« PreviousContinue »
Court of Bankruptcy for an order directing the trustee to pay rent: Held that either the landlord's remedy was a personal one against thetrustee, or else that the trustee had only committed a default in the administration of the assets, from liability for which he was protected
by the release. -Ex parte Carter, Re Ware, L.R. 8 Ch. D. 731. (xix.) C. J. B.-Liquidation-Set Off—Mutual Dealings.-A. agreed with B.
to execute certain works, and that the plant brought on the works by A. should be deemed the property of B. and not be removed during the progress of the works without his consent, and in case of default by A. in performing the contract, the plant should continue to be used about the execution of the works : A. having failed to carry out the contract, another contractor was appointed and most of the plant used about the works, and the balance sold by agreement for £685: B.'s engineer certified that £2,876 was due from A. for his default : A. having taken liquidation proceedings : Held that B. could not retain the £685 as a set off against the amount due to him.-Ex parte Bolland, Re Winter,
47 L.J. Bcy. 52, (xx.) C. A.-Liquidation, Undischarged Dehtor— New Trading.–The cre
ditors of a debtor having resolved on a liquidation, and that the debtor should have his discharge on the committee of inspection certifying that he was entitled to it, the committee resolved that he should receive his discharge on the payment of certain instalments : the debtor resumed trade, and applied to his bankers, to whom he owed money for which they had not proved, as it was secured by a mortgage, for further advances on the same security, which, on the representation of the trustee that the liquidation was at an end, they agreed to make : the debtor having failed to pay one of the instalments, was adjudicated bankrupt, the bankers having sold the mortgaged property: Held that they were entitled to retain out of the purchase-money the whole amount due on the mortgage and further advance.--Ev parte Bolland,
Re Dysart, 26 W.R. 807. (xxi.) C. J. B.- Money Demand—Jurisdiction.--The Court of Bankruptcy
has no jurisdiction under section 72 of the Bankruptcy Act, 1869, to enforce a more money demand by the trustee against a third party.
Ex parte Musgrave, Re Wood, 26 W.R. 915. (xxii.) C. A.-Mortgage-- Delivery of Possession. Jurisdiction.- Where a
mortgagee, having rights outside the bankruptcy, comes to the Court of Bankruptcy and subrnits his rights to be determined there, the Court has jurisdiction to order the trustee in bankruptcy to deliver up possession
to him.—Ev parte Fletcher, Re Hart, 26 W.R. 843. (xxiii.) C. J. B.-Order and Disposition--Bill of Erchange--Appropriation.
C. endorsed bills of exchange drawn by A. on B. on the security of cement in A.'s warehouses. A. kept the cement in barrels marked with B.'s initials to whom he sent the invoice. A. having filed a liquidation petition, C. paid off the bills of exchange, and claimed the cement as held by A. as his trustee : Held that it passed to A.'s trustee in bank.
ruptcy.-Ec parte Cohen, Re Cohn, 38 L.T. 884. (xxiv.) C. A. -Order and Disposition-Policy—Thing in Action.--A policy of
lile assurance is a “thing in action” within section 15, sub-sec. 5, of Bankruptcy Act, 1869.-Ec parte Ibbetson, Re Moore, L.R. 8 Ch. D. 519;
39 L.T. 1; 26 W.R. 843. (xxv.) C. J. B.-Order and Disposition - Three Years' Hire System. The
custom of letting a piano on hire under an agreement by which on payment of monthly instalments for three years the hirer becomes the owner, is a well-established and good custom, and will prevail to take the piano out of the order and disposition of the hirer on bankruptcy:Ex parte Hattersley, Re Blanchard, L.R. 8 Ch. D. 601.
(xxvi.) C. A.-Petitioning Creditor's Debt-Beneficial Owner.—The legal owner
of a debt who is a mere trustee, cannot sustain a petition for adjudication against the debtor unless the beneficial owner join in the petition.
Ev parte Culley, Re Adams, 38 L.T. 858. (xxvii.) C. A.-Proof-Bill of Exchange-Bankruptcy of Acceptor- Jurisdiction
-A consignee of goods for sale on comunission accepted bills drawn by consignor for value of goods : consignor filed a liquidation petition, and consignee sold the goods and paid the money to his own account : he afterwards suspended payment, and his creditors accepted a composition of seven shillin is in the pound: Held that the demand of the trustee for the balance of the proceeds of the sale, in order "o pay the sums remaining on the bills, was a mere demand for a debt due to the consignor's estate, and that the Court of Bankruptcy ought not to try it.
-Ex parte Dickin, Re Pollard, 38 L.T. 860. (xxviii.) C. A.- Proof-Partnership-Fraud-Joint and Several Estates.
Where a partnership debt has been incurred by means of fraud, the creditor has the right to prove at his election against either the joint or separate estates, and he does not lose the right merely by proving and receiving a dividend.--Ex parte Adamson, Re Collie, L.R. 8 Ch. D.
807; 38 L.T. 917; 26 W.R. 890. (xxix) C. A.-Proof - Voluntary Covenant-Bankruptcy Act, 1869, s. 32.
Section 32 of the Bankruptcy Act has abolished the rule of adminis. tration in bankruptcy formerly followed, that the payment of a voluntary bond must be postponed to debts for valuable consideration.-Ex parte
Pottinger, Re Stewart, L.R. 8 Ch. D. 621 ; 47 L.J. Bcy. 43. (xxx.) P. C.- Trustee under Creditors' Deed-Calls on Shares.-Appellant
held shares in a company as nomiree of a firm in which he was partner: the company was wound up and appellant became liable for calls on the shares: the firm became insolvent and assigned their assets to trustees for the benefit of creditors : Held that appellant could not require the trustees to indemnify him for the calls on the shares.- Levi v. Ayers,
L.R. 3 App. 842. (xxxi.) P. C.-Vendor's Lien.--Under an arrangement with the purchasers,
the vendors of goods retained possession of them, the purchasers paying them warehouse rent: Heid that the ven lor's lien for unpaid purchase. money revived on the insolvency of the purchasers.-Grice v. Richardson,
47 L.J. P.C. 48. Bill of Exchange :(i.) C. A.--Acceptance by Partner-Bill Drawn in Blank.- A partner has
no implied authority to bind his firm by issuing bills purporting to be accepted by the firm, but with the drawer's name in blank. - Hogarth v.
Latham, 39 L.T. 75. (ii.) C. A.-Blank Acceptance-Lost Bill—Filling up without Authority.
Defendant having given H. his blank acceptance on stamped paper, it was afterwards returned to him by H., and he left it in his chambers, from whence it was lost or stolen : C. afterwards filled in his own name, withont defendant's authority : Held that defendant was not liable on the bill to an indorsee for value.--Baxendale v. Bennett, L.R. 3 Q.B.D.
47 L.J. Q.B. 624; 26 W.R. 899. (iii.) C. A.-Cancellation.--Defendant advanced to plaintiff £15,000 on the
security of bills of exchange accepted by S. and goods : on a bill being dishonoured, plaintiff, to prevent a sale of the goods, gave defendant a cheque as collateral security, to be returned when the bills were paid in full : subsequently plaintiff consented to a sale, in order to effect which defendant agreed with S., without plaintiff's knowledge, to cancel the bills : Held that plaintiff could not recover the cheque till the £15,000 was paid in full.— Yglesias v. River Plate Bank, L.R. 3 C.P.D. 330.
(iv.) C. A.-Notice of Dishonour-Indorsement Abroa).- A bill drawn in
England and payable in Spain was indorsed by defendant to plaintiff, and by him to M., who resided in Spain : acceptance was refused, of which M. did not inform plaintiff till after twelve days, and thereupon plaintiff gave notice to defendant: no notice of dishonour is required by the law of Spain: Held that plaintiff was entitled to recover on the bill.
-Horne v. Rouquette, L.R. 3 Q.B.D. 514; 26 W.R. 894. Bill of Sale :(i.) Q. B. Div.--After-acquired Property.-a bill of sale assigned to the
plaintiff all the machinery and plant on certain premises, and specified in the schedule thereto, subject to additions, alterations, and renewals of parts of the machinery which had taken place since a certain date, or which should thereafter be upon the same premises : Held that machinery brought upon the premises subsequently to the execution of
the bill of sale was included in it.-- Leatham v. Amor, 47 L.J. Q.B. 581. (ii.) C. A.-Hired Goods—Payment by Instalments.--R. agreed with C. for
the purchase of furniture from him on the hire system, by which the furniture was to become R.'s property on payment of thirteen monthly instalments: the agreement authorised c. to seize the furniture on failure to pay any of the instalments, and promissory notes were given by R. for the amount, such notes to become void in case of seizure by C.: R. filed a liquidation petition, and C. seized the furniture : Held that the agreement did not constitute a bill of sale.-Ex parte Crawcour,
Re Robertson, 39 L.T. 2. (iii.) Q. B. Div.-Registration-Description of Witness.-The attestation to
a bill of sale described the witness correctly as solicitor, B. Street, City of London : in the affidavit he described himself in the same way, and stated that he resided at G. House, Acton, in the City of London, in mistake for Middlesex: Held a sufficient description of his residence.
Blount v. Harris, 47 L.J. Q.B. 596. (iv.) Q. B. Div.-Registration-Proof.—The claimant, under a bill of sale, in
order to prove due filing of it, produced the bill and a certificate stamped with the seal of the Q.B. Div. Judgment Office, of the registration in that office of a document purporting to be a copy of bill of sale, and an affidavit: Held no sufficient evidence of due filing.-- Emmott v. Marchant,
L.R. 3 Q.B.D. 555. Canada, Law of:(i.) P. C.-Direct Taxation-Stamp Act—30 S 31 Vict., c. 3, s. 92.-A
stamp Act is not direct taxation within section 92 of British North America Act. Attorney-General of Quebec v. Queen Insurance Co.,
38 L.T. 897. (ii.) P. C.--Seignorial Rights-Commutation Fine-Purchase by Crown.
By the Consolidated Statutes of Lower Canada, c. 41, s. 74, it was pro. vided that a commutation fine should be payable to the seignors of a certain fief on the first motation that would have given a legal right to a seignorial due within twenty years from the passing of the Act: the fief was purchased by the Government, who paid the seignor an indemnity of one-fifth of the value : on a subsequent conveyance from the Crown: Held that the right of the seignor to the commutation fee was extinguished by the receipt of the indemnity.- Sisters of St. Joseph of
Montreal v. Middlemiss, 38 L.T. 899. Charity:(i.) C. A.-Lease-Statute of Limitations-13 Eliz., c. 10.-A voluntary
charitable society, founded in 1758 for establishing a hospital, and subsequently incorporated by Act, is within 13 Eliz., c. 10: a lease
of premises was granted by such society for more than 21 years : Held that the possession of the defendants, though not the original lessees, must be referred to the lease in the absence of evidence, that the lease was voidable and not void, but that the Statute of Limitations began to run against the Corporation from the time of granting the lease.
Magdalen Hospital v. Knotts, L.R. 8 Ch. D. 709; 47 L.J. Ch. 726. (ii.) Ch. Div. M. R. -- Payment into Court under Trustee Relief Act--16 & 17
Vict., c. 137, s. 17-Trustees of a charity may pay the trusts funds into Court ander the Trustee Relief Act, but they ought not to present a petition for administration of the trusts without the Charity Com. missioners' authority.-Re Poplar and Blackwall School, L.R. 8 Ch. D.
513 ; 39 L.T. 88; 26 W.R. 827. (iii.) P..C.-Scheme-School-Endowed Schools Act, 1869.-A direction in
an endowment deed that certain persons may continue at the school founded after the age of manhood, does not make the endowment less an educational endowment within the Endowed Schools Act, 1869 : section 19 of the Act does not prevent the Commissioners from making the office of rector of a parish a qualification for a place in the governing body of a Church of England school : the Commissioners may, in a scheme, reserve to themselves a species of visitorial jurisdiction.
Re Hodgson's School, L.R. 3 App. 857; 38 L.T. 790. (iv.) P. C.-- Scheme -- Schools - Endowed Schools Act, 1869.- A petition
having been presented against a scheme for an endowed school by inhabitants and ratepayers as members of a class having a right, by the founder's deed, to free education for their children: Held that in the absence of special circumstances they had no locus standi as petitioners.
– Re Shaftoe's Charity, L.R. 3 App. 872 ; 38 L.T. 793. (v.) Ch. Div. V. C. B.-Scheme-Gift to School-Transfer to School
Board.—The scheme for the regalation of an elementary undenominational school for boys, provided that the trustees of an annuity should pay it to the treasurer for the benefit of the school or any other school established in its stead, but if any such school should not be substantially like the school first mentioned, or should become materially altered, the trustees might apply the annuity otherwise : the school was transferred to the School Board, who made it a school for boys and girls, and pro. posed to apply the annuity towards prizes and scholarships for the scholars : Held that the School Board was entitled to the annuity.
London School Board v. Faulconer, L.R. 8 Ch. D. 571. (vi.) Ch. Div. M. R.-Will-Charitable Gift—" Poorest Kindred.”—Gift
of income of property for the benefit of the poorest of testator's kindred, such as were not able to work for their living, &c., and declaration that in distributing the estate “to the poor charitable uses,” those of testator's kindred who were poor or impotent were chiefly to be preferred : Held a gift to charitabie objects, such objects being necessitous persons, with a prior charge in favour of such of the kindred as were necessitons.
--- Attorney-General v. Duke of Northumberland, 47 L.J. Ch. 569. Common :(i.) Ex. Div.-Right to Cut Furze—Royal Grant-Uncertainty.--Inhabitants
of F. claimed a right as such to cut furze on F. common, basing their claim on a lost royal grant: Held that the grant in order to have been good must have incorporated the inhabitants for that purpose, and this would not be presumed in the absence of express evidence.--Lord Rivers
V. Adams, 39 L.T. 39. Company :(i.) C. P. Div.-Cost-hook Mining Company - Action for Calls.-A creditor
of a cost-book miuing company will not be allowed to bring an actiou
against a shareholder for the purpose of enforcing a call.—Escott v. Gray,
47 L.J. C.P. 606. (ii.) C. A.—Director--Agent-Fraud-Liability.- Directors of a company
being authorised to raise money by debentures, employed brokers to place the debentures, and the brokers issued a prospectus bearing the directors' names, containing statements which the brokers knew to be false, and which induced the plaintiff to take shares. B., one of the directors, gave no express anthority to the brokers to make the state. ments, he did not know that they were false and received no benefit from the sale of the debentures : Held that B. was not liable to the plaintiff.
Weir v. Bell, L.R. 3 Ex. D. 238; 38 L.T. 929. (iii.) Q. B. Div.-Directors—Election-Mandamus.--Articles of a company
provided that all questions at meetings should be decided by show of hands unless immediately thereon a poll should be demanded by share. holders qualified to vote and holding together at least 2,000 shares : Held that the shareholders demanding a poll must themselves hold 2,000 shares, and not merely by proxy : mandamus granted to admit a director duly elected to office, when the place had been assumed and occupied by another person not duly elected. — Regina v. Government Stock Investment
Co., L.R. 3 Q.B.D. 4-12. (iv.) C. A.- Directors — Ultra Vires - Severable Agreement. — Articles of
Association provided that shares should not be issued below par: M. agreed to purchase 2,000 shares at par, and on the same day, the directors agreed to pay him £4,000 for his services : Held that the agreements were severable, and that M. could not set up that the second was ultra vires to resist specific performance of the first.-Odessa Tram
ways Co. v. Mendel, 26 W.R. 887. (v.) C. A.-Director's Qualification-Resignation-Liability--Scire Facias.-
A company's special Act provided that T. and A. should be directors until first ordinary meeting, and that qualification of a director should be the holding of 50 shares : T. and A. sent in their resignations within a year afterwards, and other persons were appointed in their stead informally: no sbares were ever allotted to T. and A., and by an informal register it appeared that all the shares of the company were allotted to persons other than T. and A.: subsequently the company became indebted to a bank which obtained judgment and issued execution : Held that T. and A. were not liable on writs of scire, ias to the bank as holders of qualification shares.--Kipling v. Todd, L.R. 3 C.P.D. 350 ; 47 L.J. C.P. 617.
(vi.) Ch. Div. F.J.-Misrepresentation-- Liability--Rescission - Pleading.
In an action by a shareholder against a company for repayment and indemnity as to his shares, on the ground of misrepresentation made by certain of the directors: Held that those persons only who made the representations were responsible for them, and that the company was only liable as far as the representations were made in the ordinary course of its business : no claim for rescission being raised on the pleadings, leave to amend was refused on the ground that plaintiff had appeared in support of a winding-ap petition as a contributory.-Cargill v. Bower,
47 L.J. Ch. 649. (vii.) Ch. Div. V. C. H.-Winding-up-Action for Indemnity-Summoning
Defendant as Witness--Companies Act, 1862, ss. 115, 117.-A. assigned his right to indemnity against B. in respect of shares in a company in liquidation to the company; the liquidator having brought an action against B. in A.'s name, the Court summoned B. to give evidence on matters the subject of the action.-Massey v. Allen, 47 L.J. Ch. 702 ; 26 W.R. 908.