Page images
PDF
EPUB

Justice Lush also said that McDougal know Thornton to shall be given to such person or persons (if any), or pub. be a person of no resources at all. There seems, there- lished in such way (if ady), as may be prescribed, or as the fore, to have been some little disagreement as to the

court shall direct. effect of the evidence. But all the judges were anxious

“Such disclaimer sball operate as å release to the trustee, not to impute to the defendant moral fraud, or an inten.

and, subject to the right of proof given by this Act, also to tion to deceive. Possibly when the Lords Justices come

the bankrupt's estate, from all obligations affecting the to revise their judgments for the authorized reports the

property disclaimed, or the bankrapt, or bis estate, in respect

thereof, but shall not release or affect the obligations, or the little differences will be smoothed away. If MoDougal

rights or remedies, of any other person or persons, nor really did know that Thornton had no means, it becomes divest the property disclaimed from the trustee." more difficult to draw the line between legal and moral fraud than if the view of the Master of the Rolls was

Then follow provisions enabling any person interested the correct one. But the drawing of this line belongs

to apply to the court, and enabling the court, after notice, more to casuistry than to law, and it is to be regretted

to make an order vesting the property in such person as that the court could not lay down in clear terms the

the court may think fit, subject to provisions-(1) that principle upon which their judgment went, without

the court shall vest the property iq the person claiming bringing in the very inconvenient and quite unnecessary

an interest in it under the bankrupt, who desires such bugbear--legal fraud.

vesting order in his favour, and the vesting order shall vest the property in such person subject to the duties and obligations affecting it. If more than one person, claiming under the bankrupt, desires a vesting order, the court shall

have power to modify its order as it thinks expedient. DISCLAIMER OF LEASES UNDER | And upon any vesting order being made, the rights, THE BANKRUPTCY BILL.

estates, and interests in the disclaimed property of all per.

sons claiming under the bankrupt, other than the person II.

or persons in whose favour such order is made, shall cease We stated last week the result, so far as we can estimate

and determine. (2) If no person claiming under the it, of the provisions of the new Bankruptcy Bill as to

bankrupt desires to have a vesting order in his favour, disclaimer of leases. If we are right in our view, it

then the court shall make a vesting order in favour of -cannot be said that the framers of the Bill have met all

any person or persons who may be liable to perform the difficulties of the subject. They have left open a

the duties or obligations affecting the disclaimed proploop-hole by means of which the landlord may be saddled

erty who shall desire such order in his or their favour, with disadvantageous sub-tenancies, without, so far as

subject to such duties and obligations (similar supwe can see, any possibility of obtaining relief from them.

plementary provisions being made]; and (3) if no Now, the objects to be aimed at in any properly drawn

person desires a vesting order under rules 1 and 2, the disclaimer clause could not be better stated than they

court may make such order in favour of any person were by our correspondent a fortnight ago :-“To

entitled to the disclaimed property upon the determination destroy sub-interests by the act of the representative of

of the bankrupt's estate or interest therein, if such the person creating them must be wrong, whilst to return

person shall desire such vesting order in his favour. the property to the landlord burdened with charges and

And after such last-mentioned vesting order, the rights, sub-tenancies, and stripped of its valuable incidents,

estates, and interests in the disclaimed property of all must be equally so. The objects of any legislation

persons who might, under rules 1 and 2, have been should be to free the trustee and the bankrupt's

entitled to a vesting order shall cease and determine. estate from liability to the obligations of the lease

The effect of these provisions would be that if any (subject to rights of proof by persons injured), and to

person claiming under the bankrupt-such as a mortgainterfere as little as possible with all other rights.” The

gee or sub-lessee--was content to take the bankrupt's new Bill, as we saw last week, fails to carry out these

interest, subject to the rents and covenants affecting it, principles, because it provides that the estate and

he would be entitled to have it vested in him. If no interest of the bankrupt shall pass to the person

person claiming under the bankrupt was willing to take entitled thereto on the determination of the

the estate, then any person liable (for instance, a preestate or interest of the bankrupt, and the result

vious lessee) to the obligations affecting the property of this is (or seems to be) to render the position of

would be entitled to a vesting order. And if no person & sub-lessee impregnable.

either claiming under, or liable with, the bankrupt The remedy suggested by our correspondent is very

wished to take the property, then the person entitled, simple. He would enable the trustee, by leave of

subject to the bankrupt's estate, would be at liberty, if the court, to sign some instrument, or give some

he thought fit, to have the property vested in him, and notice to all parties interested, the effect of which

thereupon all prior interests would cease. would be to inform them that he will not adopt the

We state these proposed provisions as matter for dis

cussion. They are an ingenious mode of dealing with lease, and thereupon, the liability of the trustee,

the difficulty, but we are inclined to think with our corand (subject to rights of proof) the liability of the bankrupt's estate, should cease. The term will be

respondent that it would be better to leave the court to

deal with the facts of each case unfettered by rules. As left subsisting in the trustee, but without any liability on his part to perform the provisions of the lease. Then

regards the proposed clause quoted above, however, we the court will be at liberty, at any time afterwards, upon

are inclined to think that it affords the only mode of

satisfactorily dealing with the difficulty preliminary to hearing all parties, to make an order vesting the term in any person entitled to it. He proposes to give effect to

the application to the court, for a vesting order. his suggestion by the following clause :

“The trustee may, with the sanction of the court, by writing under his band, hereinafter called a disclaimer, dis

REVIEWS. claim any property of the bankrupt acquired by the trustee under this Act, notwithstanding that he may have endeavoured to sell, or have taken possession of, such property,

LIBEL AND SLANDER. or exercised any act of ownership in relation thereto. Upon A Digest OF THE LAW OF LIBEL AND SLANDER. By W. the application by the trustee for leave to disclaim any such

BLAKE ODGERS, Barrister-at-Law. Stevens & Sons. property, he sball furnish the court with such information as to the nature and value of the property, and as to the

This appears to be a useful and carefully written person or persons interested therein, as may be prescribed, or

treatise, though we are not prepared to say that the as the court may direct.

author has entirely overcome the difficulties incident to “ Notice of the execution of any disclaimer by the trustee the form which he has adopted for his work. His object, as

announced in his preface, is to state the law on each point trust to pay the income to his wife for life, and after her: in the form of an abstract proposition, citing the decided decease, in trust for his son, T. G. (one of the trustees), cases in smaller type merely as illustrations of the abstract his heirs, executors, administrators, and assigns, accord -proposition. The difficulty in practice that arises is ing to the respective nature and tenure thereof. The that, in treating the subject systematically after this testator appointed his trustees executors of his will, and fashion, a number of fundamental propositions must be his wife died in his lifetime. The testator has since died, enunciated which are rather assumed than expressed by and both his executors proved the will. Part of testator's the decisions. The author is driven to the enunciation property consists of leaseholds for lives, and a policy of of these on his own authority, and no cases are forthcom assurance on such lives. There is sufficient to pay all the ing by way of illustrations in the smaller type, but only | legacies and debts in full, without selling the leaseholds hypothetical illustrations by the author. This, even when or policy, both of which the son wishes to retain as hisit occurs in the case of digests by authors of higher own property. And the executors wish to assign these authority than, with all respect to the author of the absolutely to the son, who is one of the executors and work under discussion, he can be said to be, always seems trustees. I shall be glad if some of your correspondents to us slightly anomalous. We regard a digest, perhaps will inform me how this is to be done, as the 22 & 23. wrongly, as a work stating propositions for which there Vict. o. 35, s. 21, only provides for the assignment from is authority, The author in the present case is obliged one person to himself and another, and not for the sometimes to give propositions for which he can adduce assignment from two persons to one of them. Will two no authority. One of the first whicb he gives might by deeds be necessary as formerly, cne to assign from the some be considered doubtful as a matter of theory executors to a trustee, and another to assign from such viz., that to say A. is a rascal is not defamatory unless trustee to the son, or can the property be absolutely it can be proved that some one seriously believed or acted vested in the son by a release from his co-executor ? on the assertion to the prejudice of A. These observa. Cases or references will greatly oblige. G. H. M. tions are, however, perhaps hypercritical, as the real use. fulness of a book does not much depend on such intro. ductory propositions. The author has not, like some writers of books of

CASES OF THE WEEK. reference, heaped together inconsistent decisions without any regard to their inconsistency, and without any

PATENT-INFRINGEMENT -TRANSHIPMENT IN ENGLAND OF attempt to deduce from them any net result. The

ARTICLE MANUFACTURED ABROAD-CUSTOM HOUSE AGENT. form of his book, as already stated, precludes such a

In a case of Nobel's Explosives Company v. Jones, before the perfunctory mode of treating the subject. The prevailing Court of Appeal on the 29th ult., a somewhat novel ques. fault of writers of law books is perhaps too great tion arose with regard to the infringement of a patent. The timidity; a man shrinks from expressing too distinctly plaintiffs' patent was for a method of making safe and pracin print an opinion on a doubtful point which a decision | ticable the transport of nitro-glycerine, a substance wbich is may soon show to be erroneous. We think it perhaps liable to explode at the slightest shock. The invention, the would be well if authors were somewhat bolder. It subject of the plaintiffs' patent, consisted in causing the may be sometimes more useful to the reader to discuss a nitro-glycerine to be absorbed in porous inexplosive subpoint and express an opinion, even though it may turn

stances, such as charcoal, the result being a pasty substance, out to be erroneous, than to pass over a point in silence.

called dynamite, which is insensible to shocks, and can be As an instance of Mr. Odgers' mode of dealing with

transported with safety, but which at the same time is points of this sort we may instance the discussion on p.

equally valuable as an explosive when ignited in the proper

way. A firm of Krebs & Co. manufactured abroad a sub146, in which he joins issue with a statement in Addison

stance which they called litho-fracteur, and at one time sold on Torts. We cannot profess to have considered all

it in England. În an action brought against them by the the propositions which our author enunciates as the

plaintiffs it was decided by the House of Lords that the results of conflicting or dubious authorities, but, so far article manufactured by them was an infringement of the as we can judge, his statements of the law are careful plaintiffs' patent. After this, Krebs & Co., though no longer and well considered. Some parts of his book selling their article in England, shipped it to England, conare amusing as well as useful-e.g., the list of | signed to an agent of theirs in England, for the purpose of expressions which have been held to be defamatory reshipment for exportation and sale in Australia. The present at p. 22. There is one point on which we

action was brought against some persons who had acted for sympathize with the feeling expressed by the author.

the agent of Krebs & Co., in England, simply as Custom He says that in his book he has restored the word

House agents in procuring the necessary documents at the “malice” to its simple and ordinary meaning, and has

English Custom House authorizing the transhipment to be abandoned the technical and fictitious use of the term

made in the port of London. It was alleged that by thus as meaning "malice in law."

acting the defendants had infringed the patent, and so it was We think it very un

held by Bacon, V.O., but his decision was reversed by the fortunate that words should come in legal diction to Court of Appeal (JAMES, BAGGALLAY, and LUSH, LJJ.). have artificial and non-natural meanings, but it is not The plaintiffs' case was put in this way. It was said that, always easy, having regard to the historical growth of the peculiar nature of the invention being the making the law, to ignore entirely the artificial use of words in nitro-glycerine transportable with safety, anyone who moved such meanings.

the article with safety was in fact using the invention, and anyone who had the control of the article manufactured by Krebs & Co., though merely for the purpose of tranship

ment in England and exportation therefrom, was in fact CORRESPONDENCE.

using the invention in England. Krebs & Co., therefore, through their agent in England to wbom their goods were

consigned, were infringing the plaintiffs' patent, and the QUERIES.

defendants, by obtaining ihe necessary documents from the 22 & 23 Vict. C. 35, s. 21.-A testator by will, after Custom House, were enabling Krebs & Co. to commit leaving a few pecuniary legacies, directed his trustees, at

the infringement, and were therefore liable as infringers. their discretion, to convert into money all the rest and

JAMES, L.., said that the defendants had no control over residue of his real and personal estate, or such part as

the article ; the safety or darger of the transportation was. should not consist of money (with power to continue any

quite immaterial to them. They could not be said to be investments existing at his decease). And, after directing

using the invention. The court had always held agents payment of bis funeral and testamentary expenses and

liable for the infringement of a patent, but they must be debts, and making trusts for investment, the testator

actual agents directly employed in the transmission in ques.

tion. The doctrine could not be extended beyond the cas directed the trustees to stand possessed of the said trust of direct agency.-SOLICITORS, Woodbridge of Sons ; d. 9 * estate, and the investments representing the same, in 1 Gole.

NEWSPAPER - COPYRIGHT IN ARTICLES - REGISTRA- credited with the shares in the books of the company, but TION_COPYRIGHT ACT, 1842, SS. 18, 19, 24.-In a no contract in writing was registered, and when the company case of Walter v. Bowe, before the Master of the Rolls afterwards was in liquidation Appleyard was placed upon the on the 29th ult., & motion was made by the proprietors of a list of contributories. His claim was for damages for breach daily newspaper, not registered under the Act, to restrain a of contract in not completing the arrangement. Appleyard reprint in a cheap form, and without the consent of the had been the solicitor of the company, but no fraud whatproprietors, of a biographical memoir published in the ever was suggested. Hall, V.C., held that the contract was newspaper. The author of the memoir was not made proved by the minutes and documents of the company, the a party to the action, but it was stated in an affidavit filed by consideration was valid, and the arrangement made was not the plaintiffs that the author had been paid for his literary ultrà vires. He considered the case governed by Mudford's services by the plaintiffs. The plaintiffs relied upon & Claim, Re Government Security, &c., Company (28 W.R. decision of Malins, V.C., of Cox v. Land and Water Journal 670), where the judgment had been founded upon the Company (L. R. 9 Eq. 324), where it was held that a newspaper remarks of the Court of Appeal in White's case (27 W. R. was not within the Copyright Act, 1842, and required no 895.) The judgment of the House of Lords in City of Glasregistration under the Act, and that the proprietor had gow Bank v. Houldsworth (28 W. R. 667) was not repug. aliunde, and without registration, such a property in the nant to such a decision, and the claim for damages must be contents of a newspaper as would entitle him to sue in | allowed with costs.--SOLICITORS, Appleyard; West, King, respect of a piracy. Jessel, M.R., said he did not agree Adams, d: Co. with the decision of Vice-Chancellor Malins, and refused to fellow it. He was of opinion that a newspaper was a “ periodical work" within the meaniog of section 18 of the EXECUTOR-POWER TO PLEDGE TESTATOR's AssetsCopyright Act, 1842, aod, therefore, tbat it required to be Leasehold PROPERTY—PURCHASER FOR VALUE WITHOUT registered under the 19th section to entitle the proprietors to NOTICE-TITLE DEEDS.-In a case of Pillgren v, Pillgrem, sue in respect of any piracy of the articles produced in the before Fry, J., on the 2nd inst., a question arose as to the newspyper. If there was any other copyright in the power of an executor to pledge his testator's assets, and memoir, that would be in the au:hor of the article, and the right of the executor's own private creditor to be as the plaintiffs, in his opinion, aid not sufficiently show paid out of assets of the testator, when he has dealt with they bad purchased the whole copyright, and as the author

the executor in the belief that the assets were his own was not a party to the action, no injunction could be granted

property. A testator, who was a trader, devised and on that ground. The motion must, therefore, be refused,

bequeathed all his property, real and personal, to his exwith costs.-SOLICITORS, Soames ; G. L. Claxton.

ecutor, upon trust to sell bis basiness and stock in-trade,

and some leasehold houses in which the business was PRACTICE-INFANT DEFENDANT-JUDGMENT BY CONSENT

carried on, and, after payment of bis debts and funeral and -EVIDENCE-TRIAL OF ACTION_ORD. 19, R. 17-ORD.

testamentary expenges, to retain out of the proceeds of 40, R. 11.-In an action of Ellis v. Robbins, before Hall,

sale a legacy of £200 to himself, and to invest the residne V.C., on the 28th ult., a new point of practice was

and hold the investments upon certain trusts; and, until a raised as to the form in which judgment should be taken by

sale could be effeoted at a fair price of the business and consent in an action so as to bind an infant defendant. The

leasehold houses, the testator desired the executor to conaction was for the rectification of a marriage settlement, and

tinue the business, and to hold the profits, after main. the wife and an infant child of the marriage were made de

taining himself and his family, apon trasts corresponding to fendants. It was agreed to take a judgment upon the ad.

those of the income of the invested proceeds of sale. After missions of the facts stated in the statement of claim, no de

the death of the testator, the executor took possession of fence being put in, but, as by ord. 19, r. 17, the allegations

his property, and carried on the business for some years at of fact in a pleading cannot, although not denied, be taken

the same place in his own name. He borrowed various to be admitted as against an infant, the statement of

soms of money from a person who knew nothing of the claim had been verified by affidavit. Formal consents had execatorship, but believed that the business belonged to been given to the evidence in the action being taken by

the executor himself. Six years after the testator's death, affidavit, as required by ord. 37, r, I, but a difficulty now the executor surrendered the lease of the houses, and obarose from the fact that the action had not been set down for tained from the lessor a renewed lease in his own dame. trial, but merely on motion for judgaent, on admissions in

He deposited the renewed leage with the same creditor as the pleadings, under ord. 40, r. 11. There is no provision security for an advance made to him for his own purposes, in the Rules of Court as to evidenos being received upon

the creditor believing the leage to be the execator's own motion for judgment, and, upon the point being now brought property. A part of the unsecured advance was employed to the notice of the court, HALL, V.O., directed that, in order for the purposes of the business; the remainder was omte put the matter in proper form, the action should be set ployed by the executor for bis own private parposes. Nino down for trial, notice of trial being given to the wife and years after the death of the testator, the creditor recovinfant. The action would then be again placed in the paper, ered judgment against the executor for the amount of the and upon being called on pro forma, their consents would be unsecured advances, and issued execution, under which the given by counsel.-SOLICITORS, Roopers & Co.

sheriff seized chattels and stook-in-trade belonging to the testator's estate. An action having been brought for the

administration of the testator's estate, the creditor olaimed COMPANY IN LIQUIDATION-Proof for DamageS BY in the action to be entitled to the benefit of his execution. CONTRIBUTORY-CONTRACT TO GIVE PAID-UP SHARES - Reliance was placed on the case of Ray v. Ray (G. Cooper, COMPANIES ACT, 1867, 8. 25.-0a the 2nd inst. Vice. 264). In that case a testator died in 1809, and his exObancellor Hall delivered a written judgment in Re The ecutors took possession of his personal estate, and paid his Great Australian Mining Company, upon an important ques. debts and legacies, with the exception of a promissory note tion bearing upon the 25th section of the Companies Act, for £1,000 due to the plaintiff, payment of which was not 1867, which provides that, in the absence of a registerei demaoded. They also took possession of a leasehold farm contract to the contrary effect, every share in a company which the testator had occupied, and procured a renewal shall be deemed to be issued and held subject to the payment of 1 of the lease to be granted to them in their own names. the whole amount thereof in cash. Mr. Appleyard had under one of the executors having died, in 1815 a bond that section been placed upon the list of contributories in the creditor of the surviving executor (not a creditor of the winding up of the company for the amount of £1,000, and testator) seized the leasehold premises in execution for his the application on which judgment was now given was debt. The plaintiff had not demanded payment of his proto be allowed to claim in the liquidation for damages to the missory note until about the time when the seizure was same amount. Briefly stated, the facts were that the original made. The plaintiff obtained an ex parte injunction to repromoter of the company gave Appleyard, partly in payment strain the sale of the leasehold property under the execution, tor legal services in starting the undertaking, and partly for and this injunction was afterwards dissolved by Sir Thomas money lent, certain debentures of the company which bad | Plumer, on the ground of the lapse of time and the laches of been issued to himself. By an arrangement with the directors, the plaintiff. “If," his Honour said, “the plaintiff had any of whom Appleyard was bimself" one, fully paid shares | right to consider the renewed lease as made for the benefit of were agreed to be issued to Appleyard in exchange for the the testator's estate, is it not fair to say that he had waived &ebentares, which were delivered up to be cancelled. He was that right at this distance of time? The defendant has the law on bis side, and, at least, an equal equity with DIVORCE-ADULTERY – CRUELTY — CONDONATION-REthe plaintiff, arising from the credit which be has been VIVAL-MISCONDUCT FALLING SHORT OF ADULTERY.-In the induced by the plaintiff to give, from being led by the Probate, Divorce, and Admiralty Division, on Saturday, plaintiff to consider the lease to be the executor's own prop- April 30, the suit of Ridgway v. Ridgway was tried before erty. I say be has, at least, an equal equity, and I ask if the President of the division without a jury. The petition he has not even a superior equity ? * I cannot, therefore, see was by a wife for a dissolution of marriage on the ground of any ground for this court interfering with those rights her husband's adultery and cruelty. The petitioner admitted of the defendant after a lapse of six or seven years. that she had condoned her husband's misconduct, but there It would be injurious to credit to do so, especially in the was evidence that, after the condonatioo, the respondent had case of trades." FRY, J., said that the law on the point was attempted to take liberties with a maid-servant living in the clear. When an executor carried on the business of his house, and this was relied upon as showing that the acts which testator under the directions of his will, and in that had been condoned had been revived. HANNEN, P., observed character contracted a debt, an action for the debt must be that the question whether condoned adultery or cruelty brought against the executor personally, and the judgment | could be revived by misconduct falling short of actual would be de bonis propriis of the executor. No action could adultery had never been expressly decided. Condonation be brought against the estate of the testator, and there was only conditional forgiveness, and the respondent's be. could be no judgment de bonis testatoris, because the debt baviour must be taken to be a breach of the condition was not the testator's debt. The creditor might have a / upon which his wife's forgiveness had been accorded to him. right to be subrogated to any claim which the executor He therefore held that the adultery and cruelty had been had against the estate. It could make no difference revived by the subsequent misconduct, and that the petithat the chattels seized by the sheriff were ostensibly tioner was entitled to a decree nisi.-SOLICITOR, Greenfield those of the execntor. In some cases, no doubt, if there had been a great lapse of time, and the possession of the executor was not in accordance with the trusts of the will, there might be an inference that there had been

CASES BEFORE THE BANKRUPTCY an absolute gift by the beneficiaries to the executor,

REGISTRARS. But, when the possession of the executor was in accord (Before Mr. Registrar MURRAY acting as Chief Judge). ance with the trusts of the will, and the time wbich bad elapsed was also, so to say, in accordance with the trusts,

April 4.-Re Bear F Bear. there could be no such inference. In the present case,

The court refused to grant an injunction restraining the wife the mere ostensible possession of the executor and the

? | of a bankrupt from dealing with goods alleged to have been lapse of time could make no difference ; bat, the moment

purchased with trust moneys belonging to her. it was found that the property was trust property, no

This was an application by the trastee under the bank. judgment could go against it for the exeoutor's own debt.

ruptcy of Messrs. G. & J. Bear, cigar manufacturers, for an In Ray v. Ray the point was not finally decided ; but

injunction to restrain Mrs. Emily Bear from dealing with a the court thought the cironmstances were such as to

quantity of tobacco, alleged to form part of the property of raise an inference of gift to the execator. With regard

the bankrupts. to the deposit of the renewed lease, the case stood in this

The facts are stated in the judgment of the registrar. way. The execution creditor olaimed an equity by virtue

E. C. Willis, in support of the application. The tobacco of the deposit; the testator's estate claimed an equity by

in question belongs to the bankrupts. The case of the revirtue of the renewal. But the equity of the estate attached

spondent is that it was purchased with trust moneys. As soon as the renewed lease was granted; the equity of

belonging to her, but these moneys have been so mixed up

with others as to have lost their identity. The tobacco was the creditor did not attach until the deposit was made. There was no superiority in the one equity over the other,

also in the reputed ownership of the bankrupts. He cited

Clayton's case (1 Mer. 572). and, therefore, as between the two equities, the ordinary role must apply, qui prior est in tempore potior in jure.

Colt, for the respondent. Before any act of bankruptcy

It was argued on behalf of the creditor that at any rate the

was committed, the respondent was in possession of the

tobacco as the absolute legal owner, and no question of reactual lease itself could not be taken away from him, he

puted ownership can arise. All that it is necessary to show, being a purchaser for value witbout notice, reliance being

in order to substantiate the claim of the respondent, is that placed for tbis purpose on Heath v. Crealock (23 W. R. 95, L. R. 10 Cb. 22). FRY, J., said that, in order to avail

tobacco to the extent of £2,50C has been bought with trust

money. The evidence shows that in 1871 £2,000, drawn out himself of the defence that he was a purchaser for value

of the bank upon the security of the respondent's deeds, without notice, the depositee must show that he had made

was applied in payment of tobacco purchased from Messrs. every reasonable inquiry as to the title to the lease. He Bremner, and the rights of the respondent extend to the had not shown that he had made any inquiry at all, and

tobacco so purchased. What afterwards took place between there was nothing to show that if he had inquired he would George Bear and bis bankers is immaterial, as the tobacco pot bave been fornished with an honest abstract of title,

1. abstract of title, was impressed with a trust in favour of the respondent : Re disclosing tbe surrender. A person who thus wilfully sbut Halletts' Estate (28 W, R. 732, L. R. 13 Ch. D. 696). his eyes could not say that he was a purobaser without Mr. REGISTRAR MURRAY said the hearing had occupied a notice. The order would, however, be made without

order wohid, however, be made without | considerable time, but when the case was divested of a certain prejudice to the right (if any) of the oreditor to stand in / amount of fringe, he did not think that it presented any une place of the executor in any claim he might have | serious difficulty. The facts lay within a narrow compass. have against the testator's estate in respect of the legacy | The application was by the trustee for an injunction reof £200 or otherwise.-SOLICITORS, J. P. Murrough; Allen straining Mrs. Emily Bear from dealing with certaln & Edwards.

tobacco, with respect to which she had a legal and beneficial

interest. The circumstances under which the delivery PRACTICE-DEFENDANT OF INSOUND MIND-APPOINT

order was given to her a few days before the bankruptcy, MENT OF GUARDIAN-ORD. 13, R. 1.-In a case of Taylor

and the circumstances under which the property was transv. Pede, on the 2nd inst., FRY, J., held, under the pro

ferred to her, were no doubt open to the greatest suspicion,

and fully entitled the trustee to avail himself of his right to vision of rule 1 of order 13, that wben no appearance has been entered to a writ for å defendant who is a person

have a private examination of the parties under section 96. of Edsound mind, not so found by inquisition, the plaintiff

But it so happened that before a private sitting was held the

trustee took upon himself to launch the present motion for may apply to the court for the appointment of a guardian

| an injunction, and the circumstances being so suspicious be by wbom the defendant may appear and defend the action, it is not obligatory on the plaintiff in every such case to

(the registrar) felt that he could not witbhold an injunction

° until after the investigation at the private sitting had taken apply for the appointment of a guardian ; but that the

place. The facts as elicited from the examination of the provision only applies when the plaintiff for his own purposes desires tbat the defendant should appear and

parties, appeared to be these : Mr. Benson, by his will, had

left the residue of his property to George Bear and Emily defend. It is not necessary to make the application when

Bear (under her name of Emily Benson) as executor and no relief is asked against the defendant.-SOLICITORS,

executrix. The trusts of the residuary estate were declared W. & J. Flower & Nussey.

by the testator, and Mrs. Bear was to have the income of the property during her life, with a power of appointment) as to

[ocr errors]

the residue. At any moment Mrs. Bear, by a stroke of the sider that they had been proved. It appeared that George pen and by exercising her power of appointment, might have Bear was very much pressed for money, and his wife made berself the absolute legal and beneficial owner of the noticed that he was worried. When he informed his soliciproperty. The trust estate was realized by George Bear and tor, Mr. Turner, that he proposed handing over the Mrs. Bear did not interfere. George Bear acted in the ad- tobacco to Messrs. Bremner, Mr. Turner said, “You must ministration of the estate, and it appeared that he realized not do it, because it is Mrs. Bear's property.” That was it to the extent of £5,000 or £6,000, and invested it in the proper advice under the circumstances, and a delivery purchase of houses. He had sworn that the bulk, if not the order being given to Mrs. Bear, she became absolutely enwhole, of the moneys paid into his banking account were | titled to the tobacco. His Honour then held that, except trast moneys forming part of the residuary estate. Although as to three bales which had not been purchased out of the some question had been raised about it, he thought it | trust money, the title of Mrs. Bear prevailed, and the was sufficiently established that the trust money was motion for an injunction must be refused, with costs. invested in the purchase of houses. He did not Solicitor for the trustee, Marsh. lose sight of the fact that the houses were Solicitor for the respondent, Turner. purchased by George Bear in his own name; but there might be no particular harm in that, although it would have been better if the purchase bad been made in the

April 13.-Ex parte Cape, Re Bridge, joint names of himself and Mrs. Emily Bear. There was Order confirming scheme of settlement of the bankrupt's no doubt that, in dealing with this trust property, he had affairs set aside upon proof that property of considerable value acted thronghout as if it were his own—a course that

has been concealed from the creditors. could not but be deprecatedand the best explanation that

A creditor holding a charge upon such concealed property has could be given was that he probably thought he was

no locus standi upon the trustee's application to set aside the

scheme, and the court will not make any order by which his doing the best both for Mrs. Bear and himself, having

rights are protected. regard to their relationship of husband and wife. They appeared to have trusted each other, but froin beginning

This was an application by the trustee for an order to to end it must be admitted that there was a breach of

rescind an order made in April, 1877, confirming a scheme trost on the part of George Bear. That being the state |

' of arrangement of the bankrupt's affairg.

The bankrapt, William Bridge, an accountant, was of things, and hearing of some tobacco that was for sale, ! George Bear was willing to become a purchaser, but not

? | adjudicated in Marob, 1875, and John Slater was appointed having sufficient money of his own, he applied to his

trustee of his property, and so continued until Augast, bankers for an advance. He required £2,500, but the

1880, when he was removed from his office, and G. A. bankers would only make the advance upon the deposit

Cape was appointed trustee in his place. The bankrupt's of security, and he bethonght himself of depositing the

debts amounted to about £1,200. deeds of the houses which had been bought with trust

On the 20th of January, 1877, a meeting of creditors money and were trust property. Thereapon the £2,500

was beld, at which resolutions were passed to the followwas advanced solely upon the security of the deposit of

ing effect :the title deeds. This was questioned, bat at least one

(1) To accept & composition of four shillings in the thing was certain, that the £2,500 would not have been

| pound upon the debts proved and admitted in the bank. advanced but for the deposit of the deeds. George Beer | ruptcy, payable witbin fourteen days from the confirmation stated that, in the first instance, he drew a cheque for

of the scheme by the court. £2,000 upon the bank on February 28, 1871, whioh was

(2) That the composition be paid free from all costs, paid in two notes of £1,000 each. Those notes were banded

charges, and expenses. by him on the same day to Messrs. Bremner on account

(3) That the proper coste, charges, and expenses be paid of moneys due to them for tobacoo which had been

by or on behalf of the bankrupt. purchased by bim to the extent of £3,600. It was,

(4) That on payment of the composition of four shillings therefore, clear that these two bank notes were earmarked

| in the found to the trustee, and upon the order of the as having gone to Messrs. Bremner in payment of a portion

court confirming the resolutions being made, the bankrapt of that tobacco. Assumiog that Mrs. Bear had then

| or the trustee be authorized to make an application to appeared upon the scene and stated to George Bear,

annul the adjadication, "I anderstand you have been purchasing tobacco with

On the 14th of April, 1877, an application was made to money belonging to the trust estate, or that you have

the court to approve and confirm the resolations, and such been depositing title deeds as security for an advance

order was then granted upon affidavits of the bankrapt and wbion you have invested in tobacco," could it bave been

Mr. Slater, in which no mention was made of any property denied that she would have been entitled to be recouped

recently acqaired by the bankrapt under the will of S. A. out of the tobacco purchased partly with trust moneys and

| Turner; and upon the report of the official assignee based partly out of the moneys of George Bear? The tobacco

thereon. The bankruptoy had never been analled. was undoubtedly impressed with a trust to the extent of

The trustee had since ascertained from the bankrapt, the trust moneys that were used in its purchase. This

and it appeared frow his deposition, that at the time of the view was supported by the decision of the Court of Appeal

confirmation of the resolution, the bankrupt and his then in Hallett's case, the Master of the Rolls remarking that

trustee were fully aware that the former had become on. the doctrines of equity were progressive, and had been

titled under the said will to property of considerable value, enlarged in modern times. Upon the evidence it must be

and that he was well able to pay more than 43. in the pound. taken that the £2,000 had been spfficiently traced as

The acting trustee believed that the report of the official having been paid out of the trust funds, and that a charge

assignee was obtained by a concealment of the property upon the tobacco was created in favour of Mrs. Bear.

belonging to the bankrupt, and that the consent of creditors The tobacco being impressed with a trust, it

was obtained in consequence of andae payments to the was unnecessary to take into consideration the subsequent

members of the committee of inspection and others, and dealings between George Bear and the bankers. It did not

by withholding the tree value of the property, and by the make any difference whether the original advance of £2,500

total concealment of the bankrupt's interests under the had been paid off or not, if the title deeds were not redeemed

wills of J. S. Bridge and J. H. Gibson. The aggregate and handed over to Mrs. Bear. The trust estate not having

value of the property not disclosed in the accounts was been recouped, the charge upon the tobacco remained in

about £2,000. force. It was true that some of the tobacco had been dissi.

S. Woolf, in support of the application, asked for an pated, but the charge was created the moment the £2,000

order similar to that granted in Ex parte Jarvis, Re Spanton was paid to Messrs. Bremner, in February, 1871. Mrs.

(L. R. 10 Ch. D. 179). In that case the power of the court Emily Bear had a charge upon the whole of it, and if some

to make the order was assumed, and the only question whioh of the bales had been taken by George Bear out of the bulk, arose was as to the position of the creditors--whether or that would not prevent the charge continuing as to the

not they were remitted to their original rights. residue. Mrs. Bear was the absolute owner at the present time Eady, for Mr. Tatham, a creditor who had advanced a of the tobacco, and it would not therefore be right to pre- | sum of money upon a charge on the concealed property on vent her from dealing with it because some difficulty existed the faith of the confirmation of resolutions by the court, in earmarking a cheque for $509, as well as for the £2,000. | asked that, if the court made any order, it shoald be withAllegations of fraud were made, but his Honour did not con- i' out prejudioe to his rights.

« PreviousContinue »