« PreviousContinue »
BILLS OF LADING.
CASES OF THE WEEK. A TREATISE ON THE LAW OF BILLS OP LADING. By
EUGENE LEGGBTT, Solicitor and Notary Public. Stevens & Sons.
LIQUIDATION–GENERAL SCHEME POR SETTLEMENT OF
DEBTOR'S AFFAIRS-ACCEPTANCE OF COMPOSITION-DEFAULT The present is hardly an opportune moment for the
IN PAYMENT_RIGHTS OF TRUSTEE-SURETY-SECURITY issue of another of those text-books on shipping law
GIVEN BY DEBTOR-BANKRUPTCY ACT, 1869, s. 28.-In a with which we have of late been flooded. Mr. Leggett's case of Ex parte Allard, before the Court of Appeal on the little volume is an unambitious one, and from his fre 3rd inst., a question arose as to the rights of the trustee in quent citation of Indian Acts and Indian authorities he a liquidation after the creditors bad, under the provisions seems to have intended it mainly for the assistance of of section 28 of the Bankruptcy Act, 1869, accepted a compersons practising the legal profession or carrying on position, and the debtor had subsequently made default in trade in India. As an inexpensive handy book for those payment of the composition. The debtors, who were whose opportunities of consulting more recognized
partners in trade, filed a liquidation petition in January, authorities are limited it may be useful, but we fear
1880, and on the 14th of February, the creditors resolved that we cannot credit the author with unimpeachable
upon a liquidation by arrangement and appointed a trustee.
On the 16th of March a meeting of the creditors was beld, accuracy; nor when he commits himself to stating the
to stating the wbich had been convened by the trustee under the provisions effect of a decision is his meaning always intelligible. of section 28, to consider a general scheme for the settlement An example of both defects will be found in his ex-of the debtors' affairs which had been proposed by them. The position on p. 15 of the effect of Gabarrow v. Kreeft creditors resolved to accept an offer of a composition of (L. R. 10 Ex. 274). Another objection to the book seven shillings in the pound, to be paid in four equal instalis the author's inability to resist the temptation to ments at three, six, nine, and twelve months respectively Wander into other branches of the law far too wide from the 23rd of February, 1880, the whole of the instalto be dealt with in a summary manner; the result being ments to be secured by the promissory notes of the debtors, sometimes very misleading to the reader unless he has more
and £150, part of the fourth instalment, to be secured by legal knowledge of his own than is likely to be possessed
the promissory note of one Allard. As a further security by those who would consult a work of this kind. Thus,
for the due payment of the composition, V., one of the on the question of the liability of an agent who has
debtors, who was going to continue the business alone,
agreed to pay the trasteo £30 weekly from the 23rd of signed a contract, Paine v. Walker (18 W. R. 789, L. R.
February, 1880, until he should have paid the whole amount 5 Ex. 172) is cited as an authority withont any reference
of the composition. In the event of his neglecting to make to the later cases of Gadd v. Houghton (24 W. R. 975,
| the weekly payments, or any of them, fur ten days after the L. R. 1 Ex. D. 357) and Hough v. Manzanos (27 W. R.
same should be due, the trustee was to be at liberty to take 536, L. R. 4 Ex. D. 104), where that decision was dis possession of V.'s stock-in-trade, assets, and effects, and cussed, James, L.J., expressing an opinion in which realize the sum for the benefit of the creditors of the debtors. Pollock, B., afterwards apparently declined to concur) It was resolved that the discharge of the debtors should be that Paine v. Walker ought to be overruled. The ap granted, the liquidation be closed, and the trustee be released pendir of forms of bills of lading used in various trades
80 soon as the irustee should certify to the court in writing may be found useful.
that V. had paid him an amount sufficient to pay the composition. This scheme was on the 11th of May approved by the court. V., in the first instance, paid the weekly instalments, and the trustee, by means of them, paid the creditors
the first instalment of the composition on the 23rd of May, CORRESPONDENCE.
1880. Afterwards, V. made default, and on the 9th of August the trustee took possession of his stock-in-trade and
effects, intending to sell it, and to collect the book debts, and MORTGAGE OF LAND IN NEW ZEALAND. distribote the proceeds among the creditors. But it then [To the Editor of the Solicitors' Journal.]
appeared tbat, on the 3rd of August, the debtors had
executed a deed by which they bad assigned all the book Sir, If any of your readers who have acted with debts to Allard and another person as a security to the reference to a mortgage of land in New Zealand can assignees for the repayment of moneys which they had give me any information as to the registration of such since the 16th of Maroh advanced to V., and which bad mortgage, when the money is borrowed in England, I been applied partly for the purpose of carrying on the hall feel obliged.
N. Z. business and partly in payment of the first instalment of
the composition. The assignment was also given as &
security to Allard in respect of his liability opon his proSTATUTE OF MORTMAIN.
missory note for £150.' The deed contained recitals of
the liquidation proceedings, and of the scheme of settle[To the Editor of the Solicitors' Journal.] ment. Upon discovering this deed the trustee applied to Sir,- Can you or any of your readers inform me the court for an order declaring it void as against him, whether the Statute of Mortmain or de religiosis, 7 Edw. and Mr. Registrar Pepys made a declaration accordingly, 1, which provides that no conveyance can be made to a and ordered the assignees to pay over to the trustee all corporation, except when, under an Act of Will. 3, a
moneys which they had received under the deed. This licence is obtained from the Crown, applies to the
decision was reversed by the Court of Appeal (JAMES, colony of New South Wales ?
Brett, and COTTON, L.JJ.), who held that the assignees were
entitled to the benefit of the assignment as a security for 9 Geo. 2. c. 36, erroneously, as I think, called the
the advances which they had made to the debtors, but Statute of Mortmain, but which is in reality an Act to
that the deed was not valid as a security to Allard for bis prerent dispositions of lands by will to charitable uses,
liability on bis promissory note. The court said that the has been held by Whicker v. Hume (7 H. L. Cas. 124)
case was distinguishable on the latter point from Ex parte not to apply to the colony in question, notwithstanding Burrell (24 W. R. 353, L. R. 1 Cb. D. 537), in which a 9 Geo. 4, c. 83, s. 24, an Act still in force, and which debtor bad given security to a person who had become provides that English law shall prevail in New South Burety for the payment of an ordinary composition. There, Wales unless altered by the Legislative Council of that as JAMES, L.J., said, the property of the debtor bad never colony. There is a doubt however, whether 7 Edw.1 does vested in a trustee. And on the main point his lordship not still apply, which I cannot solve.
said that, by the scheme of settlement, an implied authoScottish Club, London, Feb. 3. JOHN GRAHAM. rity was given to the debtor to carry on the business in
the ordinary way, and to deal with the assets by raising money for the purposes of the business, or for the purpose of paying the composition.-SOLICITORS, H. J. Christmas; Phelps, Sidgwick, d Biddle.
LIQUIDATION PETITION-REGISTRATION OF RESOLUTIONS virtue of sub-section 6 of section 83 and section 125) passed -DEBTOR'S STATEMENT NOT DISTINGUISHING BETWEEN from the registrar to him, and when the bankruptog JOINT AND SEPARATE DEBTS AND ASSETS-BAN KRUPTCY | trustee was afterwards appointed there was no property to RULES, 1870, R. 287.-In a case of Ex parte Buckley, before vest in him ; wbereas in the case of composition resolothe Court of Appeal on the 3rd ingt., a question arose as to
tions no trustee was appointed, and there was nothing to the registration of composition resolutions. The debtor
devest the property from the registrar upon the passing of described himself in bis petition as carrying on business alone,
soch resolutions after an adjudication. The court (JAMES, and as having formerly carried on business in partnership with
BRETT, and COTTON, L.JJ.), however, held that the case some persons whom he named. His statement of affairs,
could not be distingoished from E. parte Milward. JAMES, produced at the meetings of the creditors, appeared on the
L.J., said that the decision in that case did not depend face of it to be a statement of only separate debts and assets.
on the fact that the resolutions were for a composition, It did not in any way distinguish between joint and separate
bat on the general ground that, after an ordinary adjudicadebts and assets, and there was nothing to show when the former partnership had come to an end, or whether any of
tion had been made, the proceedings ander it not being
stayed, there was nothing upon whicb proceedings, either its debts were still unpaid, or any of its assets still outstand
for liquidation or for composition, could be founded. ing. The creditors resolved to accept a composition, but the
BRETT, L.J., said that the case was within the very words registration of the resolutions was opposed by a dissentient creditor, and Mr. Registrar Murray refused to register them,
used by all the judges who decided Ex parte Milward. on the ground that the statement of affairs ought to have
The two cases were in truth identical. COTTON, L.J., said
that the principle of the decision in Ex parte Milward was distinguished between joint and separate debts and assets,
this, thai, after an ordinary adjudication had been made thus following the decision of Bacon, C.J., in Ex parte Cockayne (21 W. R. 749, L. R. 16 Eq. 218). On the hear.
(not an adjudication made under role 266 for the mere ing of the application to register, the debtor filed affidavits,
purpose of protecting the debtor's assets, pending prowhich showed that the former partnership bad been dissolved
ceedings for liquidation or composition), the power of as long ago as December, 1873 ; tbat all the joint debts had
the creditors to pass resolutions for either liquidation been either paid, or, with the assent of the creditors, con
or composition was gone. The court accordingly dismissed verted into separate debts, and that there were no ontstand
the appeal, and gave costs to both the petitioning creditor ing joint assets ; and that ever ever since the dissolution the
and the bankraptoy trustee, who had both been served with debtor had carried on business alone. The court (JAMES,
notice of the appeal.-SOLICITORS, H. Aird; Gush & PhilBRETT, and COTTON, L.JJ.) affirmed the registrar's decision, | lips ; Lumley & Lumley. on the ground that the only safe course was that the fact whether there were any joint debts or aggets should appear on the face of the debtor's statement produced to the credi
PRACTICE-LEAVE TO APPEAL-REPRESENTATIVE ACTION
-PERSON NOT NAMED AS DEFENDANT-Costs.—In a case of tors, which ought not to be supplemented by affidavits filed
Watson v. Cave, an action brought by the plaintiff on behalf after the meetings of the creditors. If, as JAMES, L.J., said,
of himself and all the other holders of certain bonds of a there was nothing to be stated but that the assets of the
foreign Government, except such of them as were named as former partnership were nil and the debts nil, still this
defendants, to ascertain the rights of the bondholders, an ought to appear in the statement of affairs. Leave was, how.
application was made on the 5th inst., to the Court of ever, given to the debtor to summon a fresh first meeting of
Appeal, by a bopdbolder who was not named as a defendant, the creditors.-SOLICITORS, Trinders & Curtis Hayward.
for leave to appeal from an order made by Jeegel, M.R., on the application of the plaintiff, appointing receivers of cer
taio property to which the bondbolders claimed to be entitled. ADJUDICATION OF BANKRUPTCY-LIQUIDATION RESOLU
· The applicant was dissatisfied with the persons who had been TIONS AND APPOINTMENT OF LIQUIDATION TRUSTEE BB: !
appointed receivers, and alleged that the plaintiff did not really FORE APPOINTMENT OF BANKRUPTCY TRUSTEE — VEST.
represent the interests of the bondholders, and that the ING OF DEBTOR'S PROPERTY-BANKRUPTCY Act, 1869, ss.
| action was not brought bona fide on their behalf. The Court 17, 83 (SUB-SECTION 6), 125–BANKRUPTCY RULES, 1870,
1 (JAMES, and COTTON, L.JJ.), held that the application was R. 266.-In a case of Ex parte Bennett before the Court of
irregular and contrary to the practice. JAMES, L.J., said Appeal on the 3rd inst., a question arose as to the validity
that if the court were to accede to tbe motion it would be of liquidation resolutions which had been passed after an adjudication of bankruptoy had been made against the
destroying the representative character of the action. In
such actions difficulty was always liable to arise if the plain. debtor. On the 7th of May an adjudication of bankruptcy
tift did not really represent the views of the persons whom was made against a debtor, upon the petition of a creditor
be professed to represent. But, if a proper case could be which bad been presented on the 20th of March. Tbe debtor
established, an application could be made to the court of first had filed a liquidation petition on the 6th of May, and for this reason ihe registrar, when he made the adjudication,
instance to make the applicant a defendant to the action,
or to take the conduct of the action away from the plaintiff, was asked to stay the proceedings under it, but be declined
on the ground that he did not represent the bondholders to do so. On the 241h of May, the creditors, at their first
generally. This court could not deal with such an applicameeting under the liquidation petition, resolved upon a
tion except by way of appeal. Cotton, L.J., said that the liquidation by arrangement, and appointed a tru-tee. These
case was not like one in which an order had been made bind. resolutions were registered on the 4ih of June, the registrar
ing an estate which was represented by certain persone, and considering that, by virtue of the decision of Bacon, C.J., in
some person who was interested in the estate was absent. Exc parte Davis (24 W. R. 684, L. R. 2 Ch. D. 231), he was
Then the court would allow the absent person to come in and bound to register them. On the 9ih of June, at the first
appeal from the order. In the present case, the action was meeting of the creditors under the bankruptcy, another person
a representative one, and the plaintiff sued on behalf of all was appointed trustee. The liquidation trustee applied to
the other bondholders (except the defendants), not merely on the court for an injunction to restrain the bankruptcy trustee
behalf of those who took the same view as himself. An from taking possession of or dealing with the bankrupt's pro
application ought to be made to the court below ; not to the perty ; and also for an order staying further proceedings
Court of Appeal. The application was accordingly refused, under the bankruptcy and annulling the adjudicatioti. Mr.
with costs to the plaintiff, but with only one set of costs Registrar Pepys refused the application, and made an order
among the defendants who appeared.-SolicITORS, Rooks & declaring that the bankrupt's property was vested in the
Co. ; Smiles & Co. ; T. Cave; Markby, Stewart & Co. ; bankruptcy trustee, and restraining the liquidation trustee from
James Neal; Harrison, Beal, & Harrison; Batten & Co.; interfering with the property. This decision was affirmed by the Court of Appeal (JAMES, BRETT, and COTTON, L.JJ.).
G. & S. Brandon ; Travers Smith, d. Braithwaite. It was contended on behalf of the liquidation trustee that the case was different from Ex parte Milward (29 W. R. WILL-CONSTRUCTION --WORDS DESCRIPTIVE OF MOTIVE 167), because there composition (not liquidation) resolu- OF Gift.-In a case of Farr v. Hennis, before the Court of tions had been passed after the debtor had been adjudicated | Appeal on the 9th inst., tbe question aroge whether oera bankrupt. And it was said that, thongb, on the making 'tain words in a gift by will of an annuity were merely of the adjudication the bankrupt's property vested (by ! descriptive of the testator's motive in making the gift, or virtue of section 17) in the registrar as trustee, yet on the whetber they created a trust in favour of otber persons. appointment of the liquidation trastee, the property (by The testator gave to bis niece an annuity of eight shillings a week “ towards the support and maintenance of bor two that, notwithstandiog the notice, the action might be tried before obildren until they shall attain tbe age of twenty-one the judge without a jury. The ac:ion was one for the specific years." This was the only provision made by the will for performance of a contract for sale and for the construction the niece. By a codioil the testator gave some leasehold and maintenance of a road. There was an issue upon the pleadproperty to the piece, “ to enable her to provide for her ings as to what passed at certain interviews, and whether there children," and referred to bis will as “my said will in her had been a waiver of the plaintiffs' rights under the agreement. favour." Coe of the children of the nieoe died, and the The defendant bad constructed the road, but not at the agreed other attained twenty-one, aod Hall, V.C., beld that the lovels, and the plaintiff asked that he might be ordered to words in tbe gift of the annuity referring to the support restore and maintain the road according to the contract. and maintenance of the cbildren were merely descriptive | JESSEL, M.R., was of opinion that the action was within of the testator's motive in making the gift, and that they ord. 36, r. 26, and that it was a case which it was desirdid not cot down the life ostate of the piece, and this able to try before a judge without a jury. It was one of decision was affirmed by the Court of Appeal (JESSEL, those cases complicated as to its parts, involving mixed quesM.R., and JAMES and BRETT, L.JJ.) JESSEL, M.İ., said tions of lew and fact, and difficult questions of law, and that, standing alone, the words in question might either be which on all three grounds came within his decision in only descriptive of the motive of the gift, or oreate a trust Budier v. Burrell (L. R. 5 Ch. D. 512), and was therefore for the children. But the words wbich the testator had unfit for a jory to try. One question of law would be whether deed in the codioil in referring to the will showed that he the court bad jurisdiction to enforce a perpetual covenant to intended the piece to take the annoity for her life. JAMES, maintain and repair. He did not know of a case where such L.J., concurred in this view, and BRETT, L.J., said that he
a covenant had been enforced, bat he was, on the conshould have been of the same opinion independently of the
trary, aware of several where it had been refused, codicil.-SOLICITORS, W. W. Brown; A. Rutter.
and it would be for serious consideration whether damages would not be the right relief. Another issue was raised
wbether the defendant bad not maliciously carried out his LIMITED COMPANY-REGISTRATION-SIMILARITY OF NAME | works. That would be a question of expert evidence, and as -FBAUD-INJUNCTION-COMPANIES ACT, 1862, s. 20.-10 to ench evidence being matters of opinion, he thought a judge so action of Hendriks v. Montagu, before the Master of
was better qualified to deal with them than a jury. It had also tbe Rolle on the 4th inst., a motion was made by the been argued that the question of damages was one properly for a plaintiff who sned on behalf of the " Universal Life Assor
jury, and no doubt a jury was the only tribunal to settle the ance Society,” which was incorporated by statute in 1836, amount of sentimental damages, such as in actions for breach to restrain the defendants from registering a new company of promise, and the like, but where the amount of damages of which they were directors under the name of the “Uni had to be assessed on expert evidence, be thought a judge or verse Life Asgorance Association (Limited),” or any other | referee was the proper tribunal to do so, inusmuch as he Dame likely to mislead the pablic into the belief that the could give reasons for bis decision, and such damages were defendant company was the plaintiff company. The de capable of being accurately weigbed and stated. He therefore fendant company bad not yet been registered or commenced acceded to the motion, and directed a trial before himself business, and had only temporary offices. Affidavits were without a jury, and made the costs costs in the action.filed op bebalf of the plaintiff company statiog that, in the SOLICITORS, Ullithorne, Curreu, de Villiers, for Currey, opinion of the deponents, if the defendant oompany were Holland, g Currey ; Combe & Wainwright. allowed to carry on business under their intended Dame it would be calculated to injure the plaintiffs. By
Bill OF SALE_SETTING ASIDE -STRINGENT PROVISIONS tbe 20th section of the Companies Aot, 1862, it is provided
-EXPLANATION OF CLAUSES TO GAANTEE-FRAUD.-la a (inter alia) that "no company shall be registered poder a
oase of Long v. Brown, before the Mister of the Rolls, on Dame identical with that by which a subsisting company is
the 8th inst., the plaintiff, a spinster, claimed to set aside a already registered, or so nearly resembling the same as to
bill of sale of certain furniture, executed in February, 1878, be calculated to deceive." The plaintiff company was not
on the ground that the same had not been properly explained registered onder the Companies Act, 1862. The plaintiffs
to her, and on the ground of the stringent provisions during the argoment asked for leave to amend by raising
therein contained. It was contended that the bill of & case of frand againgt tbe defendants. JESSEL, M.R.,
sale was fraudulent on the face of it in consequence of these was of opinion that the motion was founded on a slip made
provisions. The bill of sale gave the grantee the right to in the construction of the 20th section, inasmuch as that
take immediate possession at any time, and continue in pog. section only applied to prevent one company from session at the expense of the grantor, and also, in addition to registering by a name identical or similar to a name by
the usual powers of sale by public auction and private which a company was already registered under the Act.
contract, a power for the grantee to take the furniture at In the present case the plaiotiff company was not the valuation of a competent valuer. It was admitted that registered under the Act, and, therefore, the plaintiffs had the plaintiff koow the amount of the loan, and that it was DO locws standi under the section. Another equity was lo be secured by a bill of sale of ber foroiture, and that attempted to be raised based on the doctrine that the defend
the amount of the loan was to be repaid in thirty-six ants were attempting to appropriate the plaintiffs' business.
monthly instalments. There was a conflict of evidence as Wbatever right to an injunction ihe plaintiffs might bave to whether the plaintif knew the terms of all the clauses. hereafter, wben the defendants had commenced business, in The bill of sale used was a lithographed form. JESSEL, M.R., bis opinion, there was no equity to restrain them from regis was of opinion that the bill of sile was not friudulent. He said tering under the Act, or from carrying on their business
that, although some of the clauses were very stringent and all under any name they liked, provid-d it were not done with in favour of the lender, still he did not see that they were too the fraudulent intent of taking the plaintiffs' business. At Biringent, having regard to the state of the law at the time present there was no certain evidence before him that such when the bill of sale was executed. He was satisfied that wcald be the case, for in a case like the present he could the defendant would not bave lent the money unless those not act on ipere opinion, and it might well be the defendants clauses had been inserted, and he did not think the defendwould carry on their business so as to show they did not ant would bave bad a good security without them. Even intend to appropriate that of the plaintiff company. The admitting the plaintiff did not know of the existence of the whole of the plaintiffs' case was, in eff-ct, based upon the clauses as to taking possession and taking the furniture at a section, and he should not allow them now to raise an valuation, he did not think that of itself sufficient to set entirely new case of frand against the defendants. The the bill of sale aside, or that these clauses in themselves mocion must be refused, and the costs would be costs in the made the same fraudulent and void. 9'he plaintiff very well action.-SOLICITORS, Pollock & Co.; W. F. Nokes.
| understood the material facts of the transaction, and that
the defendant could take possession on default by her in PRACTICE-ACTION FOR SPECIFIC PERFORMANCE-COM
payment of the instalments, or in payment of the rent of the PLICATED ISSUES-MIXED LAW AND FACT—NOTICE OF TRIAL
house where the furniture was. In his opinion, therefore, the BY JURY_TRIAL BEFORE JUDGE WITHOUT JORY-RULES OF
action failed, and must be dismissed with costs.-SOLICITORS, COURT, 1875, OBD, 36, R. 26-DAMAGES.-In a case of
Richard Davies; W. Maynard. Eorp v. Duke of Devonshire, also before the Master of the Rolls, on the 4th inst., the plaintiff had given notice of triul ! PROOF IN BANKRUPTCY - GUARANTEED DEBT- Right before a jury, and the defendant moved under ord, 36, r. 26, | OF PROOF AFTER PAYMENT BY SURETY. - In a case
of Ex parte The National Provincial Bank of England, before the Chief Judge in Bankruptcy on the 7th inst., a
CASES BEFORE THE BANKRUPTCY question arose as to the extent of the right of a creditor, who
REGISTRARS. had taken the guarantee of a surety for his debt, to prove in (Before Mr. REGISTRAR Pepys, actiog as Chief Judge.) the liquidation of the priocipal debtor after tbe surety had
Feb. 1.-Re Gotobed. paid the creditor the full amount for which he was liable.
The court has no power to limit the time prescribed by rule The debtor and the surety had given to the debtor's bankers
258 for posting the notices to creditors of the first general a joint and several bond for £1,000, to secure the balance meeting under a liquidation petition. which might be from time to time due from the debtor to the But where, through an oversight on the part of the solicitor's badkers. The bond contained a clause limiting the total clerk, some of such notices have been brought into the office liability of the surety to £500; and a proviso that, in late, the court will allow a new first meeting to be convened. case the debtor should become bankrupt or enter into any The debtor presented a petition for liquidation under the arrangement with bis creditors, any dividende received by the 125th and 126th sections of the Bankruptcy Act, 1869, OR bankers from bis estate should not, so far as concerned the the 15th of January, 1881, and the first meeting of creditors surety, go in discharge of his liability, but that the barkers was appointed to be held on the 29th. should, notwithstanding, be entitled to recover on the bond By rule 258 it is provided that notices summoning any against the surety to the foll extent of £500, or so much first general meeting shall be posted at least fourteen days
of as should, together with the dividends, amount to 20s. | before the day on which the meeting is to be held. in the pound on the debts for which the bond should be a Some of the notices in this case were brought into the security. The debtor having filed a liquidation peti- liquidation office on the 15th, and were sent to the creditors tion, the bankers proved in the liquidation for the on the same day, but, through an oversight on the part of whole amount due to them from him. Afterwards the solicitor's clerk, the remaining notices were not carried the surety paid the bankers £500, and the bond was given up in until the 17th. At the first meeting resolucions were to him. He then proved in the liquidation for £500, and the passed, there being only one dissenting creditor, accepting a trustee gave the bankers notice that he rejected their proof to composition of sixpence in the pound, to be secured to the the extent of £500. It was contended, on the authority of satisfaction of a creditor. On the 31st the resolutions were The Midland Banking Company v. Chambers (17 W. R. filed, when the chief clerk took the objection that some of 598, L. R. 4 Ch. 398), that, by virtue of the proviso in the the creditors had received only twelve days' notice of the bond, the bankers were entitled to retain their proof for meetiog at which they were passed, and he declined to allow the full amount of their debt. Bacon, C.J., held that the the notices of the second meeting of creditors to go out anless trustee was right in reduciog the proof. He said that the the court ordered it. agreement between the bankers and the surety had nothing to Brough, for the debtor, applied in the alternative, either do with the administration of the debtor's estate in baok- | for leave to issue the notices of the second meeting, or to.com. ruptcy. According to the ordinary rule of administration, vene a new first meeting of creditors. He referred to rule when the creditor had realized a security, his prcof must be 284, and to the common practice of extendiag the time reduced by the amount which he bad thus received. But this allowed by it for filing the resolutions of creditors. did not affect any right which the creditor might have Mr. REGISTRAR Pepys was of opinion that the court had against the surety in respect of his proof.-SOLICITORS, no power to limit the time prescribed by rule 258 for giving Wilde, Berger, & Co.; Jones, Blaxland, & Co.
notices to the creditors of the first meeting. In the present
case some of the notices were insufficient, and the resolutions Solicitor's LIEN FOR COSTS_DEEDS DEPOSITED WITH passed by the creditors were informal, and could not be SOLICITOR ON BEHALF OF MORTGAGEE-SUBSEQUENT RE registered. It was useless, therefore, to send out notices TAINER OF SOLICITOR BY MORTGAGOR.-In a case of Ex for the second meeting, and all he could do, onder the parte Fuller, before the Chief Judge in Bankruptcy on the circumstances, would be to allow a now first meeting of 7th inst., the question arose whether a solicitor was entitled creditors to be convened. to a lien for costs under the following circumstances:- The Solicitor, Abbott. solicitor acted for a mortgagee, and on the execution of the mortgage the title deeds of the property were delivered to the solicitor to hold them on behalf of the mortgagee. Afier.
(Before Mr. REGISTRAR HAZLItt, acting as Chief Judge.) wards, the deeds being still in the solicitor's custody, the
Feb. 4.-Ex parte Harness, Re Kight. mortgagee instructed him to sell the property for him, and The Court of Bankruptcy has no jurisdiction to order the the solicitor then obtained a promise from the mortgagee to holder of a valid bill of sale, executed by a person who becomes concur in the sale. The solicitor made use of the deeds in bankrupt, to render an account of the property sold, or to tax preparing particulars and conditions of sale. The property the churges in reference thereto. was put up for sale, but no bidding came up to the reserved This was an application on behalf of C. B. Harness, the price, and consequently it was not sold. The mortgagor soon trustee under the bankruptcy of Walter M. Kight, for an afterwards filed a liquidation petition, and the trustee in the order for the delivery to the applicant of an account of the liquidation entered into a contract to sell the mortgaged sale of property comprised in a bill of sale, dated November 2, property. The solicitor claimed a lien on the deeds as
1880, given by the bankrupt to one Feast; and also for an against the mortgagor's estate, in respect of the costs of the account of the charges of Feast (an auctioneer) of the sale of abortive sale, and it was contended that, after the instructions such property, and that such charges be taxed by one of the given to bim by the mortgagor, he held the deeds, subject to | masters of this court'; and for an order that Feast pay over the rights of the mortgagee, for the mortgagor. Bacon, C.J., to the applicant such sum as might be found to be due from held that, there could be no lien. He said that a lien could him to the bankrupt's estate. attach only where there was a lawful possession of the thing It appeared that on the 2nd of November, 1880, W. M. on which the lien was claimed. In the present case the Kight executed a bill of sale comprising his stock-in-trade, solicitor had no rightful possession of the deeds except for the fixtures, &c., of the estimated value of £1,500, to Feast, as mortgagee. They were the deeds of the mortgagee, and
security for the sum of £115. came into the solicitor's hands only for safe custody on bis On the 4th of November Feast took possession, and on the behalf. The solicitor did not hold them in any right of his
| 23rd be sold the property included in the deed. Oa the 4th own ; his possession was that of the mortgagee and nothing more. No lien in his favour could attach by virtue of his
of November Kight was adjudicated a bankrupt. Feast paid
to the trustee under the adjudication a sum of £167, and be accidental possession of the deeds.-SOLICITORS, Torr & Co.;
had been required to furnish an account of what the sale C. Sawbridge.
realized, and the expenses, but he had not done 8). The trustee stated that Feast had informed him the sale had
realized about £500, but he paid over £167 only. Lord Justice Lush, at the opening of the Leeds Assizes,
E. C. Willis, for the applicant. announced that he should, at the earliest moment, read H. Reed, for the responden:.- The court has no juris. through the pleadings in order to ascertain whether any of | diction to entertain this application. All that appears the causes were unfit for trial by jury, so that in cases from the evidence is that a bill of sale was given by a perwhere other modes of trial were alone possible the parties son who became bankrupt to Feast. The validity of that might be at once informed of it, and the expense of bringing deed is not impugned, either as an act of bankruptcy or a witnesses to the court be spared them.
fraudulent preference, or under the Statute of Elizabeth.
The present claim does not arise by reason of the bankruptcy, 363, L. R. 13 Eq. 186), a somewhat similar case, Bacon, C.J., and the trastee has no higher right than the bankrupt, | refused to allow a trustee to disclaim a lease. Ex parte Brown, Re Yates (L. R. 11 Ch. D. 148). The court Caldecott, for the personal representatives of W. Payne, had no jarisdiction wbatever to tax the charges of the senior. holder of a bill of sale. Ex parte Dicken, Re Pollari (27 Upjohn, for Owens.-The object of section 23 is to W. R. 731, L. R. 8 Ch. D. 884) was a somewhat similar case. give the trustee a reasonable time to sell or dispose of the He also cited Ex parte Musgrave (27 W. R. 372, L. R. 10 lease. In the present case the trustees practically made their Cl. D. 94).
election two years ago, and they ought not now to be at Willis in reply.--The trostee is at all events entitled to
liberty to disclaim : rule 28 (of 1871). Assuming that the case an account of the sale of the property.
fell within section 23, Owens would be in tbe position of the Mr. REGISTRAR HAZLITT said the case might be a proper
defendant in Smyth v. North (20 W. R. 683, L. R. 7 Ex.
242), and would remain liable to the rent. Under the cir. one for an account, but he thought Ex parte Musgrave ap.
cumstances the court might order a surrender of the lease. plied. That was the decsion of a superior court, and was
Reed, in reply. The disclaimer when executed will operatebinding upon him. The Court of Bankruptcy had no juris.
as a surrender: section 23 ; and it is contrary to the practice diction to entertain the application, and it must be dis
to order a surrender. With reference to Re Wilson it is missed, with coste.
stated in Robson's Law of Bankruptcy (3rd ed.), p. 407, Solicitor for the trustee, A. E. Kisby. Solicitor for the respondent, E. Lloyd.
“ The circumstances of this case were very special, and cannot be regarded as furnisbigg a precedent of general utility.
Indeed, it would be rather difficult to say what would be the (Before Mr. REGISTRAR HAZLITT, acting as Chief Judge).
legal effect of a disclaimer in the terms of the order.” SecFeb. 4. -Ex parte Williams and another, Re Payne and
|tion 23 was introduced into the present Act to get rid of the
difficulties existing under the old law, and a trustee may Kenneth.
now disclaim, although he has endeavoured to sell, or had Trustees under a liquidation allowed to disclaim a debtor's | taken possession, or exercised any act of ownership in relainterest in a lease, although they have been been in possession tion to the property : Ex parte Davis, Re Sneezum (L. R. 3. of the property for nearly two years, but the court ordered them Ch. D. 463). "If the respondents suffered any damage by to pay rent up to the date of the disclaimer.
reason of the disclaimer, they might prove as creditors. This was an application on behalf of the trustees of the Mr. REGISTRAR HAZLITT held that, notwithstanding the separate estate of William Payne, a liquidating debtor, for occupation of the premises by the trustees, they were now an order that they might be at liberty to disclaim all their entitled to disclaim in accordance with the terms of section interest in certain premises situate in Lowndes-street. 23. The complication which existed in this case was really
By an indenture of lease dated the 30th of Marob, 1861, the very reason why the trustees desired to disclaim. He and made between Joseph Clarkson of the one part, and thonght the trustees were entitled to an order, which would Edward Owens of the other part, the premises in question be to disclaim whatever interest they had in the lease, but were leased to E. Owens for a term of nineteen and & they must pay the rent up to the date of the disclaimer. quarter years from Christmas, 1862, at & rental of £200 per Solicitors for the trustees, Reed & Lovell. year. The premises were, on the 9th of March, 1867, Solicitors for the lessor, Kays & Jones. assigned by Owens to William Radermacher, since deceased, Solicitor for Rademacher's executors, G. H. Child. and afterwards by an assigoment dated Ootober 3, 1876, Solicitors for W. Payne's, sen., representatives, Thomson assigned by Mary Louisa Radermacher and John Rader. 1 & Edwards. macher, the execatrix and executor of W. Radermacher, to Solicitors for Owens, Schultz di Son. William Payne the elder, and William Payne the debtor, subject to the payment of the rent, and to the covenanta and conditions by and in the said indentare reserved and SHERIFF'S COURT, KIRKCUDBRIGHT. contained, and also sabjeot to an additional rent of £120
(Before SHERIFF NICHOLSON.) for the residue of the tero. By an agreement dated in October, 1872, made between
Brown v. Thomson. Wm. Payne, sen., and the debtor of the one part, and
Ground Game Act, 8. 6. Elizabeth Sparrow and Ann Pryce of the other part, the upper portion of the premises was let to them for the residue
The facts of this case are explained in the following note of the term, excepting a few days, at an annual rental of
by the sheriff:£200. Wm. Payne, sen., died on the 28th of May, 1877, and
Note.-The prayer of the petition is to have the defender in. the debtor had proved the will as one of the executors. The
terdicted (1) from preventing the pursuer's gamekeeper, and lease formed part of the partnership property of Wm. Payne,
others having his authority, from entering on the lands ocsen., and the debtor, and it appeared that by bis will W.
cupied by the defender, as farmer, in pursuit of game, and Payne, sen., beqaeathed his moiety in the lease to the debtor.
(2) from employing spring traps for the purpose of killing On the 21st of April, 1879, the debtor, W. Payne, con
rabbits on the said lands, except in rabbit-boles. The facts jointly with T. R. Kenneth, filed a petition for liquidation
on which this application is based are admitted by the deby arrangement with creditore, and at the first meeting the
fender, and, as regards the first part of the prayer, he excreditors passed a resolution that the affairs of the debtor,
presses his regret that he interfered with the pursuer's W. Payne, should be liquidited by arrangement, and two
gamekeeper and friends in the exercise of ther right to trustees were appointed. The lease formed part of the
enter on the lands in pursuit of game, and does not object to separate estate of the debtor, and it appeared that the trustees
the granting of interdict. But, as regards the second, he had, since their appointment, used the premises, and the
pleads that the statutory probibition of the “ Ground Game lessor alleged that, during that period, the premises had be
Act, 1880,” founded on by the pursuer, does not control come deteriorated in value, and were now out of repair.
the common law right to kill rabbits possessed by him
at the date of the passing of the Act. The prohibition H. Reed, in support of the application, admitted that the
in question is contained in section 6 of the Act, woich is in trustees had been in possession of the premises, but he con
these terms :-“ No person having a right of killing ground tended that the right to disclaim, given by the 23rd section,
game under this Act or otherwise shall use any firearms for was not thereby affected.
the purpose of killing ground game between the expiration E.C. Willis, for the lessor.-The trastees have occupied of the first hour after sunset and the com neocement of the premises for nearly two years, and the court ought not to the last hour before sunrise ; and no person shal, for the sanction a disclaimer after the property has been allowed to l purpose of killing ground game, employ spring traps except deteriorate in valae : Saint v. Pilley (23 W. R. 753, L. R. | in rabbit holes, nor employ poison ; and any person acting 10 Eq. 137). The trustees must now be taken to have elected in contravention of this section shall, on summary convicto accept the lease. If a trustee neglects to give notice of tion, be liable to a penalty not exceeding two pounds." The the rejection of a proof, he will be taken to have admitted defender has a right as tenant of his farm to kill rabbits, and it : Ex parte Kemp (12 L. J. Bkcy. 26).
he has exercised it since 1872, when his lease began, without W. A. Pocock, for W. Radermacher's executors, and th any restriction as to the means used. The above enactment, sab-tenants. The disclaimer will operate to the injory of from and after 7th of September, 1880, prohibitud him, and the sub-tenants, and the court ougbt not to exercise its dis- every other person in the United Kingdom, having any right cretion in favour of the trustees. In Re Wilson (20 W. R to kill ground game, “to employ spring traps except in