Page images

to comply with a debtor's summons, the service of the summons cannot be proved by an affidavit of the debtor filed on an application to dismiss the summons, unless notice of intention to read the affidavit has

been given.Ex parte Rogers, Re Rogers, 43 L.T. 163. (ii.) C. A.-Act of Bankruptcy-Debtor's Summons-Two Petitions.-A

creditor presented a bankruptcy petition founded on the failure to comply with a debtor's summons. Another petition had been presented and was pending at the time when the summons was taken out. The first petition having been withdrawn, the County Court Judge dismissed the second : Held that he was right in doing so if the debtor could and would have paid the debt but for the first petition.-Ex parte Greener,

Re Greener, 43 L T. 184 ; Ex parte Kirk, Re Greener, 28 W.R. 899. (iii.) C. A. Adjudication in Ireland and England Bankruptcy Act,

1869, ss. 8, 74.—Although a debtor, who has carried on business in
Ireland and England, has been adjudicated a bankrupt in Ireland,
the Court will, in the absence of special circumstances, adjudicate him
a bankrupt in England.-Ex parte McCulloch, Re McCulloch, L.R. 14

Ch. D. 714; 43 L.T. 161 ; 28 W.R. 935. (iv.) C. A.-Appeal--- Refusal to Annul Adjudication-Notice.—Notice of an

appeal from a refusal to annul an adjudication of bankruptcy must be served on the trustee, as well as the petitioning creditor, within twenty

one days.-Ex parte Ward, Re Ward, 43 L.T: 183. (v.) C. P. Div.-Composition-Bills given for Debt--Dishonoured-Debtor's

Statement.—Defendants gave bills to plaintiff in respect of goods sold to them to the amount of £143 12s. 93. less discount, but adding interest, so that the bills amounted to £142 78. 3d. The bills were dishonoured and defendants compounded with their creditors, and entered plaintiff in his statement of debts, as creditor for £142 78. 3d. : Held that plaintiff should have been entered as creditor for £143 12s. 9d., and he was not therefore barred from bringing an action for that

amount.—Burliner v. Royle, L.R. 5 C.P.D. 354. (vi.) C. A.- CompositionInvalid Resolution, Bill of Sale.-P. having.

filed a liquidation petition, his creditors, except G., resolved to accept a composition, payable by instalments, for which W. became surety; and P. assigned to W. his property by a duly registered bill of sale : Held that so long as the resolations were not set aside the bill of sale could not be impeached, and that G., who had obtained judgment against P., conld not enforce execution against the property comprised in the bill of

sale.— Seymour v. Coulson, 49 L.J. Q.B. 604. (vii.) Ch. Div. V. C. B.-Composition Deed--Secured Creditor-Bank.

ruptcy Act, 1861, s. 197.-By a composition deed, duly registered under the Bankruptcy Act, 1861, a debtor, in consideration of a covenant by himself and a surety, to pay a composition of 10s. in the pound, obtained his release from his scheduled debts; and the deed contained a proviso that every secured creditor should have the full benefit of his security and should be entitled to the composition after allowing for the value of his security. One creditor held as security a policy on the debtor's life, which he valued at £16, and he received the composition on the balance of his debt. The policy having fallen in : Held that the proceeds of the policy belonged to the debtor's estate after payment thereout of the £16, and premiums paid by the creditor with interest.

Bolton v. Ferro, 49 L.J. Ch. 569. (viii.) C. A.-Eramination of WitnessesBankruptcy Act, 1869, s. 96.

A creditor who applies for leave to summon witnesses for examination under sec. 96 of the Bankruptcy Act, must show a primâ facie pro. bability that some benefit will result to the bankrapt's estate or the

creditors from the examination.-Ex parte Nicholson, Re Wilson,

28 W.R. 936. (ix.) C. A.-Fraudulent Preference-Bill of Sale- Possession. -Creditors

holding an unregistered bill of sale took possession of goods comprised therein ander an arrangement with the debtor amounting to a fraudulent preference: Held that the trustee in bankruptcy could not claim the goods, as they were neither in the debtor's order and disposition or apparent possession at the time of the bankruptcy.-Eo parte Symmons,

Re Jordan, L.R 14 Ch. D. 693 ; 42 L.T. 106. (x.) C. A. — Fraudulent Trustee Person Aggrieved - Right of Appealm

Bankruptcy Act, 1869, s. 71.–The comptroller in Bankruptcy reported to the Court acts of misfeasance by a trustee, and asked for an Order that the trustee should credit the estate with certain sums. The Order was refused : Held that the bankrupt had no locus standi to appeal.Ex parte Sidebotham, Re Sidebotham, L.R. 14 Ch. D. 458 ; 49 L.J.

Bcy. 41; 42 L.T. 783. (xi.) C. A.-Lease-Disclaimer-Equitable Mortgagee.-A trustee in bank.

ruptcy will not be allowed to disclaim a lease of the bankrupt, which is subject to an equitable mortgage, to the prejudice of the mortgagee ; but if the trustee assigns the lease to the mortgagee, the latter must covenant to indemnify the trustee against liability under the lease.

Ex parte Buxton, Re Müller, 43 L.T. 183. (xii.) C. A.-Liquidation-Composition, Taxation of Trustee's Charges.-In

a liquidation by arrangement when composition has been agreed upon and paid, and the trustee has certified that the debtor has complied with the creditors' resolutions, the committee of inspection has no power to audit the trustee's accounts.—Ex parte Ranby, Re Ranby, L.R. 14

Ch. D. 467 ; 43 L.T. 11. (xiii.) Q. B. Div.-Liquidation-DischargeFraudulent Omission of Debt.

- In a liquidation by arrangement the fraudulent omission by a debtor of a creditor's name from the list of his debts does not deprive him of his right to plead his discharge as a defence to an action hy the creditor.

Wadsworth v. Pickles, L.R. 5 Q.B.D. 470. (xiv.) C. A.-Liquidation - Secured Creditor-Notice-Chose in Action.

Where a judgment creditor issues a writ of sequestration against his debtor, the mere service of the writ upon the trustee of a fund for the debtor does not make the creditor secured creditor within the Bank.

raptcy Act, 1869.-Ex parte Nelson, Re Hoare, 49 L.J. Boy. 116. (xv.) C. A.-Liquidation-Secured Creditor-Proof-Dividend.-A secured

creditor sent to the trustee in a liquidation a proof of his debt and a statement of his securities. The trustee required him to value the securities which he refused to do, and the trustee rejected the proof and afterwards paid a dividend to the other creditors. The next day the secured creditor realised his securities and sent in a proof for the balance of his debt : Held that he was not entitled to be paid the dividend

on such balance.-Ex parte Good, Re Lee, 49 L.J. Bcy. 49. (xvi.) C. A.-Mortgage Attornment Clause-Excessive Rent-Distress.

Where a mortgage deed reserves a rent which is so excessive as to induce the Court to believe that it was not intended to create a real tenancy, the attornment clause and any distress levied under it, though levied before the commencement of bankruptcy, will be invalid as against the trastee in bankruptcy of the mortgagor.-Ex parte Jackson,

Re Bowes, L.R. 14 Ch. D. 725. (xvii.) C. A.-Mortgagee in Possession-Injunction to RestrainJurisdiction.

-The Court will not restrain the exercise of a mortgagee's legal rights,

upon a mere suggestion that, when the trustee in liquidation of the mortgagor is appointed, he may be able to find evidence enabling him to

impeach the mortgage.--Ex parte Bayly, Re Hart, 43 L.T. 181. (xviii.) C. A.Objection to Jurisdiction-Fraudulent Assignment. A trustee in

bankruptcy applied to a County Court to have a mortgage deed by the bankrupt set aside as fraudulent, and the question was tried by a jury and decided in the trustee's favour: Held that it was too late to object to the jurisdiction on appeal to the chief judge.- Ev parte Butters, Re

Harrison, 43 L.T. 2; 28 W.R. 876. (xix.) C. A.-ProofAnnuity Determable on Contingency.-Under a separa.

tion deed a husband covenanted to pay to trustees for his wife an annuity during the joint lives of husband and wife, determinable on her anchastity or their cohabiting, and reducible on her becoming entitled to any other income : Held that the trustees could prove, in the husband's liquidation, for the estimated value of the annuity, and were entitled to have the value fixed by a jury.-Fx parte Neale, Re Batey, L.R. 14 Ch. D.

579; 28 W.R. 875. (xx.) C. A.-ProofBill Discounter Liable under General Guarantee -- Double

Proof-Interest.-H. drew bills on W., who accepted them on an agree. ment that they should be discounted and the proceeds divided between them. H. endorsed the bills to, and discounted them with, S. & Co.; and S. & Co. discounted them with a bank which held a continuing letter of guarantee from them. The bills were not endorsed to the bank. H. and S. and Co., having both gone into liquidation, the bank received a dividend from S. and Co.'s estate in respect of the bills, and also money in respect of the balance from H.'s estate and from W. W. having gone into liquidation: Held that S. & Co.'s trustee was entitled to prove against W.'s estate for the amount paid by S. & Co.'s estate to the bank and also for interest thereon.—Ex parte Bishop, Re Fox, Walker and

Co., 43 L.T. 165. (xxi.) H. L.- Proof-Partnership-Double Proof-Two Firms.— The same

individuals were associated in two firms, one in London and the other at Oporto. The Oporto firm drew bills on the London firm, which the latter accepted, and which were discounted by a Portugese bank. Both firms having gone into liquidation, the bank received a dividend out of the assets in Portugal: Held that the bank could not prove in the English liquidation withont bringing in what they had received from the

Portuguese assets.-Banco de Portugal v. Waddell, 49 L.J. Boy. 33. (xxii.) C. A.Stoppage in Transitu-Sub-Purchase-Constructive Delivery.

The re-sale by the purchaser of goods in transitu, the receipt of delivery orders by the sub-purchaser, and the actual receipt by him of part of the goods, do not put an end to the transitus, so as to prevent the vendor's right of stoppage in transitu attaching to the unpaid purchase. money due from the sub-purchaser.-Ex parte Falk, Re Kiell, L.R. 14

Ch. D. 446 ; 42 L.T. 780. (xxiii.) C. A.-Two Petitions Service — Priority.-Where an adjudication

has been made on a second petition by arrangement between the debtor and second petitioner, the first petitioner cannot appeal against the adjudication, but should apply for the conduct of the proceedings under the adjudication.-Ex parte Mason, Re White, 49 L.J. Bcy. 56 ; 42 L.T. 884.


Bill of Exchange :(i.) Ex. Div.-Acceptance in Blank-Forged Indorsement--Evidence.

When a bill is accepted in blank and afterwards filled in with the name and signature of a person as drawer and endorser, the acceptor cannot,

as against a bona fide indorsee for valne, adduce evidence to show that either the drawing or indorsement is a forgery.-London and South

Western Bank v. Wentworth, 49 L.J. Ex. 657. Bill of Sale : -(i.) C. P. Div.-After-Acquired Property-Stock-in-Trade.--The grantor of

a bill of sale assigned to the grantee all the stock-in-trade and effects on certain premises, and all stock-in-trade and effects which might, at any time during the continuance of the security, be brought on the premises : Held that stock-in-trade brought upon the premises after the making of the bill of sale passed to the grantee.-Lazarus v. Andrade, L.R. 5

C.P.D. 318; 43 L.T. 30. (ii.) C. A.- Attestation_Consideration - Registration-Description of Occu.

pation—41 S Vict., c. 31, s. 10.-The grantor of a bill of sale was described therein as a farmer and auctioneer. He had also been in the habit of discounting bills : Held that the description was sufficient. The neglect by the attesting solicitor to explain a bill of sale does not avoid the bill either as against the grantor or any other person. The consideration required by the Act to be stated in a bill of sale is the real consideration between the grantor and grantee.-Ex parte National

Mercantile Bank, Re Haynes, 49 L.J. Boy. 62; 43 L.T. 36; 28 W.R. 848. (iii.) C. J. B.- Attestation-Description of Witness-17 & 18 Vict., c. 36.

Where the attesting witness to a bill of sale is a person having no occupation, and in his affidavit he has omitted so to state in describing himself, the Court will not declare the bill of sale to be void as being

improperly registered.-Ec parte Young, Re Symonds, 28 W.R. 924. (iv.) C. P. Div.-Consideration—41 42 Vict., c. 31, s. 8.- A bill of sale

stated that the grantee had agreed to advance the grantor £182 to enable him to pay out two execations. A part of the money was paid direct by the grantee, without the grantor's knowledge, to the grantor's solicitor for costs owing to him: Held that the consideration was correctly set forth so as to satisfy the requirements of sec. 8 of the Bills

of Sale Act, 1878.-Hamlyn v. Betteley, L.R. 5 C.P.D. 327; 28 W.R. 956. (v.) C. J. B-Consideration–41 $ 42 Vict., c. 31, s. 8.—A bill of sale

stated the consideration to be £560 that day paid by the grantee to the grantor. In fact only £500 was then so paid, the balance being expended in incidental costs : Held that the consideration was not set forth so as to satisfy the requirements of sac. 6 of the Bills of Sale Act, 1878.-Ex

parte Beetenson, Re Rogers, 42 L.T. 808. (vi.) C. P. Div.-Implied License to carry on Business.-A bill of sale

granted by an innkeeper and horse dealer provided that until default was made the grantor might hold and use the goods comprised in it, with a covenant not to dispose of any of the goods without the written consent of the grantee : Held that the grantor had implied authority to dispose of goods in the ordinary course of his trade, and that the purchaser of a horse comprised in the bill of sale, at a public auction without notice, acquired a good title to it.-Walker v. Clay, 49 L.J. C.P.

560. (vii.) C. P. Div.-Implied License to Sell-Stock-in-Trade.-B. gave plaintiff

a bill of sale of stock-in-trade whereby it was provided that until default B. should make use of the goods. B. sold the goods to defen. dant, and in an action for wrongful conversion the jury found that the goods were sold fraudulently and not in the ordinary way of business, but that defendant did not know this : Held that plaintiff was entitled to recover.-Taylor v. Mc Keand, L.R. 5 C.P.D. 358; 49 L.J. C.P. 563 ; 42 L.T. 833.


(viii.) C. J. B.-Mortgage of Quarry-Fixtures-Tramway.--By a mortgage

deed a stone quarry was granted together with mills, buildings, engines, plant, rails, and fixtures, then or thereafter on the hereditaments. At the date of the mortgage there was a tramway on the quarry and a steam crane fastened to large stones : Held that the tramway and crane were fixtures, and that the deed did not require registering under the Bills of Sale Act, 1854 or 1878, to give the mortgagee a right to retain the tramway and crane as against a liquidation trustee.--Ex parte Moore s Robinson's Banking Co., Re Armytage, 49 L.J. Bcy. 60; 28 W.R.

924. (ix.) C. A.--Power to Seize and Sell-Giving Time-Waiver.--The grantee of

a bill of sale which contained a power to seize and sell the goods on failure of payment of any of the weekly instalments payable under the bill, was asked by the grantor to give time for the payment of an instalment and he said he would not look for a week." Within a week he seized and sold the goods : Held that an action for wrongful seizure would not lie.-Williams v. Stern, L.R. 5 Q.B.D. 409; 49 L.J.

Q.B. 663 ; 28 W.R. 901. (x.) C. P. Div.RegistrationPrior unregistered Bill— Assignment by

C'estui-que-Trust.—Goods of an execution debtor were assigned by the sheriff by inventory and receipt to O., who assigned them in trust for the separate use of the debtor's wife, with power to the trustee to sell on her direction. Both these assignments were unregistered. The wife granted a bill of sale in her own name to W., which was registered, the goods remaining in the debtor's possession : Held that the assign. ment to W. was void as against an execution creditor of the debtor.

Chapman v. Knight, L.R. 5 C.P.D. 308; 28 W.R. 919. Canada :(i.) H. L.-Agent.Power to Pledge--Canadian Code-Factors' Clauses.

A. in London sent hides to B. in Canada, which B. was to tan, procure freight for, and send back to A.; being paid at a certain rate for doing so. After the hides were tanned and freight was procured for them, B. hypothecated the hides to bankers as secarity for money advanced : Held that the bankers could not set up any title to the hides as against

A.-City Bank v. Barrow, L.R. 5 App. 664. (ii.) P. C.-AppealDominion Legislature-30 Vict., c. 3.—The Dominion

Act, 40 Vict., c. 41, s. 28, providing that the judgment of the Court of
Appeal in matters of insolvency shall be final, is within the competency

of the Canadian Parliament.- Cushing v. Dupuy, 49 L.J. P.C. 63. (iii.) P. C.-Compensation-Award-Transfer of Railway.Held that an

award under the Railway Act, 1868, giving as damages for expropriated land taken by a railway company, a monthly sum payable until the com. pany should have set free a certain watercourse, was invalid : Held, also, that a deed confirmed by the Quebec Act, 39 Vict., c. 2, purporting to transfer a federal railway within the Canadian Act, 36 Vict., c. 82, to the Quebec Government, was ultrâ vires.Bourgoin v. La Compagnie du

Chemin de Fer de Montreal, 49 L.J. P.C. 69. (iv.) P. C.-Donation-Revocability of Gift on Birth of Children.-By a

notarial deed dated previously to the coming into operation of the Civil Code, appellant gave a small annuity to respondent in trust for her five daughters. The gift was made soon after appellant came of age : Held, under tbe circumstances, that the gift was not revocable on the subsequent

birth of children to the appellant.-Symes v. Cuvillier, 49 L.J. P.C. 54. (v.) P. C.-Negligence-DamagesNew Trial.—Where plaintiff had obtained

damages against defendants on account of an injury sustained through

« PreviousContinue »