Quarterly Digest

OF

ALL REPORTED CASES

IN THE

Law Times and Law Reports

FOR OCTOBER, NOVEMBER, AND DECEMBER, 1896. By THOMAS J. BARNES, of the Middle Temple, Barrister-at-Law.

DIGEST.

Where a case has already been given in the Digest for a preceding quarter, the additional report is given after the name of the case, with a reference to the volume of the Digest in which it first appeared, the thick number being the number of the volume.

Administration :

(i.) P. D.- Intestate Married Woman-Husband Bankrupt―Citation— -Sureties.-The official receiver was allowed without finding sureties to administer to a small estate of the intestate wife of a bankrupt on giving him notice without citation.—In the goods of Sarah Ann Morgan, 75 L.T. 190.

(ii.) C. D.-Insolvent Estate-Surplus-Interest―Judicature Act, 1875, s. 10—— O. lv., rr. 62, 63.-In the administration of an estate in a creditor's action, any surplus which remains after discharge of the claims stated in the chief clerk's certificate is applied first in satisfaction of interest from date of order to date of payment, on debts which at law carry interest, and then on paying interest at 4 per cent. on the other debts. -In re Henley; Alcock v. Henley, 75 L.T. 307.

Adulteration:

(iii.) Q. B. D.-Sale of Food and Drugs Act, 1875, ss. 6, 13, 18, 20 & 21.Under sect. 21 of the Food and Drugs Act a certificate was held to be admissible in evidence which drew from a comparison between the percentage of solids not fat found in a sample of milk analyzed and the percentage which genuine milk should contain the inference that a named percentage of water had been added to the sample. Fortune v. Hanson distinguished.—Bridge v. Howard, L.R. [1897] 1 Q.B. 80; 75 L.T. 300.

Author and Publisher:

(i.) C. D.—Half Profits-Assignment of Agreement-Receiver-Assets.-An agreement for the publication of a book cannot be assigned by the publisher without the consent of the author. A receiver in a debenture-holder's action should sell surplus copies of a book published on the half-profit principle for the benefit of all parties. Hole v. Bradbury applied to companies.-Griffith v. Tower Publishing Co., Limited, L.R. [1897] 1 Ch. 21; 75 L.T. 330.

Bankruptcy:—

(ii.) Q. B. D.-Amendment of Creditors Valuation of Security-Bankruptcy Act, r. 13.--A secured creditor had on the bankruptcy of his debtor valued his security, which shortly afterwards increased in worth. The trustee in bankruptcy then tendered the assessed value, and gave written notice of intention to redeem. The creditor applied to amend his proof. Held, that the creditor had a right to amend, and that the tender and the written notice did not amount to payment.-In re Newton; e. p. National Provincial Bank of England, L.R. [1896] 2 Q.B. 403; 75 L.T. 144.

(iii.) Q. B. D.-Charging Order -Prior Act of Bankruptcy-Title to Money in Court.-Where an act of bankruptcy has been committed, a charging order subsequently made under sect. 23 of the Partnership Act is not protected by sects. 45 and 49 of the Bankruptcy Act, and money paid into Court under the order belongs to the trustee in bankruptcy.Wild v. Southwood, 75 L.T. 388.

(iv.) Q. B. D.-Solicitor's Lien-Charging Order-Solicitors Act, 1860, s. 28. -There is jurisdiction to make a charging order under sect. 28 of the Solicitors Act, 1860, and it should be exercised by a registrar.-In re Wood; e. p. Fanshawe, 75 L.T. 387.

(v.) Q. B. D.-Marine Insurance-Bankruptcy of Underwriter-Salvage Rights of Brokers and of Trustee.-On the bankruptcy of an underwriter, balances were due by him to brokers for losses on various policies of marine insurance. Subsequently the brokers received salvage on other losses which they had settled in account with the underwriter before his bankruptcy. Held, that the salvage was part of the bankrupt's estate, and could not be set off by the brokers against their unpaid losses.-Elgood v. Harris and Another, L.R. [1896] 2 Q.B. 491; 75 L.T. 419.

(vi.) Q. B. D.-Partnership-Solvent Partner an Infant-Dealing with Liquidator with Knowledge of Misapplication of Assets.-The rule which allows a solvent partner to liquidate the assets of a firm dissolved by the bankruptcy of a member does not apply when the solvent partner is an infant. Whoever pays partnership assets to a liquidator with a knowledge that they will be applied otherwise than to the partnership liabilities will be held liable to account.-In re Beauchamp Bros.; e. p. Carr, 75 L.T. 315.

(vii.) Q. B. D.-Fraudulent Preference-Accommodation Bill-Acceptor a Creditor-Bankruptcy Act, 1883, ss. 37, 48.--The acceptor of an accommodation bill given to a bankrupt is a creditor within sect. 48 of the Bankruptcy Act, 1883, with a right of proof under sect. 37. Payment to a surety in anticipation of enforcement of his liability may make a fraudulent preference.-In re Paine; e. p. Read v. Barnard, L.R. [1897] 1 Q.B. 122; 75 L.T. 316.

(viii.) C. A.-Debtor Domiciled Abroad-Notice-Service in EnglandBankruptcy Act, 1883, ss. 4, 6, rr. 136 to 142.-Where a bankruptcy notice has been served on a debtor in England it will not be set aside on the ground that he is a foreign subject domiciled abroad, who has

not resided or had a dwelling-house or place of business in England within a year of the presentation of the petition, and that the notice was issued when he was out of England.-In re Clark; e. p. Beyer, Peacock & Co., L.R. [1896] 2 Q.B. 476; 75 L.T. 304.

(i.) C. A.-Partnership-Notice-Service on Receiver-Bankruptcy Rules, 1883, r. 260.-A receiver and manager of a partnership business who has been appointed by the Court is not a person upon whom a bankruptcy notice can be served under rule 260 in respect of a judgment against the firm. In re Flowers & Co.; e. p. Ware & Co., L.R. [1897] 1 Q.B. 14; 75 L.T. 306.

(ii.) C. A.-Debtor an Undischarged Bankrupt-Receiving Order-Bankruptcy Act, 1883, ss. 5 & 7.-Where a bankruptcy petition was presented against an undischarged bankrupt the Court refused to make a receiving order on the ground that to make it would be a waste of money. In re Betts; e. p. Betts, L.R. [1897] 1 Q.B. 50; 75 L.T. 292. (iii.) Q. B. D.-Receiver-Equitable Execution Judicature Act, 1873, s. 25 sub-s. 8-0. 50, r. 15a.-Where the official receiver and trustee of a bankrupt had obtained an order for the payment of a sum of money against a creditor of the bankrupt estate whose only property was a life interest under a will, he was appointed, without salary or security, receiver of the creditor's life interest until satisfaction of the sum ordered to be paid.-In re Gondie; e. p. the Official Receiver, L.R. [1896] 2 Q.B. 481; 75 L.T. 277.

(iv.) Q. B. D.-Post Nuptial Settlement-Non-trader -13 Eliz., c. 5 Bankruptcy Act, 1883, s. 47.-A person entitled under his father's will to a sum of money on attaining majority and to a further sum on the death of his mother, made just before coming of age, a post nuptial settlement of all his interest under the will, except a sum set aside to meet his minority debts, upon trust to pay the income to himself for life or until he should charge it, and then in trust for his wife. His mother and brother were parties to the deed and covenanted to make him certain payments. Held, that the settlement was for valuable consideration, and though the consideration was given for the purpose of protecting the settlor and his family from future creditors it was not intended to delay or defeat them. A motion on the part of the trustee in bankruptcy to set aside the deed was dismissed. In re Tetley; e. p. Jeffery, 75 L.T. 166.

Bill of Exchange:

(v.) H. L.- Accommodation Bill — Fraudulent Alteration - Liability of Acceptor. Decision of C. A. and of Q. B. D. (see Vol. 20, p. 3 (iii.) and p. 66 (iii.) affirmed. Scholefield v. Lord Londesborough, L.R. [1896] A.C. 514; 75 L.T. 254.

Bill of Sale:

(vi.) C. A.-Description of Witness Omitted-Void-Bills of Sale Act, 1878, s.10; Amendment Act, 1882, s. 9 and Schedule.-Where, in the attestation clause of a bill of sale, the description of the witness had been omitted, it was held that the bill was void as being not in accordance with the form in the schedule of the Act. Parsons v. Brand and Coulson v. Dickson followed.-Sims v. Trollops & Sons, L.R. [1897] 1 Q.B. 24; 75 L.T. 351.

Bona Vacantia :

(vii.) C. A.-Friendly Society-Objects Exhausted-Funds-Cy près-Bona Vacantia.-A society was established to provide a fund for the benefit of the widows of ordinary subscribers. On the death of the last subscriber and of the last pensioner, the question arose of title to the

residue of the funds. Held, that there was no resulting trust; that cy près did not apply; and that the Crown was entitled to the surplus as bona vacantia.-Cunnack v. Edwards, L.R. [1896] 2 Ch. 679; 75 L.T. 122.

Charity:

(i.) C. A.- Bequest of Personalty to Tenant for Life, Remainder to Charity-Option to Invest in Land-Validity of Bequest to Charity.-A testatrix, who died in 1877, left pure personalty to life tenant with remainder to charity. Trustees, under a power in the will, invested part of the fund in mortgage, which was not called in at death of life tenant. Held, reversing the decision of the Court below, that the gift to the charity was good.-In re Hamilton; Cadogan v. Fitzroy, L.R. [1896] 2 Ch. 617; 75 L.T. 113.

(ii.) C. D.--Charitable Rent Charge-Liability of Tenant for Years-— Charitable Trusts (Recovery) Act, 1891.-A tenant for years is not, except in special circumstances, liable in an action for debt for nonpayment of a rent charge issuing out of the land of which he is in occupation, and there is no personal duty upon him to pay such a charge created for charitable purposes, but the Charity Commissioners can, under the Charitable Trusts (Recovery) Act, enforce payment in equity against the persons legally liable to pay, even though the legal title may not be clear.-In re the Herbage Rents Charity, Greenwich; the Charity Commissioners v. Green, L.R. [1896] 2 Ch. 811; 75 L.T. 148.

Colonial Law:

(iii.) H. L.-Canada-Revenue-Import Duty on Steel Rails-Canadian Act, 50 & 51 Vict., c. 39. s. 1 (88), s. 2 (173).-The only distinction in the Act between taxed and free steel rails for railways is that of weight. Rails above the specified weight are exempt from duty.-Toronto Railway Co. v. The Queen, L.R. [1896] A.C. 551; 75 L.T. 234.

(iv.) P. C.-Canada-British Columbia Act, s. 3-Mines-Precious Metals— Crown Rights. A grant of lands including all minerals does not include gold and other metals, which are the prerogative right of the Crown. Esquimalt and Nanaimo Railway Co. v. Bambridge, L.R. [1896] A.C. 561; 75 L.T. 111.

(v.) P. C.-New South Wales-Company-Shares issued as paid upWinding up-Companies Act, 1874, of New South Wales, s. 57.-A resolution of persons interested in property setting forth the manner in which they propose to put it before the public as a company is not a contract within sect. 57 of the Companies Act of New South Wales (which is similar to sect. 25 of the Companies Act, 1867, 30 & 31 Vict., c. 131), and a shareholder to whom shares are issued as paid up shares under such a resolution is liable to contribute in a winding up of the company. Smith v. Brown, L.R. [1896] A.C. 614; 75 L.T. 213.

(vi.) P. C.—New South Wales-Dismissal of Civil Servants-Civil Service Act, 1884. The common law right of the Crown to dismiss civil servants at pleasure, is surrendered in the case of those engaged under the Civil Service Act, 1884.-Gould v. Stuart, L.R. [1896] A.C. 575; 75 L.T. 110.

(vii.) P. C.-Victoria - Marine Act, 1890, s. 13-Sunken Wreck-Liability to Clear. The registered owner of a ship sunken in a port must bear the expense of clearing the wreck, and cannot escape this liability by abandoning the wreck to underwriters. Sect. 13 of the Victorian Marine Act, 1890, differs from sect. 56 of the English Harbours, &c., Act, 1847. — Wm. Howard Smith and Sons v. Wilson, L.R. [1896] A.C. 579.

(i.) P. C.-Victoria-Probate Duty-Administration and Probate Act, 1890.-A debt fully secured on property outside the colony cannot be deducted from the value of assets within the colony in a valuation for probate.-Henty and Another v. The Queen, L.R. [1896] A.C. 567; 75 L.T. 106.

(ii.) P. C.-Trinidad and Tobago-Right to Possession of Land-Erroneous Recitals-Equitable Title-Notice-Registry. -Notice of a prior equitable title is valid although there be in the conveyance of the equitable interest an erroneous recital of the mode in which the equity became vested in the grantor. A purchaser from a vendor out of possession must investigate the interest of a person who is in possession under a registered deed.—Trinidad Asphalte Co. v. Coryat, L.R. [1896] A.C. 587 ; 75 L.T. 108.

(iii.) P. C.-Nova Scotia-Privileges of Members of Provincial Legislature— British North America Act, 1867 (30 ₫ 31 Vict., c. 3)—Revised Statutes of Nova Scotia, 5th Series, c. 30, s. 20.-Members of the Provincial Legislature who voted for the imprisonment of a person for contempt of the House were, under an Act of the Legislature giving them the same immunities and powers as are held by members of the Dominion Legislature, held, to have a good defence against an action by him for assault and false imprisonment.-Fielding and Others v. Thomas, L.R. [1896] A.C. 600; 75 L.T. 216.

Company :

(iv.) C. D.-Debenture Stock Certificate-Purchaser-Mortgagee-Authority of Agent.—A company applied to its broker for a loan of £3,000 on the security of £8,000 debenture stock, which by trust deed was assignablefree from equities. The broker obtained £6,000 on the security accompanied by a certificate from the secretary that the lender was registered as holder of £8,000 debenture stock, which could only be transferred by deed registered in the company's books. The broker paid only £3,000 to the company. Held, that though the certificate was a negotiable instrument, the lender was entitled to assume that the broker had authority to deal with it; that the lender was not required to see that the broker paid the full sum to the company, and could prove for the £8,000, though he could receive dividends only on £6,000.-Robinson v. Montgomeryshire Brewery Co., L.R. [1896] 2 Ch. 841. (v.) C. D.-Application for Allotment under Mistake—Repudiation—Delay— Payment on Account of Shares.-A person applied for shares in the Dunlop-Truffault Cycle Co. under the impression that it was connected with the Dunlop Pneumatic Tyre Co. Shortly after an allotment had been made to her she discovered her mistake, and on the 23rd May wrote to repudiate the contract. On the 27th May she paid a sum which was due on allotment, and on the 20th June a further sum then due on the shares. On the 13th July she served notice of motion to remove her name from the register of shareholders. Held, that she would have been entitled to rescission of contract on the ground that she was deceived by the use of the name of Dunlop in the prospectus, but that by delay and by payments on account of the shares she had acted in a manner inconsistent with repudiation.- The Dunlop-Truffault Cycle and Tube Manufacturing Co., Limited; Shearman's Case, 75 L.T. 385. (vi.) C. D.-Debentures-Floating Security-Receiver.-Where a creditor of a company had presented a petition for winding up, it was held in a debenture holder's action that a receiver and manager could be appointed notwithstanding that the debentures had not "crystallised." -In re Victoria Steamboats, Limited; Smith v. Wilkinson, 75 L.T. 374.