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Law Reports, Law Journal Reports, Law Times
Reports, and Weekly Reporter,
FOR NOVEMBER AND DECEMBER, 1880, AND JANUARY, 1881.*
By Henry M. KEARY, of Lincoln's Inn, Barrister-at-Law.
Administration :(vii.) Ch. Div. M. R.-Administrator Durante Minore Ætate-Sale of Assets.
---An administrator, durante minore ætate, has the powers of an ordinary administrator, including the power to sell the estate of the deceased for payment of his debts.—Cope y. Cope, L.R. 16 Ch. D. 49; 50 L.J. Ch. 13;
43 L.T. 566 ; 29 W.R. 98. (viii.) C. A.-Charge of Debts—Real Estate-Sale by Administrator-22 & 23
Vict., c. 35, s. 16.-An administrator has no power, such as an executor has, to sell a testator's real estate for payment of debts.-Re Clay
and Tetley, L.R. 16 Ch. D. 3; 43 L.T. 402; 29 W.R. 5. (ix.) Ch. Div. V. C. B.--Executor--Creditor's Action by--Retainer.-An
executor, by instituting an administration action on behalf of himself and all other creditors, does not waive his right to retain his debt out of the balance of moneys found dae from himself and his co-execator to
the estate.-Campbell v. Campbell, 29 W.R. 233. (x.) Ch. Div. V. C.M.- Foreign Creditor-Judgment in Foreign Court.
Though judgment has been given for the administration of an estate, the
L.R. 15 Ch. D. 591; 49 L.J. Ch. 689; 29 W.R. 169. (xi.) P. D. A. Div.-Intestacy-Next-of-Kin Abroad-Administration by
Creditor.---An application by a creditor for a grant of administration of an intestate's estate in default of appearance by next-of-kin, must be supported by an affidavit of the amount and nature of the debt, and the date when incurred. When a deceased's next-of-kin are abroad, or have no known address, and fail to appear to a citation by advertisment, an
* Cases reported only in the Law Times Reports or Weekly Reporter for January 29th, are postponed till the May Digest.
affidavit is requisite that service of the citation has been attempted and failed, and that the next-of-kin have no known agent in England. - In the
goods of Von Desen 43 L.T. 532. (xii.) Ch. Div. F. J.-Irish Administratrio-Administration in India,
Discharge.--Letters of administration of her husband's estate were granted to a widow in Ireland. The husband died in Ireland, but had property in India, and letters of administration were granted there to persons as the widow's attorneys, who collected the estate there and sent the balance, after payment of debts, to England, with instructions to pay it to the party entitled on getting a proper release. There was no evidence of deceased's domicile: Held that he must be considered as domiciled in Ireland, and that the receipt of the widow was a sufficient
discharge for the money from India.—Eames v. Hacon, 43 L.T. 567. (xiii.) C. A.-Leaseholds-Sub-letting.–It is ultrâ vires and a breach of trust
for an executor or administrator to grant an underlease of leaseholds of his testator or intestate, with an option of purchase, to be exercised by the sub-lessee at a future time at a fixed price.-Oceanic Steam Navigation Co. v. Sutherberry, 29 W.R. 113.
Agreements and Contracts :-(xii.) Ch. Div. F. J.---Agreement unproved in part-Specific Performance
Damages-Fraud on Public.-P. sought specific performance or damages for breach of an agreement by M. for the publication of a book by P., to be written by M., and to be described on the title-page as by K. (assisted by M.). K. had in fact nothing to do with the book. The agreement was stated to be contained in three documents, only two of which plaintiff proved: Held that, having failed to proved the whole of the agreement, P. could not have either specific performance or damages ; and that, if he had proved the agreement, M. could not have been compelled to perform his part of it.—Post v. Marsh, 43 L.T. 628;
29 W.R. 198. (xiii.) Ch. Div. F. J.-Unconscionable Bargain-Money Lending-Expectant
Heir.- The equitable relief granted from an unconscionable bargain entered into with an expectant heir or reversioner may also be granted where the borrower is the son of a man of large property, but has no property of his own or expectation except such general expectations as are founded on his father's position in life.—Nevill v. Snelling, L.R. 15
Ch. D. 679; 49 L.J. Ch. 777; 43 L.T. 24. Arbitration :(ii.) Ex. Div.-Award-Time for Setting Aside—Complaint in Court
9 & 10 Will. III., c. 15, s. 2.-An ex parte application to set aside or vary an award published on July 14th, was made in Court on November 24th, but not entertained because no notice of motion had been given. On the same day, notice was given that the Court would be moved on the 27th : Held that the motion was not too late, as the notice of motion given on the 24th was a complaint in Court within sec. 2 of 9 & 10 Will. III., c. 15.-Smith v. Parkside Co., L.R. 6 Q.B.D. 67; 29 W.R. 154.
Bankruptcy:(xxiv.) C. J. B.-Adjudication Pending Administration-Judgment Creditor.
A person whose assets were being administered in the Chancery Div. for the benefit of his creditors, was adjudicated a bankrupt on the peti. tion of a judgment creditor whose judgment had been obtained more than twenty years previously: Held that the adjudication must be annulled.-Ex parte Tynte, Re Tynte, L.R. 15 Ch. D. 125.
(xxv.) C. J. B.-Composition-Close of Proceedings-Secured Creditor.–After
liquidation proceedings are closed, a secured creditor cannot apply to the Court of Bankruptoy to enforce his secarity.-Ex parte Woods, Re
Holmes, 43 L.T. 417 ; Ex parte Holmes, Re Holmes, 29 W.R. 124. (xxvi.) C. A.-Composition-Debtor's Statement-Omitted Debt-Judgment
Creditor.—A judgment creditor, who was not included in the statement of a debtor in a composition arrangement, applied to the Court to admit proof of his debt after registration of the composition resolutions and payment of the composition: Held that the Court had no jurisdiction.
Ev parte Lacey, Re Lacey, 43 L.T. 579. (xxvii.) Ex. Div.--Composition-Non-Assenting Creditor-Tender of Composi.
tion.-Where creditors of a debtor have agreed to accept a composition, in order that the debtor may be dischared from liability for debts included in his statement, he must pay or tender unconditionally to his creditor the composition payable on the admitted debt.-The Tea
Company v. Jones, 43 L.T. 255. (xxviii.) Ch. Div. V. C. H.- Composition Administration Set off
Bankruptcy Act, 1869, s. 28.—The creditors of a bankrupt passed a resolution for accepting a composition, on condition of the bankruptcy being annulled. A creditor, who had not proved in the bankruptcy or received the composition, afterwards died, having by his will bequeathed a legacy to the debtor : Held that the executors were not entitled to set off the original debt due to the testator against the bequest, but only the composition on the debt, and that though the debt was incurred more than six years before the bankruptcy, this right was not affected by
the Statute of Limitations.-Beswick v. Orpen, 50 L.J. Ch. 25. (xxix.) P. C.-Costs_Trustee—Personal Liability.—Under the Bankruptcy
Act, 1869, a trustee may be made personally liable for costs incurred by
him.-Pitts v. La Fontaine, 43 L.T. 519. (xxx.) C.C.R.-Debtor's Statement-Disclosure of Property-Misdemeanour
32 & 33 Vict., c. 62, s. 11 (1).-The disclosure required of a bankrupt by sec. 11, sub-sec. 1, of the Debtors Act, 1869, is not restricted to property in his possession at the commencement of his bankruptcy.-Regina v.
Mitchell, 43 L.T. 572. (xxxi.) C. A.-Elegit-Seizure-Bankruptcy Act, 1869, s. 87.- A sheriff having
seized a trader's goods under an elegit, after an inquisition had been held, delivered them to the judgment creditor. After seizare and before delivery the debtor filed a liquidation petition: Held that the execution creditor was entitled to the goods seized.-Ex parte Abbott, Re Gourlay, L.R. 15 Ch. D. 447; 50 L.J. Ch. 80; 43 L.T. 417;
29 W.R. 143. (xxxii.) C. 4.-Execution-Notice of Act of Bankruptcy.--Notice after seizure
and before sale to an execution creditor that a petition in bankruptcy has been filed against his debtor, is constructive notice of an act of bankruptcy having been committed by the debtor.—Lucas v. Dicker, 43
L.T. 429; 29 W.R. 115. (xxxiii.) C. J. B.-Fraudulent Preference-Bankruptcy Act, 1869, ss. 6, 92.
A. and B. kept a joint account at a bank as trustees, and A., having over. drawn the account and misappropriated the money, in order to recoop the trust estate sold to B. some wool, who advanced £2,050 on account, and agreed to take the wool at a valuation. A. was at the time insolvent, and shortly afterwards became a liquidating debtor : Held that this was a bona fide sale, and did not constitute a fraudulent preference.-Eæ parte Gaunt, Re Wilkinson, 43 L.T. 448.
(xxxiv.) C. A.-Jurisdiction - Residence of Debtor – Debtor's Summons
Bankruptcy Act, 1869, s. 59.-A man was employed as clerk at a bank in the city, and slept at a house in Beckenham. He was served with a debtor's summons in the London Bankruptcy Court: Held that the Court had jurisdiction to grant the summons.-Ev parte Brewell, Re Bowie,
43 L.T. 580. (xxxv.) C. J. B.-Liquidation-Prosecution of Debtor and Accomplices
Person Aggrieved—32 & 33 Vict., c. 62, s. 16; Bankruptcy Act, 1869, s. 71. -The Court has a discretionary power under the Debtors Act, 1869, sec. 16, to order a creditor to prosecute the trustee, debtor, and accom. plices for conspiracy; and if the charge against the accomplices fails, they are not persons aggrieved within sec. 71 of the Bankruptcy Act,
1869.—Ev parte Evans, Re Orbell, 43 L.T. 575; 29 W.R. 200. (xxxvi.) C. A.-Liquidation -- Registration of Resolutions - Bankruptcy Act,
1869, ss. 28, 125.--A debtor committed an act of bankruptcy on a debtor's summons. On the next day bankruptcy proceedings were begun against him in the County Court, and he began liquidation proceedings in London. After he had been adjudicated bankrupt, resolu. tions in the liquidation were passed and confirmed accepting a composition. Some creditors opposed the registration of the resolutions : Held that they ought not to be registered.--Ex parte Milward, Re Stanley,
29 W.R. 167. (xxxvii.) C. J. B.-Proof-Cheques given on Conditions—Transferee.-C. gave
cheques to J. on the understanding that they were not to be presented until funds had been raised, on bills drawn by J., to meet the cheques. J. afterwards deposited the cheques with H. as security for money advanced: Held that H. having taken the cheques without inquiry, took them subject to the equities attaching to them, and could not prove in respect of them on C.'s bankruptcy.--Ex parte Hughes, Re Cobb, 43 L.T.
577. (xxxviii.) C. A.-Proof-Lease to Partners—Disclaimer-Joint and Separate
Estate.- A lease was granted to four partners with a joint and separate covenant to pay rent. One partner died and the other three carried on the business till bankruptcy, when the trustee disclaimed the lease : Held that the lessor could prove in respect of the disclaimer against the separate estates of the bankrupts, and not against their joint estate.
Ex parte Corbett, Re Shand, 49 L.T. Bcy. 74. (xxxix.) C. J. B.-Proof — Secured Creditor – Mistake-Rectification — Res
Judicata.-A creditor who had proved a debt, subsequently discovered that he had omitted to state and value a security, and applied for leave to withdraw his proof and file an amended one. Leave was granted on condition that he should not be at liberty to add to or vary the security mentioned in the first proof. The trustee in bankruptcy applied for an order declaring that he was entitled to the proceeds of the omitted security : Held, that as there had been a bona fide mistake by the creditor, he was entitled to have it rectified and to amend his proof by stating the omitted security, and that the matter was not res judicata. – Ex parte Whitton, Re Greaves, 43 L.T. 480.
Bill of Sale :(xi.) C. A.-Consideration —41 & 42 Vict., c. 31, s. 8.-Decision of C.J.B.
(see Bill of Sale v., p. 7) reversed.-Ex parte Challinor, Re Rogers,
29 W.R. 205. (xii.) C. A.-Consideration–41 & 42 Vict., c. 31, s. 8.-A duly attested bill
of sale was expressed to be made in consideration of £120 advanced