Quarterly Digest OF ALL REPORTED CASES, IN THE Law Reports, Law Journal Reports, Law Times Reports, and Weekly Reporter, FOR MAY, JUNE, AND JULY, 1877. By L. G. GORDON ROBBINS, Barrister-at-Law. Administration: (xvii.) Ch. Div. M. R.-Costs.-Where there is gift of residue divisible amongst individuals and classes, the costs of ascertaining of whom such classes consist are payable out of the whole residue before distribution. Re Reeve's trusts, L.R. 4, Ch. D. 841; 25 W.R. 628. (xviii.) P. D. A. Div.-Creditor.-Letters of administration will not be granted to a creditor except on condition of his entering into a bond to administer rateably. In the goods of Brackenbury, 36 L.T. 744, 25 W.R. 698. (xix.) C. A.—Executors-Loss to estate-Liability.--Testator's estate consisted partly of certain American bonds, the value of which fell continuously from his death until the hearing of the cause, three years afterwards: one of the residuary legatees had pressed the executors to sell, the other three had assented to postponement of the sale: Held that the executors were not liable to make good the loss.-Marsden v. Kent, 46 L.J. Ch. 497; 25 W.R. 522. (xx.) Ch. Div. V. C. B.—Interest on Deduction for Advances.-Bequest to son of share in residue subject to deduction for advances: Held that son was chargeable with interest at £4 per cent. from the death of testator on the amount to be deducted.-Field v. Seward, L.R. 5 Ch. 538. (xxi) Ch. Div. V. C. H.-Lease Renewal.-Held that expenses of renewal under a lessee's covenant of a lease part of a testator's estate, must be paid out of the general assets.-Trail v. Jackson, 25 W.R. 802. (xxii.) Ch. Div. V. C. H.-Tenant for life—Premiums—Lien.—Tenant for life of estate, investments of which the trustees had power to continue, paid for 33 years premiums on a life policy, part of the estate: Held that the policy moneys must be paid to the estate, the tenant for life having no lien.- Re Waugh's trusts, 25 W.R. 555. Agreements and Contracts: (xxvi.) H. L.—Mercantile Contract—Rice to be Shipped during March and (or) K April-Shipment Commenced in February.-Decision of C.A., Agreements and Contracts (xx.), p. 83, reversed.-Bowes v. Shand, 25 W.R. 730. (xxvii.) Ex. Div.-Party Wall-Consideration.-Held that the benefit derived from user of a party wall was a sufficient consideration and proof of an implied promise to pay a contribution towards expense of the wall.Christie v. Mitchison, 36 L.T. 621. (xxviii.) C. P. Div.-Rescission-Acceptance-Engineer's Certificate.-A contract for supply of iron rails to a company provided that the work should be done to the satisfaction of their engineer: after delivery of the rails they were found to be defective: Held on the construction of the contract that the engineer's certificate was intended to be conclusive.— Dunaberg & Witepsk Rail Co. v. Hopkins & Co., 36 L.T. 733. (xxix.) C. A.-Rescission-Breach of Contract-Damages. In absence of fraud the court will not rescind or carcel an agreement in writing for sale of land: the measure of damages for breach of contract is the same in case of realty and chattels.-Noble v. Edwards, L.R. 5 Ch. 378; 36 L.T. 312. (xxx.) C. P. Div.-Reversion-Condition-Construction-Time.-Condition of sale of a reversion provided that interest should be payable in case of non-completion on day fixed, and that vendor might re-sell on breach of any condition: Held that time was not of essence of contract.-Patrick v. Milner, 36 L.T. 738; 25 W.R. 790. (xxxi.) C. A.-Specific Performance-Statute of Frauds.-Decision of V.C.M., Agreements and Contracts (xviii.), p. 46, affirmed.-Ungley v. Ungley, 25 W.R. 733. (xxxii.) C. A.- Wager - Stakeholder 8 & 9 Vict. c. 109.- When two persons agree to run a foot-race, and deposit money in hands of stake. holder to be paid over to winner, either party may recover from the stakeholder though he demands the money after the event. Decision of Ex. Div., reported 25 W.R. 607, reversed.-Diggle v. Higgs, 25 W.R. 777. (xxxiii.) Q. B. Div.-Wager-8 & 9 Vict., c. 109, s. 18.-Plaintiff agreed to take lease of a house of defendant and paid £25 deposit: defendant afterwards offered him £50 to be off his bargain: it was ultimately agreed that they should toss up whether defendant should pay £50 or £75 to be off: defendant won the toss: Held that plaintiff was entitled to recover the £50 and also the deposit.-Wilson v. Cole, 36 L.T. 703. Arbitration: (ii.) C. A.-Appeal-Special Case.-By an order of reference made by consent, before Judicature Acts, it was ordered that neither party should bring writ of error with regard to matters referred: the award was made subject to opinion of Court on special case: Court gave judgment for plaintiffs: Held that no appeal could be brought.-Jones v. Victoria Graving Dock Co., L.R. 2 Q B.D. 314; 36 L.T. 345; 25 W.R. 501. (iii.) Q. B. D.-Appeal to Quarter Sessions-Costs-Taxation out of Sessions. -A rate appeal to quarter sessions was referred by consent under 12 & 13 Vict. c. 45 s. 13, together with the question of the costs of the appeal and reference: the arbitrator gave award in favour of respondents with costs: the award was entered as judgment of sessions, and the costs taxed after the sessions, and an order subsequently drawn up confirming the rate and ordering the appellants to pay the costs so taxed: Held that the order was valid.-Southampton Gas-Light & Coke Co. v. Guardians of Southampton, L.R. 2 Q.B.D. 571; 36 L.T. 548; 25 W.R. 671. (iv.) C. P. Div.-Costs of Reference-Jurisdiction.-When order by consent provides that costs of action and application to refer are to abide event of award, but is silent as to costs of reference, the arbitrator has no power to award them, but each party must pay his own costs thereof.Bullen v. King, 36 L.T. 732. (v.) C. A.—Motion to set aside Award-Time-9 & 10 Will. 3, c. 15 s. 2.A motion to set aside an award must still be made before the last day of the next term, according to the old computation, after publication of the award, notwithstanding s. 23 of the Judicature Act, 1873.-Governors of Christ's College v. Martin, 36 L.T. 537; 25 W.R. 637. Banker: (viii.) Ex. Div.-Misrepresentation.-The public officer of a bank is not liable for misrepresentation by manager.--Hosegood v. Bull, 36 L.T. 617. Bankruptcy :— (cv.) C. A.-Abatement of Action.-On bankruptcy or liquidation of a sole plaintiff he ceases to have any further interest in the action, but the action does not abate, and the trustee can obtain an order of course to carry it on.-Jackson v. North-Eastern Rail. Co., 36 L.T. 779; 25 W.R. 518. (cvi.) C. J. B.-Act of Bankruptcy-Intent to Defeat Creditors. Where in petition for adjudication the act of bankruptcy alleged was that debtor, being a trader, "absented himself," but not that he did so "with intent to defeat or delay creditors": Held that the omission was fatal and the adjudication must be annulled.-Ex parte Skelton, Re Skelton, 36 L.T. 806; 25 W.R. 800. (cvii.) C. J. B.-Act of Bankuptcy-Preference-Banker's Lien.—Bankers agreed to allow W. to overdraw his account on a guarantee by sureties to the amount of £1,800: W.'s overdraft exceeded £2,400, and being pressed to reduce the debt he handed to the manager cheques and bills to the amount of £2,460 and shortly afterwards filed liquidation petition: Held that banker's lien attached and that the payment was neither a fraudu. lent preference nor act of bankruptcy.-Ex parte Carlisle Banking Company, Re Walton, 36 L.T. 522. (cviii.) C. A.—Appeal.—An appellant in bankruptcy will not be allowed to raise on appeal a new case inconsistent with the case originally raised.— Re Walton, Ex parte Reddish, 25 W.R. 741. (cix.) C. J. B.-Appeal-County Court Order-Jurisdiction.-The Chief Judge has jurisdiction to hear appeal from a county court order made on request of Court of Bankruptcy.-Re Vaughan & Co., Ex parte Jackson, Gill, & Co., 36 L.T. 711; 25 W.R. 561. (cx.) C. A.-Appeal-Time.-The fact that 21 days from date of an order in bankruptcy expire on a day when the Registrar's office is closed is not a reason for extending the time within which notice of appeal must be given. -Ex parte Saffery, Re Lambert, L.R. 5 Ch. 365; 36 L.T. 532; 25 W.R. 572. (cxi.) C. A.-Bill of Exchange-Proof.-M. lent money to K. on security of bills accepted by K., and of assignment of debts due to K. with notice to debtors: M. discounted the bills with his bankers, who, on K.'s liquidating, proved for the full amount thereof the trustee collected the assigned debts: Held that M. was not eutitled to the proceeds unless he took up the bills.-Ex parte Mann, Re Kattengell, L.R. 5 Ch. D. 367. : (cxii.) C. A.-Bill of Sale-Constructive Possession.-Holder of unregistered bill of sale must take actual physical possession of the goods before default to entitle him to hold them.-Re Henley, Ex parte Fletcher, 36 L.T. 758; 25 W.R. 573. (cxiii.) C. J. B.-Bill of Sale.-Successive renewals of a bill of sale to defeat the operation of the Bankruptcy Laws are utterly invalid.-Re Pellew, (cxiv.) C. A.-Bill of Sale.-Traders assigned whole property to secure past (cxv.) C. A.-Composition- Debtor's Statement.- Decision of C.P. Div., Bankruptcy (lxxxiv ), p. 85, reversed, and held that plaintiffs were not barred from suing on the award for the full amount.-Melhado v. Watson, L.R. 2 C.P.D. 281; 36 L.T. 724; 25 W.R. 562. (cxvi.) C. A. Composition-Default — Adjudication.· Where default had been made in payment of a composition secured by the promissory notes (cxvii.) C. A.- Composition-Resolutions — Objection to Proof.-Proof of a (cxxi.) C. summons: A.-Jurisdiction-Injunction-Gas-Distress.-Held that the exercise by virtue of a Justice's warrant of the power of distress given to a gas company by their special Act for the purpose of enforcing payment of money due for supply of gas, in such Act called "rent," was a "legal process" restrainable by injunction.-Re Hill, Ex parte Roberts, 25 W.R. 781. (cxxii.) C. A.-Liquidation-Examination.-A trustee in liquidation, if not satisfied with information given by debtor, may summon him for examination without proving any default: decision of V. C. B., Bankruptcy (xxiii.), p. 6, reversed.-Ex parte Close. Re Bennett & Glave, L.R. 5 Ch. 145; 36 L.T. 429. 25 W.R. 504. (cxxiii.) Ch. Div. V. C. B.-Liquidation—Order and Disposition.—In action for specific performance of agreement to execute bill of sale, a receiver was appointed and took possession of the goods: next day the debtor ་ filed a liquidation petition: Held that the possession of the receiver took the goods out of the order and disposition of debtor.-Taylor v. Eckersley, 36 L.T. 442; 25 W.R. 527. (cxxiv.) C. J. B.-Liquidation-Receiver.-Where a receiver has been appointed by the Court, a nominee of majority of creditors will not be substituted for him unless special grounds are shown.-Ex parte Rylands, Re Chester, 36 L.T. 524; 25 W.R. 786. (cxxv.) C. J. B.-Order and Disposition.-A. purchased her father's furni. ture from his trustee in liquidation, but no assignment thereof was made to her she continued to live with her father, whose name was on the door of the house, and who paid the rates and taxes: Held that on the father's bankruptcy the furniture passed to his trustee.-Ex parte Moore, Re Cook, 36 L.T. 560. (cxxvi.) C. A.-Detinue-Proof.—D. recovered judgment against W. in action for detinue of a mare for £60: W. became bankrupt before execution, and sheriff was restrained by injunction from levying: D. proved for the £60 and costs, but the trustee neither allowed nor rejected the proof: subsequently D. saw the mare in possession of W., and caused her to be removed by the sheriff: Held that property in the mare was not divested from D., and that he was entitled to the mare.-Re Ware, Ex parte Drake, 36 L.T. 677; 25 W.R. 641. (cxxvii.) C. A.—Proof-Surety.-Where surety holding security does not prove in principal's bankruptcy, unsecured creditors in respect of the same debt may prove for full amount thereof. Decision of C. J. B. reported sub. nom., Ex parte Braithwaite, Re Yewdall, 36 L.T. 520; 25 W.R. 635, affirmed.-Re Yewdall, Ex parte Barnfather, 25 W.R. 742. (cxxviii.) C. A.-Proof-Proxy-Liquidator.-The liquidator of a company in his affidavit of proof against a bankrupt's estate for a debt due to the company described himself as such liquidator: at the foot of the affidavit was a proxy in this form, "I appoint T. and D. jointly and severally my proxy," which he merely signed with his own name: Held that the proxy was good.-Ex parte Taylor, Re Pooley, 36 L.T. 679; 25 W.R. 641. (cxxix.) C. A.-Stoppage in Transitu-Bill of Lading.-Decision of Q.B. Div., Bankruptcy (ciii.), p. 87, reversed, and held that bonâ fide delivery of bill of lading for past valuable consideration destroys vendor's right to stop goods in transitu.-Leask v. Scott, L.R. 2 Q.B.D. 376; 36 L.T. 784; 25 W.R. 654. Bill of Exchange:— (vi.) C. A.-Specific Appropriation-Lien-Equitable Assignment.-Decision of V. C. H., Bill of Exchange (v.), p. 51, reversed.-Ranken v. Alfaro, 36 L.T. 529. Bill of Sale : (ix.) C. J. B.-Registration-Assignment.-An assignment after the Bill of Sales Act, 1854, of a bill of sale executed before the Act does not require registration.-Re Shaw, Ex parte Shaw, 36 W.R. 805; 25 W.R. 686. (x.) Q. B. D.-Registration-Renewal.-Where a bill of sale has not been renewed every five years, as required by 29 & 30 Vict. c. 96, s. 4, the assignee of the grantee's interest has no title against an execution creditor.-Karet v. Kosher Meat Supply Association, L.R. 2 Q.B.D. 361; 36 L.T. 694; 25 W.R. 691. Charity: (ii.) C. A.-Endowed School-Action for Recovery of Land--Consent of Charity Commissioners.—Decision of M. R., Charity (i.), p. 88, affirmed. -Holme v. Guy, 36 L.T. 600; 25 W.R. 547. |