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Quarterly Digest




Law Times and Law Reports

By THOMAS J. BARNES, of the Middle Temple,



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.

Actio Personalis :(i.) C. D.-Obstruction to Light3 & 4 Wm. IV., c. 42, s. 2.-An obstruction

to ancient light is an injury continuing from day to day, and therefore an action brought within six months of the decease of the tort feasor can be maintained against his executors or administrators though the obstruction was completed by the deceased more than six months before his death.-Jenks v. Viscount Clifden, L.R. [1897] 1 Ch. 694 ; 76 L.T. 382.

Administration:(ii.) C. A.--Executor and Trustee—Wilful Default"_Judicial Trustees

Act, 1896 (59 & 60 Vict., c. 35), s. 3.—Where the executor of a solicitor was reasonably satisfied that he could not maintain an action to recover costs from a client of his testator, it was held that he was not guilty of wilful default; and that even if he had been technically liable, he would have been excused under sect. 3 of the Judicial

Trustees Act, 1896.-In re Roberts ; Knight v. Roberts, 76 L.T. 479. (iii.) C. D.-Administrator's CostsInterest-Set Off0. lxv., 7. 1.--An

executor or administrator is entitled to his proper costs, and will not be ordered to pay interests on sums not improperly paid away by him, and an administrator of an intestate is entitled to set off against the next-of-kin's share costs which the next-of-kin had been ordered to pay to him.-In re Jones ; Christmas v. Jones, 76 L.T. 454.


(i.) C. D.-Insolvent Estate-Crown Debt-Specialty and Simple Contract

Debts--Priority-Hinde Palmers Act, 1869 (32 & 33 Vict., c. 46).-A question arose under an order in an action for the administration of an insolvent testator's estate whether or not a crown debt should come out of the whole fund without distinguishing between specialty and simple contract creditors, and it was held that it was to be borne entirely by the portion of assets available for simple contract creditors. -In re Bentinck; Bentinck v. Bentinck, L.R. (1897) 1 Ch. 673; 76 L.T. 284.

Annuity :(ii.) C. D.-Annuity subject to Condition-Deficiency of Assets--Payment of

Fund.Where a covenantor's estate was not sufficient to meet an annuity granted without any gift over for the life of the annuitant, or until he should do or suffer something by which, if the annuity had been his absolutely, it would have become vested in some other person, it was held, following Wroughton v. Colquhoun (1 De G. & Sm. 357), that a fund representing the balance of the covenantor's estate must be paid to the annuitant, the Court declining to follow Carr v. Ingleby (1 De G. & Sm. 362).--In re Sinclair ; Allen v. Sinclair, L.R. [1897]

1 Ch. 921; 76 L.T. 452. Assignment:(iii.) C. A.-Assignment in form Absolute to Agent to CollectJudicature Act,

1873, s. 25, sub-s. 6.-A foreigner resident abroad assigned to enable another to sue for him in England a debt without consideration by a deed which purported to assign absolutely in consideration of £50. Held, reversing the judgment of the Court below, that it was a valid assignment within sect. 25, sub-sect. 6, of the Judicature Act, 1873, and enabled the assignee to sue in his own name for the benefit of the

assignor.-Wiesener v. Rackow, 76 L.T. 448. Auction:(iv.) C. D.-Specific Performance-Sale of Lands by AuctionSignature of

Auctioneer binding Purchaser-Delay-Delegation-Statute of Frauds.The defendant, under a mistake, bid, as a puffer at an auction, for freehold property, which was knocked down to him. He repudiated the contract at once, and refused to pay the deposit, but the auctioneer's clerk signed the usual memorandum, and a week afterwards the auctioneer signed another memorandum as agent for the defendant. Held, that though the mistake might be a defence to a claim for specific performance, it did not of itself affect the validity of the contract (Tamplin v. James). But that the action failed under the Statute of Frauds, for, as to the first memorandum, the auctioneer could not delegate his authority (Pierce v. Corf, L.R. 9 Q.B. 210 ; 29 L.T. Rep. 919), and the signature to the second memorandum was not contemporaneous with the auction (Buckmaster_v. Harrop,

13 Ves. 456).—Bell v. Balls, L.R. [1897] 1 Ch. 663 ; 76 L.T. 254. Bankruptcy :(v.) Q. B.-Revocable MandateFraudulent Preference Bankruptcy Act,

1883 (46 & 47 Vict., c. 52), s. 48.--A solicitor just before bankruptcy conveyed real estate to trustees, without the knowledge of the cestuis que trust, to cover a breach of trust which he had committed. Held, that the deed was not a revocable instrument within the doctrine of Garrard v. Lauderdale (3 Sim. 1), and was not a preference to a creditor within the meaning of sect. 48 of the Bankruptcy Act, 1883.The Trustees of New, Prance and Garrard v. Hunting & Others, L.R. [1897] 1 Q.B. 607; 76 L.T. 196.

(i.) Q. B.-Receiving Order-Assets and CostsBankruptcy Act, 1883, s. 7,

sub-s. 3.—That assets will probably be exhausted by costs is not a sufficient reason for refusing to grant a receiving order. In re Betts ; e. p. Betts [1897] 1 Q.B. 50 distinguished.--In re Jubb; e. p. Barman,

L.R. (1897) 1 Q.B. 641 ; 76 L.T, 329. (ii.) Q. B.-Banker and CustomerCheques Paid after Date of Receiving

Order-Res Judicata.Where the banking account of a debtor's wife had been declared to be the account of the debtor, it was held that the trustee in bankruptcy could not recover from the bank the amount for which cheques had been honoured between the date of the receiving order and the date of the declaration ; and further that the matter was res judicata as the point could have been raised on the motion for declaration.-In re Montague ; e. p. Ward v. London and South Western Bank, 76 L.T. 203.

(iii.) Q. B.-Purchase by Partner of Member of Committee of Inspection--316

of Bankruptcy Rules, 1886.—The purchase of part of a bankrupt estate by the partner of a member of a committee of inspection is not forbidden by rule 316 if the member has no interest in the purchase.

In re Gallard; e. p. Gallard, L.R. [1897] 2 Q.B. 8; 76 L.T. 327. (iv.) Q. B.-Damages in Divorce Proceedings-Settlement Approved by Court

-Intention to Defeat Creditors--Matrimonial Causes Act, 1857 (20 & 21 Vict., c. 52, s. 33).—Damages obtained in divorce proceedings were settled with the approval of the Court so as to give a contingent life interest to the debtor. Held, that the case did not come within the doctrine of Higginbotham v. Holme (19 Ves. 88), as there could not be a settlement in fraud of creditors of money never in the debtor's possession, the application of which was in control of the Court; and à motion of the trustee in bankruptcy that the limitation was void as against him was negatived.-E. P. Stephenson ; Brown v. Stephenson,

76 L.T. 328. (v.) C. D.-Legacy-Forfeiture-Domicil.–A domiciled Englishman had

a life interest in a fund until it should “become vested in or payable to some other person.” Held, that it was not forfeited by his being adjudicated a bankrupt in New Zealand on a creditor's petition. In re Blithman (L.R.2 Eq. 23 ; 14 L.T. Rep. 61) followed.-In re Hayward ;

Hayward v. Hayward, L.R. [1897] 1 Ch. 905; 76 L.T. 383. (vi.) Q. B. D.--Deed of Assignment-Acquiescence Estoppel.-A creditor

who has assented to a deed of assignment for the benefit of creditors is estopped from presenting a bankruptcy petition against the debtor. In re Stray (L.R. 2 Ch. App. 374) followed.-In re Hawley; e.p.

Ridgway, 76 L.T. 501. (vii.) Q. B. D.-Deed of Assignment-Acquiescence-Estoppel. A creditor

who has not expressly assented to a deed of assignment may be estopped by his conduct from setting up the deed as an act of bank. ruptcy, and cannot then set up a circular convening a meeting of creditors as a notice of suspension of payment.-In re Woodroff'; e.p.

Woodroff, 76 L.T. 502. (viii.) Q. B. D.-Act of Bankruptcy during Currency of Bill of Exchange

given for Debt-- Affidavit-Bankruptcy Act, 1883, s. 6, sub-s. 1.-A creditor who holds an acceptance of a debtor who commits an act of bankruptcy may treat the acceptance as dishonoured and present a petition based on the original debt. An affidavit of verification ought to state the existence of the acceptance and that the petitioning creditor is the holder.—In re Raatz; e. p. Raatz, L.R. (1897] 2 Q.B. 80 ; 76 L.T. 503.


(i.) Q.B.D.-Act of Bankruptcy-Deed of Arrangement--Proof of Execution

Deeds of Arrangement Act, 1887, 88.6 & 11.-Where a petitioning creditor alleges an act of bankruptcy by the execution of a deed of arrangement, he ought to prove the actual date of the execution. Even if the document is some evidence that its execution was on the day it bears date, it is not evidence strong enough for the Court to act upon.-In re

Slater ; e. p. Slater, 76 L.T. 529. (ii.) Q. B.-Principal and Surety-Joint and Several Promissory Note

Payment by Surety-Right to Prove for Interest--Mercantile Law Amendment Act, 1856, s. 5Bankruptcy Act, 1883, r. 20, Sched. 2.A claim for interest on the amount of a joint and several promissory note paid at maturity by a surety is a claim on an instrument in writing within the meaning of r. 20 of the rules of second schedule

of the Act of 1883.-In re Evans ; e. p. Davies, 76 L.T. 530. (iii.) Q. B. D.-Act of Bankruptcy-Words understood as Notice of Intention

to Suspend Payment-Bankruptcy Act, 1883, s. 4, sub-s. 1.-Words which do not amount to a notice of intention to suspend payment, although the creditor to whom they are addressed so construes them, do not create an act of bankruptcy.-In re Phillips ; e. p. W. Thomas & Co.,

76 L.T. 531. (iv.) Q. B.-Bankruptcy Act, 1890, s. 3—Composition Secured by Promissory

Notes--Overvaluation of Creditor's Security.—Where a debtor's estate had been vested in trustees under 'a scheme approved by the Court, and instalments had been secured by joint and several promissory notes of the trustees, a creditor was held entitled to revalue his security and prove for the balance, but as the contract of the trustees was limited to the promissory notes, he was not entitled to payment of the

composition in full.-In re Morter ; e. p. Nichols, 76 L.T. 532. (v.) Q. B. D.-Suspension - Review Bankruptcy Act, 1890, s. 8.–Sus

pension of discharge for five years should be reserved for only very bad cases.-In re Swabey ; e. p. Swabey, 76 L.T. 534.

Bill of Sale:(vi.) C. A.-Bills of Sale Act, 1878 (41 & 42 Vict., c. 31) s. 10Defeasance

-Landlord and Tenant-Contract to Purchase Reversion-Distress.The grantor of a bill of sale given to secure repayment of money at the end of a month, gave at the same time a mortgage by which he covenanted to pay on demand a sum of money which included the sum secured by the bill of sale. Held, that by sect. 10 the mortgage was a defeasance of the bill of sale. A contract by a lessee to buy the reversion does not determine the lease at law, but in equity it suspends the landlord's right to distress so long as the contract is enforceable by action for specific performance.-Ellis v. Wright, 76 L.T. 522.

Bill of Exchange : (vii.) Q. B. D.-Banker-Cross Cheque CollectedDefective Title of Customer

- Overdrawn Account-Protection to Banker-Bills of Exchange Act, 1882 (45 & 46 Vict., c. 61), s. 82.—A banker who collects a crossed cheque to which his customer had no title, is protected from liability to the true owner by sect. 32 of the Bills of Exchange Act, and this protection is not impaired though the banker apply the proceeds of the cheque to a debt due to himself on the overdrawn account of the customer.-Clarke_v. The London & County Bank, L.R. [1897) 1 Q.B. 552 ; 76 L.T. 293.

Canal: (i.) C. D.-Mining under Canal-Liability under Special Act-Undertaking

by Public Body.-By a special Act colliery owners were empowered to work minerals, not thereby injuring a canal ; and the canal owners, for the preservation of their works, were entitled to treat for the cession of the right. Held, that the colliery owners were under no statutory obligation to the canal owners for working adjacent minerals and that for subjacent minerals they were not entitled to compensation if the canal owners gave an undertaking to release them from statutory liability and to themselves make good any damage caused to the canal.-New Moss Colliery Co. v. Manchester, Sheffield, and Lincolnshire Railway Co., L.R. (1897] 1 Ch. 725 ; 76 L.T. 231.

Charity: (ii.) C. D.-Mortmain-Metropolitan Board of Works (Loans) Act, 1869

(32 & 33 Vict., c. 102), s. 5.-Consolidated stock of the Metropolitan Board of Works is impure personalty. Cluff v. Cluff considered.-In re Crossley ; Borrill V. Greenhough, L.R. [1897] 1 Ch. 928 ; 76 L.T. 419.


Colonial Law:(iii.) P. C.-- British HondurasRegistered Title to LandAdverse Possession

-Consolidated Laws of 1887, c. 19, ss. 5 & 6, and c. 106, s. 30.-Twenty years' adverse possession of land will set up a title antagonistic to that of an owner registered under the Honduras Lands Titles Acts. The Beliz Estate and Produce Co. v. Quilter, L.R. [1897] A.C. 367;

76 L.T. 361. (iv.) P. C.-CanadaCompany-Winding-up—Payment in Cash—Revised

Statutes of Quebec, 4722, s. 1.-A bonâ fide transaction between a company and one of its shareholders which amounts to a payment is a

payment in cash" within Art. 4722, sect. 1, which is equivalent to sect. 25 of the Companies Act, 1867 (England). Larocque v.

Beauchemin and Others, L.R. [1897] A.C. 358; 76 L.T. 473. (v.) P. C.-Cape Colony-Pondoland Annexation Act, 1894, 5.— Governor

Proclamation Ultra Vires.--The Governor of Cape Colony, for the public safety, ordered by proclamation the imprisonment of a native chief under the authority of an Act of the Colonial Legislature which made the territory where the chief resided subject to such laws, statutes, and ordinances” as “the Governor shall from time to time by proclamation declare to be in force.” Held, that the Governor had authority to enact in the territory laws, &c., already existing in other parts of the colony, but not to make new laws; and that the proclamation was ultra vires.-Sprigg v. Sigcau, L.R. (1897] A.C. 238;

76 L.T. 127. (vi.) P. C.-CeylonConstruction of Will— Fidei CommissumOrdinance

No. 21 of 1844, No. 10 of 1863, and No. 7 of 1871.- Where a testator left property to three grandchildren jointly with benefit of survivorship and substitution of descendants as fidei commissum, held, that the heirat-law of a deceased great-grandchild had no claim so long as any person could shew a title as institute or substitute.--Hamini and Others

v. Tillekeratne, L.R. [1897] A.C. 277; 76 L.T. 210. (vii.) P. C.- NatalCompany-Articles of AssociationMeetingPowers of

Chairman.—Where articles of association of a company provided that “ the chairman may, with the consent of the members present at any meeting, adjourn the same,” it was held that the chairman was

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