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Quarterly Digest

OF

ALL REPORTED CASES,

IN THE

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

FOR FEBRUARY, MARCH, AND APRIL,* 1877.

By L. G. GORDON ROBBINS, Barrister-at-Law.

Administration:

(xiv.) C. A.-Old Suit-Fund in Court-Distribution.-Where money had been paid into Court in an old administration suit: Held (affirming decision of V. C. M.) that two creditors who alone came forward in answer to advertisements were entitled to a rateable proportion out of the fund.— Ashley v. Ashley, 36 L.T. 200; 25 W.R. 356.

(xv.) C. A.- Partnership - Overdrawing - Proof by Trustee in Bankruptcy against Separate Estate.-Decision of M. R., see Administration (vi.), p. 1, affirmed.-Lacey v. Hill, L.R. 4 Ch. D. 537.

(xvi.) P. D. A. Div. - Special Circumstances.

-Intestate was clerk to a borough treasurer who had embezzled moneys of the corporation, and it was suggested that money was also due from deceased to the corporation: Held that there were no "special circumstances" witin 20 & 21 Vict., c. 77, s. 73, to justify the Court in refusing administration to the widow.-Wells v. Brook, 25 W.R. 463.

Agreements and Contracts:

(xix.) C. A.-Fraud.-Blenkarn was convicted of obtaining goods under false pretences from plaintiffs by means of orders signed so as to look like "Blenkiron & Co.," a well-known and long-established firm: the defendants had bona fide purchased the goods from Blenkarn, and resold them: Held (reversing decision of Q. B. Div.) that the property in the goods never passed from plaintiffs, and that they were entitled to recover. Lindsay v. Cundy, L.R. 2 Q.B.D. 96; 46 L.J. Q.B. 233; 25 W.R. 417.

(xx.) C. A.—Mercantile Contract.-Contract for sale of goods to be shipped in "March April": the goods were shipped in February: Held

and
or

*Cases reported only in the Law Times Reports and Weekly Reporter for Saturday, 28th April, are unavoidably postponed till the August Digest.

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reversing decision of Q.B. Div.) that defendants were not entitled to refuse to accept the goods.-Shand v. Bowes, L.R. 2 Q.B.D. 112; 46 L.J. Q.B. 201; 36 L.T. 161; 25 W.R. 291.

(xxi.) C. A.-Mercantile Contract.-Contract for sale of goods to be shipped "by steamer or steamers" in February: two shipments were made, of which the first only was within the fixed time: Held that the contract was divisible, and that consignee was bound to accept the first shipment.Brandt v. Lawrence, L.R. 1 Q.B.D. 344; 46 L.J. Q.B. 237; 24 W.R. 749. (xxii.) C. A.-Sale of Specific Goods-Nonperformance-Act of God.-Defendant contracted to sell to plaintiff 200 tons of potatoes from a land belonging to defendant at W.: owing to a blight this land only yielded 80 tons, which defendant delivered: Held that the contract was for sale of a specific crop, and that defendant, having been prevented by an act of God, was excused from performance.-Howell v. Coupland, L.R. 1 Q.B.D. 258; 46 L.J. Q.B. 147; 33 L.T. 832; 24 W.R. 470. (xxiii.) Q. B. Div.-Statute of Frauds-Minutes of Company.-The entry of terms of an agreement on minutes signed by the chairman is a sufficient memorandum to satisfy s. 4 of Statute of Frauds.-Jones v. Victoria Graving Dock Co., 46 L.J. Q.B. 219; 36 L.T. 144; 25 W.R. 348.

(xxiv.) C. P. Div.-Wager-8 & 9 Vict., c. 109, s. 18.-Plaintiff, a "tipster," gave to defendant the name of a horse as the probable winner of a race, on the agreement that if the horse should win, the plaintiff was to receive £50 out of defendant's winnings, but if the horse lost, the plaintiff should pay to defendant £2: the horse having won: Held that plaintiff could not recover.-Higginson v. Simpson, L.R. 2 C.P.D. 76; 46 L.J. C.P. 192; 36 L.T. 17; 25 W.R. 303.

(xxv.) Ex. Div.-Warranty.-A contract for the sale and purchase of a locomotive engine was embodied in a series of letters, in one of which vendor made certain representations as to the material of the boiler tubes: the engine was subsequently inspected by plaintiff's engineer, who found the tubes to be of inferior metal: Held, on construction of the letters and the facts of the case, that defendant had given an express warranty, which was not affected by the inspection.-Cowdy v. Thomas, 36 L.T. 22.

Banker:

(vi.) C. A.-Cheque.-Indorsement as Agent within 16 & 17 Vict., c. 59 s. 19. Judgment of C.P. Div., see Banker (ii.), p. 3, affirmed.--Charles v. Blackwell, 36 L.T. 195; 25 W.R. 472.

(vii.) Q. B. Div.-Scrip- Custom.-Scrip certificates of banking companies partly paid-up, but not containing the name of the person to be registered as shareholder, are negociable instruments by the custom of the monetary world, and pass by delivery.-Rumball v. Metropolitan Bank, 36 L.T. 240; 25 W.R. 366.

Bankruptcy:

(lxxv.) C. A.—Act_of_Bankruptcy-Bill of Sale-Composition of Felony.— Decision of C. J. B., see Bankruptcy (i.), p. 4, over-ruled.-Ex parte Caldecott, Re Mapleback, L.R. 4 Ch. D. 150.

(lxxvi.) C. J. B.-Act of Bankruptcy-Bill of Sale-Fraäulent preference Contempt.-A. and his wife, after act of bankruptcy by A., gave a bill of sale on their whole property to secure a debt of Mrs. A.'s former husband, whose executrix she was, and whose business she carried on herself till her second marriage, and thereafter in conjunction with A.; grantee of bill of sale and trustee in bankruptcy entered into concurrent possession; before the question of validity of bill of sale was decided, grantee forcibly removed part of property: Held that the bill of sale was void, that the removal was unlawful, and that the property must be restored to the

trustee in bankruptcy, and costs of motion to compel restoration paid by the grantee.-In ve Fells, Ex parte Andrews, L.R. 4 Ch. D. 509; 46 L.J. Bpcy. 23; 36 L.T. 38; 25 W.R. 382.

(lxxvii.) C. B.-Act of Bankruptcy-Bill of Sale-Registration.-Debtor gave bill of sale on all his property to secure past debt and further advances, stipulating that such bill should not be registered, but that he would, if called on, give a fresh bill which might be registered: the debtor having subsequently filed liquidation petition: Held that the agreement was valid, and that the giving of a fresh bill of sale in pursuance thereof was not an act of bankruptcy.—In re Jackson, Ex parte Hall, L.R. 4 Ch. D. 682; 46 L.J. Bpcy. 39; 35 L.T. 947; 25 W.R. 382.

(lxxviii.) C. A.-Adjudication.-The hearing of a petition for adjudication was adjourned after proof of act of bankruptcy, to enable debtor to make arrangements for payment of his creditors: at the adjourned hearing debtor tendered to petitioning creditor the amount of such creditor's claim and costs which was refused: Held that the Registrar rightly made order for adjudication.-Ex parte Brigstocke, In re Brigstocke, L.R. 2 Ch. D. 348; 35 L.T. 831; 25 W.R. 262.

(lxxix.) C. A.-Bill of Exchange-Notice of Dishonour.-On bankruptcy of drawer of a bill of exchange which was dishonoured, holders knowing of the bankruptcy but not of the appointment of a trustee, gave notice to the bankrupt at a former address which was alone known to them: Held that the notice was sufficient.-In re Bellman, Ex parte Baker, 25 W.R. 454. (lxxx.) C. A.-Composition-Action by Creditor-Injunction.-The Court will not restrain an action by creditor against compounding debtor unless vexatious or unfounded.-Re Lopes, Ex parte Lopes, 36 L.T. 275; 25 W.R. 419.

(lxxxi.) C. P. Div.-Composition-Debtor's Statement.-Where a creditor is an assenting party to a composition the debtor is released from all debts owing to such creditor, though not included in debtor's statement.Wilson & Brown v. Breslauer, 36 L.T. 18.

(lxxxii.) C. P. Div.- Composition-Debtor's Statement.-F. drew bills accepted by W. for £8,000, indorsed to the N. Bank, the bills being secured by mortgage of a ship: W. having filed petition for liquidation or composition by his statement stated F. to be a secured creditor for the £8,000 subsequently the bills were transferred to F.: Held that the composition was a good defence to action on the bills.-Forwood v. Walker, 36 L.T. 21.

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(lxxxiii.) C. J. B.-Composition-Resolution-Registration-Proxy.-A lution for composition having been put to the vote and lost, debtor's solicitor produced a creditor's proof and his proxy signed in blank, it was received under protest, and the resolution was declared carried, and was subsequently confirmed and registered without notice to objecting creditor: Held that the proxy was void, and the registration could not stand.-Ex parte Bailey, Re Lancaster, 36 L.T. 72; 25 W.R. 381.

(lxxxiv.) C. P. Div.-Composition-Debtor's Statement.-Pending an arbitration defendant filed petition for liquidation, and a composition being agreed to, he included in his statement the plaintiffs as creditors for the full amount claimed, with a note appended that the claim was disputed: Held that the claim was sufficiently inserted in the statement.--Melhado v. Watson, 36 L.T. 18.

(lxxxv.) C. A.-Composition-Guarantee of Instalments-Subsequent Bank. ruptcy-Release of Surety.-Decision of Q. B. Div., see Bankruptcy (li.), p. 48, affirmed.-Glegg v. Gilbey, L.R. 2 Q.B.D. 209; 35 L.T. 927; 25 W.R. 311.

(lxxxvi.) C.J.B.-Composition-Resolution-Registration.-Debtor's statement showed assets £50, liabilities £1,366: Held that a resolution to accept 6d. in the pound was reasonable, and must be registered.—In re Williams, Ex parte Williams, 25 W.R. 432.

(lxxxvii.) C. J. B.-Composition-Solicitor's Lien.-Creditors of C. accepted composition payable by instalments; no trustee was appointed: C.'s solicitor paid first instalment out of debtor's money, and having received from debtor and his sureties further monies, sufficient for payment of second instalment, paid some of the creditors, but C. having absconded, retained the remainder, claiming to have a lien thereon for costs due from C.: Held that the solicitor had constituted himself trustee for creditors, and must apply the remainder of the money in paying the second instalment. In re Clarke, Ex parte Newland, L.R. 4 Ch. D. 515; 35 L.T. 916; 25 W.R. 275.

(lxxxviii.) C. J. B.-Equitable Mortgage-Fixtures-Bills of Sale Act.-An equitable mortgage of leaseholds by deposit of deeds will not pass trade fixtures as against trustee in bankruptcy without registered assignment under Bills of Sale Act.-Ex parte Tweedie, Re Trethowan, 36 L.T. 70; 25 W.R. 399.

(lxxxix.) C. A.-Execution Creditor.-Possession money may be taken into account in ascertaining whether execution against a trader is for a sum exceeding £50.-In re Grubb, Ex parte Sims, 25 W.R. 453, affirming decision of C. J. B., reported L.R. 4 Ch. D. 521; 36 L.T. 40; 25 W.R. 276. (xc.) C. J. B.-Liquidation-Discharge.-Undischarged debtors re-com. menced business, and afterwards filed a second liquidation petition : creditors under both liquidations resolved that he should be entitled to discharge on payment of £475 as purchase-money for his estate this whole amount was, under Order of Court, paid over to the trustee under first liquidation: Held that debtor was entitled to discharge without further payment to trustee under second liquidation.—In re Caughey, Ex parte Caughey, L.R. 4, Ch. D. 533; 46 L.J. Bpcy. 18; 36 L.T. 39; 25 W.R. 308.

(xci.) C. P. Div.-Liquidation-Discharge-Barred Debt.-Held that a certificate of discharge was a good answer to the claim of a creditor, without notice of liquidation, and whose name was omitted from debtor's statement, in respect of a debt incurred before the discharge: a promise to pay a debt barred by discharge cannot be enforced.Heather & Son v. Webb, 46 L.J. C.P. 89; 25 W.R. 253.

(xcii.) C. J. B.-Liquidation-First Meeting-Resolutions-Where registrar summoned creditors to meet at a place other than that mentioned in debtor's affidavit: Held that the resolutions were invalid, but gave leave to debtor to summon a fresh first meeting.-Re Mayer, Ex parte Lewis, L.R. 4 Ch. D. 519; 46 L.J. Bpcy. 33; 35 L.T. 915; 25 W.R. 275.

(xciii.) C. J. B.-Liquidation-Receiver.-Where creditors wish to appoint a receiver of their own, in place of a receiver appointed by the Court, they must show good reason for the application, and indemnify the outgoing receiver against all costs, expenses, and liabilities incurred by him.-Ex parte Rylands, Re Chester, 36 L.T. 264.

(xciv.) C. J. B.-Liquidation-Resolutions.-Creditors at a general meeting resolved that a liquidation be agreed to, that a trustee be appointed, and that such trustee sell debtor's estate so as to pay to creditors a composi tion: Held that the resolutions, except that for the sale of debtor's estate, were good, and that an injunction must be granted to restrain a creditor, not a party to the proceedings, from enforcing an execution against debtor.-In re Dugdale, Ex parte Dugdale, 25 W.R. 468.

(xcv.) C. J. B.—Liquidation—Undischarged Debtor-Earnings.-Liquidating debtor, a painter, before discharge contracted to paint a yacht for £49, representing £15 for debtor's labour, £15 for wages of workman, £10 for materials, and £9 for profit: he got the materials on credit, and borrowed money to pay wages: Held that the trustee was entitled to the whole amount.-In re Dowling, Ex parte Banks, L.R. 4 Ch. D. 689; 36 L.T. 117.

(xcvi.) C. A.-Proof-Annuity.-An annuity during life or widowhood is not a debt "incapable of being fairly estimated" under Bankruptcy Act, 1869, 8. 31.-Re Blakemore, Ex parte Blakemore, 25 W.R. 488.

(xcvii.) C. A.-Proof-Mortgage-Interest Varying with Profits.-By a mortgage of leaseholds to secure a loan to a trader, it was provided that mortgagee should receive a share of the profits in lieu of interest: Held that 28 & 29 Vict., c. 86, s. 5, precluded mortgagee from recovering his debt in competition with the other creditors, but did not affect the security.— In re Lonergan, Ex parte Sheil, 36 L.T. 270; 25 W.R. 420.

(xcviii.) C. A.-Proof-Partnership.-Decision of C. J. B., see Bankruptcy (lxv.), p. 50, affirmed.-Ex parte Armitage, Re Good, 25 W.R. 422.

(xcix.) C. J. B.-Reputed Ownership-Debenture of Company-Trade Debts.A debenture of a company is a chose in action within Bankruptcy Act, 1869, s. 15, sub-sec. 5, and an assignment thereof by indorsement in blank is good against trustee of bankrupt assignor, although assignee does not give notice to company before the bankruptcy: the words "debts due to the bankrupt in the course of his trade," include only debts connected with such trade.-In re Pryce, Ex parte Rensbury, L.R. 4 Ch. D. 685; 36 L.T. 117; 25 W.R. 432.

(c.) C. A.-Secured Creditor - Receiver — Priority — Notice. - Decision of C. J. B., see Bankruptcy (lxvi.), p. 50, affirmed.-Re Lewer, Ex parte Garrard, 36 L.T. 42; 25 W.R. 364.

(ci.) C. J. B.-Stoppage in Transitu.-Goods directed to W. were on arrival at F. warehoused by C. & Co., as agents for the shipping company: C. & Co. used to inform the consignees of the arrival of the goods, and to forward them, as instructed, by and at expense of consignees: Held that consignees were entitled to stop the goods in transitu until the consignees' instructions were received by C. & Co.-Re Worsdell, Ex parte Barrow, 25 W.R. 466.

(cii.) C. A.-Stoppage in Transitu—Vendor's Lien-Bills of Sale Act.-W. agreed to supply goods to L. for shipment to Shanghai, the vendor to have a lien on bills of lading and goods: before the goods arrived at Shanghai, L. became bankrupt: Held, upon the construction of the agreement and the facts of the case, that W. was entitled to stop the goods in transitu until their arrival at Shanghai: also that the agreement did not require registration under the Bills of Sale Act.-Ex parte Watson, Re Love, 36 L.T. 75; 25 W.R. 489.

(ciii.) Q. B. Div.-Stoppage in Transitu-Delivery of Bills of LadingVendor's Lien. - Plaintiff bonâ fide received from G., as additional security for an advance previously made, bills of lading of a cargo consigned to G. by defendant, against bills of exchange accepted by G.: Held that defendant, on the insolvency of G., was entitled to stop the cargo in transitu, as plaintiff had not made the advance on faith of delivery of the bills of lading.-Leask v. Scott, 35 L.T. 903.

(civ.) __ C. A.- Trustee-Fresh Action—Estoppel.-Decision of Ex. Div., see Bankruptcy (lxvii.), p. 50, affirmed.-Bennett v. Gamgee, 46 L.J. Ex. 204; 36 L.T. 48; 25 W.R. 310.

Bill of Sale :--

(vii.) C. J. B.-Fixtures - Registration - 17 & 18 Vict., c. 36.-Debtor

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