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C. A.

1905

LAW
GUARANTEE

AND TRUST
SOCIETY

v.

Barnes J. in that case intended to say that the doctrine of Collins v. Lamport (1) was generally applicable where the charterparty sought to be invalidated was made previously to the mortgage. There would appear to have been very special circumstances in that case. The agreement there in question was entered into before the ship was built, at a time when neither the ship nor the mortgage upon it could have been registered. Possibly that may have been the reason why the learned judge thought himself justified in deciding that such Cozens-Hardy an agreement was under the circumstances invalid as against the mortgagees.

RUSSIAN BANK FOR FOREIGN

TRADE.

L.J.

Appeal dismissed.

Solicitors for plaintiffs: Gribble, Oddie, Sinclair & Johnson.
Solicitors for defendants: Thomas Cooper & Co.

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The Mode of Citation of the Volume of the Law Reports, commencing January 2, 1905,
will be as follows:--

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See under PRINCIPAL AND AGENT..

46

APPEAL-From chambers-"Practice and pro-
cedure "-Order for statement of case
pending arbitration

See PRACTICE. 2.

366

Married woman-Costs-Separate property
-Restraint on anticipation

See HUSBAND AND WIFE.

574

Poor-rate-Notice of objection-Time 89
See RATES. 2.

Reference of action to master-Consent of

parties

See PRACTICE. 1.

368

Summary decision-Leave to appeal-
Amount in dispute exceeding 501. 572
See INTERPLEADER.

APPORTIONMENT-Nuisance, Notice to abate
-Notice to other owners-

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-Apportion-

ment of expenses
See SEWERS.

- Time

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715

APPROPRIATION

registered dentist

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AGRICULTURAL HOLDINGS-Covenant to stack
and consume hay and straw on the
premises-Destruction by fire-Com- ARBITRATION-Appeal-Reference of action

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ARCHITECT Plans-

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Completion of Work- - BANKRUPTCY-continued.
Property in Plans-Claim of Architect-Custom (46 & 47 Vict. c. 52), 8. 55, sub-ss. 1, 2, 6-
-Reasonableness.

An architect was employed by a building
owner to carry out alterations in certain houses.
He prepared plans and superintended the execu-
tion of the work, which was completed, and his
agreed remuneration at an inclusive percentage
on the outlay was paid. The building owner
then demanded the plans, which the architect
refused to hand over. In an action by the
building owner against the architect to recover
the plans:-

Held, that a custom set up by the defendant
entitling him as architect to the property in the
plans after the completion of the work was
unreasonable, and afforded no auswer to the
action. GIBBON . PEASE

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C. A. 810

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See LANDS CLAUSES ACTS.
ATTACHMENT-Practice-Writ of Attachment—
Disobedience of Order-Personal Service, Absence
of-Evasion of Service-Rules of Supreme Court,
Order XLI., v. 5.

The rule that requires personal service of an
order before a writ of attachment can be issued
for disobedience of it is subject to an exception
where the order has come to the knowledge of
the person sought to be attached and he evades

Bankruptcy Act, 1890 (53 & 54 Vict. c. 71), s. 13.

On March 1, 1904, seven leases of seven
houses, for the respective terms of ninety-nine
years, were granted to lessees, who had erected
the houses under a prior building agreement.
Each lease reserved a small ground-rent. None
of the leases contained any restriction on the
lessees' right to assign. On the same day the
lessees mortgaged all the houses by way of
underlease for the respective residues of the
several terms, except the last day of each term,
to secure the sum of 18641., with interest.

On March 24, 1904, a bankruptcy petition
was filed against the lessees, and on April 19,
1904, they were adjudicated bankrupts.

On November 10, 1904, the trustee in the
bankruptcy disclaimed all his interest in the
seven leases. There had been no breach of any
of the lessees' covenants in the leases :—

Held, that under the circumstances the Court
ought to exercise its discretion under s. 13 of the
Bankruptcy Act, 1890, by making an order
vesting the disclaimed property in the mort-
gagees, "subject only to the same liabilities and
obligations as if the leases had been assigned to
them at the date when the bankruptcy petition
was filed."

If in such a case the exercise of the discretion
in favour of the mortgagee will place him in no
better position, and will place the lessor in no
worse position, than if there had been no dis-
claimer, the discretion ought to be exercised in
favour of the mortgagee. In re CARTER & Ellis.
Ex parte SAVILL BROTHERS
C. A. 735

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2. Proof-Principal and Surety-Deben-
Debenture Interest
ture of limited Company.
Bank-
Dissolution of Company
guaranteed -
ruptcy of Guarantor-Proof for future Interest—
Companies Act, 1862 (25 & 26 Vict. c. 89), 8. 143.
A. guaranteed B. the regular payment of the
interest payable under the debenture of a limited
company until the principal sum secured by the
debenture was repaid by the company. Some
time afterwards the company went into liquida-
Specific chattel, Judgment for delivery of- tion and was dissolved by virtue of s. 143 of the

service of it.

Hyde v. Hyde, (1888) 13 P. D. 166, followed.

KISTLER . TETTMAR

Wilful refusal to deliver

C. A. 39

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Companies Act, 1862. Subsequently A. became
bankrupt :-

Held, that, notwithstanding the dissolution of
the company, B. was entitled to prove in A.'s
bankruptcy for the estimated value of the future
interest payable under the guarantee. In re
FITZGEORGE. Ex parte ROBSON Bigham J. 462
Proof-Secured Creditor-Increase in
Value of Security-Amending Proof - Time—
Bankruptcy Act, 1883 (46 & 47 Vict. c. 52),
Sched. II., r. 13.

3.

In 1895 a debtor, against whom a receiving
order had been made, lodged a scheme providing
for the payment of 108. in the pound to his
unsecured creditors, exclusive of M., whom he

BAILMENT Liability of bailee-Theft by ser- alleged to be fully secured. The scheme was

vant-Scope of employment

See MASTER AND SERVANT.

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BANKRUPTCY Leasehold Property of Bankrupt
--Mortgage by Underlease-Disclaimer by Trustee
--Vesting Order-Terms to be imposed on Under-
lessee-Discretion of Court-Bankruptcy Act, 1883

duly accepted by the creditors. M. took no part
in the proceedings, but lodged a proof in which
he assessed the value of his security at one-half
of the amount of his debt, and claimed to prove
as an unsecured creditor for the other halt, and
his proof was admitted. The scheme fell through

BANKRUPTCY-continued.

in consequence of M.'s proof, which he refused
to withdraw, and the debtor's estate paid only
1s. in the pound. In January, 1903, M.'s security
became greatly increased in value, and in May,
1901, he applied under rule 13 of Sched. II. to
amend his proof by revaluing his security on the
footing that he was fully secured :-

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Held, that M. had done nothing to disentitle
himself to the relief he claimed, and that his
application must be granted. In re FANSHAWE.
Ec parte LE MARCHANT
Bigham J. 170
4. Sale of Goods-Fraud of Debtor-
Vendor's Right to disaffirm Sale and retake Goods
after Notice of Act of Bankruptcy—Title of Trustee
in Bankruptcy.

Where a sale of goods is induced by the fraud
of the purchaser, the vendor, on discovering the
fraud, is entitled within a reasonable time to
disaffirm the sale and retake possession of his
goods, although he does so with notice of an act
of bankruptcy on which the purchaser is subse-
quently adjudicated bankrupt; for in such a case
the trustee in bankruptcy has no higher or better
title than the bankrupt. In re EASTGATE. Ex
parte WARD-
Bigham J. 465
5. Scheme of Arrangement—Approral by
Court-Security for Composition-Sufficiency—
Bankruptcy Act, 1890 (53 & 54 Vict. c. 71), s. 3,

sub-8. 9.

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Though the Court will generally be reluctant
to refuse to approve of a proposed scheme of
arrangement by a debtor with his creditors which
has been approved by the creditors, yet it is
the duty of the Court, under s. 3, sub-s. 9, of the
Bankruptcy Act, 1890, to consider whether the
scheme is for the benefit of the creditors, and in
particular whether it provides reasonable security
for the payment of 78. 6d. in the pound on all
the unsecured debts provable against the debtor's
estate, and to refuse to give the approval of the
Court if it is not satisfied on these points.

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6. Secured Creditor-Estimate of Security
· Undervalue — Petitioning Creditor's Debt
Bankruptcy Act, 1883 (46 & 47 Vict. c. 52), 8. 6,
sub-я. 2; 8. 7, sub-s. 3.

Where a secured creditor presents a petition
in bankruptcy and gives an estimate of his
security, if the estimate is a genuine estimate,
the Court will not inquire into its correctness,
although the result of the inquiry might be to
shew that the unsecured balance of the debt was
not sufficient to support the petition; and, when
the petitioning creditor comes in to prove in the
bankruptcy, in the abs nce of evidence of mistake
as to value he will no be allowed to depart from
his estimate.

Whether he may amend his estimate upon
proof of mistake, quære.

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Ex parte Taylor, In re Lacey, (1884) 13
Q. B. D. 128, and In re Vautin, Ex parte Saffery,
[1899] 2 Q. B. 549, discussed. In re BUTTON.
Ex parte Voss
C. A. 602
Jurisdiction to make receiving order in lieu
of committal order-Absence of evidence
of means
374
See COUNTY COURT.

BENEFICE.

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See under ECCLESIASTICAL Law.

BILL OF COSTS-Solicitor.

See under SOLICITOR.

BILL OF EXCHANGE- Cheque-Cheque stolen
Abroad-Forged Indorsement-Transfer for Value
in Foreign Country-Conflict of Laws-Bills of
Exchange Act, 1882 (45 & 46 Vict. c. 61), 88. 24,72
-Austrian Law.

The rule of international law, that the validity
of a transfer of movable chattels must be governed
by the law of the country in which the transfer
takes place, applies to the transfer of bills of
exchange or cheques by indorsement.

Alcock v. Smith, [1892] 1 Ch. 238, followed,
as being a decision to that effect.

A proposed scheme of arrangement with credi-
tors (which had been approved by the creditors
by the proper majority) provided (inter alia) that
the property of the debtors, which would have
been divisible among their creditors if they were
bankrupt, should vest in a trustee and should
be administered by him as in bankruptcy. The
trustee was, on the approval of the scheme by
the Court, to pay in full all fees, costs, and
expenses, including the remuneration of the
trustee, and all preferential debts, and was then
to pay to all the unsecured creditors, in respect
of all debts provable under the receiving order,
and in satisfaction of the same, a composition of
208. in the pound, payable in instalments of not
less than 28. 6d. in the pound, as and when the
realization of the debtor's assets would allow.
The payment of the preferential debts, fees, &c.,
and of the composition was to be secured by the
vesting of the debtor's property in the trustee-tory
Held, that the scheme did not within the
meaning of s. 3, sub-s. 9, provide "reasonable
security" for the payment of a composition of
78. 6d. in the pound, and that the scheme ought
not to be approved by the Court.

Semble, that, notwithstanding the decision in
In re Pilling, [1903] 2 K. B. 70, there may be

Per Vaughan Williams L.J.: Semble, that the
indorsement of a bill of exchange in a foreign
country, valid under the foreign law but invalid
under English law, would be effectual to give
the indorsee a good title to the bill as against
the drawer or acceptor.

Sect. 24 of the Bills of Exchange Act, 1882.
does not apply to an indorsement of a bill of
exchange abroad. That section is only declara-
of English law and does not control the
general rule of international law.
Lacave v. Crédit Lyonnais, [1897] 1 Q. B. 148,
distinguished.

A cheque on a London bank was drawn in
Roumania in favour of the plaintiffs, who the
same day specially indorsed it to a firm in
London, and placed it, with a letter, in an envelope

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