-

ARCHITECT- Plans 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 answer to the
action. GIBBON . PEASE

-

C. A. 810

Certificate of Finality - Reference of
disputes to arbitration
291
See BUILDING CONTRACT.

278

Scheme of- Security for
composition-Sufficiency
See BANKRUPTCY. 5.
ASSAULT-Indecent-Evidence - Admissibility
-Particulars of complaint made by
prosecutrix Complaint elicited by
question
551

-

See CRIMINAL LAW. 1.

ASSIGNMENT-Right to compensation-Lands
injuriously affected

260

See LANDS CLAUSES ACTS.
ATTACHMENT-Practice-Writ of Attachment-
Disobedience of Order-Personal Service, Absence
of-Erasion of Service-Rules of Supreme Court,
Order XLI., r. 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
service of it.

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

KISTLER . TETTMAR

C. A. 39
Specific chattel, Judgment for delivery of-
Wilful refusal to deliver
246
See COUNTY COURT. 5.
ATTENDANCE-Prevention of cruelty to children
-Necessity for attendance of child at
trial -
126

See CRIMINAL LAW. 4.

AUSTRIAN LAW-Cheque stolen abroad
Forged indorsement-Transfer for value
in foreign country-Conflict of laws 677
See BILL OF EXCHANGE. 1.

AWARD.

See under ARBITRATION.

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
the houses under a prior building agreement.
years, were granted to lessees, who had erected
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-
favour of the mortgagee. In re CARTER & ELLIS.
claimer, the discretion ought to be exercised in
Ex parte SAVILL BROTHERS
C. A. 735

2. Proof-Principal and Surety-Deben-
ture of limited Company-Debenture Interest
Bank-
guaranteed. Dissolution of Company ·
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-
tion and was dissolved by virtue of s. 143 of the
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

3. Proof-Secured Creditor-Increase in
Value of Security-Amending Proof - Teme—
Bankruptcy Act, 1883 (46 & 47 Vict. c. 52),
Sched. II., r. 13.

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

-

237

See MASTER AND SERVANT.
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
18. in the pound. In January, 1903, M.'s security
became greatly increased in value, and in May,
1904, he applied under rule 13 of Sched. II. to
amend his proof by revaluing his security on the
footing that he was fully secured :-

Held, that M. had done nothing to disentitle
himself to the relief he claimed, and that his
application must be granted. In re FANSHAWE.
Ex 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
lisaffirm 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-Approval by
Court-Security for Composition-Sufficiency—
Bankruptcy Act, 1890 (53 & 54 Vict. c. 71), s. 3,

sub-s. 9.

BANKRUPTCY-continued.

cases in which the Court might approve of a
scheme which provided for the conditional with-
drawal by some creditors of their claims.

When the Court refuses to approve of a
scheme of arrangement with creditors proposed
by a debtor, an immediate adjudication of bank-
ruptcy against him will be made only in the most
exceptional circumstances. In re FLEW. Er
parte FLEW
C. A. 278

-

6. Secured Creditor-Estimate of Security
Undervalue - Petitioning Creditor's Debt
Bankruptcy Act, 1883 (46 & 47 Vict. c. 52), 8. 6,
sub-s. 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 absence 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.

-

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.
C. A. 602
Ex parte Voss
Jurisdiction to make receiving order in lieu
of committal order-Absence of evidence
of means
374
See COUNTY COURT.

BENEFICE.

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 BILL OF COSTS-Solicitor.
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.

See under ECCLESIASTICAL LAW.

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), ss. 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. Sect. 24 of the Bills of Exchange Act, 1882.
The payment of the preferential debts, fees, &c., does not apply to an indorsement of a bill of
and of the composition was to be secured by the exchange abroad. That section is only declara-
vesting of the debtor's property in the trustee-tory of English law and does not control the
Held, that the scheme did not within the general rule of international law.
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.

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
Londo, and placed it, with a letter, in an envelope

Illegality Marriage

24

brokage

See CONTRACT.

addressed to that firm in London. The cheque
was stolen from the envelope by one of the
plaintiffs' clerks. The cheque was presented at BUILDING-Burial ground-Power to build on

a bank in Vienna by a person who desired that
it might be cashed. It then bore an indorse-
ment, which purported to be that of the London
firm, but which was in fact forged. The Vienna
bank, acting in good faith and without negli-
gence, cashed the cheque, and then indorsed it
to the defendants, bankers in London, and sent
it to them by post. The defendants cashed it
at the London bank on which it was drawn.
The plaintiffs sued the defendants for damages
for the wrongful conversion of the cheque. By
the Austrian law the defendants had a good
title to the cheque as bonâ fide holders for value
without gross negligence:-

Held, that Alcock v. Smith, [1892] 1 Ch. 238,
applied, and that the Austrian law must prevail,
the transfer of the cheque having been made in
that country.

Decision of Walton J., [1904] 2 K. B. 870,
affirmed. EMBIRICOS v. A GLO-AUSTRIAN BANK
C. A. 677

2.

--

1
Cheque-Forge Indorsement-Payee
α "Fictitious or Non-existing Person"—Belief or
Intention of Drawer-Bills of Exchange Act, 1882
(45 & 46 Vict. c. 61), s. 7, sub-s. 3.

The plaintiffs, market salesmen, had in their
employ a confidential clerk and cashier whose
duty it was to fill up cheques payable to the
order of various customers of the plaintiffs with
the names of such customers and the amounts
payable to them respectively, to obtain the signa-
ture of the plaintiff's thereto, and then to post
the cheques to the customers. In the course of
the years 1901 to 1903 the clerk made out twenty-
seven cheques to the order of various customers,
amounting in all to 4877., obtained the signature
of the plaintiffs thereto, and misappropriated
them, and, having forged the indorsements,
negotiated them with the defendant, who gave
full value for them in good faith and obtained
payment of them from the plaintiffs' bankers.
On an action to recover from the defendant the

See BURIAL.

403

- 661

-

In a building contract an architect was
nominated, who was given a general control over
the works, which were to be carried out in
faction. By a clause in the contract he was
accordance with his directions and to his satis-
empowered to order the removal of improper
materials, and the re-execution of work not done
in accordance with the drawings and the specifi-
cation. By another clause any defects which
might appear within twelve months from the
completion of the works, arising, in the opinion
of the architect, from materials or workmanship
not in accordance with the drawings and speci-
architect to be made good by the contractor at
fication, were upon the written direction of the
his own cost, unless the architect should decide
that he ought to be paid for the same. A further
clause, after providing for payment of the con-
tractor under certificates issued by the architect,
declared that "No certificate shall be considered
conclusive evidence as to the sufficiency of any
work or materials to which it relates, nor shall it
relieve the contractor from his liability to make
Held, that in the circumstances of this case
good all defects as provided by this contract."
it was impossible to come to the conclusion that The final clause provided that in case any
the plaintiff's when drawing these cheques had dispute or difference should arise as to the con-
used the names of their customers by way of struction of the contract, or any matter or thing
pretence only, and consequently that the payees notice thereof should forthwith be given, and
arising therefrom, except certain specified things.
were not "fictitious" persons within the meaning
of s. 7, sub-s. 3, of the Bills of Exchange Act, such dispute or difference should be referred to
1882, that the fraudulent indorsements by the arbitration, and the arbitrator should have
plaintiffs' clerk were no authority to the defend- power to open up, review, and revise any certi-
ant to hold these cheques, and that the plain-ficate, opinion, decision, requisition, or notice,
tiffs were entitled to judgment for the amount
claimed.

amount so received :-

A. C. 107, and Clutton v. Attenborough & Sons,
Bank of England v. Vagliano Brothers, [1891]
[1897] A. C. 90, distinguished. VINDEN v.
HUGHES
Warrington J. 795
BILL OF LADING-Seaworthiness-Duration of
warranty-Incorporation of Harter Act
-Effect of, on obligation of shipowner
See SHIPPING. 1
See under ECCLESIASTICAL LAW.

BISHOP.

-

697

save in regard to the matters expressly excepted,
and to determine all matters in dispute of which
notice should have been given.

building owner to recover sums due on certificates
In an action by the contracter against the
issued by the architect, the defendant set up by
way of defence and counter-claim that the work
done and materials supplied were defective and
unsuitable, and not in accordance with the terms
of the contract. At the trial the certificates
were held to be conclusive, and judgment was
given for the plaintiff. On appeal:-

Held, that the arbitration clause destroyed

[1905] 1 K. B. 715 CERTIFICATE-Architect-Finality-Reference