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DIGEST OF CASES.
For Cases relating to Practice, March under the respective heads of Practice in Bankruptcy—Practice in Chancery—
Practice in Lunacy.
ABROAD—1. In order that the Court may entertain a suit, either the defendants must be domiciled, or the subject matter in dispute must be situated, or the contract must be entered into, or intended to be performed within the territorial jurisdiction of the Court.—Cookney v. Anderson, 1 N. E. 77.
2. Demurrer allowed in a case where the defendants were domiciled, the subject matter was situated, and the contract to be performed in Scotland.—8. c.
3. In 'what cases the jurisdiction of the Court is not extended or increased by the acts and orders authorising service on persons abroad.—s. c.
ACCOUNT.—The common account of the dealings and transactions of co-partners is to be taken according to the articles or usage of the partnership, although no special directions to that effect arc inserted in the decree.— Watney v. WelU, 1 N. B. 82.
ACCOUNT, SETTLED.—1. An account settled and Bigned for the purpose of a post-obit security, is not conclusive between a reversioner and the person dealing with him, so as to preclude the former from impeaching the security. But the right of the reversioner to reopen the accounts does not extend to impeaching previous securities not of a post-obit < haracter forming items in the account.—Tottenham v. Gnen, 1 3f. B. 466.
2. The assignee of a post-obit security takes it with notice of all its incidents, including the right of the reversioner to reopen an account settled between himself and the original mortgagee. The reversioner is not bound, even as against sub-mortgugees, by a recital in the mortgage deed of an account having been go settled.—8. C.
ACCOUNT, WHEN CLOSED.—Semble, a banking account is closed, and, in the absence of any special agreement, ceases to carry interest, as Boon as the relation of banker and customer is determined.—Crossbill v. Bower, Sower v. Turner, 1 N. E. 379
ACCOUNTS, TAKING.—In taking the accounts of a partnersliip, in the absence of any agreement to the contrary, interest will be allowed upon capital subscribed by one partner, where it was originally contemplated that the other should alto subscribe capital, and he has failed to do so.— Mill v. King, 1 N. B. 161.
ACCOUNTANTS' REPORT.— The report of an accountant, to whom accounts bad been referred by the chief clerk, was filed with the certificate, and referred to as part thereof:—
Held, that this course was irregular, aud that admissions of
the defendant set forth in the report could not be looked at to establish against him a case not warranted by the bill.— Sill v. King, 1 N. R. 341.
ACQUIESCENCE.—1. A solicitor was entrusted by a client with money to be lent on mortgage; A, the solicitor, appropriated it to his own use, and afterwards, being pressed by 13, his client, obtained from another client, C, fraudulently and without consideration, mortgages of equitable estates belonging to C, which he handed over to B. A soon after became bankrupt, and nearly three years afterwards C discovered, for the first time, the nature of the transaction between A and B; whereupon he filed a bill against the latter to be relieved from the mortgages :—
Held (affirming the decision of the Master of the Rolls, and reversing that of the Lord Chancellor Campbell), that he was entitled to the relief sought, and that his claim had not been barred by acquiescence or confirmation whilst he was ignorant of the facts constituting his equity.— Wall v. Cochcrell, 1 N. R. 486.
2. Where a deed was executed by a wife, prior to her marriage, which was a fraud on the marital rights of the husband, and the husband, before the marriage, became aware that some instrument had been executed, but such information as he received was incorrect:—
Held, that, although he made no further inquiries relative to it during his wife's lifetime, he was entitled, after her death, to have the deed Bet aside.—Prideatuc v. Lonsdale, 1 N. R. 666.
ACTION, CHOSE IN.—To postpone, on the ground of concealment, and for the benefit of an assignee, an equity binding the assignor, the concealment must have taken place in a transaction which originated or induced the contract of assignment.—Poll v. White, 1 N. R. 171.
ADVOWSON.—Where a testator has devised real estates and advowsons to trustees, upon trusts for the accumulations aud investment of rents and profits, the trustees are bound primu facie to sell, from time to time at their discretion, the next presentations to the several advowsons; and a subsequent clause in the will, or a codicil thereto, directing them to present a particular person to the first of such livings which might fall vacant after he became in a condition to take one, will not preclude the trustees from selling at their discretion a next presentation.—Cuxt v. Middlcton, 1 N. R. 608.
AGREEMENT.—A agreed to act as traveller for B during a certain period, and during that time not to engage in any
other business, with liberty for either party to determine the agreement, on giving six months' notice, and paying 500/. to the other. A gave six months' notice, but refused to pay the Bum :—
Meld, that the agreement was not determined, and an injunction was granted to restrain A from acting contrary to his agreement.—Thornton v. Kendall, 1 N. E. 391.
AMBASSADOR.—A foreign ambassador cannot be impleaded before an English tribunal.—Gladstone v. Musurus Bey, 1 N. R. 178.
ANNUITY.—1. An annuity given by will to one for life, out of the rents and profits of leaseholds, without restriction as to time, and followed by a gift over of "the premises, or such part thereof as shall remain undisposed of" :—
Meld, a charge upon the corpus.—Phillips v. Guttcridgc, 1 N. R. 3.
2. A charged his rents with payment of certain charges and an annuity of 500/. to B, the annuity to be increased to 2000/. after tho charges should have been liquidated out of the rents:—
Meld, that B was entitled to the increased annuity from tho day on which the amount of the rents legally due, if paid, would be held sufficient to liquidate the charges.— Memsworth v. Campbell, 1 N. E. 503.
APPOINTMENT.—1. A bequest to a person "to and for her own absolute use and benefit, in the fullest confidence that she will dispose of the same for the benefit of her children, according to the best of her judgment, und as family circumstances may require at her hands," gives toller a life interest, with a power of appointment among her children.—Shovclton v. ShoreUon, 1 N. E. 226.
2. When an appointment is partly within the pow*cr, and partly in excess of it, but the lawful intention is not so connected with or so dependent on the wrong intention as to be a fleeted by it, the Court will give effect to so much of the appointment as is within the power.—Topham, Lady Mary, v. Duke of Portland, 1 N. E. 496.
APPORTIONMENT.—1. The apportionment must be made with reference to the time when the dividend becomes payable, not to the period during which it was earned.
2. The dividends on shares in companies incorporated by Acts incorporating the Companies' Clauses Act, or containing clauses corresponding to sect. 91 of that Act, are not apportionablc.—Ee MaxweWs Trusts, 1 N. E. 549.
APrOETIONMENT ACT, s. 2.—The dividends on shares in an insurance company whose profits are by its deed of settlement, divisible at fixed periods, are apportionablo under tho apportionment Act. — Ee Maxwell's Trusts, 1 N. E. 549.
APPROPRIATION.—A payment by a surety must be appropriated in accordance with his intention, and cannot be controlled for the benefit of the principal.— Waugh v. Wren, 7 N. E. 142.
AEBITEATION.—1. A contract for the purchase of lands by a railway company from a person under disability can be enforced against the company before the valuation required by the 9th sect, of the Lands Clauses Act, 1845, has been made, and notwithstanding that the company refuses to nominate a surveyor to make such valuation.—Baker v. Metropolitan Railway Company, 1 N. E. 8.
2. Difference between a contract to sell at a price to be determined by arbitration, and a contract which is only to be valid provided the price fixed be not less than the value determined by arbitration.—s. c.
ASSETS.—1. Property appointed under a general power to appoint by will is available, as assets, for payment of the testator's voluntary debts.—Patch v. Shore, 1 N. R. 157
2. The executors of a deceased partner held entitled to have the partnership premises (the freehold of which belonged to the firm), and the business sold in the most advantageous manner, whether as a going concern, or otherwise.—Mall v. Barrows, 1 N. R. 543. See Devise, Specific.
3. The law properly applicable to the distribution of asset3 is the lex fori.—Simpson v. Forjo, 1 N. E. 422.
ASSIGNEE.—The assignee of a. post-obit security takes it with notice of all its incidents, including the right of the reversioner to re-open an account settled between himself and the original mortgagee. The reversioner is not bound even as against submortgagees, by a recital in the mortgage-deed of an account having been so settled.—TottenItam v. Green, 1 N. E. 466.
ASSIGNMENT.—To postpone, on the ground of concealment, and for the benefit of an assignee, an equity binding tho assignor, the concealment must have taken place in a transaction, which originated, or induced the contract of assignment.—Rolt v. White, 1 N. E. 171.
ASSTJEANCE COMPANY.—Where a company, which is being wound up, has been dissolved, and is insolvent, persons having contingent claims against it/ may prove, under the winding-up, against the assets for the present value of those claims.—Ee The English and Irish Church and University Assurance Company. Munt's Case, 1 N. E. 192. See Policy or Assurance.
BALANCE ORDER.—An order in the -winding-up of a
company under the Joint Stock Companies' Act, 1848, requiring a contributory to pay the balance due from him in respect of a call, may be made ex parte.—Re The Warwick and Worcester Railway Company, Ex parte De Beauvoir, 1 N. R. 306.
BANK.—The trustees of a trust deed for creditors, being authorised to carry on a business, and to borrow money from bankers and others, opened an account with a banking house, in which two of the trustees were partners, the third trustee being their cashier, under an arrangemeut that annual rests should be allowed on each side of the account:—
Meld, that no acquiescence or knowledge having been proved against the debtor, the arrangement was not bmdin-r upon him.—Crosskitt v. Bower, Bower v. Turner, 1S.R. 379.
BANKING ACCOUNT.—1. A mortgage was given to bankers by a customer to secure all moneys due, and to become due, to them on his account, with interest at 51. per cent, per annum. The customer afterwards, at the instance of the bankers, assigned all his property, including Ms business, to trustees for the benefit of his creditors :—
Meld, that the mortgage was only a security for the balance due at the date of the assignment, with simple interest from that tune.—Crosskill v. Bower, Bower v. Turner, 1 !N. II. 379.
2. Scmble, a banking account is closed, and in the aTjsence of any special agreement ceases to carry interest as soon as. the relation of banker and customer is determined.—s. c
BANKRUPT.—A bill for relief was filed against a Imnkrupt solicitor and his assignees, alleging that the bankrupt had fraudulently obtained a term in certain freeholds, to which the plaintiff was entitled :—
Held, on demurrer, that a mere allegation of fniud was not sufficient to make the bankrupt a party:—
Held, also, that a partial demurrer was not bad, because the part of the bill covered by it was necessary to make out the plaintiff's title to the relief which was not demurred to.— Gilbert v. Lewis, IN. It. 111.
BANKRUPTCY.—1. The amount due upon an order of the Court of Divorce for payment of costs is not such a debt as will sustain a petition for adjudication in bankruptcy.—Re XiUir, 1 N. K. 310.
2. A deed may be received as evidence of an act of bankruptcy, notwithstanding that it has not been registered under sect. 194 of the Bankrupt.-}' Act, 1861.—Be Wentlcy, Ex parte JFoisfry, 1 N. R 18.3.
3. A bankrupt conveyed real estate, forming the principal part of his property, for the benefit of creditors executing the deed, with a prior trust for payment of his solicitor's debt in full:—
Stltl, in the absence of satisfactory evidence, that the conveyance would not, in fact, delay creditors; this was an act of bankruptcy.—s. c.
4. A debtor residing out of the metropolitan district ought to apply for his release from custody to the Court of the district in which he was resident at the time of arrest, and not to the London Court of Bankruptcy.—He Littlejohnt, 1NB.168.
5. The Court will order the transfer of a petition for adjudication in bankruptcy, and the proceedings thereunder, to a district Court, where there are grounds for believing that the proceedings were instituted by the bankrupt in the London Court, with an intent to elude his creditors.—Ee Barnard, 1 N. E. 231.
6. Where proceedings in bankruptcy have, by an order of tit- Court in London, been transferred to a County Court, there is no longer jurisdiction in the London Court to rescind inch an order.—Be Whittington, 1 N. R. 308.
". Where a trader is pressed to buy goods, and credit is sTtt-n him on references which the seller accepts as satisfactory, the hitter cannot oppose his discharge on the ground that he has incurred a debt without reasonable expectation of payment.—Be Suter, 1 N. E. 231.
8. To postpone, on the ground of concealment, and for the benefit of an assignee, an equity binding the assignor, the concealment must have taken place in a transaction, which wiirinated, or induced the contract of assignment.—Holt v. White, 1 N. R. 171.
9. W had a lien on a chattel belonging to A for an amount exceeding the value of the chattel. A became ;ankrupt, and his assignees in bankruptcy claimed the property in the chattel:—
Held, on appeal, that the property must be secured to W, the assignees refusing to redeem the lien:—■
Held, also, that the assignees must pay personally the costs of the original application, and have no costs of the appeal.—Ex parte Watts, Re Atlwater, 1 X. E. 170.
10. The Court will order the apprehension of an assignee, *uo, having been sununoiid by the Court to answer matters touching a bankrupt's estate, fails to appear.—Re Brotcn, Ex parte Haynet, 1 N. E. 308.
11. A person advances money to a firm of shipbuilders, on the understanding and agreement that he should have a Hen for the payment thereof on a ship, which they were then Wlding, and on which this money was to be expended. The ship-builders became bankrupt before the completion of the drip:—
Held, that the lien must prevail against the assignees in **okruptcy.—Swaimton v. Clay, 1 N. B. 307.
12. Where husband and wife join in mortgaging real estate of the wife for a debt of tho husband, the wife—the
husband becoming bankrupt, and his assignees declining to redeem—has a right founded upon her equity to exoneration, to prove against the husband's estate for the debt, to receive a dividend, and to redeem the estate :—
Semble, she cannot, as plaintiff, assert a right to a settlement out of the husband's interest in her real estate.— Gkavet v. Paine, 1 N. R. 2-19.
13. The 32nd General Order, 1861, is confined to evidence on the matter in issue.—Ex parte Page, Re Neal, 1 N. R. 140. See Practice In Bankruptcy.
"BEGOTTEN."—Tho words "to be begotten," in a will are construed, as relating to the root of descent, and not to the time of birth.—Almac/c v. Horn, 1 N. R. 535.
BENEFICIARIES.—Upon even- application to the Court by trustees, or other persons, under the 2nd sect, of 25 & 26 Vict. c. 108, the consent of the persons beneficially entitled is necessary.—Re The Trusts of t/te Will of William Brown, Deceased, 1 N. B. 13.
BEQUEST.—1. A bequest of 400/. a year for five years to each executor is payable out of income.—Scholefield v. Hcdfern, 1 N. B. 465.
2. Property bequeathed by a testator to his daughter, who died in his lifetime, but whose child and husband survived him :—
Held, not to be within a covenant to settle property coming to the daughter "during coverture."—Pearce v. Graham, 1 N. E. 507.
BEQUEST, SPECIFIC—Books and wine were held to pass by a specific bequest of "all the testator's furniture, linen, plate, pictures, carriages, horses, and other live and dead stock in his use and possession."—Hutchinson v. Smith, 1 N. R 513.
BILL OF EXCHANGE.—1. Tho shareholders of a jointstock company, incorporated under 7 & 8 Vict. c. 110, were held to be individually liable on bills of exchange drawn by their duly appointed agent, though the deed of settlement contained a proviso that bills drawn or accepted on behalf of the company should not affect shareholders beyond their interest in the capital.—Be The State Fire Insurance Company, Ex parte Meredith's and Convert' Claim, 1 N. B. 510.
2. Notwithstanding 7 & 8 Vict. c. 110, s. 45, a joint-stock company may, by deed, under seal and signed by two directors, appoint an agent to draw and accept bills on its behalf.—s. c.
BILL OF SALE.—A licence to seize after-acquired chattels, unless clearly intended to operate as an agreement to assign, does not, until actual seizure, give the grantee an equitable interest in the chattels.—Heeve v. Whitmore, Martin v. Whitmore, 1 N. E. 352.
BOND.—1. A person allowing a voluntary bond to remain in the hands of his agent, for tho purpose of raising money on it, is bound by his agent's acts, though he never receives any of the money raised; but the assignee of it can only hold it as security for the amount actually advanced on it to the agent.—Tottenham v. Green, 1 N. R. 466.
2. Where it is desired to enforce against the committeo of the estate of a deceased lunatic and his sureties, tho usual bond required of the committee of the estate, tho proper course is to petition the Court that the bond may be deposited by the Master in Lunacy with the Queen's remembrancer; this Court will not transfer the bond to the administrators of the estate of the deceased lunatic.—Be WalV* Luna y, 1 N. E. 250.