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Quarterly £igest

ALL REPORTED CASES

IN THE
£ato Cimes amb £ato Reports
FoR JANUARY, FEBRUARY, AND MARCH, 1897.

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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 tt first appeared, the thick number being the number of the volume.

Administration:— (i.) P. D.—Testatrix of French domicile—Will in English form.—Where a

will in English form was made under a power of appointment by a testatrix of English domicile of origin, but married to a Frenchman, and domiciled in France, the Court granted administration with the will annexed. In the goods of Alexander, 2 L.T. 56, and in the goods of Hallyburton, L.R. 1 P. & D. 90, commented on.—In the goods of Mary Hamilton Huber, deceased, 75 L.T. 453.

(ii) C. D.—Assets in South Australia–Colonial duties.—A testator with property in England and South Australia, left in trust an equal share of his residuary estate to each surviving child of him for life, with remainder to the children of such child; and gave power to the trustees to cultivate his real and leasehold estates in Australia till sale. Held, that the colonial duties were part of the costs of realisation, and therefore payable out of the testator's general assets before distribution.—In re Maurice; Brown v. Maurice, 75 L.T. 415.

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Arbitration:— (iv.) C. A.—Special Case–Arbitration Act, 1889 (52 & 53 Vict, c. 49), s. 19. —The Court can order a case to be stated under sect. 19, though the

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arbitrator has not intimated which way he intends to decide the point of law.–In re. An Arbitration between Spiller and Baker, Limited, v. Leetham and Sons, L.R. [1897] 1 Q.B. 312; 76 L.T. 35.

Attachment:

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P. D.—Divorce–Order to Deliver up Child-Removal out of Jurisdiction –Order for Attachment. —In a divorce suit, the custody of a child, who was not to be removed out of the jurisdiction, was given to the petitioner, but the child was removed out of the jurisdiction and retained by the respondent. On an ex parte application by the petitioner, a writ of attachment was ordered to issue against the respondent.—Favard v. Favard, 75 L.T. 664.

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C. D.—Beneficed Clergyman–Sequestration—Discharge of Bankrupt— Continuance of Sequestration—Sequestration Act, 1871.—Where a bankrupt rector had obtained his discharge on paying 8/9 in the £, it was held that the discharge did not entitle him to an injunction to restrain the trustee in bankruptcy from receiving any further income from the bankrupt's benefice under a sequestration, or to an order to the trustee to take steps to have the sequestration relaxed. (See also Wol. 22, p. 12, i.)—Lawrence v. Adams, 75 L.T. 410.

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(iv.) C. A.—Retired Officer of Army–Appropriation of part of Pension

Bankruptcy Act, 1883, ss. 1 d. 2.—An officer who voluntarily retired from the army received an annuity as “gratuity or retired pay.” On his bankruptcy it was held that the Court could, under sub-sect. 2 of sect. 53, order part of this annuity to be paid to the trustee in bankruptcy for the benefit of creditors.—In re Ward; e. p. Ward, L.R. [1897] 1 Q.B. 266; 76 L.T. 37.

(v.) Q. B.—Composition–Subsequent Bankruptcy—Determination of Deed

Rights of Creditors—Bankruptcy Act, 1869, ss. 125, 126–Statute of Limitations.–In 1881, a debtor made a composition with his creditors secured by deed of inspectorship which contained a clause empowering the inspectors to terminate the deed in the event of the debtor's bankruptcy; and on such termination the creditors were to have their original rights to the full debt. In 1889 the debtor became bankrupt, but the creditors who were parties to the deed took no steps. In 1896 the surviving inspector declared the deed at an end. Held, that the surviving inspector having a power coupled with an interest, could terminate the deed; that the creditors who were parties to the deed had a right of proof in the bankruptcy; and that the Statute of Limitations did not begin to run till the deed was determined.—In Stock ; e. p. Amos, 75 L.T. 422.

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(vii.) C. D.—Crossed Cheque on London Branch of French Bank—Collected in

France—Forged Indorsement—Liability—Bills of Exchange Act, 1882, ss. 60, 80, 82.—A crossed cheque drawn to order on the London branch of a Paris Bank was presented at the Paris office, and transmitted thence to the London branch. On advice from the London office that the cheque was right, and that the sum for which it was drawn had been credited to the Paris office, that amount was paid in Paris to the person who presented the cheque. He was not a customer of the Bank, and it turned out that he was not the rightful owner of the cheque, and that the endorsement on the cheque was a forgery. Held, that the Bank was liable for the value of the cheque to the true

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(i.) C. A.—Consideration under £30, and not “truly set forth ”—Bills of Sale Act, 1878–Amendment Act, 1882 (45 d 46 Vict, c. 43), ss. 8 & 12.—A promissory note for £14 3s. 4d., repayable by instalments of 11s. 4d. weekly, was given in consideration of a sum of £10. After one instalment had been paid, and before the second was due, the maker of the mote gave the payee a bill of sale in consideration of £13 12s. “now owing,” and of £168s. in cash. Held, that the bill was void, as the consideration was not truly set forth, and was under £30.—Darlow v. Bland and Others, L.R. [1897] 1 Q.B. 125; 75 L.T. 537.

(ii.) Q. B. D.—“Plant.” “brought upon a Place”—Bill of Sale Act, 1878, s. 5 -Amendment Act, 1882, ss. 4, 6, sub-8.2.—Two horses included in a bill of sale, and specifically described, were parted with by the grantor, who substituted for them two other horses, and these he subsequently sold to a purchaser who had no knowledge of the bill of sale. In an interpleader action it was held, that the new horses were not “plant,” nor were they brought upon a place in substitution for any of the like plant specifically described within the meaning of sect. 6 of the Act, and that the bill of sale was void as to the two horses, under Sect. 4.—London and Eastern Counties Loan and Discount Co., Limited v. Crease, L.R. [1897] 1 Q.B. 442; 76 L.T. 87.

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(iii.) Q. B. D.—Liability of Clergyman (23 & 24 Vict, c. 32, 8, 2) —The liability of “any person” for riotous behaviour in a church or churchyard, applies to the incumbent of the church as well as to a layman.— Vallancey v. Fletcher, L.R. [1897] 1 Q.B. 265; 76 L.T. 201.

Civil Servant:—

(iv.) C. A.—Appointment “during pleasure”—Reduction in Rank—No Cause of Action-Inland Revenue Regulation Act, 1890, 8.4, sub-8. 3.—Where a supervisor of Inland Revenue, who had been appointed “during the pleasure of the Commissioners,” was under sect. 4, sub-sect. 3, of the above Act reduced in rank for a refusal to comply with an order which he considered was not within his duties, it was held that he had no cause of action, and an order of a Judge in Chambers to stay an

action commenced was upheld.—Worthington v. Robinson, and Others, 75 L.T. 446.

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(v.) P. C.–Canada–British North America Act, 1867 (30 Vict, c. 3), 8.92, sub-ss. 2 and 9–Direct Taxation—Brewers and Distillers Licences.—A uniform fee required by the Liquor Licence Act of Ontario from all brewers and distillers in the Province is “direct taxation” within sect. 92 of the British North America Act, 1867. Bank of Toronto v. Lambe (L.R. 12 App. Cases 575; 57 L.T. 377) followed.-The Brewers and Malsters Association of Ontario v. Attorney-General for Ontario, 76 L.T. 61.

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P. C.–Canada-Dominion Act, 1867-Annuity to Indian TribesLiability of Province.—A treaty of 1850 provided for the payment, by the old Dominion of Canada to certain Indian tribes in consideration for lands, of an annuity which, in events which happened, was to be increased. The Dominion Act of 1876 divided the province of Canada into the provinces of Quebec and Ontario. The lands, the subject of the treaty, were in the latter province, but by the terms of the Act the Dominion of Canada was to be liable for the original annuity. Held, that the Dominion, and not the province of Ontario, was liable for the additional annuity.—Attorney-General of Canada v. Attorney-General of # ; Attorney-General of Quebec v. Attorney-General of Ontario, 5 L.T. 522.

IP. C.—British Columbia–Insolvency—Fraudulent Preference-Collusion —Consolidated Statutes of British Columbia, c. 51, s. 1.—By the above statute, a confession of judgment is void if given by an insolvent voluntarily or in collusion with a creditor with intent to create a £ or to delay or defeat other creditors. Held, that pressure

y a creditor might be an answer to a case of fraudulent preference, but not to a case of collusion. Martin v. Macalpine (8 Ontario Appeal Rep. 675) approved.—Edison General Electric Company v. Westminster and Vancouver Tramway Co. and the Bank of British Columbia, 75 L.T. 438.

(iii.) P. C.—Victoria–Administration and Probate Act, 1890–Will—Probate

Face and Market Value of Securities Shares in Bank under Reconstruction.—Where deposit receipts of a bank are at a discount, the market price may be taken as the value for purposes of probate, Sums payable on shares in the reconstruction of a bank are debts of a deceased shareholder under sect. 97 of the Colonial Administration and Probate Act of 1890.—The Master in Equity v. Pearson and Others, 75 L.T. 526.

Commons :(iv.) Q. B. D.—Gravel from Common for repair of Roads—Jurisdiction of

Justices–Commons Act, 1876 (39 & 40 Vict., c. 56), s. 20.—Under sect. 20 of the Commons Act, 1876, justices in petty session have jurisdiction to grant or to refuse an order for taking materials for the repair of parish roads from a common.—The Conservators of Hayes Common v. Bromley Rural District Council, L.R. [1897] 1 Q.B. 321; 76 L.T. 51.

Company :(v.) C. A.—Application for Shares Underwriting Letter Condition

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Precedent–Companies Act, 1862 (25 & 26 Vict, c. 89), s. 35.—By an
underwriting letter for shares in a company it was agreed that the
underwriter would, whenever called upon, lodge with the promoters
an application for shares, and that if he failed to do so, the promoters,
notwithstanding his repudiation, should be authorised to apply for,
and the directors be authorised to allot to him the agreed shares.
Held, affirming decision of Chitty, J., that even assuming that the
offer of the underwriter was accepted by the promoters before
repudiation, a request to him to apply for shares was a condition
precedent to an application by them. Held, by Chitty, J., that
the promoters, by retaining the underwriting letter without objection
to it, signified acceptance of its terms.—In re The Bulfontein Sun
Diamond Mine, Limited ; e. p. Cox, Hughes and Norman, 75 L.T. 669,

C. D.—Winding-up-Private Company—Paid-up Shares—Consideration
–Misfeasance-Contributories—Practice—Companies Act, 1867 (30 & 31
Vict, c. 131), s. 25-Companies (Winding-up) Act, 1890 (53 d. 54 Vict,
c. 63), s. 10-Companies (Winding-up) Rules, 1890, rr. 83-87.—The

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owners of a business turned it into a limited company, in which they became the only shareholders receiving paid-up shares on the conversion. Two of them, on behalf of the vendors, made with the company an agreement, which was filed before the issue of any shares, fixing the sale price of certain items of property transferred to the company at a much higher sum than that at which the same items were entered subsequently in the books of the company. On the winding-up, the Official Receiver claimed from the two signatories on behalf of the vendors the difference between these two valuations as damages for their misfeasance as officers of the company, and alternatively sought to make them liable for the amount as unpaid on their shares. On a preliminary objection, it was held, that though the joinder of the alternative claims might be inconvenient, it was not embarrassing, and that the claim to make the two vendors contributories was not improper; but that as there were no damages proved, the claim for misfeasance failed, and the claim for contribution failed, on the ground that the Official Receiver had not made out a case to induce the Court to go behind the registered contract.—In re E. J. Wragg, Limited, 75 L.T. 652.

C. D.—Practice—Extending Objects of Company—Order on Petition— Advertising—Companies Acts, 1862 to 1890–Companies (Memorandum of Association) Act, 1890 (53 d6 54 Vict., c. 62), s. 1, sub-s. 3.—There is no established practice as to advertising orders under sect. 1, sub-sect. 3 of the Companies (Memorandum of Association) Act, 1890, but the Court can dispense with advertisements of such orders.—In re The Lancaster Banking Co., Limited, 75 L.T. 647.

C. D. & C. A.—Winding-up—Mining Lease—Distress–Validity against Debenture Holders—Seizure of Chattels on Neighbouring Land—Bills of Sale Act, 1878 (41 a 42 Vict., c. 31), ss. 4 d5 6–Amendment Act, 1882 (45 & 46 Vict., c. 43), ss. 3d 8–Companies Act, 1862, ss. 85, 87, 138.— The day before a mining company confirmed a resolution to wind-up voluntarily the landlord distrained for rent and seized under powers of a lease chattels of the company not within the demise, Held, reversing the decision of the Court below, that the power was not a “licence to take possession of personal chattels” within the meaning of sect. 4 of the Bills of Sale Act, and was not invalidated by being unregistered (Pulbrook v. Ashby £). A distress made before a winding-up and before the appointment of a receiver is valid against debentures with a floating charge on the chattels of the company. Biggerstaff v. Rowatt's Wharf (Vol. 22, p. 7, vii.), and in re The Opera, Limited, L.R. [1891] 3 Ch. 260; 65 L.T. 371) applied.—In re the Roundwood Colliery Co., Limited ; Lee v. the Roundwood Colliery, L.R. [1897] 1 Ch. 375; 75 L.T. 508 & 641.

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manufacturer, solvent at the time, converted his business into a limited company, he and six members of his family subscribing the memorandum of association for one £1 share each. The nominal capital of the company was £40,000 in £1 shares, and the purchase money was fixed at £38,782, payable £10,000 in debentures and the remainder in cash. The vendor subscribed for 20,000 shares and the funds which came into the business were paid to him and returned to the company until the 20,000 shares had been by this means fully paid up. The greater part of the rest of the cash portion of the purchase money was applied to the discharge of liabilities incurred before the conversion of the business. No shares beyond the 20,007 were issued. In a few months the company was wound-up, the debentures absorbing all the assets, leaving the trading debts unpaid. Held, reversing the decision of the Court of Appeal, that as the company was constituted in accordance with the Statute, the motive (in the absence of direct

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