« PreviousContinue »
any further advances that might be made. Further advances amounting to £70 were made, but these had been more than recouped by the sale of hay ofi the farm prior to any bankruptcy proceedings 2 Held that the bill of sale was void against the farmer's trustee in bankruptcy. —E.r parlc Thorpe, Re Pa/rker, 4-3 L.T. 704.
(xli.) Ch, Div. V, C, H_—Agreemenl for Sale or Hire—Di.~m'ess—-Reputed ()1vnership—Fraud on Bankruptcy Luws.—An agreement for the hire of wagons at a yearly rent for a fixed period, with an option of purchase for a nominal price at the end of that period, is not, by reason of a stipulation that lenders may distrain as ordinary landlords for arrears of rent upon the personal chattels of the hirer in the event of his bank
ruptcy, inoperative as against his general creditors.—Leman v. Yorkshire Wagon Co., 60 L.J. Ch. 293 ; 29 W.R. 4-66.
(xlii.) C, A.--Appeal—S¢ay of Pi-oceedings.—Held, that an appeal from an adjudication in bankruptcy ought to stand over pending the trial of an action, the result of which, it was alleged, would be to render a fund available to satisfy the debt claimed by the petitioning creditor.—Es
(xliii.) C. A,.—Appeal by Truslee—— C0sls.—A trustee in bankruptcy presented an appeal against the admission of a proof, and before the hearing be was removed and a new trustee appointed who declined to proceed with the appeal. The appeal was ordered to stand over for a fortnight, and was then dismissed, none of the creditors having adopted it, and the respondent’s costs were ordered to be paid out of the deposit so far as it would extend.—Em parle Shearcl, Re Pooley (2), L.R. 16 Ch. D. 110; 44- L.T. 260.
(xlv.) C. A.——Composition—-Authority to carry on B-usiness—Assignmenl of Book Debts.—Creditors of a liquidating debtor passed resolutions accepting a composition by instalments, and providing that the trustee should enter into possession of the debtor's stock-in-trade and efiects on his failure to pay any instalment. The debtor continued to carry on his trade and assigned his book debts to secure advances which he applied in carrying on his business and paying instalments. He made default in payment of an instalment: Held that the assignment was good as against the trustee.—Ea: pa/rte Allard, Re Simone, L.R. 16 Ch. D. 505 ; 44 L.T. 36; 29 W.R. 406.
ixlvi.) C. A.—C01nposilion—Debtor's Slaternent-—Non-assenting Creditor.-— When a debtor, who makes a composition with his creditors, omits from his statement one debt due to a non-assenting creditor, but states another debt due to the same creditor, the creditor is not bound in respect of either debt.—Macdmwld v. Chesney, 50 L.J. C.P. 87.
(xlvii.) C. J. B.—Compos'ili'0n—Reduction of Proof—Application by Bankrupt —Locus Stumli.—An uudischarged bankrupt who has undertaken to pay a composition has a locus stundi to apply to the Court to reduce a proof. —Eax parts Bond, Re Bond, 43 L.T. 798; 29 W.R. 292.
(xlviii.) C. J. B.-vComposih'on—Adjo1crnment of Second Meeting--Bankruptcy Act, 1869, s. 126.-—-The creditms at a second meeting duly convened under sec. 126 of the Bankruptcy Act, 1869, have power to adjourn the meeting beyond the fourteen days specified in that section.—Ea: parla Knowles, Re Jones, 44- L.T. 160.
(xlix.) C. A.—-C'ompositi0n Resolutions—J1utg1nent CreHIitOr—Sei:ure—Bankruptcy Act, 1869, s. 126.—-A resolution accepting a composition at the first meeting of creditors under sec. 126 of the Bankruptcy Act, does not become an extraordinary resolution until confirmed at the second meeting, and is of no validity until duly registered; therefore a creditor of a compounding debtor who signs judgment and levies execution for his debt before such registration, obtains a valid security on the debtors property, and the fact of his having attended the first meeting of creditors without voting or proving, raises no countervailing equity against him.——E:r pa/rte Maclaren, Re Maccolla, L.R. 16 Ch. D. 534; 50 L.J. Ch. 203; 4-4 L.T. 36; 29 W.R. 389.
(1.) C. A..—C0mp0siti0n Resoluti0ns—ltefusa.l to Register—Bankruptcy Act, 1869, s. 28.—Under sec. 28 of the Bankruptcy Act an absolute discretion is given to the Court to refuse to register resolutions for composition. Decision of C. J . B. (Ea: parte Murray, Re Durham, 43 L T.799) reversed.Es parts Merchant Banking C0., Re Durham, 29 W.R. 363.
(li.) C. .A.,.—-Debtor's Statement—Onu'ssion.—A debtor in his statement described himself as formerly in partnership with certain persons. There were no joint assets or liabilities. The debtor did not mention this in his statement, but stated so subsequently at a general meeting of creditors : Held that the statement was insuflicieut and ought not to be registered.—E.v parts Buckley, Re Buckley, L.R. 16 Ch. D. 513; 4-4 L.T. 99.
(lii.) C. J, B.—Income of Bankrupt—Vulunta/ry Allowance—-Bankruptcy Act, 1869, s. 90.—A voluntary allowance of which the debtor is in receipt is an income within sec. 90 of the Bankruptcy Act, 1869, and the trustee is entitled to an order setting aside part of it.——E.v parts Chatterley, Rs Wicks, 44 L.T. 169; 29 W.R. 400.
(liii.) C. A.—-Jurisdiction of Com-t—C'0unty C'ourt.—Where a matter pro. perly within the jurisdiction of the Bankruptcy Court involves also the character and reputation of persons, it should not be tried before the County Court in which the bankruptcy is proceeding, but in an action in the High Court.—E.r parts Armitage, Re Learoyd, Wilson 45/‘ Co., 44 L.T. 262.
(liv.) C. J. B.--Leaseholzls —Disclaimer—-Enlarging ’l'im.e f0r.—The fact that the lessor has availed himself of provisions in the debtor’s lease to compel the trustee in liquidation to pay half a year's rent in advance, is not a ground for enlarging the time for giving notice by the trustee whether he disclaims or not, after the expiration of the 25 days fixed by sec. 24 of the Bankruptcy Act.—E:o parts Harris, Re Richardson, L.R. 16 Ch. D. 618; 44 L.T. 282. '
(lv) C. A.-——Liquiclati0n—Builclin-g Agreement—Bills of Sale Act, 1854, s. 7 (l).—A building agreement contained a clause that, upon default in performance on the builder's part, the landlord might re-enter, and thereupon all materials on the land should be forfeited to him: Held that the proviso for forfeiture was not void under sec. 7, sub-sec. 1, of Bills of Sale Act, 1851, against the trustee in liquidation of the builcler.—E.t parts Newitt, Re Garrud, L.R. 16 Ch. D. 522; 44 L.T. 5; 29 W.R. 344-.
< (lvi.) C. J. B.—Liqu1'dati0'n—--Contractor's Lienfor unpaid I’wrclw.se-money.—W. contracted with the debtor to put a set of machinery into a barge belonging to the debtor for £1,050, the money to be paid in two instalments, the first payable when the machinery was put in, the second after the trial trip. Part of the first instalment had been paid, and the barge was ready for the trial trip, when the debtor tiled a liquidation petition, and a receiver having been appointed, he took possession of the barge,
which was then lying in dock, entered in the books in W.'s name : Held that W. had a lien on the barge and machinery for the money due under
(lvii.) C. A.—Liquidation—D:'scharye ofDebtor—S1nall Assets—-Registratio*n of IZe.s-olutions.—-Creditors of a liquidating debtor resolved on a liquidation by arrangement, and gave the debtor an immediate discharge. The assets were very small, and the registration of the resolutions was opposed by a creditor on the ground that the liquidation was an abuse of the process of the Court: Held that the resolutions must be registered. Er parle Mufthews, Re Sharpe, 50 L..l. Ch. 284; 44 L.T. 117.
(lviii.) C, _A_.—Liq1u‘rlati0n——Pnyment of Receivefs (‘hm-1/es.—A receiver of a liquidating debtor’s estate, who has handed over the property to the trustees in liquidation, is only entitled to the payment of his charges out of the net assets of the estate, and cannot call for an inquiry into
(lix.) C. A,—Liquiduti0n Petition before Atlju(li<‘ati0n.——When once there is adjudication in bankruptcy there is no longer power to go on with an arrangement of the debtor's affairs already commenced, either by way of composition or in liquidation.—Er parte Bennett, Re Ward, L.R. 16 Ch. D. 541; 4-4 L.T. 38; 29 W.R. 343.
(ix.) C. J. B.—l’elitiom'n.g Creditofs Debt—Equilable Mariya;/e—Interest.—A debtor deposited title deeds with a creditor to secure principal and interest up to a certain date, and agreed to execute, whep called upon, a legal mortgage to secure the principal and interest at the rate aforesaid. Neither principal nor interest had been paid: Held that the contract was to pay interest at the same rate till repayment of the principal, and that such interest constituted a. good petitioning creditor's debt.-— Er parts Furber, Re King, 44- L.T. 319; 29 W.R. 524.
(lxi.) C_ A,—Pr00f-Bill of E.rchange.—A holder of an accommodation bill is entitled to prove for the full amount of the bill against the estate of the acceptor in bankruptcy, irrespective of value received, but he may not receive dividends for more than the amount due to hiu1.—-E21 par-ta Grijlin, E11 parts Newton, Re Bunyard, L.R. 16 Ch. D. 330; 44- L.T. 232; 29 W.R. 407.
llxii.) C, J. B_—Prnnf—Pa.rt Payment by Su/rely—Re'lu.rtion of Proof:-After n. bank had proved its debt, but before the receipt of any dividend, a third person paid to the bank the amount for which he was liable as the debtor's surety: Held that such amount must be deducted from the amount of the proof, though, by the bond of snretyship, the surety gave up to the bank all his right to dividends under the bankruptcy of the debtor in part satisfaction of his liability under the bond.—Eav parte National Pi-om'ncial Bunk, Re Hers, 44- L.T. 159.
(lxiii.) C. J. B.—Pr00_f—l"artnership—-Share of Deceased Partner.—One of three partners having died, the survivors retained in the business, with. out any authority to do so, the deceased partner’s share of the capital, and divided the profits between themselves equally. They afterwards tiled a liquidation petition. There were still some joint debts of the old firm unpaid : Held. that the administratrix of the deceased partner could not prove, in the liquidation, in competition with his creditors in respect of his share of the capital.—E;u parts Blythe, Re Blythe, L.R. 16 Ch. D. 620.
cannot lawfully seize when a receiver in bankruptcy has been appointed, though the creditor may not have had any notice of an act of bankruptcy by the dcbton—Sall v. Cooper, L.R. 16 Ch. D. 544; 43 L.T. 682.
(lxv.) C. J. B.—-Secured Creditoa-——Garm'shee Order—Bank1-uptcy Act, 1869, ss. 16 (5), 95 (8).—A judgment creditor who, prior to the presentation of a bankruptcy petition against, but after the commission of an act of bankruptcy by the debtor of which he has no notice, has obtained a garnishee order m'si attaching moneys due to the debtor, is a. secured creditor within sec. 16, sub-sec. 5, of the Bankruptcy Act, and such garnishee order is an attachment against the goods of the bankrupt within sec. 95, sub-sec. 8—E.v parts Fillers, Re Curloys, 44 L.T. 224.
(lxvi.) C. A. —- Trustee—Remoral of —-Bankruptcy Act, 1869, s. 83 (4).—Though the registrar can only remove a trustee on good cause shown, yet where in removing a trustee he has exercised his judicial discretion according to law, the Court of Appeal will not disturb his order.—-En parie Shsard, Re Pooley (1), L.R. 16 Ch. D. 107 ; 44 L.T. 259.
Bill of Exchange :— _
(ii.) H, L.—Fo-rged Acceptance—Adoption of Sig11ature.—Where a person's signature to a bill of exchange has been forged, his mere silence for a fortnight after he first knew of the forgery, during which time the position of the bank which discounted the bill is not altered, will not be held to be an admission or adoption of liability, nor will it work an estoppel.— McKenzie v. Brifi-sh Linen Co., L.R. 6 App. 82; 29 W.R. 477.
(iii.) C. A.-—I1tdorsemsnt—-Rllyht to sue subsequent Indorsea-— Circm'fy of Action.—Plaintiffs drew bills on U., in respect of goods supplied to him which he accepted, and which plaintiffs indorsed to defendant, and defendant indorsed back to plaintiffs. The bills were dishonoured on presentation. In an action by plaintiffs against defendant, the jury found that defendant had indorsed and become surety as indorser to plaintiffs, so as to secure payment for the goods : Held that, as there was no consideration for the indorsement from the plaintiffs to defendant, the plaintiffs were entitled to judgment.- Wilkinson v. Unwin, 29 W.R. 458.
(iv.) C. A..—Remz'll‘ances to coverAcceptance—-Appropriation.—A bank was in the habit of drawing bills on a company which the latter accepted, and the bank remitted bills to the company to provide for meeting the acceptances. The company stopped payment having accepted bills for the bank which had not yet fallen due. At the time of the stoppage, the bank had remitted bills to the company some of which had been dis. counted. The acceptances were not met, and the bank had to take up the bills drawn by it: Hold that the bank was not entitled to follow the proceeds of the hills which had been discounted before the stoppage, but was entitled to the proceeds of those which had remained in specie.— Re Gofh.enb'urg Commerc1'al Co., 44 L.T. 166; 29 W.R. 358.
(v.) H. L,—Right lo Securities held by Credifm-.—R., a member of a firm of B. and Co., deposited title deeds with the W. bank as security for the floating balance due from his firm. Afterwards D. sold a cargo to R. and Co. who paid for it by a bill of exchange which D. indorsed and paid into the W. bank. R. and Co. stopped payment before the bill became due: Held that D. was entitled to have the security held by the bank handed over to him on payment of the balance due from R. and C0. to the bank.—Duncan, For 8*‘ Co. v. North and South lVaJes Bank, L.R. 6 App. 1; 43 L.T. 706.
(vi.) Q. B. DiV.—Unde1-taking to Renew.—Defendants accepted a bill pay. able at four months, upon a written undertaking that, if at the maturity of the bill they had not been paid monies due to them on the return of a
ship, the drawer would renew the bill. More than four months elapsed after maturity of the bill, and the money had never been paid to defendants, and the bill had not been renewed: Held that defendants were liable in an action on the bill.-—Heiron v. Morgan, 4-4 L.T. 182.
that the grantee had agreed to lend the grautor £7,350 on the security of a bill of sale, and that the bill was executed in pursuance of the agreement and in consideration of £7,350 then paid. In fact the £7,350 was the balance due to the grantee in respect of advances previously made to the grantor: Held that the consideration was sufliciently set forth and that the bill was valid.—C'redit Co. v. Pott, L.B. 6 Q.B.D. 295; 50 L.J. Ex. 106; 29 W.R. 326.
Q. B. DiV.—Consideration—-4l §'42 Vict., c.31, s. 8.—The consideration of a bill of exchange was slated to be £700. That sum was paid by the grantee to the grantor by two cheques, but, on the second cheque being presented, £7 10s. was deducted from the amount of it and retained by the grantee for commission, the borrower at the same time giving apromissory note for £10: Held that the consideration was not duly stated.—Hamili0n v. Chaine, 29 W.R. 488.
Q. B. Div.-—No Covenant not to Sell—Sale by Debtor-.—G. assigned to plaintilf, by a bill of sale, which contained no covenant not to sell, all the goods and farming stock then or thereafter on his farm, to secure the payment of £26 on demand. Before any demand for payment had been made, G. sold some of the goods to defendant, who removed them: Held that plaintiff was entitled to recover in an action for oonversion.—Payne
P. C.—Cr0wn Grant — Sovereignty of Crown— WiZl—Consii-uclion— EjTects.—Grants of land in a colony by the Crown afiord ample evidence that the Crown has assumed ‘territorial dominion in such colony. A testator had, under a treaty, the right of occupying a parcel of land for the purpose of cutting timber: Held that this right was included under a devise of his efiects.——-Attorney-General of British Honduras v. Brisinwe, L.R. 6 App. 143; 50 L.J. RC. 15; 44 L.T. 1.
Burial Ground :—
Ex. DiV.—EmcZusire Right of Bu.riul—Gr¢mt lo one and his heirs-——(,'onw>rsion—Elevii0n—15 §" 16 Vict., c. 85, s. 33.—An exclusive right of burial in certain grave spaces was granted by a burial board to E. and her heirs, to hold to the said E., her l1eirs and assigns, for ever, the purchase-money being found by her out of her late husband's estate, of which she was exeoutrix, and which he had left to her for life with remainder to his children equally: Held that the right descended upon E.'s death intestate to her heir-at-law, and that, as the other children had not elected to take the testator‘s property in its converted state, one of them could not claim to exercise the right as forming part of the testatm-‘s property.—MaHhews v. Jeflery, LB. 6 Q.B.D. 290; 50 L.J. Ex. 16!; 48 L.T. 796; 29 W.R. 282.
Ceylon, Law of :—
P. C.—Adrs>rse Possession—Proof—Ordinance No.22,l87l.—'I‘he adverse possession required to be proved by the Ordinance of Ceylon, No. 22, 1871, to entitle a defendant to a decree, must be by actual physical
possession proved by overt acts done on the land in dispute.—Clark v. Elphinstonc, L.R. 6 App. 164-; 50 L.J. P.C. 22.