bound particularly to describe and ascertain the
nature of his invention, and in what manner the
same was to be performed, by an instrument in
writing under his hand and seal, and to cause the
same to be enrolled in Chancery. On which
another question arises, namely, whether the
specification enrolled be sufficient. The aim of
the Legislature is obvious; on the ore hand, it
was to encourage ingenious artificers, and able
and studious men, to invent and bring forward,
for the use of the public, new manufactures, the
produce of their own ingenuity, by holding out to
them the reward of fourteen years' monopoly; on
the other hand, to secure to the public the benefit
of the discovery, by causing to be enrolled a com-
plete description of the thing to be done, and the
manner of doing it, that others might be fully
informed of it; and, at the end of the fourteen
years, to be enabled to work or make the manufac-
ture of which the patentee was the inventor. . . .
shall content myself with repeating what was
said by one of the learned judges of the Court of
Common Pleas, that if the specification be such as
to enable artists to adopt the invention and make
the manufacture, it is sufficient. (8 T. R. 95;
Dav. P. C. 221.)

NOTES OF NEW DECISONS. INTESTACY MARRIED WOMAN SEPARATED FROM HER HUSBAND-ADMINISTRATION.-The deceased intestate was a married woman, living apart from her husband, and, by the deed of sepa ration, the husband covenanted, in the case of the wife's death, to allow administration to go as if he were dead. She left two children minors, who elected their maternal grandmother as their guardian for the purpose of taking a grant. The court, notwithstanding the husband's covenant, declined to make a grant to the grandmother without citing the father: (In the Goods of Lady Pigott, 29 L. T. Rep. N. S. 45. Prob.)

-

FENDANT

DEBTORS' ACT 1869, SECT. 6-Arrest of DEJUDGMENT-DETENTION OF DEFENDANT AFTER. - PROSECUTION OF ACTION-FINAL -A defendant who had been arrested and imprisoned under sect. 6 of the Debtors' Act 1869 absence from England will prejudice the plaintiff (32 & 33 Vict. c. 62), on the ground that his be discharged from custody as soon as final judg in the prosecution of his action," is entitled to action" in that section meaning its prosecution ment has been signed; the "prosecution of the L. T. Rep. N. S. 64. Ex.) only up to final judgment: (Hume v. Druy, 29

ash, or any calx, or preparation of lead fit for the purpose; to any given quantity of the above-mentioned materials, add half the weight of sea salt, with a sufficient quantity of water to dissolve it, or rock salt, or sal gem, or fossil salt, or any marine salt, or salt water, proper for the purpose. The yellow colour is produced by calcinating the lead after the alkali has been separated from it, till it shall acquire the colour wanted; this will be of different tints, according to the continuance of the calcination or the degree of heat employed." Three objections were taken to the specification. "First; that, after directing that lead should be calcined, it directed another ingredient to be taken, which would not answer the FOREIGN CONTRACT-SPECIFIC PERFORMANCE purpose, viz., minium. Neither was it said that - JURISDICTION SUBSTITUTED SERVICE-INminium should be calcined or fused; but if it had JUNCTION.-An Englishman entered into a conany reference to the preceding words, then it tract abroad with a foreigner for the purchase of should be calcined, which would not produce the a ship, then on her homeward voyage to Cork, effect, fusion being necessary. Second; that the purchaser to take possession of the ship imfossil salt' was improperly mentioned. There mediately after the delivery of the homeward were many kinds of fossil salt, only one of which, cargo at any place whither she might be ordered. viz., sal gem, would answer the purpose, because The ship was ordered to Sunderland, where she it must be a marine salt." Third; that the white discharged her cargo. On a motion by the pursubstance produced was not that commonly chaser for an injunction to restrain the removal known as white lead. Held, that, if any if these of the ship from Sunderland: Held (affirming objections were well founded, it would avoid the Huddard v. Grimshaw. N. P. 1803-Ellen- the decision of Malins, V.C.), that substituted patent. Ashurst, J., in the course of his judg- borough, C.J., in addressing the jury, said: "In service on the captain in charge of the vessel was ment, said: "I think that, as every patent is claiming the benefit of a patent, it is required sufficient, and that the court had jurisdiction to calculated to give a monopoly to the patentee, it that there shall be enrolled a specification, which restrain the removal of the ship pending the suit: is so far against the principles of law, and would shall convey to the public a corresponding advan- (Hart v. Herwig, 29 L. T. Rep. N. S. 47. L. JJ.) be a reason against it, were it not for the advantage with that of the individual whose sole right PRACTICE-Substituted SERVICE-LUNATIC. tages the public derive from the communication is protected for that time, so that any person-The court allowed substituted service to be of the invention after the expiration of the time looking at a specification, who is skilled in the made upon the medical officer of the asylum where a for which the patent is granted. It is, therefore, subject, may be able to accomplish the end; and lunatic defendant was confined, on an affidavit that incumbent on the patentee to give a specification if, in stating the means necessary to the produc- the medical officer refused to allow anyone to see of the invention in the clearest and most unequi- tion of that end, he oversteps the right, and the defendant on legal matters: (Raine v. Wilson, vocal terms of which the subject is capable. appropriates more than is his own, he cannot avail 29 L. T. Rep. N. S. 51. VC. B.) And if it appears there is any unnecessary ambi- himself of the benefit of it." The insertion or guity affectedly introduced into the specification, representation of anything as material, not being or anything which tends to mislead the public, in so in fact, will vitiate the specification. (Dav. that case the patent is void. . . . It is certainly of P. C. 265; 1 Web. P. C. 85.) consequence that the terms of a specification Harmar v. Playne. 1809.-The patent in this should express the invention in the clearest and most explicit manner; so that a man of science secured by previous letters patent. It was adcase was granted for improvements in machinery, may be able to produce the thing intended, with-mitted by the defendant that the improvements out the necessity of trying experiments." Butler, for which the second patent was granted are inJ., said, “If he (the patentee) make the article cluded in the second specification, which gives a for which the patent is granted, with cheaper full and proper description of the whole machine in materials than those which he has enumerated, its improved state. although the latter will answer the purpose second specification does not, in any manner, point But it was objected, that the equally well, the patent is void, because he does out or explain the improvements upon the former not put the public in possession of his invention, or enable them to derive the same benefit which patented machine, for which the second patent he himself does. was granted, and, therefore, that it was insuffiIf the patentee says cient. Held, that the specification was sufficient, that by one process he can produce three Ellenborough, C.J., in the course of the arguthings, and he fails in any one, the consideration ment, said; "The difficulty which presses most is, of his merit, and for which the patent was whether this mode of making the specification be granted, fails, and the Crown has been deceived not calculated to mislead a person looking at it, in the grant. Slight defects in the specification and induce him to suppose that the term for will be sufficient to vacate the patent.' (1 T. R. which the patent is granted may extend to pre602; Dav. P. C. 145; 1 Web. P. C. 77.) than those for which the new patent is granted; fringement of a patent for lessening the consumption of steam and fuel in fire-engines. The other patent what are the new, and what are the when he can only tell by comparing it with some defendants contended (inter alia) that the patentee had not sufficiently specified his inven- old parts; and if this may be done with reference tion. Eyre, C.J. in the course of his judgment, patents, so as to render the investigation very to one, why not by reference to many other "The substance of the invention is a discovery that the condensing the steam out of the complicated? It may not be necessary, indeed, cylinder, and protecting the cylinder from the in stating a specification of a patent for an imexternal air, and keeping it hot to the degree of provement, to state precisely all the former known steam heat, will lessen the consumption of parts of the machine, and then to apply to those steam.... Now, the specification of such the improvement; but, on many occasions, it discovery seems to consist in nothing more than may be sufficient to refer generally to them. As saying to the constructor of a fire-engine, for sufficient for the patentee to say, take a common in the instance of a common watch; it may be the future condense your steam out of the body of the cylinder instead of condensing it within it, watch, and add or alter such and such parts, put something round the cylinder to protect it in the case of Liardet v. Johnson, that the meandescribing them. And when Lord Mansfield said, from the external air and to preserve the heat within it, and keep your piston air tight withouting of the specification was, that others might be water.' Any particular manner of doing this, taught to do the thing for which the patent was one should think, would hardly need to be pointed of reasonably competent skill in such matters to granted, it must be understood to enable persons out, for it can scarcely be supposed that a work man, capable of constructing a fire-engine, would make it; for no sort of specification would pronot be capable of making such additions to it as bably enable a ploughman, utterly ignorant of the should be necessary to enable him to execute that object of requiring a specification to be enrolled LASKIE (David Jamieson), Stock Exchange, kin, to come whole art, to make a watch." And again: "The which the specification requires him to do. seems to be to enable persons of reasonable inSuppose a new invented chemical process, and the specification should direct that some particular telligence and skill in the subject matter, to tell chemical substance should be poured upon gold from the inspection of the specification itself, in a state of fusion, it would be necessary, in what the invention was for which the patent was order to this operation, that the gold should be granted, and how it was to be executed." (11 East put into a crucible, and should be melted in that 101; Dav. P. C. 311.) crucible; but it would be hardly necessary to state in the specification the manner in which, or the utensils with which, the operation of putting gold into a state of fusion was to be performed. They are mere incidents with which every man acquainted with the subject is familiar." Rooke, NON LEGIS AMATOR.-No part of the stamp duty on J. said: "As to the second objection, that no particular engine is described, that no model or drawing is set forth, I hold this not to be necessary, provided the patentee so describes the improvement as to enable artists to adopt it when his monopoly expires." (2 H. Bl. 463; Dav. P.C. 162; 1 Carp. P.C. 117.)

SCENE BETWEEN A LEEK ATTORNEY
AND A MAGISTRATE.

To the Editor of the LAW TIMES.
number of 30th Aug., on a
SIR,-With reference to the remarks in your
scene between a Leek

Boulton v. Bull. 1795.-Action for the in. clude the imitation of other parts of the machine raised by the magistrate because he considered

said:

Hornblower v. Boulton. 1799.-Grose, J. said: "By a proviso in the patent, the patentee is

SOLICITORS' JOURNAL.

To Correspondents.

your articles could be recovered.-ED. SOLS. DEPT.
A. B. As regards the Intermediate Examinations
ample notice is always given of the books in which
students will be examined. As regards the Final
Examination, you are liable next term to be asked
questions testing your knowledge of the Supreme
Court of Judicature Act itself, but of course not
questions of practice or otherwise, affected by the
Act until the Act comes into full operation.-ED.
SOLS. DEPT.

attorney and a magistrate," I have to inform you:
not in the Law List. 2. That the question was
-1. That the name of the attorney in question is
the conduct of the attorney (who was not appear
ing in the case) indecorous and obstructive to the
course of justice, as well as somewhat irregular.
3, That magistrates of this division do not allow
duct cases before them.-I am, yours obediently,
unqualified clerks of solicitors to appear and con-

THE CLERK TO THE MAGISTRATES
OF THE LEEK DIVISION.

Leek, 8th Sept. 1873.

UNCLAIMED STOCK AND DIVIDENDS IN THE
BANK OF ENGLAND.
[Transferred to the Commissioners for the Reduction of the
National Debt, and which will be paid to the persons
respectively whose names are prefixed to each in three
months, unless other claimants sooner appear.]
PEW (Alexander Wm.), Barking, Essex, gentleman, a
minor, £21 5s. 6d. New Three per Cent Annuities.
Claimant, said Alexander Wm. Pew, formerly a minor,
now of age.

WILSON (Sophia Maria), 220, Regent-street, widow, one divi
dend in the sum of £1850 Reduced Three per Cent.
Annuities. Claimant, Thomas John Arnold, one of the
executors of Sophia Maria Wilson, widow, deceased.

HEIRS-AT-LAW AND NEXT OF KIN.

Spring-grove, Middlesex, gentleman, next of
in by Dec. 17, at the chambers of VC. B.; Dec. 2 at the
said chambers; at 12 o'clock is the time appointed for
hearing and adjudicating upon such claims.

CREDITORS UNDER 22 & 23 VICT. c. 35. Last Day of Claim, and to whom Particulars to be sent. ANNETT (Jas.), Hampton), Middlesex, builder. Nov.1: Walker and Martineau, solicitors, 13, King's-road, Gray's inn, London.

BALL (Thos.), heretofore residing at Nuneaton, Warwick,
wine and spirit merchant, late of 45, Portland-place,
Leamington, gentleman. Nov. 1; Dewes and Watson,
solicitors, Nuneaton.

BROWN (Rev. Lancelot R., Kelsale, Suffolk, clerk. Oct. 21 ;
R. H. Reeve, solicitor, Lowestoft.

BUTLER (John), 10, Standard-street, New Kent-road,
Surrey, builder. Oct. 16; Gellatly and Co., solicitors, 2,
Lombard-court, Gracechurch-street, London.
CATTERALL (Peter), Preston, Esq. Oct. 13; Paul Catterall,
jun., Preston.

COLEBY (Wm.), Prince of Orange Hotel, Gravesend, Kent,
licensed victualler. Oct. 1: Nash and Co., solicitors, 2
Suffolk-lane, Cannon-street, London.
COZENS (John Frederick, formerly of the Island of Jersey,
at the time of his death residing at Hale, Lancaster,
aerated water manufacturer, Oct 21: Field and Co

solicitors, 3, Fenwick-street, Liverpool.

dlesex, gentleman. Nov. 3: William Day, solicitor, 1, WOOLLEY (Mary A.), Bilston, Stafford, spinster. J. Mason, Queen-street, May Fair, Middlesex.

S. Warren, Esq., Q.C....
C. G. Merewether, Esq.
J. B. Aspinall, Esq.,Q.C.
R. Wildman, Esq...

TATION.-Testator and one of the attesting wit-L. T. Rep. N. S. 65. Ex. Ch.)
nesses to his will were both marksmen. The other
attesting witnesses wrote the name of each oppo-
site their respective marks, and, opposite the mark
of the attesting witness, he wrote the word
"witness," but he did not write his own name on
the will: Held, that there was no attestation, and
probate refused: (Re Eynon, 29 L. T. Rep. N. S.
45. Prob.)
ABSENCE OF

NOTES OF NEW DECISIONS. BILL BY SHAREHOLDERS MISAPPROPRIATION OF FUNDS-BREACH OF TRUST. The L. Company was formed to purchase the business of a banker, who refused to complete the sale VOLUNTARY SETTLEMENT until 40,000 shares should have been subscribed POWER OF REVOCATION.-A lady in her sixty- for. To effect this object, the I. Company guaninth year executed, at the instance of her rela-ranteed a subscription for that number of shares. tives, and without independent advice, a voluntary settlement containing no power of revocation, and under the impression that the deed had the effect of a will: Held (affirming the decision of the Master of the Rolls), that the deed must be set aside: (Henshall v. Fereday, 29 L. T. Rep. N. S. 46. L. JJ.)

tract, the plaintiffs having been ready to pay all the expenses incident to the maize being included in the bill of lading, and also absolutely and unconditionally to deliver the rye in time; and also that there was a sufficient delivery to entitle the plaintiff to recover for non-acceptance: (The Imperial Ottoman Bank v. Cowan, 29 L. T. Rep. N. S. 32. C. P.)

MERCANTILE LAW,

THE LAW OF MERCHANT SHIPPING. SOME important alterations were made in the law relating to merchant shipping by the Act (36 & 37 Vict. c. 85) passed on the day of the prorogation. Several provisions will not take effect until the 1st Nov.-as to the duties of masters in collisions, and signals, as also as to the apprehended loss of ships, and as to the carriage of dangerous goods on vessels. The clauses with respect to the safety and prevention of accident came into force when the statute received the Royal assent, and they have reference to unseaworthy ships. The various Acts from 1854 to 1873 are to be construed as one statute. The first part of the present Act relates to the registry of vessels. Every British ship registered after the passing of the Act, before registry, and every British ship registered before the passing of the same, on or before the 1st Jan. next, shall be permanently and conspicuously marked to the satisfaction of the Board of Trade, as to her name, her official number, and the number of her tonnage, and the scale of feet denoting her draught of water. The Board of Trade may exempt any class of ships from the requirements or any of them. If the scale of feet showing the draught of water is in any respect inaccurate, so as to be likely to mislead, the owner to incur a penalty not exceeding £100; and for not complying with the section or failing to keep the particulars mentioned, another penalty of the same amount to be incurred. Any officer of cus. toms, on receipt of a certificate from a surveyor or inspector of the Board of Trade that a ship is insufficiently or inaccurately marked, may detain the same until the insufficiency or inaccuracy has been remedied. Fishing vessels duly registered, lettered, and numbered in pursuance of the Sea Fisheries Act 1868, are exempted. If any registered British ship is not within a port of the United Kingdom before the 1st Jan. next, she is to be marked within a month next after her return to a British port of registry. Similar rules are to be applied to a foreign ship, placed on the British register; and restrictions are imposed as to the re-registrations of abandoned ships. The next part of the Act has reference to agreements with seamen and fishermen, and compensation is to be awarded to seamen and apprentices for unnecessary detention on a charge of desertion. The Board of Trade is empowered to estab. lish mercantile marine offices and to hold examinations of masters, mates, and engineers at certain ports. Her Majesty, by an Order in Council, can apply certain provisions as to the engagement and discharge of seamen in the Merchant Shipping Acts to foreign ships. The most important branch of the new statute commences at the 12th section. It enacts that when the Board of Trade have received a complaint or have reason to believe that any British ship, by reason of the defective condition of her hull, equipments, or machinery, or by reason of overloading or improper loading, is unfit to proceed to sea without serious danger to human life, they may, if they think fit, appoint some competent person or persons to survey such ship and the equipments, machinery, and cargo thereof, and to report thereon to the Board of Trade. Any person so appointed may, for the purpose of such survey, require the unloading or removal of any cargo, ballast, or tackle, and shall have all the powers of an inspector appointed under the Merchant Shipping Act 1851; a person, after notice, doing anything to prevent a survey, to be liable to a penalty of £50; the vessel may be detained for the survey to be made, and the board, upon the receipt of the report, may, if in their opinion the ship cannot proceed to sea without serious danger to human life, make such further order as they may think requisite as to the detention of the ship or as to her release, either absolutely or upon the performance of such condition with respect to the execution of repairs or alterations, or the unloading or reloading of cargo, as the board may impose. If upon the survey of a ship under this Act she is reported to have been at the time of the survey, having regard to the nature of the service for which she has been intended, unfit to proceed to sea without serious danger to human life, the expenses incurred by the Board of Trade in respect of the survey shall be paid by the owner of the ship to the Board of Trade, and shall, without prejudice, be recoverable by them in the same manner as salvage; if the report states that the vessel is not unfit to proceed, then the Board of Trade to be liable for loss or damage sustained by

the detention. The Board of Trade may, on a
complaint that a vessel is unfit before they order
a survey, require the complainant to give secu-
rity for loss or damage incurred by the de.
tention; if upon the survey it appears that
the complaint was made without reasonable
cause, then the party to be liable for the
expenses and the damage sustained. If the
owner of a vessel is dissatisfied with the
order of the board made on a survey, he may apply
in England to any court having admiralty juris-
diction, and in Ireland to a court having jurisdic-
tion under the Act of 1867, and in Scotland to the
sheriff of the county. The court may require the
ship to be surveyed again, or as termed " anew."
The Board of Trade may vary the requirements
as to the boats to be carried, as to the number
and dimensions. Sects. 16 and 28 inclusive, with
the exception of sect. 17, are not to take effect till
the 1st Nov. next. By the 16th section, in case of
collision between two vessels they are to stay by
each other to ascertain that either had no need of
further assistance, and to afford information, and
in default to be deemed guilty of a misdemeanor,
and the offender may have his certificate cancelled
or suspended. It is provided by the 17th section
(now in force) that if in any case of collision it
is proved to the satisfaction of the court before
which the case is tried that any of the regulations
for preventing collisions contained in or made
under the Merchant Shipping Acts 1854 to 1873,
has been infringed, the ship by which such
regulation has been infringed shall be deemed
to be in fault, unless it is shown to the satisfac-
tion of the court that the circumstances of
the case made departure from the regulations
necessary. There are several provisions as to
signals, and their character is described in the
schedule, but the law as to them will not come
into operation until November, neither do the
sections as to notice by the owner and others to
the Board of Trade as to the apprehended loss of
a vessel. With regard to the carriage of dan
gerous goods there are clauses, and "if any
person knowingly sends or attempts to send by,
or carries or attempts to carry in, any vessel,
British or foreign, any dangerous goods or goods
of a dangerous nature under a false description, or
falsely describes the sender or carrier thereof, he
shall incur a penalty not exceeding £500." The
master or owner of any vessel, British or foreign,
may refuse to take on board any package or
parcel which he suspects to contain goods of a
dangerous nature, and may require it to be opened
to ascertain the fact. Power is also given to
throw overboard dangerous goods having been
shipped without notice having been given of their
character, and dangerous goods are to be forfeited
if improperly sent. The provisions as to dangerous
goods, which, however, do not take effect till the
1st Nov., are in addition to, and not in substitu-
tion of, the enactments in the Dangerous Goods
Acts. Certain sections in other statutes on mer-
chant shipping are repealed, and the schedules
contain the signals to be used and the fees to be
paid. The law on merchant shipping is now
amended in several respects.

COUNTY COURTS.
WANDSWORTH COUNTY COURT.
Tuesday, Sept. 9.
(Before H. J. STONOR, Esq., Judge.)
NOAKES v. BUCKETT AND ANOTHER.

Agreement by provisional directors.
THE registrar read the following judgment of
D. P. Fry, Esq., who had sat as deputy-judge at
a court held during vacation on the 12th Aug.:
In this case an agreement purports to be entered
into "between John Noakes and the undersigned
directors of the Electric Carbon Company, provi-
sionally." The use of the word "provisionally
shows the position in which the directors re-
ferred to really stood at the time, and it shows
also that that position was understood and re-
cognised by the parties. The word, therefore,
though not repeated in the body of the document,
governs the construction of the whole agreement.
At the date of that agreement, which was signed
on the 29th June 1871, by the plaintiff John
Noakes, and the defendants W. T. Buckett and
J. Buckett, the company in fact did not exist.
The registrar's certificate (which was produced),
shows that it was registered on the 19th July 1871,
and until it was so registered it had no legal
existence. The Companies Act 1862, s. 18, pro-
vides that "upon the registration of the company
the registrar shall give a certificate which shall
be conclusive evidence, and the subscribers shall
thereupon be a body corporate, by the name con-
tained in the memorandum of association, capable
forthwith of exercising all the functions of an in-
corporate company, and having perpetual succes-
sion, and common seal with power to hold lands."
On the authority of the decision of the Court of
Common Pleas in Kelner v. Baxter and Scott v.

Lord Ebury (L. Rep. 2 C. P. 174, 255) I consider myself bound to hold that this agreement, entered into on the 29th June 1871, had no effect whatever as regards the company, which was not then in existence. It was in fact entered into between the plaintiff, John Noakes, and the two other persons who signed it, namely, the defendants, William Thomas Buckett and John Buckett, as individuals simply, for although called in the document "directors," they were not in fact directors, as the company did not exist. If the company had not come into existence the cases in the Common Pleas above cited show that the Bucketts would still have been the tenants of the premises, and that their rights and liabilities under the agreement are therefore exclusively personal. The same cases also show that no subsequent ratification or adoption by the company without the assent or concurrence of the plaintiff would make any difference in this respect. Under these circumstances I do not think it necessary to consider the effect of the decisions in equity, given by Lord Chancellor Cottenham in Edwards v. The Grand Junction Railway Company, Stanley v. The Birkenhead Railway Company, and Lord Petre v. The Eastern Counties Railway Com. pany, and which have been called in question in subsequent cases as pointed out by Vice-Chancellor Kindersley in the Earl of Shrewsbury v. The North Staffordshire Railway Company (L. Rep. 1 Eq. 593). The defendants, W. T. Buckett and J. Buckett, being the tenants under the agree ment, I see no evidence of the transfer of the tenancy to the company, or of the creation of a new tenancy on the part of the company with the assent or concurrence of the plaintiff. The facts proved with regard to the payment of rent, and the receipts which were put in, are quite consistent with the view that the rent was always paid by or on behalf of the actual tenants, W. T. and J. Buckett, and so received by the plaintiff. I therefore order the defendants to give up possession of the premises to the plaintiff, and to pay the plaintiff's costs.

Ody, for the defendants, said they had expended about £350 upon the premises, and he asked his Honour to postpone the date of giving up posses

sion.

His HONOUR then fixed 8th Oct. as the day for giving up possession.

BANKRUPTCY LAW.

NOTES OF NEW DECISIONS. LIQUIDATION-JOINT AND SEPARATE DEBTSEFFECT OF ORDER OF DISCHARGE ON JOINT DEBTS.-The old law, which made an order of discharge a complete release from all debts proveable under the bankruptcy, is in no way altered by sect. 49 of the Bankruptcy Act 1869. Con sequently, where H., a member of a firm, filed his petition for liquidation, and obtained his discharge thereunder, and afterwards the firm was adjudi. cated bankrupt upon the petition of a creditor who had proved under his liquidation: Held, on appeal, that the order of discharge granted to H. under his liquidation was a complete release of the petitioning creditor's debt; and the adjudication made against him as a member of the firm was annulled: (Ex parte Hammond; re Hammond, 29 L. T. Rep. N. S. 72. Bank.)

FRAUDULENT PREFERENCE PRESSUREWHAT SUFFICIENT-REHEARING-TIME FORPRACTICE. The old law regarding pressure by a creditor as sufficient to avoid a fraudulent preference is left untouched by the late Act, and consequently still prevails. Fraudulent preference, therefore, must be the spontaneous act of the debtor, done with a view to prefer one creditor to other creditors, and any involuntary payment, or act made, or done by the debtor, at the bona fide request of a creditor, will, in the absence of fraud, amount to pressure, even although the creditor be aware of his debtor's insolvency. The old rule which required an application for a rehearing to be made within twenty-one days from the date of the order complained of, is practically superseded by sect. 71 of the Bankruptcy Act 1869, which gives every court ample power to rehear, rescind, or vary any order made by it: (Ex parte the London and County Bank, re Brown, 29 L. T. Rep. N. S. 73. Bank.)

LIQUIDATION-JUDGMENT CREDITOR-GARNISHEE ORDER-EXECUTION AND PAYMENT AFTER PETITION.-A judgment creditor who obtains a garnishee order, under the provisions of the Common Law Procedure Act 1854, is not a creditor holding a security" within the exception men. tioned in sect. 12, nor yet a secured creditor "holding a charge" upon the property of the bankrupt, within the meaning of § 16 s. 5 of the Bankruptcy Act 1869 : (Ex parte Greenaway; Adams, 29 L. T. Rep. N. S. 75. Bank.) LIQUIDATION-STAMP DUTY, AMOUNT OF REGISTRATION. As a general rule, the amount payable for stamp duty upon the filing of a special resolution for liquidation by arrangement is to be

Re

regulated, not by the value of the assets as esti-
mated by the trustee in his affidavit, but by the
amount at which the debtor estimates his assets
in his statement of affairs; except where the
debtor's statement shows a clear surplus of assets
over debts, the duty is payable only upon the
amount stated in the trustee's affidavit as requi-
site to pay all the creditors in full: (Re Berger,
29 L. T. Rep. N. S. 76. Bank.)
BANKRUPTCY JURISDICTION TRADER IN
LONDON DISTRICT ADJUDICATED IN THE COUNTY

over the whole amount to the trustee, he paid
part of it, namely, £4 4s. 1d., to Mr. Peard, of
Bideford, in discharge of an alleged claim he had
against the debtor. He (Thorne) therefore applied
that this sum also might be ordered to be paid to
the trustee. on the ground that it was Mr. Major's
duty to have paid all the proceeds of the auction
to the trustee without deduction, leaving any
claim of Mr. Peard's to be settled by the trustee
himself.

was

pears to

admitted that he had received 1001. although he had not received a farthing, Mr. Cory demanded the money. Now the bill of sale, as all other instruments, must receive a reasonable construc. tion. The bill of sale provided that 100l. should be paid with interest-that shows that there was no intention of there being a contemporaneous having possession, but that some interval, at least, was to elapse between the advance of the money and the payment. There are three classes of cases His HONOUR: This is an application for an applicable to the question involved in this case. COURT.-A petition for an adjudication in bank-order compelling Mr. J. W. Major to pay to the The first is a class of case where the bill of sale ruptcy was presented to the Greenwich County trustee £5 15s. and £4 4s. 1d. The case rests merely provides for a payment on demand; the Court against M., describing him of "The Glen, almost entirely upon the examination of Mr. second class is where there is to be a demand made Sydenham, in the county of Kent," and a gen- Major himself. It appears that the petition was on notice being given that the party shall pay ; tleman." It was not mentioned whether he was presented on the 15th March; subsequently Mr. and the third is where there has been an agreed or was not a trader. The petition also stated that J. Oke Harris was appointed the trustee. Mr. interval that shall elapse between the loan and the he did not carry on business in the London bank. Major states that on the 28th March he purchased demand of payment. I am obliged to see whether ruptcy district, and that the act of bankruptcy a trap and harness and a saddle of the debtor for or not, according to the terms of this bill of sale, was a failure to pay, secure, or compound for a debt within three months of the service of the that he paid that sum to the debtor in order that £5 158., that he paid the debtor that sum, and both in law and reason, there can be such a thing as an advance of money as a loan and a contempodebtor's summons. The petition was accompanied funds might be supplied to prosecute the peti. raneous demand for payment. When Mr. Cory was by an affidavit, as required by the bankruptcy tion-thus, by this latter statement, proving that here I asked about the demand, and he never rules, and verifying the statements therein made. he had had notice that the debtor was a bankrupt. suggested that there was any demand except that The bankrupt was, at the time of the adjudication, Further, he says that he was induced to make the which was made at the time of the execution of the carrying on business as a wine merchant in the purchase to furnish necessaries for the main- deed. This case, therefore, is open to an objection City of London, under the name of Horner and tenance of the debtor and his family. Now the which was never made in the classes of cases to Co., but such fact was not known to the County three dates involved in this inquiry are, I think, which I have referred, because in all those cases Court judge at the adjudication. The trustee conclusive. The petition was presented on March there has been an actual advance of the moneyappointed under the bankruptcy claimed the pro- 15th, the sale was on March 28th. At that time there was something to be claimed. Now at the ceeds of some of the bankrupt's goods, which had it was confessed by Mr. Major that he not only time the demand was made there was no advance been seized under an execution by the sheriff knew that the petition had been presented, but at all-how, then, could Mr. Cory ask and demand of Kent, as against the execution creditor of the that he himself furnished funds for the prosecu- payment of money which he had never advanced? bankrupt, under the 87th section, which provides tion of the petition. This transaction, therefore, I was very anxious to see whether it could be that where the goods of a trader have been sold cannot be viewed as a protected one, because at shown that, after the money had been advanced for more than £50, the sheriff is to retain the pro- the time it took place the petition was pre- and before Mr. Cory took possession, Mr. Cory ceeds for fourteen days, and, on notice within that sented, and the presentation of the petition had given the written notice which the proviso time of a petition in bankruptcy, to hold them for the trustee. An interpleader having been ordered, an act of bankruptcy. Therefore it ap- stipulates. I have carefully looked through his me that the purchase was not a examination, and I find there is not an atom of to determine the right to the effects, the execution bona fide purchase according to the Act of proof that any demand was made other than the creditor contended that the bankruptcy was a 1869, and my decision must be against Mr. one which was contemporaneous with the execunullity, the bankrupt being a trader within the Major, as relates to this sum of £5 15s. With tion of the deed. Where there is a proviso with City of London, and that the County Court had regard to the other smaller sum of £4 4s. 1d., the a condition that a demand shall be made, the no jurisdiction. Held (affirming the majority of facts seem to be that on the 11th March, Mr. demand must be made in the terms of that the Court of Common Pleas), that the County Peard, a solicitor at Bideford, gave to Mr. Major proviso, and after it has been made, the grantor is Court had authority to hear the case, and to proa warrant to seize under a bill of sale for £44s. Id. entitled to a reasonable interval between the time ceed to the adjudication; also that the 87th section This warrant was placed in the hands of Mr. of the demand being made and the grantee taking relates only to those cases which would not be acts Major, and at the time the warrant was so placed, possession. One of the strongest cases recorded of bankruptcy at all if committed by non-traders. Mr. Major had a warrant from the landlord, dated lays it down that where there was a proviso that Per Martin, B. and Quain, J.-That the order of the 25th, and Mr. Major took and retained possesnotice should be given, that notice was bound to adjudication being made against M. as a non- sion under the warrant of distress. An arrangebe given before the demand could be complete. trader, was a mere irregularity: (Revell v. Blake, ment was made that the execution of the warrant It was the case of a grasping, avaricious money29 L. T. Rep. N. S. 67. Ex. Ch.) should be postponed, and finally the trustee emlender, who thought he would act in conformity DEBTOR AND CREDITOR-COMPOSITION WITH ployed Mr. Major to sell the whole of the property with the terms of that proviso, and gave notice CREDITORS RESOLUTION OF CREDITORS TO and effects of the debtor. He was therefore the at noon that he should call in payment, and took ORIGINAL DEBT SUED hired agent of the trustee, and would be account-possession at ten minutes after twelve on the FOR BEFORE DEFAULT IN PAYMENT OF COMPO- able to the trustee for the proceeds of the sale. same day. The court expressed very properly SITION-RIGHT OF ACTION FOR ORIGINAL DEET He with great candour submits that he paid over their surprise at such a proceeding, and decided -ACCORD AND SATISFACTION.-Where an "ex- the £4 4s. 1d., to Mr. Peard, without communi- against the lender. traordinary resolution" of creditors has been duly oating with the trustee, without accounting for passed, under sect. 126 of the Bankruptcy Act that sum, and making no allusion to it. It is 1869, for the acceptance of a composition from quite clear that Mr. Major, as the agent of the their debtor, payable at a future time, or by instal- trustee, should either have accounted to him or ments, in satisfaction of the debts due to them paid over the whole of the proceeds of the sale, from him, no creditor who is a party to, or bound and allowed the question to be discussed between by, such resolution, can bring an action for his the estate of the debtor and Mr. Peard, and not original debt, until default by the debtor in pay- have taken upon himself the responsibility of ment of the composition or an instalment thereof, paying the money. Therefore I have no alternaand to any such action brought before such tive but to decide that, with regard to both these default, such resolution forms a good plea in bar: cases, Mr. Major must be ordered to pay the So held by the Court of Exchequer, Kelly, C.B., amounts over to the trustee. and Martin, Bramwell, and Pollock, BB. (though not without doubt). Per Martin, B.: Quære, whether it is the true construction of the Act that the creditor has a right of action for the original debt in cases even where the composition is not paid when it falls due: (Slater v. Jones; Capes V. Ball, 29 L. T. Rep. N. S. 56. Ex.).

ACCEPT COMPOSITION

BARNSTAPLE COUNTY COURT. (Before Mr. Serj. PETERSDORFF, Judge.) Tuesday, Sept. 9

Re KINGFORD.

Bill of sale-Proviso for notice and demand
Seizure without notice-Proceeds realised under
-Right of trustee.

APPLICATION was made at a former sitting by
Bencraft, representing the trustee of the estate,
that Mr. Cory, solicitor, of Holsworthy, who had
realised a portion of the bankrupt's estate under a
bill of sale, should be ordered to hand over the
proceeds for the benefit of the estate, on various
grounds which challenged the validity of the bill
of sale.

Re W. H. SYMONS. Sale of debtor's property-Non-payment to trustee. Thorne made an application on the part of His HONOUR delivered the following judgment: the trustee of the above estate for an order touch. The bill of sale recites that the sum of £100 was ing (1) the purchase, by Mr. J. Willis Major, advanced by Mr. Cory; it also recites that that from the debtor on the 28th March last, of a trap money had been paid to the bankrupt. The bill and harness for £5 15s. ; and (2) the non-payment of sale then goes on and contains the usual transby the said J. W. Major to the trustee of £4 4s. 1d., fer, apparently absolutely, of the property-that part of the proceeds of the sale by auction of is, that Mr. Cory was to become the absolute some of the debtor's property. The application owner of the effects and debts of the bankrupt, was that Mr. Major might be ordered to pay these and that he was to be entitled to have possession amounts to the trustee, to be divided with the in accordance with the powers conferred, with rest of the estate among the creditors. It trans- this proviso-and it is a proviso that is introduced pired in evidence given at a former court, that, on into all instruments of this description-that if 28th March last, Mr. Major purchased a trap and the grantor should pay £100 on demand in writing, harness of the debtor for £5 15s., and he (Thorne) the bill of sale shall be null and void, and on grounded his application on the fact that by a failure of the payment of the £100 on such prior act of bankruptcy the debtor could not make demand being made, Mr. Cory was entitled to a good title to the articles so sold and purchased, enter and take possession and become absolute because all his property would be thus vested in owner. At the time that this case was origin. the trustee. With reference to the other amount ally before me, I suggested that there was of £4 4s. 1d., it seemed that Mr. Major was em- considerable difficulty as to whether there ployed by the trustees to sell part of the debtor's had or had not been a sufficient demand. effects, for the proceeds of which he was answer- Mr. Cory's statement was this, that at the time able to the trustee. Instead, however, of paying when the bill of sale was executed, and the debtor,

Bencraft: May I ask your Honour for the case ?

His HONOUR.-It is Bright v. Norton (32 L. J. 38, Q.B.). But there are a number of other cases which I could give you upon the question of notice. If you want a case for the demand I can give you that. There is Toms v. Wilson (32 L. J. Q. B. 33). The spirit of all these cases is that when the proviso is introduced the debtor shall have reasonable time to obtain the money. You see if that were not the interpretation which ought to be given to a proviso of this description, the effect would be this, to transform a conditional security with a proviso into an absolute unconditional conveyance. Why don't parties who wish to take immediate possession exercise direct and instantaneous control ?-why don't they, as honest people, take a bill of sale generally, without any stipulation or provision at all? It is a delusion to introduce any proviso of this description where the party contemplates immediate_seizure, immediate sale, and immediate control. I wish it to be distinctiy understood, with regard to the gentleman who has advanced this money, that I don't insinuate for a moment that he intended to pursue a course which he had the least idea was improper, but he has failed in observing the requirements which the law imposes, and he must necessarily yield to the effect of his failure. What I suggest is this, that as the money has been advanced by Mr. Cory, and as he paid a certain number of creditors, the estate is necessarily benefited to the extent to which those payments were made, and he should therefore be allowed to prove against the estate.

Thorne (for Mr. Cory): Your Honour will remember that at the last argument my friend on the other side stated the grounds on which he proposed to go. I have not those grounds now before me, but I think your Honour will see that your decision proceeds on an entirely new ground, which I have not had an opportunity of meeting.

His HONOUR.-If you state that you are taken by surprise the utmost that I can do is this: There must be a pure and distinct understanding that there is to be no variation in the evidence, and then if at the next court you should wish to address me upon this point of demand, I should not be inclined to refuse the application to do But there are to be no additional facts subm