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Law Reports, Law Journal Reports, Law Times
Reports, and Weekly Reporter,
FOR FEBRUARY, MARCH, AND APRIL, 1879.* By Henry M. KEARY, of Lincoln's Inn, Barrister-at-Law.
Administration:(xiii.) Ch. Div. F. J.-Co-Administrators-Sale to Husband of Adminis.
tratrix.—The husband of an administratrix is in a fiduciary position and cannot purchase from a co-administratix without the consent of all
the cestui-que trusts.- Pepperell v. Chamberlain, 27 W.R. 410. (xiv.) Ch. Div. V.C.M.-Colonial Duties. -A testator, domiciled in England,
whose estate consisted partly of personalty in the Colony of Victoria, gave certain pecuniary legacies, and bequeathed the residue of bis personalty to other persons: Held that the duties attaching in Victoria, and all expenses of realization were payable out of the general estate
before distribution.—Peter v. Sterling, L.R. 10 Ch. D. 279; 27 W.R. 469. (xv.) Ch. Div. V.C.H.-Executor-Retainer.-Where, in an administration
action, an executor appears on an application, when an order is made for a debtor to the estate to pay the amount of his debt into Court, the executor loses his right of retainer with regard to the sum so paid in.
Richmond v. White, 48 L.J. Ch. 248. (xvi.) Ch. Div. M. R.-Executorship Expenses-Costs of Action.—The term
“executorship expenses” in a will, means the same as testamentary expenses, and will include costs of an administration action, payment of rent falling due after testator's death, and expenses of warehousing
specific legacies.-Sharp v. Lush, L.R. 10 Ch. D. 468; 48 L.J. Ch. 231. (xvii.) Ch. Div. M. R.-Mortgage-Different Securities-Appropriation
17 & 18 Vict., c. 113.--Testator had been in the habit of borrowing money from his bankers and depositing as securities stocks and shares : on obtaining a further advance, he deposited with the bankers titled deeds of a freehold property and a memorandum by which he charged the sum advanced on that property and agreed that the security was
* Cases reported only in the Law Times Reports and Weekly Reporter for Saturday, 26th April, are postponed till the August Digest.
to cover any money due from time to time to the bankers : afterwards he obtained other advances and varied the stocks and shares held as securities. It appeared that he always treated the successive advances and depcsits as forming one running account: Held, that the amount due to the bank on testator's death must be borne by the properties held by the bankers rateably to their respective values at testator's death.
Leonino v. Leonino, L.R. 10 Ch. D. 460; 48 L.J. Ch. 217 ; 27 W.R. 388. Agreements and Contracts :(xv.) C. A.-Contract to Dedicate to Public-Notice.—Decision of Fry J.
(see Agreements and Contracts ii., p. 2) affirmed.-Attorney-General v.
Biphosphated Guano Co., 40 L.T. 201. Arbitration : (iii.) Q. B. Div.-Friendly Society—38 & 39 Vict., c. 60, s. 30.-The pro
visions of sec. 30 of Friendly Societies Act, 1875, apply to all Friendly Societies, and not only to those receiving contributions by means of collectors at a greater distance than ten miles from their registered offices.-Re United Patriots Berefit Society, Re Holt, L.R. 4 Q.B.D. 29 ;
48 L.J. M.C. 55; 39 L.T. 622; 27 W.R. 339. (iv.) C. A.-Reference by Consent-Award under £20-Costs—30 8. 31 Vict.,
c. 142, s. 5.- Where a cause has been referred by consent, and the order of reference leaves the costs of the reference and award in the discretion of the arbitrator, his control over the costs is not affected by the pro. visions of sec. 5 of County Courts Act, 1867.-Galatti v. Wakefield, 48
L.J. Ex. 70; 40 L.T. 30. Banker :(iii.) Ch. Div. V. C. B.-Guarantee-Continuing Security-Appropria.
tion.-A testator and other persons, directors of a company, gave two gaarantees for £1,000 each to bankers, requesting them to accept their agent's bills to that amount. Bills drawn by the company's agent were accepted, and other payments in and drawings out were made subsequently by the company, and when testator died there was a balance of £1,600 due to the bank: Held that the guarantees were a continuing security, and that the bankers were entitled to prove against testator's estate for the £1,600 and 4 per cent. from his death, the other guarantors
being unable to pay.--Browning v. Baldwin, 40 LT. 248. Bankruptcy :(lviii.) C. A -Annulling Adjudication--Discharge of Annulling Order-Rights
of Creditors.-Where the order annulling a bankruptcy made in acoord. ance with resolutions passed under sec. 28 of Bankruptcy Act, 1869, has been discharged on the discovery of property concealed by the bankrupt, the resolutions are destroyed, and the creditors remitted to their original rights.--Ex parte Jarvis, Re Spanton, L.R. 10 Ch. D. 179; 48 L.J. Boy.
45; 39 L.T. 651; 27 W.R. 297. (lix.) C. A.-Appeal—Creditor who has not Proved-Locus Standi.—The Con.
troller in Bankruptcy applied for an order that a trustee might pay £4,000 to the credit of the estate on the ground that by his neglect that amount had been lost. The application was refused, and a person claiming to be a creditor, but who had not proved, appealed : Held that
he had no locus standi.-Ex parte Ditton, Re Woods, 27 W.R. 401. (lx). C. J. B.- Appeal from County Court-Time.-Semble the Connty Court
Judge has no power to enlarge the time for appealing to the Chief
Judge.—Re Albezette, Ex parte Smith, 48 L.J. Bcy. 13. (Ixi.) C. J. B.-Concealment of Property by Bankrupt—Leave to Prosecute
Costs—32 & 33 Vict., c. 62, s. 11, sub.sec. 4.-A County Court Judge having refused to order the trustee to prosecute debtors for offences under the Debtors' Act, the trustee prosecuted them and obtained a conviction. The Chief Judge made on order nunc pro tune to prosecute, so that the costs of the prosecution might be allowed.—Ex parte Priestly,
Re Stanlake, 48 L.J. Boy. 48; 39 L.T. 643 ; 27 W.R. 292. (lxii.) C. A.-Contract for Sale before Adjudication-Subsequent Payment of
Purchase-money.—Pending bankruptcy proceedings, the debtor con. tracted to sell leaseholds, and received a deposit : after adjudication the purchaser, not having notice thereof, paid the balance of the purchase. money to the debtor, and was let into possession, but no assignment was executed: Held that the purchaser could not enforce specific performance against the trustee without paying him the balance of the purchase.
money. --Ex parte Rabbidge, Re Pooley, 48 L.J. Boy. 15. (lxiii.) C. A.--Contract for Sale-Bankruptcy of Purchaser.---An unpaid vendor
of goods has, in the event of the bankruptcy of the purchaser before delivery, the right to re-sell and prove in the bankruptcy for the deficiency, unless the trustee elects within a reasonable time to fulfil the contract, and tenders the price in cash.—Ex parte Stapleton, Re
Nathan, 40 L.T. 14; 27 W.R. 327. (lxiv.) C. A.-Equitable Assignment—Interest in Land-Statute of Frauds.
Decision of C. J. B. (see Bankruptcy xlii., p. 46) affirmed on the ground that the direction to pay was revocable at any time, and that the rent assigned being an interest in land, parol evidence was not admissible.
Ex parte Hall, Re Whitting, 40 L.T. 179; 27 W.R. 385. (lxv.) C. J. B.-Execution-Sale-9 & 10 Vict., c. 95, 8. 106—Bankruptcy Act,
1869, s. 95, sub-sec. 3.-An execution levied under a County Court judgment on the goods of a trader and sold by the bailiff by consent of both parties to an interpleader action, after notice to the execution creditor of an act of bankruptcy by trader upon which a subsequent adjudication was made, and before the expiration of the five days required by the County Courts Act, 1846, s. 106, is not a protected transaction within sec. 95, sub-sec. 3, of Bankruptcy Act, 1869.-Ex
parte Bulmer, Re Hughes, 40 L.T. 40. (lxvi.) C. J. B.---Fraudulent Conveyance-Mortgage of whole Property-13
Eliz., c. 5.-An assignment by way of mortgage of the whole of the assignor's property to one person, although there is a present advance,
is void under 13 Eliz., c. 5.-Ex parte Games, Re Bamford, 27 W.R. 492. (lxvii.) C. A.-Insolvency-After-acquired Property-Death of Debtor.-58 6
Vict., c. 116, s. 9.- An insolvent debtor presented his petition in 1859 under 5 & 6 Vict., c. 116, and 7 & 8 Vict., c. 96, and obtained his final order in 1861. In 1866 he became entitled to a share of some property and died the next year: Held that sec. 9 of 5 & 6 Vict., c. 116, did not apply to the case of a deceased insolvent, and that the proper remedy of the creditors was to bring an action for the administration of the
debtor's estate.-Ex parte Welchman, Re Hare, 39 L.T. 45. (lxviii.) C. A.-Interpleader-Fi. Fa.—Jurisdiction.-Bankruptcy Act, 1869,
8. 65.- The Court of Bankruptcy has jarisdiction to make an interpleader order in respect of goods seized under a fi. fa. issued by the Court.Ex parte Sheriff of Middlesex, Re Buck, 48 L.J. Bcy. 33; 39 L.T. 653 ;
27 W.R. 309. (lxix.) C. A.-Liquidation-Discharge-Omission in Debtor's Statement.
Decision of C. P. Div. (see Bankruptcy xvi., p. 4) affirmed.--Elmslie v.
Corrie, 40 L.T. 150; 27 W.R. 279. (lxx.) C. A.-Liquidation - Petition-Lunatic-Next Friend.-A liquidation
petition cannot be signed by a next friend on behalf of a lunatic not so found by inquisition.-Ex parte Cahen, Re Cahen, L.R. 10 Ch. D. 183; 39 L.T. 645; 27 W.R. 387.
(1xxi.) C. J. B.-Liquidation-Removal of Trustee.-A trustee in liquidation
is entitled to notice of a meeting at which it is intended to propose a resolution to remove him from his office.--Ex parte Wright, Re Bagnall,
27 W.R. 476. (1xxii.) C. A.-Liquidation-Rights of Crown-Extent Issued.-An extent by
the Crown subsequent to the filing of a liquidation petition and appointment of a receiver, but before appointment of trustee, is good against the trustee when appointed.-Ex parte Postmaster-General, Re Bonham,
40 L.T. 16; 27 W.R. 325. (lxxiii.) C. A.-Money Demand-Jurisdiction.-Decision of C. J. B. (see Bank
ruptcy xxi., p. 5) affirmed.-Ex parte Musgrave, Re Wood, L.R. 10 Ch, D.
94; 48 L.J. Bcy. 39; 39 L.T. 647; 27 W.R. 372. (lxxiv.) C. A.-Mortgage of Possible Surplus – Rights of Mortgagee.--A person
to whom a bankrapt has assigned the possible surplus of his estate after paying creditors in full, to secure advances made since the bankruptcy, does not acquire any right to interfere in the administration of the estate, or under Bankruptcy Rules, 1870, r. 166, to have an alleged creditor examined as to his proof.-Ex parte Sheffield, Re Austin, L.R.
10 Ch. D. 434; 40 L.T. 15. (lxxv.) C. A.-Order and Disposition-Commission Agrent.-- Where a person
truly describes himself as a manufacturer's agent the doctrine of reputed ownership is excluded as to property belonging to the manu. facturers of whom he is agent.-- Ex parte Bright, Re Smith, 39 L.T. 649;
27 W.R. 385. (lxxvi.) C. A.-Order and Disposition—Goods on Sale or Return.—Goods which
in accordance with a trade custom, are left with a bankrupt on sale or return, are not in his disposition as reputed owner until he has exercised the option of keeping them.-- Ex parte Wingfield, Re Florence, 40 L.T.
15; 27 W.R. 346. (lxxvii.) C. A.-Proof-Abandoning Security Committee of Lunatic—Provy.
W.'s partner having been found lunatic by inquisition, W. entered into an agreement with the committee (which was approved by the Court) to dissolve partnership, and pay part of what was due to the lunatic in cash, and give a bond for the balance. Before he had paid anything or given the bond, W. filed a liquidation petition, and the committee recovered judgment for the amount agreed to be paid in cash. The committee appointed a proxy who proved for the whole amount due, and voted for the liquidation: Held that the agreement was executory, and that W. had no right to deal with the partnership assets as his own : that the committee had no power to appoint a proxy or to abandon the lunatic's security without the consent of the Court.--Ex parte Wood, Re Wright,
39 L.T. 646; 27 W.R. 401. (lxxviii.) C. A.-Proof-Costs of Action.-H. deposited with a bank dock.
warrants of goods as security for money borrowed, and afterwards became bankrupt, when it appeared that part of the goods belonged to J.: J. sued the bank and recovered judgment, which was affirmed ou appeal. The bank having realized the securities : Held that they were entitled to prove in the bankruptcy for the difference between the amount paid to J., and that realized by the sale of his goods, and also for costs of the action, but not of the appeal.—Ex parte Carr, Re
Hofmann, 27 W.R. 435. (lxxix.) C. A.-Proof in Respect of Stolen Goods--Compounding Felony.
Decision of C. J. B. (see Bankruptcy liï., p. 47) affirmed.-- Ex parte Ball,
Re Shepherd, 40 L.T. 141. (lxxx.) Q. B. Div.-Set-off-Mutual Dealings - Partnership.-On the liquida
tion of a partnership, defendants sought to set-off the amounts due for goods supplied to separate members of the firm, against goods received
from the firm; and the County Court Judge found that there was no agreement to make the firm liable or the debts of its members : Held
that defendants were not entitled to set-off.—Tyso v. Pettit, 40 L.T. 132. (lxxxi.) C. J. B.-Undischarged Bankrupt-Debt not Proved.—A debtor was
adjudicated bankrapt in 1871, and his bankruptcy closed in 1874, there being no assets. In 1878 he acquired large property : Held that a creditor whose debt was provable in bankruptoy, but not proved, on his afterwards proving his debt, was entitled to enforce it, subject to the rights of subsequent creditors.-Ex parte Lancaster Banking Co., Re
Westby, 39 L.T. 673; 27 W.R. 292. Bill of Exchange :(v.) Ch. Div. M. R.-Equitable Assignment-Stamp—33 & 34 Vict., c. 97,
8. 48. - A debtor gave to the trustee ander his father's will an unstamped document authorizing him to pay the creditor the sum of £140 out of moneys then or thereafter due to the debtor under the trusts of the will : Held that this was an equitable assignment and not a bill of exchange
within sec. 48 of Stamp Act, 1870.–Fisher v. Calvert, 27 W.R. 301. Bill of Sale :(x.) C. A.-Construction-Power to take Possession---Reputed Ownership.--A
bill of sale of chattels empowered the grantee to take possession in case the grantor should become embarrassed in his affairs or an action should be commenced against him : and it also provided that until default of payment it should be lawful for the grantor to retain possession : Held, that the prior clause was not controlled by the subsequent proviso, and that a friendly possession, if real, is sufficient to exclude the operation of reputed ownership clause in the Bankruptcy Act, 1869.-Ex parte National Guardian Assurance Co., Re Francis, L.R. 10 Ch. D. 408 ;
40 L.T. 237. (xi.) C. J. B.-Prior Act of Bankruptcy--Seizure before Adjudication.-A
debtor having executed a bill of sale of all his goods for a past debt, next day executed another bill of sale to B. which was not registered : the debtor was subseqaently adjudicated bankrupt : B., who had no notice of the first bill, took possession before adjudication : Held, that B.'s title to the goods prevailed over that of the trustee in bankruptcy.
-Ec parte Cochrane, Re Cross, Ex parte Payne, Re do., 27 W.R. 368. (xii.) C. J. B.-Unregistered Bill—Apparent Possession-Goods in Hands of
Police.-A person in custody on criminal charge who executes a bill of sale, of goods of which the police have taken possession, is in the apparent possession of the goods within the Bills of Sale Act, 1854.
Ev parte Newsham, Re Wood, 40 L.T. 104. (xiii.) Ex. Div.-Unregistered Bill-Sale of Furniture and Subsequent Letting
-Purchase from Sheriff.-A judgment debtor's furniture having been seized under a fi. fa., his father-in-law bought it from the sheriff's officer taking a receipt for the money with an inventory attached : on the same day he let the furniture to the debtor under a written agree. ment, and the debtor continued in possession of it: Held, that the receipt did not require registration under the Bills of Sale Act, 1854.
Woodgate v. Godfrey, L.R. 4 Ex. D. 59; 48 L.J. Ex. 271. Canada, Law of:(iv.) P. C.-Possessory Action on Disturbance. The object of a possessory
action on disturbance within Secs. 946, 947, 948 of the Civil Procedure Code of Lower Canada must be definite and certain, and the possession must be une possession annuale and continuous, uninterrupted, peaceable, pablic, unequivocal, and à titre de proprietaire.—De Gaspé v. Bessener, L.R. 4 App. 135; 39 L.T. 550.