OF

REPORTED CASES

IN THE

Law Times and Law Reports
FOR JANUARY, FEBRUARY, AND MARCH, 1898.

DIGEST.

Where a case has already been given in the Digest for a preceding quarter, the reference to the additional report is given in the Index only, 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.—Right of Creditor—“ Information and Belief" that Assets exist.— A general allegation of information and belief in the existence of assets of a deceased within the jurisdiction will not entitle a creditor to letters of administration in opposition to the next of kin.-In the goods of Foy, 78 L.T. 49.

Administration de bonis non :

(ii.) P. D.-Previous Grant-Application for Fresh Grant.-The next of kin of a deceased were a son and a daughter, both resident out of the jurisdiction. The attorney of the scn took out letters of administration, but died before further steps were taken. The attorney of the daughter applied for a grant de bonis non until she could come to this country. The registrar refused the application, but the Court made the grant. -In the goods of Albert F. Barton, L.R. [1898] P. 11; 77 L.T. 629 ; 78 L.T. 81.

Animals:

(iii.) Q. B. D.-Swine-" Holding a Sale"-Diseases of Animals Act, 1894 (57 & 58 Vict., c. 57,) s. 22, sub-s. 19—Markets and Fairs (Swine Fever) Order.-The Board of Agriculture issued an order under sect. 22 of the Diseases of Animals Act that "no sale or exhibition of swine shall be held in a district to which this order applies." A person taking pigs in a cart along a highway sold some within the district. Held that though there was a selling there was no "holding a sale."McLean v. Monk, 77 L.T. 663.

Arbitration:

(iv.) C. A.-Special Case-Arbitration Act, 1889 (52 & 53 Vict., c. 49), ss. 10, 11, 19.-Sect. 19 of the Arbitration Act impliedly authorises a party to require the arbitrator at any stage to state a case on a matter of law. And where such an application has been made bona fide and not for the sake of delay, the arbitrator who refuses the application, or by summarily making his award precludes the party from himself applying to the Court, is guilty of a breach of duty.-In re Palmer and Co. and Hosken & Co., L.R. [1898] 1 Q.B, 131,

Banker's Book:

(i.) C. A. — Discovery - Inspection of Banking Account· - Bankers Book Evidence Act, 1879 (42 & 43 Vict. c. 11), s. 7 (1).-Inspection of entries in bankers' books will in general be granted only when the entries are in an account which is in substance that of one of the parties to the litigation. Any jurisdiction which the Court may have to order inspection of the account of a person not concerned in the litigation will be exercised with the greatest caution.-Pollock v. Garle, L.R. [1898] 1 Ch. 1.

Bankruptcy:

(ii.) Q. B.-Payment to Accountant who had knowledge of Act of Bankruptcy. -Payment made to an accountant for preparing accounts and sending out notice of suspension is not protected within in re Sinclair; e. p. Payne (53 L.T. rep. 767; 15 Q.B.D.Ĝ16), and may be recovered by the Trustee in bankruptcy.-In re White; e. p. Ward and Afjord, 78 L.T. 25. (iii.) Q. B.-Personal Earnings-Assignment not Perfected-Title of Trustee― Bankruptcy Act, 1883 (46 & 47 Vict., c. 52), s. 50, sub-s. 5.—A trustee in bankruptcy detained a stop order on a sum of money adjudged to the debtor as damages in an action for commission earned in a new business taken up since his bankruptcy. Two adverse claims were set up; one by a person to whom the bankrupt had before the trial assigned his claim in the action; and the other by a person to whom the bankrupt had agreed to give half commission on any business effected through that person's introductions. Neither claimant had given notice of assignment. Held, that the commission so acquired by the bankrupt was in the nature of earnings from a trade or business, and passed to the trustee; that the first claim not having been perfected by notice could not prevail against the trustee, and that the second claim was not a charge on the particular fund.-Mercer v. Vans Colina, 78 L.T. 21. (iv.) Q. B. D.-Application to set aside a Bankruptcy Notice-Bankruptcy Act, 1883, s. 4, sub-s. 1-Rules 1886 and 1890, rr. 138 (20; 139, Form 8. The grounds mentioned in the Act and the Rules are the only ones on which a bankruptcy notice can be set aside. The fact that it might be fair and right to grant by way of indulgence time to the debtor to make a proposal, is not a sufficient reason for adjourning an application to set aside a notice.-In re Cole; e. p. Attenborough, L.R. [1898] 1 Q.B. 290; 78 L.T. 23.

(v.) C. A.- Execution-Service of Bankruptcy Notice--Bankruptcy Act, 1890 (53 & 54 Vict., c. 71), s. 11, sub-s. 2-Bankruptcy Rule 90.-When execution has been levied, notice of a bankruptcy petition by or against the debtor is well served upon the sheriff at any time before midnight on the last of the fourteen days during which he must return the proceeds of the execution.-Lole v. Betteridge; Mallam claimant, L.R. [1898] 1 Q.B. 256; 77 L.T. 548.

(vi.) C. A.-Bankruptcy Notice-Scotch Decreet Registered in EnglandJudgments Extension Act, 1868 (31 d 32 Vict., c. 54), ss. 3, 4--- Bankruptcy Act, 1883, s. 4, sub-s. 1 (g).--A certificate of a decreet obtained in Scotland which has been registered in the High Court under the Judgments Extension Act, 1868, s. 3, is not a final judgment within s. 4, sub-s. 1 (g), of the Bankruptcy Act, 1883, on which the creditor can issue a bankruptcy notice. In re Watson; e. p. Johnston; Johnston v. Johnston, 67 L.T. Rep. 519; L.R. [1893] 1 Q.B. 21 followed.—In re A Bankruptcy Notice, L.R. [1898] 1 Q.B. 383; 77 L.T. 710.

(vii.) Q. B. Secured Creditor Security not Valued Inadvertence Bankruptcy Act, 1883, schedule 1, r. 10.-An assignee of a secured creditor valued his security, owing to false information, at nil. Held,

that this was not "inadvertence" within the meaning of schedule 1, r. 10.—In re Piers; e. p. Piers v. Read, 78 L.T. 21.

(i.) Q. B.-Insolvent Estate--Executor's Right of Retainer in Specie-Bankruptcy Act, 1883, s. 125.-Where the estate of a testator is less in value than the amount of a debt due from him to the executor, the executor may exercise his right of retainer by appropriating the estate in specie. In re Gilbert; e. p. Gilbert, L.R. [1898] 1 Q.B. 282; 77 L.T. 775.

(ii.) C. A.-Equitable Assignment of Judgment Debt-Bankruptcy NoticeBankruptcy Acts, 1883, s. 4, sub-s. 1 (g); 1890 (53 & 54 Vict., c. 71), s. 1.A judgment creditor who makes an equitable assignment of his debt is still a creditor within sect. 4, sub-sect. 1 (g) of the Bankruptcy Act, 1883, as explained by sect. 1 of the Bankruptcy Act, 1890, and is entitled to serve a bankruptcy notice on the debtor. E. p. Dearle; in re Hastings (14 Q.B. Div. 184) followed.-In re Palmer; e. p. Brims, L.R. [1898] 1 Q.B. 419; 77 L.T. 709.

(iii.) C. A.-Rescission of Receiving Order without Public Examination of Debtor-Bankruptcy Acts, 1883, s. 104; and 1890, s. 3, sub-s. 6.—A registrar in bankruptcy has jurisdiction to rescind a receiving order, notwithstanding that the debtor has not been publicly examined. (Rigby, L.J. dissenting.) In re Izod; e. p. The Official Receiver, L.R. [1898] 1 Q.B. 241; 77 L.T. 640.

(iv.) C. D.-Property Acquired by Undischarged Bankrupt unknown to Trustee -Assignment after Discharge.-An insolvent in the Colony of Victoria assigned to the plaintiffs for good consideration after his discharge, property in England to which he became entitled before his discharge. The plaintiffs knew that the assignee in bankruptcy was unaware of the insolvent's interest in the property which they were acquiring. The law in the Colony affecting the question is practically the same as the English bankruptcy law. Held, that the plaintiffs' purchase was "bona fide and for value" within the rule in Cohen v. Mitchell (25 Q.B.D. 262; 63 L.T. Rep. 206), and that they were entitled to the insolvent's interest.-Hunt v. Fripp, 77 L.T. 517.

(v.) Q. B.-Practice-Costs of Stranger to Bankruptcy-Power of Board of Trade to Review Taxation-Bankruptcy Rules, 1886 and 1890, rr. 117, 124-Bankruptcy Act, 1883, s. 73, sub-s. 3.-Rule 124 of the Bankruptcy Rules, 1886 and 1890, which enables the Board of Trade to have reviewed by a taxing-master a bill of costs or disbursements which has been taxed in a county court, does not apply to the costs of proceedings taken by the trustee against a stranger to the bankruptcy.-In re Hunt; e. p. The Board of Trade, L.R. [1898] 1 Q.B. 287.

Bills of Exchange:

(vi.) Q. B. D.-Action on Consideration-Bill not in Hands of Plaintiff at Commencement.-Where a bill of exchange, which has been given for the price of goods bought, is dishonoured, an action will not lie for the price if the bill is, at the commencement of the action, outstanding in the hands of a third party, even though it comes into the possession of the plaintiff before trial. Davis v. Reilly, L.R. [1898] 1 Q.B. 1. (vii.) Q. B.-Liability of Joint Maker of Promissory Note, whose Signature is Obtained by Fraud-Bills of Exchange Act, 1882 (45 d 46 Vict., c. 61), 8. 29. A "holder in due course" is a person to whom a bill or note is negotiated after completion by the immediate parties. A payee is therefore not a holder in due course. A person not guilty of want of care, who has been fraudulently induced to sign a note or bill under the impression that he was merely witnessing the signature of the joint maker of the note or bill to another document, is not responsible to the payee or to a holder in due course. Foster v. Mackinnon, 20 L.T. Rep. 887; L.R. 4 C.P. 704 followed.--Lewis v. Clay, 77 L.T. 653.

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