(lviii.) C. A.-Conversion-Failure of Trust.-Where personal estate is bequeathed upon trust for conversion into land to be held on trusts which ultimately fail, land purchased before the failure of the trusts goes to the next of kin as real estate.-Curteis v. Wormald, L.R. 10 Ch. D. 172; 40 L.T. 108; 27 W.R. 419.

(lix.) Ch. Div. V. C. H.-Conversion-Leaseholds-Breach of Trust by Married Woman.-Testator left leaseholds and other property to his wife, if she married again to be settled to her separate use for life, and he bequeathed the money so settled to certain other persons: and he appointed the wife and two others executors and trustees: the widow married again and the leaseholds were not converted: Held, that they ought to have been converted, and that the second husband was liable for a breach of trust in permitting the wife to receive the entire income arising from them.-Clifford v. Washington, 48 L.J. Ch. 205.

(lx.) Ch. Div. V. C. H.-Joint Tenancy-Severance -Disposition by Mutual Agreement.-Two joint tenants by a mutual agreement, made simultaneous wills giving their respective property to one another for life with identical remainders: one having died: Held, that the agreement and the will made a severance of the joint tenancy.-Taylor v. Taylor, 48 L.J. Ch 243; 27 W.R. 455.

(lxi.) Ex. Div.-Perpetuity-Gift to Building Fund of Institution-17 & 18 Vict., c. 112. ss. 30-33.-Held that a bequest to the trustees of a mechanics' institution, established for providing a library and reading-room for its members, one of the rules of which provided that the society might be dissolved by resolution of its members, the bequest to go towards the building fund in connection with the institution, was void as tending to a perpetuity.-Re Dutton, L.R. 4 Ex. D. 54; 27 W.R. 398.

Quarterly Digest

OF

ALL REPORTED CASES,

IN THE

Law Reports, Law Journal Reports, Law Times Reports, and Weekly Reporter,

FOR MAY, JUNE, AND JULY, 1879.

By HENRY M. KEARY, of Lincoln's Inn, Barrister-at-Law.

Administration:

(xviii.) P. D. A. Div.-Administration with Will Annexed-20 & 21 Vict., c. 77, s. 73.-The sole executrix and universal legatee having died in testator's life-time, and the next-of-kin being abroad, administration with will annexed was granted to the guardian of persons entitled in the distribution of the estate. In the goods of See, L.R. 4 P.D. 86; 40 L.T. 658; 27 W.R. 665.

(xix.) P. D. A. Div.-Attorney out of Jurisdiction-Sureties.-The attorney appointed by a party entitled to the grant, to take out letters of administration on her behalf was out of the jurisdiction and unable to procure sureties in this country. The Court accepted sureties living in Paris, it being shown that they could be sued on the bond in France.In the goods of Hernandez, 48 L.J. P.D.A. 31; 40 L.T. 366; 27 W.R. 664. (xx.) C. A.-Debt due from Husband of Executrix and Legatee-Extinguishment. The husband of a sole executrix and universal legatee was indebted to the testatrix at the time of her death under a bond conditioned for payment of instalments, some of which became due after her death. The executrix proved the will and passed the residuary account showing that all debts were paid, and her husband kept the bond till his death: Held that the debt under the bond was extinguished.-Price v. Price, L.R. 11 Ch. D. 163; 48 L.J. Ch. 478; 40 L.T. 668; 27 W.R. 698. (xxi.) C. A.-Scotch Assets-General Administration. Decision of V. C. H. (see Administration xxi., p. 43) affirmed.-Stirling-Maxwell v. Cartwright, 40 L.T. 669.

(xxii.) Ch. Div. F. J.-Testamentary Expenses-Costs of Action.-Where a testator charges a particular fund with the payment of testamentary expenses, this will include costs of an administration action.-Penny v. Penny, L.R. 11 Ch. D. 440; 40 L.T. 393.

M

Agreements and Contracts:

(xvi.) C. P. Div.-Architect's Certificate-Arbitration.-Plaintiff contracted to execute a building for a company according to certain plans, and agreed that the amount of any additions should be ascertained by the company's architect in the same manner as the quantities had been measured, and at the same rate, and that all matters in dispute should be referred to the architect whose decision should be final: Held that an action would not lie against the architect for not using due care and skill in ascertaining the quantities, no fraud or collusion being alleged. -Stevenson v. Watson, L.R. 4 C.P.D. 148; 48 L.J. C.P. 318; 40 L.T. 485; 27 W.R. 682.

(xvii.) Ex. Div.-Contract not to be Performed within a Year-Statute of Frauds.-Held, that an agreement by a foreman tailor with his employer, that if he should leave his employer's service he would not carry on the business of a tailor within five miles of D, was within sec. 4 of the Statute of Frauds.-Davey v. Shannon, L.R. 4 Ex. D. 81; 48 L.J. Ex. 459; 40 L.T. 628; 27 W.R. 599.

(xviii.) C. P. Div.-Hiring and Letting-Divisible Contract-Appropriation.Defendants agreed to hire from plaintiffs 44 waggons, as to 20 for five years and as to 24 for three years, and separate rents were reserved in respect of each lot of waggons, and it was agreed that the waggons should at the end of the respective terms, and after payment of the rents reserved during the terms respectively, become the absolute property of defendants. Before the end of the three years, defendants tendered the whole remaining rent for the 24 waggons to plaintiffs' clerk, sending a letter to say that the money was paid in discharge of all rent due in respect of those waggons. The rent for the 20 waggons was then in arrear, and the clerk refused to receive the money on those terms, but it was left with him and he entered it to plaintiffs' general account: Held, that the 24 waggons thereupon became the property of defendants.-Lancashire Waggon Co. v. Nuttall, 40 L.T. 291.

(xix.) C. A.—Sale of Goods-Divisible Contract.-Plaintiffs contracted to sell to defendants about 25 tons (more or less) of pepper, October or November shipment from P. to London, per sailing vessel or vessels, name of vessels, marks, &c., to be declared to buyer within 60 days from date of bill of lading: Held, that the contract was an entire contract, and that the declaration of 20 tons by plaintiff within the sixty days, and of five tons after the expiration of the sixty days, was not a compliance with the terms of the contract.-Reuter, Hufeland & Co. v. Sala & Co., 40 L.T. 476; 27 W.R. 631.

Arbitration :

(v.) C. P. Div.-Remitting Back Award-17 & 18 Vict., c. 125, s. 8; 38 & 39 Vict., c. 55, s. 180.—The reference to arbitration of a question of disputed compensation under sec. 180 of Public Health Act, 1875, is a submission to arbitration by consent within the meaning of the Common Law Procedure Act, 1854, and the Court has power under sec. 8 of the latter Act at any time to remit the award back to the reconsideration of the arbitrator.-Warburton v. Haslingden Local Board, 48 L.J. C.P. 451.

Bankruptcy:

(lxxxii.) C. J. B.-Act of Bankruptcy -Bill of Sale-Prior Agreement.-A debtor shortly before his bankruptcy executed a bill of sale of all his property except book debts, in pursuance of a memorandum of agreement previously executed by him for valuable consideration, whereby he agreed, if required, to further secure money advanced to him upon his

stock-in-trade, fixtures, and effects: Held that the bill of sale was valid as against the trustee in bankruptcy.-Ex parte Barker, Re Barker, 40 L.T. 592.

(lxxxiii.) C. J. B.-Appeal-Time-Evidence.—An appeal from an order of adjudication by a person aggrieved must be brought within twenty-one days. On appeal from a County Court the Chief Judge will not shut out evidence not before the Court below, when it has been filed and notice given in time to allow of it being answered by the other side.-Ex parte Wigg, Re Johnson, 40 L.T. 528; 27 W.R. 804.

(lxxxiv.) C. J. B.-Appeal-Time-Notice to Registrar.-Where notice of appeal was duly left and entered with the registrar of appeal, but no notice of the appeal was served on the registrar of the Court appealed from till a week afterwards: Held that the appeal was out of time.-Ex parte Donnithorne, Re Green, 40 L.T. 660.

(lxxxv.) C. J. B.-Bankrupt Mortgagor-Equitable Second Mortgagee.-The Court of Bankruptcy has no jurisdiction to restrain an equitable second mortgagee from bringing an action against the trustee in liquidation of the mortgagor and the first mortgagee, claiming a charge on the property and redemption against the first mortgagee and foreclosure.-Ex parte Hirst, Re Wherly, L.R. 11 Ch. D. 278; 27 W.R. 788.

(lxxxvi.) P. C.-Building Contract-Completion by Surety.-A. contracted with appellant to execute certain buildings at an agreed price, and W. became surety for the performance of the contract by A.: it was provided by the contract that, if A. became bankrupt, the appellant might require W. to proceed with the work. A. having become bankrupt appellant gave notice to W. to proceed with the work, and W. completed it: Held that A.'s assignee in bankruptcy was entitled to sue for the price of the work completed by W.-Cohen v. Sandeman, 40 L.T. 370.

(lxxxvii.) C. J. B.-Composition-Costs of Creditors' Solicitor.-The appointment of a solicitor to register a resolution for a composition does not enable the Court to direct his costs to be paid by the debtor.-Ex parte Gush, Re Pratt, 40 L.T. 530; 27 W.R. 712.

(lxxxviii.) C. P. Div.-Composition-Omission of Debt-Waiver.-Plaintiff having entered into a composition with his creditors, defendants, who were del credere agents of plaintiff, claimed to rank as creditors for £1,100 in respect of debts from plaintiff to merchants for goods sold to him through defendants, for which they were liable: plaintiff set down in his statement the debts as due to the merchants, and also set down defendants as creditors for another debt. Defendants tendered a proof for their debt of £1,100 which was admitted, and they resisted the resolution for and refused to accept the composition: Held that plaintiff had not complied with the provisions of sec. 126 of the Bankruptcy Act in respect of the debt of £1,100, and that defendants were not bound by the resolution of composition as to that debt.-Oppenheim v. Jackson, 48 L.J. C.P. 441.

(lxxxix.) C. A.-Fraudulent Conveyance-Mortgage of the Whole Property— 13 Eliz., c. 5. Decision of C. J. B. (see Bankruptcy lxvi., p. 77) reversed. -Ex parte Games, Re Bamford, 27 W.R. 744.

(xc.) C. A.-Fraudulent Preference-Appropriation.-S. & Co. accepted bills for £5,300 drawn on them by K. & Co. on the arrangement that K. & Co. should find funds to meet the bills; and K. & Co. sent cheques for the amount, which were paid to a special account kept by S. & Co. at a bank for the purpose of paying their acceptances, except one cheque for £2,000 which, by mistake, was paid into their general account, which they did not discover till after they had become insolvent and stopped payment: Held that K. & Co. were entitled to the £2,000.Ex parte Kelly & Co., Re Smith & Co., L.R. 11 Ch. D. 306; 40 L.T. 404.