of Rushall Hall, Staffordshire, Dean of Hereford. Born 1814. Educated at Eton and Univ. Coll. Oxon. (B.A. 1837, M.A. 1839). Practised as a special pleader 1840-8, in which latter year he was called to the Bar by the Inner Temple, and went the Northern Circuit. Q.C., 1861. Appointed a Lord Justice of Appeal in the High Court of Chancery, 1870.

20. MORRISON, John, Esq., Advocate (Scot.) Called 1855. 13. QUINLAN, James William, Esq., Solicitor (Irel.).

18. RICE, Michael, Esq., Solicitor (Irel.).

4. ROBINSON, Henry Meggison, Esq., Solicitor, Bristol, aged 48. Admitted 1852.

17. TINCLER, Francis Green, Esq., Solicitor (Irel.).

27. TOMLINSON, Thomas, of the Middle Temple, Esq., Barrister-at-law, M.A., Trin. Coll. Dub., aged 39.

1. WARNER, John, of the Inner Temple, Esq., Barrister-at-law, aged 71. Called 1830.

2. WASON, James, Esq., Solicitor, Birkenhead, Registrar of Birkenhead County Court, aged 72. Admitted 1829.

8. WILKINSON, Thomas, Esq., Solicitor, Canterbury, aged 80. Admitted 1833.

July.

8. ALLOWAY, Robert Morellet Montgomerie, Esq., Barristerat-law (Irel.), M.A., Trin. Coll. Dub., J.P. for Queen's County, aged 70.

14. CARRICK, William, Esq., Solicitor, Coroner for the Eastern Division of Cumberland, aged 73. Admitted 1827.

5. COOKSON, William Strickland, Esq., Solicitor, aged 77. Admitted 1823. For many years Treasurer of the Social Science Association, and Representative of the Incorporated Law Society on the Council of Law Reporting.

4. JACKSON, William Henry, Esq., Solicitor (Irel.), aged 66. 8. MARSHMAN, John Clark, Esq., Barrister-at-law, C.S.I., of Serampore, India. Eldest son of the well-known Dr. Marshman, Baptist Missionary there, and brother-in-law of the late General Sir Henry Havelock. Founder of the first Bengalee newspaper, and of the "Friend of India," the first English weekly in India. Besides his great work the "History of India," he was author of a "Guide to the Civil Law," and other popular Anglo-Indian law works.

6. PHILPOT, Henry, Esq., Solicitor. Admitted 1863.

10. SHEIL, Joseph Robert, Esq., M.A., LL.B., Solicitor (Irel.), aged 28.

17. WHITE, Patrick A., Esq., Solicitor (Irel.), aged 30.

Quarterly Digest

OF

ALL REPORTED CASES,

IN THE

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

FOR AUGUST, SEPTEMBER, AND OCTOBER, 1876. By L. G. GORDON ROBBINS, Barrister-at-Law.

Administration;

(i.) C. P. Div.-Account-Counter-claim.-An administrator may maintain an action for the whole of a debt due to the intestate, and when an order bas been made in the Chancery Division for an account, the debtor cannot set up a counter-claim in respect of a debt due to him from the estate, but must prove for it in the Administration action.-Newell v. National Provincial Bank, L.R. 1, C.P.D. 496; 45 L.J., C.P. 285; 24 W.R. 458. (ii.) Ch. Div. V. C. B.-Costs-Probate-Jurisdiction.-The House of Lords in an appeal from the Probate Court, ordered the costs to be paid out of the estate: Held that the Court of Probate having jurisdiction only over personalty, such costs could not be charged on the real estate.Charter v. Charter, 45 L.J., Ch. 705; 34 L.T. 412; 24 W.R. 874.

(iii.) P. D. & A. Div.-Injunction.-Plaintiff claimed administration as next of kin of intestate; defendant, who alleged herself to have been the wife of deceased, possessed herself of his personalty; on ex parte application of plaintiff after issue of writ, but before service, Court granted an injunction to restrain defendant from dealing with the property until further order.-Brand v. Mitson, L.J. 45, P.D. A. 41; 34 L.T. 854; 24 W.R. 524.

(iv.) P. D. & A. Div.-Limited Grant.- Where an executor's executor was out of the jurisdiction, the Court granted administration with the will annexed to the nominee of parties interested, limited to a particular fund.—In the goods of Grant, 45 L.J., P.D. A. 88; 24 W.R. 929.

(v.) P. D. & A. Div.-Limited Grant.-Administration of estate of A. was granted to B. a creditor who became bankrupt; B.'s trustee assigned the debts due from his estate to C., also a creditor; a grant de bonis was made to C. limited to B.'s interest.-In the goods of Burdett, 45 L.J. P.D.A. 71; 84 L.T. 855.

(vi. Ch. Div.-Partnership.-Where a partner since deceased had misappropriated partnership property: Held that the trustee in Bankruptcy of the surviving partners was entitled to prove against the separate estate of the deceased partner for the amount misappropriated.-Lacey v. Hill, Bailey's claim. 35 L.T. 149.

(vii.) Ch. Div. V. C. H.-Real Estate-Sale.-Where the executrix of a deceased trustee who had committed a breach of trust admitted assets, but afterwards withdrew admission: Held that cestuis que trustent, who

Α

had instituted an administration suit were entitled to file a petition under 13 & 14 Vict. c. 86, s. 55, for sale of deceased trustee's real estate before the chief clerk had made his certificate as to the amount of liability.Bell v. Turner, L.R. 2 Ch. D. 409; 45 L.J. Ch. 681; 24 W.R. 451.

Agreements and Contracts :

(i.) H. L.-Agency.-Where two persons agree that, for a fixed time, one shall employ the other as sole agent at a certain place, and that the latter will not act there for any other principal, there is no implied contract that the employer will not part with the business during the time named.-Rhodes v. Forwood, L.R. 1, App. 256; 34 L.T. 890; 24 W.R. 1078.

(ii.) C. P. Div.-Breach of Contract.- Measure of damages.-Plaintiff contracted to construct a tramway, and made a sub-contract with defendants whereby they agreed to lay down and maintain in good repair asphalte on the roadway; in consequence of defective state of the asphalte, H. was injured and brought action. Plaintiff called on the defendants to defend the action, and on their refusal resisted and afterwards compromised it for £70; he had also to pay £58 for costs of the litigation; the jury found that the resistance and ultimate compromise were reasonable. Held that the defendants were liable for the £70 but not for the costs, as not being "natural or necessary consequence of their default."-Fisher v. Val de Travers Asphalte Co., L.R. 1 C.P.D. 511.

(iii.) C. P. Div.—Building Contract.—Held on the construction of a building contract, that clauses with reference to avoidance of the contract and forfeiture of implements and materials, could only be enforced before the time originally fixed for completion of the works had expired.- Walker v. London & North Western Railway Co., L.R. 1, C.P.D. 518.

(iv.) Ex Div.-Construction.-E. S., a widow, being unable to pay her debts to plaintiff, it was agreed that in consideration of regular payment of interest thereon, he would forego his claim to the principal during her life, and her daughters agreed to pay the principal "out of her estate at her decease" the widow had then or thereafter no property except a life estate in freehold property, of which the daughters at her death became tenants in common in fee: Held that plaintiff having brought an action on the daughters' undertaking was rightly non-suited.-Brown v. Fletcher, 35 L.T. 165.

(v.) Q. B. Div.-Construction-Arbitration.-Defendants sold to plaintiff certain goods guaranteeing their quality: it was also agreed that in case of dispute arising out of the contract the matter should be referred to arbitration within 14 days of landing: Held on construction of the contract that the agreement to refer was a condition precedent to action for damages. -Pompe v. Fuchs, 34 L.T. 800.

or

(vi.) Q B. Div.-Contract of sale.-Contract for sale of goods to be shipped in the months of March and April"; the goods were actually shipped in February: Held that consignee was not bound to accept the goods.Shand v. Bowes, L.R. 1 Q.B.D. 470; 45 L.J. Q.B. 507; 34 L.T. 795; 24 W.R. 734.

(vii.) C. P. Div.-Contract of Sale.-Vendor of goods contracted in writing to deliver them "75 tons at once, and 75 in July next." By end of July only 75 tons had been delivered; in October, at verbal request of defendant, goods were forwarded to him, but were not accepted: Held that no action was maintainable under the original contract, nor was there any new contract to support action for goods sold and delivered.-Plevins v. Downing, L.R. 1 C. P. D. 220; 45 L.J. C.P. 695; 35 L.T. 263.

(viii.) Ex. Div.-Contract of Sale-Strike.-Plaintiffs contracted to supply coals daily to defendants, vendors not being bound to keep up deliveries in event of a colliers' strike: on 28th of March a strike was brought about, owing to reduction of colliers' wages by plaintiffs, and the pits

remained closed till 28th July: Held that defendants could not repudiate the contract, but must accept undelivered coal.-King v. Parker, 34 L.T. 887. (ix.) Contract of Sale-Unpaid Vendor-Lien-Estoppel.-Defendants sold goods to R. & Co., and delivered to them a written undertaking to deliver the same to order. B. & Co. sold to plaintiffs and received the price, and afterwards failed: Held that the undertaking did not estop defendants from setting up their lien as unpaid vendors.-Farmiloe v. Bain, L.R. 1, C.P.D. 445; 45 L.J. C.P. 264; 34 L.T. 324.

(x.) Ch. Div. M. R.-Rescission.-An Actress having been engaged by defendants to perform in a new Opera, was unable through illness to perform on the opening or earlier nights, whereby the manager was obliged to engage another actress to take the part: Held that the failure of consideration justified defendants in rescinding the contract.-Poussard v. Spiers, L.R. 1, Q.B.D. 410; 45 L.J. Q.B. 621; 34 L.T. 573; 24 W.R. 819.

(xi.) C. A.-Specific Performance.-Defendant verbally agreed to purchase a horse, his solicitor next day wrote a letter stating terms of arrangement, enclosing draft contract for perusal: Held that the solicitor's letter was not a memorandum of agreement under Statute of Frauds, and that specific performance could not be decreed.-Smith v. Webster, L.R. 3, · Ch. D. 49; 45 L.J. Ch. 430; 35 L.T. 44; 24 W.R. 894.

(xii,) C. A.—Specific performance.-Where demurrer to bill for specific performance on ground that agreement is invalid under Statute of Frauds, has been overruled, the defence of the Statute, only raised by demurrer, may be relied on.-Johnassen v. Bonhote, L.R. 2, Ch. D. 298; 45 L.J. Ch. 651; 34 L.T. 745; 24 W.R. 619.

Arbitration:

(i.) Q. B. Div. -Submission.-Held that Common Law Procedure Act, 1854, s. 11, does not affect right of either party to revoke submission not made rule of Court.-Randall v. Thompson, 45 L.J. Q.B. 713; 33 L.T. 193; 24 W.R. 665.

Banker :(i.) Ex. Div. -Cheque.-A cheque crossed L. & C. Bank drawn by plaintiff on W. & Co. his bankers, was stolen and paid with forged indorsement to defendant by a customer: defendant presented the cheque through bankers other than the L. & C. Bank to W. & Co., who paid it; the jury found that all parties except defendant had acted negligently. Held that defendant was liable to plaintiff for amount of the cheque.- Bobbett v. Pinkett. L.R. 1 Ex. D. 368; 45 L.J. Ex. 555; 34 L.T. 851; 24 W.R. 711. (ii.) C. P. Div.-Cheque.-Held that a signature "S. & Co. per S.K. agent endorsed on a cheque payable to S. & Co., was a signature "per procurationem," and that bankers paying such cheque were protected by 16 & 17 Vict. c. 59, s. 19.—Charles v. Blackwell, L.R. 1 C.P.D. 548; 45 L.J. C.P. 542; 35 L.T. 162; 24 W.R. 737.

(iii.) H. L.-Cheque.-M. on 11th of February purchased of L. foreign bills at 15 days' date, which, by custom of the trade were payable on the 14th of February; L. being indebted to plaintiffs, his bankers, gave them a stamped paper dated 14th of February requesting M. to pay to them the price of the bills, and M.'s agent accordingly handed to them a cheque for the amount, but, L. having stopped payment that day, he directed his bunkers not to pay the cheque; the bills were dishonoured. Held that the bills notwithstanding their subsequent dishonour were a good consideration for the cheque, and that plaintiffs had a lien thereon for L.'s antecedent debt.-Misa v. Currie, 24 W.R. 1049.

(iv.) C. P. Div.-Draft-Forged endorsement.-A draft specially endorsed was stolen and presented with forged endorsement at bank of defendants who

procured the money for the presentor: Held that defendants were not protected by 16 & 17 Vict. c. 59, s. 19, from liability to account to the last rightful holder of the draft.-Arnold v. Cheque_Bank, Arnold v. City Bank, L.R. 1, C.P.D. 578; 45 L.J. C.P. 562; 84 L.T. 729; 24 W.R. 759. Bankruptcy:(i.) C. J. B.-Act of Bankruptcy.-A. gave B. a bill of sale over all his property to secure a past debt, and also a further advance to enable A. to meet a bill to which he had forged B's. name: B. sold the property under the bill of sale, and A. was subsequently adjudicated bankrupt: Held that the bill of sale being given to compound a felony was absolutely void and an act of bankruptcy.-Ex parte Caldecott, Re Mapleback, 35 L.T. 172.

(ii.) C. A.--Act of bankruptcy- Bill of sale.-Trader agreed with his brother to execute bill of sale to secure past debt and further advance of £150; three advances of £50 were made at intervals and on last advance the bill of sale was executed; the brother subsequently made a further advance of £100 and a month later a creditor presented a petition for adjudication on the ground that the bill of sale was an act of bankruptcy: Hela that the execution of the bill of sale was not an act of bankruptcy.-Ex parte King, Re King, L.R. 2, Ch. D. 256; 45 L.J. Bptcy. 109; 34 L.T. 466; 24 W.R. 559.

(iii.) C. A.-Act of Bankruptcu-Notice.-A creditor who receives notice of debtor's intention to commit act of bankruptcy is not bound to inquire whether such act has been committed, but may avail himself of his remedies notwithstanding such notice.-Ex parte Arnold, Re Wright, L.R. 3, Ch. D. 70; 45 L.J. Bptcy. 130; 35 L.T. 21; 24 W.R. 977.

(iv.) C. A.-Adjudication.-Where adjudication of bankruptcy was made, the alleged act of bankruptcy being the execution of a bill of sale, Held that the holder of the bill was entitled to appeal from the adjudication. Er parte Ellis, re Ellis, L.R. 2 Ch. D, 797; 34 L.T. 705.

(v.) C. J. B.-Adjudication.-Debtor's solicitor by mistake omitted to give notice of intention to dispute debt, but at the hearing applied for leave to do so, and for adjournment; county court judge refused and adjudicated the debtor bankrupt: Held that adjudication must be annulled.—Er parte Dale, Re Dale, 45 L.J. Bpcy. 129; 34 L.T. 745; 24 W.R. 852. (vi.) C. J. B.-Attachment.-The Court will in no case dispense with the three days' notice of an application to commit required by Bankruptcy Rules, 1870, r. 179.-Re Bryant, 35 L.T. 173.

(vii.) C. J. B.—Bill of Sale-Trustee in liquidation.-Debtor, by unregistered bill of sale, assigned all his property to A.; by a subsequent registered bill of sale he assigned it to B. and then filed a petition for liquidation: Held that after the petition A's security was gone, and B, having a good bill of sale, was entitled against the trustee.-Ex parte Cochrane, Re Barraud.-45 L.J. Bpcy. 122; 34 L.T. 959.

(viii.) C. A.-Bill of Sale-Trustee in liquidation. -A. assigned furniture, by unregistered bill of sale; default having been made, creditor demanded the furniture and threatened to take it by force from the owner of a house where A. had placed it. A., however, did not deliver up the goods until she filed a petition for liquidation: Held that the goods were in possession of A, within 17 & 18 Vict. c. 36, and that the trustee in liquidation was entitled.-Ancona v. Rogers, L.R. 1 Ex. D. 285; 35 L.T. 115; 24 W.R

1000.

(ix.) C. J. B.-Composition-Costs.—The Court of Bankruptcy has jurisdiction to order taxation of costs in composition cases.-Ex parte Shepherd, Re Dixon, 24 W.R. 931.

(x) C. P. Div.-Composition-Debtors' Statement.-Under Bankruptcy Act 1869, s. 126, Creditors assenting to Composition are bound, though their names, &c., are not inserted in debtor's statement; also, where a sum