROSENHAIN บ. COMMONWEALTH BANK OF AUSTRALIA, 31 C.L.R. 46. Court.] Same case, 1922 V.L.R. 787; 28 A.L.R. 396; 1922 Digest, col. 31.

[High

Signature of endorser-Validity-Misrepresentation as to nature of document being signed-Negligence.-Plaintiff, as the holder in due course of a bill of exchange, sued defendant, whose name appeared on the back of the bill as an endorser. Defendant alleged that owing to fraudulent misrepresentation on the part of the drawer of the bill his mind did not accompany the act of endorsing the bill, and that he believed that he was merely witnessing the drawer's signature, and signed after a casual glance at the con