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Archivio Giuridico. Vol. 34, No. 1. Pisa, 1885.

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Tango-Contabilità di Stato: Cantarelli-The date of the Lex Iunia Norbana Rinaldi-On certain questions of preference between creditors : Lordi-Questions under art. 819 of the Civil Code: Buonamici-Letter on a new, apparently very bad, edition of the Institutes-Reviews.

Rassegna di Diritto Commerciale Italiano e Straniero. Vol. 2, No. 5, Jan. 1885. Turin.

Dove Wilson-Codification of British Commercial Law: E. Adan-The contract of life assurance: Santoni de Sio-La Cambiale in fiera (posthumous): Salvatore Sacerdote-Should brokers need a licence? Book notices -Reports of cases-Translation of English Bankruptcy Act, 1883, concluded.

Il Filangieri: Rivista Giuridica Italiana di Scienza, Legislazione e Giurisprudenza. Part 1, Jan. 1885. Naples.

Celestino Summonte-Reform of local Government: Manara-Special conditions in contracts of carriage: Napodano-Draft Penal Code: Vivante-Agents of insurance companies: Reviews. The Editor (Prof. Alberto Marghieri) announces that in future numbers reports will appear of cases decided in all the superior Courts of Italy.

The Contents of Number III of the LAW QUARTERLY REVIEW (to be published on July 1) will probably include:

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Some Results of the Judicature Acts. By Lord Justice BowEN.
The Position of the Legal Profession. By E. S. Roscoe.
Agreement in Contract. By Prof. T. E. HOLLand.

The Law of Insurance.

By A. COHEN, Q.C., M.P.

The Seisin of Chattels. By F. W. MAITLAND.

A Difficulty in the Doctrine of Consideration. By Dr. E. GRUEBER.

Mistake of Law as a Ground of Equitable Relief. By MELVILLE M. BIGELOW.

Justice in Egypt. By HAROLD A. PERRY.

Digest of Cases. By EDWARD MANSON.

The Editor cannot undertake the return or safe custody of MSS. sent to him without previous communication.

DIGEST OF CASES

REPORTED IN

THE LAW REPORTS, THE LAW JOURNAL, THE WEEKLY REPORTER, AND THE LAW TIMES,

FROM

DECEMBER 1884 TO MARCH 1885.

By EDWARD MANSON,

OF THE MIDDLE TEMPLE, BARRISTER-AT-LAW.

ADULTERATION.-Sale of Food and Drugs Act-'Milk'-Skimmed Milk.-A milkseller sold as 'milk' milk which had been skimmed and thereby lost 60 per cent. of the butter fat which it would have had in its natural state: Held, not an offence under sect. 6 of the Food and Drugs Act, 1875. (Dec. 15, 1884.) Lane v. Collins, 14 Q. B. D. 193.

ARBITRATION.-Award—Time for making-Enlargement—Agreement –Jurisdiction.— An award was made after the time fixed by the submission for making it had expired : Held, in an action upon the award, that the Court had power under sect. 15 of the Common Law Procedure Act to enlarge the time for making the award. (August 12, 1884.) May v. Harcourt, 13 Q. B. D. 688.

ARTIZANS' DWELLINGS ACT.-Taking Land-Award — Appeal — Interest — Taking Possession.—A Corporation paid into Court the price as assessed by arbitration of land taken under the Artizans' Dwellings Act, and being satisfied with the title entered into possession. The owner appealed to a jury and was awarded a larger sum: Held, that he was entitled to interest at 4 per cent. on the larger sum from the date of the Corporation entering into possession. (Chitty J., July 22, 1884.) Re Shaw and the Birmingham Corporation, 27 Ch. D. 614; 33 W. R. 74; 54 L. J., Ch. 51. ATTACHMENT OF DEBTS.-Judgment Debt-Attachment after six years - Statute of Limitations.—A creditor of a judgment creditor more than six years after the date of the judgment obtained a garnishee order attaching the debt: Held, that his rights against the garnishee debtor were not barred by the Statute of Limitations. (Dec. 16, 1884.) Fellows v. Thornton, 33 W. R. 258. BANKER.-Liability-Crossed Cheques-Unauthorised signature per proc.—Inquiry― Negligence-Bills of Exchange Act, 1882.-An agent fraudulently paid into a bank of which he was a customer crossed cheques received by him for his principal, indorsing them per proc. without authority. The bank collected the cheques and the agent absconded with the proceeds. The bank made no inquiry as to the customer's authority to sign per proc.: Held, that having been guilty of negligence they were not protected by sect. 82 of the Bills of Exchange Act, 1882. Cheques do not become 'crossed cheques' within sect. 82 by being crossed by a banker for collection. (Nov. 15, 1884.) Lissell v. Fox, 51 L. T. R. 663.

BANKRUPTCY.-Act of Bankruptcy-Assignment for benefit of Creditors-Receiving Order -Liability of Trustee of Deed as trespasser.-R., a trader, executed an assignment for the benefit of his creditors generally. V. was appointed trustee of the deed and carried on the debtor's business under it. A receiving order was afterwards made on the petition of non-assenting creditors against R., founded on the assignment as an act of bankruptcy: Held, that the official receiver under the bankruptcy was entitled at his option to treat V. as a trespasser or as his agent: and the receiver electing

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to treat him as a trespasser an account was directed of the value of the bankrupt's property received by V. Conf. Re Richards, 32 W. R. 1001. Re Riddcough, Ex parte Vaughan, 14 Q. B. D. 25; 33 W. R. 151.

Act of Bankruptcy-Payment to Creditor's Agent pending Petition-Relation back of Trustee's Title-Liability of Agent.-The solicitor of a petitioning creditor pending the hearing of the petition received from the debtor various sums on account in consideration of successive adjournments of the hearing of the petition, and paid over the sums so received to his principal. An adjudication was afterwards made on the petition: Held, that the solicitor having received the money with notice of an act of bankruptcy to which the trustee's title related back, was personally liable to repay the amount to the trustee in bankruptcy. (C. A., Aug. 4, 1884.) Re Chapman,

Ex parte Edwards, 13 Q. B. D. 747.

Costs-Shorthand Notes of Evidence- Appointment obtained by one Party-Application to allow after Hearing.-A trustee in bankruptcy who was respondent to an appeal obtained the appointment of a shorthand writer under Bankruptcy Rules, 1870, R. 207, to take notes of the evidence. The appeal was dismissed with costs, but no application was made at the time to allow the shorthand notes: Held, on a subsequent application, that the appointment having been obtained at the instance of one party only, he could not, though successful, be allowed the costs in the absence of special circumstances; secus had the appointment been by both parties: Held, also, that the trustee ought to have made the application at the hearing, and must pay the costs of the subsequent application. (Nov. 18, 1884.) Re Day, Ex parte Speed, 33 W. R. 80.

County Court Judge-Jurisdiction to Commit-Order to attend as Witness-Noncompliance.-Section 66 of the Bankruptcy Act, 1869 (Bankruptcy Act, 1883, sect. 100), gives to a County Court Judge sitting in bankruptcy power to commit a person who has been ordered to attend as a witness under sect. 96 (Bankruptcy Act, 1883, sect. 27), and has not complied with the order. (C. A., May 30, 1884.) Reg. v. Judge of Croydon County Court, 53 L. J., Q. B. 545; 32 W. R. 68; 51 L. T. R. 102.

Discharge-Certificate of Conformity-Suspension — Bankruptcy Act, 1849—Afteracquired Property—Chief Clerk's Certifiate—Summons to Vary.-Where the Court had in 1848 adjudged that the grant of a bankrupt's certificate of conformity be suspended for three years: Held, that by sect. 199 of the Bankruptcy Act, 1849, the order operated on the expiration of the period of suspension as a complete discharge to the bankrupt, and that property acquired by him after that date belonged to him and not to his official assignee. An extension of time for applying to vary the Chief Clerk's certificate granted at the hearing on further consideration on the applicant undertaking to take out a summons pro forma. (Pearson J., July 29, 1884.) Re Dore, Bousfield v. Dove, 27 Ch. D. 687; 53 L. J., Ch. 1099; 33 W. R. 197.

Disclaimer-Agreement for Lease-Assignment—Continuing liability—‘Land burthened with onerous covenants'—' Property.'—M., being in possession of premises under an agreement for a twenty-one years' lease, assigned his interest and gave up possession to a company, remaining however liable to the lessors under the agreement. A receiving order was afterwards made against M., and his trustee applied for leave to disclaim the property as 'land burthened with onerous covenants' within the Bankruptcy Act, 1884, sect. 55, sub-sect. 1: Held, that he must have leave to do so: property in this sub-sect. not being confined to the property divisible among the bankruptcy creditors in sect. 44. (Jan. 19, 1885.) Re Maughan, Ex parte Monkhouse, 54 L. J., Q. B. 128; 33 W. R. 308. Disclaimer of Lease-Leave-Fixtures-Trustee's right to.-Where a trustee applied for leave to disclaim leasehold property of the bankrupt and there were fixtures on the premises, the Court gave the trustee leave to disclaim with liberty to remove the fixtures upon paying the rent due, or, at the option of the landlord, to surrender the fixtures as an equivalent for the rent. (Aug. 13, 1884.) Re Moser, Ex parte Painter, 13 Q. B. D. 738; 33 W. R. 16.

Disclaimer of Lease-Leave-Terms-Indemnity to retired Partner.-T., a retiring

BANKRUPTCY-(continued).

partner, covenanted to stand seised of his interest in a lease granted to himself and S. his co-partner, upon trust for S., who was continuing the business. S. became bankrupt, and T. had to pay the rent to the landlord during the trustee's occupation: Held, on an application by S.'s trustee for leave to disclaim, that as a condition of doing so the trustee must repay to T. what T. had paid to the landlord. (C. A., July 11, 1884.) Re Salkeld, Ex parte Good, 13 Q. B. D. 731; 32 W. R. 22.

Disclaimer of Lease-Leave-Terms-Vesting Order.-Where mortgagees of a lease had deposited it with their bankers C. & Co. to secure an advance and were afterwards adjudicated bankrupts, the Court in granting leave to the trustee to disclaim put C. & Co. to their election to take a vesting order within fourteen days or to be excluded from all interest in the property. (Nov. 24, 1884.) Re Parker & Parker, Ex parte Turquand, 51 L. T. R. 667.

Disclaimer of Tenancy-Liability of Trustee-Use and occupation-Terms.-The trustee of a bankrupt on Oct. 10, 1883, entered into possession of premises occupied by the bankrupt as tenant from year to year, and remained in possession till Jan. 28, 1884, paying rent down to Dec. 25. On Feb. 24, 1884, the trustee obtained leave to disclaim: Held, on a claim for rent from Dec. 25, 1883, to Jan. 28, 1884, that the trustee's personal liability was extinguished by the disclaimer, and that the landlord's proper course was to have applied to have the trustee put on terms in disclaiming. (June 30, 1884.) Gabriel v. Blenkenstein, 13 Q. B. D. 684; 33 W. R. 151.

Official Receiver-Powers of-Sale of Debtor's property.—An official receiver in bankruptcy in his capacity of receiver and manager has, under sect. 70 of the Bankruptcy Act, 1883, only the same powers as a receiver or manager appointed by the High Court. He cannot, except where acting as trustee, sell or dispose of the property of the debtor other than perishable goods. Quære, whether an order of the Board of Trade would justify a sale by him? (Dec. 16, 1884.) Re Parkers, Ex parte Turquand, 33 W. R. 262.

Petition-Judgment Debt-Appeal pending by Debtor-Adjournment of PetitionDiscretion of Registrar.-Where a judgment creditor has presented a bankruptcy petition founded on non-compliance by the debtor with a bankruptcy notice, and the Regis trar has in the exercise of his discretion under the Bankruptcy Act, 1883, sect. 7, subsect. 4, adjourned or dismissed the petition pending an appeal by the debtor from the judgment, the Court of Appeal will not overrule the registrar's discretion unless the exercise of it has been clearly wrong. If the appeal is plainly a frivolous one, the registrar should make a receiving order; secus if it appears bona fide. (C. A., Nov. 21, 1884.) Re Rhodes, Ex parte Heyworth, 14 Q. B. D. 49.

Petition-Presentation in wrong Court-Receiving Order-Jurisdiction to make. Where a bankruptcy petition had inadvertently been presented in a wrong Bankruptcy Court and on that ground dismissed, the Divisional Court holding that it had jurisdiction under sects. 95, 97 of the Bankruptcy Act, 1883, to do so, made the receiving order which the County Court ought to have made. (Nov. 12, 1884.) Re Wrightmore, Ex parte May, 14 Q. B. D. 37.

Petition Signature by Attorney.-An attorney may sign a bankruptcy petition under Rule 125 of the Bankruptcy Rules, 1883, on behalf of a creditor, if the terms of the power of attorney given him by the creditor authorise him to do so. (C. A., Oct. 31, 1884.) Re Wallace, Ex parte Richards, 14 Q. B. D. 22; 33 W. R. 66; 51 L. T.

R. 551. Petition by Trustee of Debt-Joining beneficial Owner-Act of Bankruptcy—Availability to any Creditor-Amendment.-The rule still obtains under the Bankruptcy Act, 1883, that where a person to whom a debt is due is trustee of it for an absolute beneficial owner, he cannot present a bankruptcy petition against the debtor without joining his cestui que trust as co-petitioner. Where an act of bankruptcy has been committed by non-compliance with a bankruptcy notice any creditor may present a petition founded upon it. Amendment of petition allowed. (C. A., Dec. 5, 1884.) Re Hastings, Ex parte Dearle, 14 Q. B. D. 184.

BANKRUPTCY-(continued).

Preferential Debt-Gas Co.- Rent'-Right to Distrain.-Where a Corporation by its special Act had power to recover from any person any rent or charge due to them by him for gas supplied by the like means as landlords are for the time being by law allowed to recover rent in arrear:' Held, that a distress for gas supplied levied by the Corporation on a customer who had filed a liquidation petition was lawful though the payment for gas was not properly rent,' or the Corporation within the words other person to whom any rent is due,' in sect. 34 of the Bankruptcy Act, 1869. (C. A, August 12, 1884.) Re Peake, Ex parte Harrison, 13 Q. B. D. 753; 53 L. J., Ch. 977. Proof-Judyment after Act of Bankruptcy—Notice-Onus of Proving.-B. obtained judgment (the judgment being the only evidence of the debt) against T. after T. had committed an act of bankruptcy in 1842, but did not attempt to prove until 1883, when large assets became available: Held, that under sect. 165 of the Bankruptcy Act, 1849, that the onus was on B. of showing that when he obtained judgment he had no notice of the act of bankruptcy, and that not having discharged that onus he could not prove for the amount. (C. A.. July 4, 1884.) Ex parte Revell, Re Tollemache (No. 2), 54 L. J., Q. B. 92; 51 L. T. R. 379.

Proof-Judgment in 1842—Inquiry into consideration—Admission by Bankrupt.— A creditor obtained judgment in 1842 against his debtor, but made no attempt at the time to prove in the bankruptcy of the debtor: Held, on a claim by the judgment creditor to prove in 1883, that the Court could and ought to go behind the judgment and inquire into the consideration for it.

A statement of a debt by a bankrupt in his statement of affairs, though verified by oath, is not such an admission against the interest of the debtor as to be evidence of the debt against the creditors after his death. (C. A., June 20, 1884.) Re Tollemache, Ex parte Revell (No. 1), 13 Q. B. D. 720; 54 L. J., Q. B. 89; 51 L. T. R. 376.

Property of Bankrupt-Appropriation of Salary or Income-Professional earnings. -Professional earnings in futuro of a bankrupt bone-setter held not to be 'salary or income' attachable by the trustee under the Bankruptcy Act, 1883, sect. 53, sub-sect. 2. (C. A., Dec. 12, 1884.) Re Hutton, Ex parte Benwell, 33 W. R. 242.

Relation back of Trustee's Title-Payment out of assets to stifle prosecution-Recovery from Payee.-After C. had filed a liquidation petition, C.'s bankers commenced a prosecution against him for obtaining credit by false pretences: but withdrew it on C.'s uncle undertaking to pay the amount obtained by false pretences. The uncle paid the money, but out of C.'s moneys, though not to the knowledge of the bank: Held, that the bargain being to stifle a prosecution was a corrupt one and without consideration, and though not impeachable by the uncle was impeachable by the trustee in C.'s liquidation, who was entitled by virtue of the relation back of his title to recover the money from the bank. (Nov. 12, 1884.) Re Campbell, Ex parte Wolverhampton and Staffordshire Banking Co., 14 Q. B. D. 32.

Secured Creditor-Valuation of Security—Amendment-Notice of Appeal-PostingTrustee-Costs of Appearance.—The right of a secured creditor under the Bankruptcy Act, 1883, sched. 2. r. 13, to amend his valuation on showing to the satisfaction of the Court that it was made on a mistaken estimate is not taken away by the existence of a subsequent mortgage. Quære, whether notice of a bankruptcy appeal is sufficient if posted though not received within twenty-one days? A trustee in bankruptcy though served with notice of an appeal ought not to appear merely to ask for his costs. (Dec. 4, 1884.) Re Arden, Ex parte Arden, 14 Q. B. D. 121.

Trustee-Removal of one of several Trustees-Jurisdiction-Cause shown'-Discretion of Registrar. Where there are two or more trustees under a bankruptcy, the Court has jurisdiction upon 'cause shown' under sect. 83 of the Bankruptcy Act, 1883, to remove one of two such trustees without removing the other. The 'cause shown' need not be fraud or dishonesty. Though the removal of a trustee by the registrar is not a pure exercise of discretion, the Court of Appeal will not readily overrule his decision. (C. A., Nov. 28, 1884.) Re Mansel, Ex parte Newitt, 14 Q. B. D. 117; 33 W. R. 142.

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