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wrong in form, and Mrs. Beauchamp claimed to have it set

aside.

Held, the power of the Court in bankruptcy to go behind
a judgment is a power to inquire into the consideration and
not into the form of the judgment, and the judgment is con-
clusive unless the consideration can be questioned.



The Bankruptcy Court is not a Debt-collecting Agency, and will
refuse to make a receiving order if there be " sufficient
cause," e.g., where Debtor is threatened with Bankruptcy if
he does not pay.

IN EE GOLDBEKG. [1904]
(21 T. L. E. 139.)

The debtor, who had assigned the whole of his property for
the benefit of his creditors, offered to pay all his creditors a com-
position of 7s. 6r/. in the pound. This offer the majority of the
creditors accepted, but one of the creditors insisted on an imme-
diate cash payment of 7s. 6d. in the pound and bills for 2s. Qd.
in the pound backed by a relative of the debtor, and threatened
that if this were not done he would present a bankruptcy
petition. This being refused, a bankruptcy petition was pre-
sented.

Held, that as the petitioning creditor had endeavoured to
obtain a secret advantage over the other creditors tvith a
threat, if the debtor did not concede it. to present a bank-
ruptcy petition* there was u sufficient cause'''' for declining
to make a receiving order within sect. 7, sub-sect. 3 of the
Bankruptcy Act, 1883.



280 BANKRUPTCY.

Annulment of Adjudication on payment of Debts in full is dis-
cretionary, and Court may postpone same for grave offences
against the Law of Bankruptcy.

IN EE TAYLOR; EX PAETE TAYLOR. [1901]
(70 L. J. K.B. 531 ; (1901) 1 K. B. 744 ; 8 Ma. 230; 84 L. T. 426 ;

49 W. E. 510.)

Edwin Taylor was adjudicated bankrupt on the 24th October,
1899. Search by his trustee in bankruptcy revealed the fact
that much of the bankrupt's property was undisclosed by
him, and that a bill of sale he had pretended to grant was a
bogus one.

On February 19th, 1901, the debtor, having paid the debts
in full, applied for an order annulling the adjudication, but the
registrar refused the application on the ground that he believed
that the debtor had done his utmost to defraud his creditors ;
that the debtor had set up a bogus bill of sale over his furni-
ture ; that he had wilfully concealed his assets ; and that his
sworn statement of affairs was false from beginning to end.
From this decision the debtor appealed.

Held, the annulment of a debtor's adjudication under
sect. 35 of the Bankruptcy Act, 1883, does not follow as a
matter of course upon proof that all the debts have been
paid in full. The power to annul adjudications given to the
Court is discretionary, and the Court will by refusing, or at
any rate postponing, the annulment, punish a debtor who
has been guilty of grave offences against the law of bank-
ruptcy.

The Registrar was perfectly right in the exercise of his
discretion, having regard to the debtor s misconduct, to
refuse to annul the adjudication.



BANKRUPTCY. 281

An Undischarged Bankrupt may not dispose of after-acquired
Property except for Value. Any such gifts are void as
against the Trustee in Bankruptcy.

IN RE BENNETT ; EX PARTE OFFICIAL RECEIVER,

[1907]

(76 L. J. K. B. 134 ; (1907) 1 K. B. 149; 95 L. T. 887; 14 Ma. 6;

23 T. L. R. 99.)

Arthur J. Bennett was adjudicated a bankrupt on Decem-
ber 8th, 189b, and the official receiver acted as trustee in the
bankruptcy. There were no assets of any value, and the
liabilities amounted to about 300/.

Subsequently to the adjudication aud about eighteen months
before his death, the debtor took out two policies of insurance
on his life, and paid the premiums on them till his death. On
his death letters of administration were taken out by Percy
Bennett, who distributed the estate, which consisted of the pro-
ceeds of the policies, between himself and the other next of kin
of the debtor. Neither the administrator nor the other next of
kin had any notice of the bankruptcy. After this distribution
of the net proceeds of the policy moneys the trustee became
aware for the first time of the existence of these moneys, and
moved for an order declaring the policy moneys paid by the
administrator of the bankrupt to be part of the property of the
debtor under sect. 44 (1) of the Bankruptcy Act, 1883, and
directing the payment of such moneys to the trustee.

Held, the bankrupt is an agent of the trustee to deal with
after-acquired property, not to give it away. He cannot
defeat the operation of sect. 44 of the Bankruptcy Act,
1883, by giving away after-acquired property ; nor can his
next of kin retain against the trustee shares in such pro-
perty, even though received by them in good faith without
notice of the bankruptcy on their part or that of the
administrator.

That until a trustee intervenes all transactions by a



282 BANKRUPTCY.

bankrupt with any person dealing with him bona fide and
for value in respect of his after -acquired property, whether
with or without knowledge of the bankruptcy ', are valid
against the trustee.

Note. —The Last paragraph does not apply to after- acquired real
property. See London and County Contracts v. Tallack, infra.



An Undischarged Bankrupt can pass no Property in after-acquired
Real Estate (including leaseholds) even to a bona fide Pur-
chaser for Value.

LONDON AND COUNTY CONTRACTS v. TALLACK. [1903]
(51 W. R. 408.)

The plaintiffs claimed a declaration that they were entitled to
the equity of redemption of certain freehold land which they
had purchased from Greorge Carter, an undischarged bankrupt.
The plaintiffs were bond fide purchasers for value without notice
of the bankruptcy.

Held, that the plaintiffs were not entitled to the equit/j of
redemption, for at the date when Carter acquired the pro-
perty he was an undischarged bankrupt, and he could only
acquire it for the benefit of his trustee m bankruptcy, and
could not, therefore, give a good title to the plaintiffs.

The rule that until the trustee in bankruptcy intervenes,
all transactions by a bankrupt after his bankruptcy with
any person dealing with him bona fide and for value in
respect of his after-acquired properly, and whether with or
without knowledge of the bankruptcy , are valid as against
the trustee, does not apply I" real estate.



BANKRUPTCY. 283

Debts incurred after Notice of Act of Bankruptcy are not
recoverable by the Creditor.

BUCKWELL v. NORMAN. [1898]

(67 L. J. Q. B. 435 ; (1898) 1 Q. B. 622 ; 5 Ma. 64 ; 78 L. T. 248 ;

46 W. R. 339.)

The defendant applied to the plaintiff, a solicitor, to file his
petition in bankruptcy, and in doing so committed an act of
bankruptcy. The plaintiff filed the petition, and subsequently
a receiving order was made against the defendant. Costs were
incurred in the bankruptcy proceedings between the date of the
act of bankruptcy and the making of the receiving order. The
plaintiff received from the estate, under rule 125 of the Bank-
ruptcy Rules, 1886, the sum of about 4/. in respect of the
costs incurred in filing the petition. The plaintiff then sued to
recover the balance.

Held, that the plaintiff was not entitled to recover, upon
the ground that the costs were a " provable debt" within
sect. 37, sub-sect. 3, of the Act of 1883, although the
plaintiff could not prove for them in the bankruptcy under
sub-sect. 2, because at the time ivhen they were incurred he
had notice of an act of bankruptcy committed by the
defendant.

A Married Woman can only be made Bankrupt in respect of her
Separate Estate when she is Trading separately from her
Husband. A Spinster who commits an Act of Bankruptcy
escapes being made a Bankrupt by Marriage before adjudi-
cation.

IN RE DEBTOR; EX PARTE DEBTOR. [1898]

(67 L. J. Q. B. 820 ; (1898) 2 Q. B. 576 ; 78 L. T. 824 ; 46 W. R.

675; 5 Hanson, 122— C. A.)

At the time when judgment was recovered and the petition
was presented the debtor was a spinster. She induced the



284 BANKRUPTCY.

Court to let the petition stand over, and during the interval got
married. It was admitted that she had not been carrying on
business separately from her husband.

Three weeks after the debtor's marriage the petition was
heard and a receiving order was made against the debtor.

The debtor appealed, and asked that the order might be
discharged.

Held, by the Court of Appeal, the debtor could not be
made bankrupt, and the order must be discharged, for it is
clear that a married woman van only be made bankrupt in
respect of her separate estate when she is trading separately
from her husband.



DIVORCE AND MATRIMONIAL CAUSES. 285



DIVORCE AND MATRIMONIAL CAUSES.



DIVORCE.



Where both Parties are guilty of Adultery no Decree will be
granted except under exceptional circumstances.

STOKEE v. STOKEE. [1889]
(58 L. J. P. 40 ; 14 P. D. 60 ; 60 L. T. 400 ; 37 W. E. 576.)

In this case there were cross petitions charging adultery in
each case. The jury found that the wife had been guilty of
adultery and the husband of incestuous adultery.

Held, that both petitions must be dismissed. The discre-
tionary power given to the Court by sect. 31 of the Divorce
Act, 1857, to pronounce a decree nisi in favour of a
'petitioner ivho had been guilty of adultery, is to be exercised
only under very exceptional circumstances, and there were
none such in the present case to justify a decree.



Where a Husband deserts his Wife and the Wife within two years
thereof obtains a Separation Order, the Wife cannot, after the
expiration of the two years, rely on that as Desertion which,
coupled with Adultery, would be sufficient grounds for

Divorce.

DODD v. DODD. [1906]
(75 L. J. P. 49 ; (1906) P. 189 ; 94 L. T. 709 ; 54 AV. E. 541 ;

70 J. P. 163; 22 T. L. E. 484. J
The parties, who were married in 1891, separated in August,
1896, the petitioner leaving her husband, who had given way to



286 DIVORCE AND MATRIMONIAL CAUSES.

drink and neglected to provide for her and her child. On
September 9th, 1896, the wife obtained an order under the
Summary Jurisdiction (Married Women) Act, L895, on the
ground of wilful neglect by the husband to provide reasonable
maintenance for her and her infaut child, with among others a
provision that she be no longer bound to cohabit with her
husband. This provision while in force has, by the Act, the
effect in all respects of a judicial separation.

The husband failed to comply with the money provision of
the order, and adultery on his part in the year 1905 was
established to the satisfaction of the Court.

Held, the wife having obtained a separation order under
the Summary Jurisdiction [Married Women) Act, 1895,
the effect of ivhich was to prevent the continuance of the
desertion after the date of the order, there was no desertion
by the husband for the space of two years and upwards
without reasonable excuse so as to satisfy sect. 27 of the
Matrimonial Causes Act, 1857, and the petitioner was not
therefore entitled to a decree for dissolution of marriage.



Where Adultery has been condoned, subsequent Misconduct short
of Adultery will revive the condoned Adultery.

RIDGWAY v. RIDGWAY. [1881]

(29 W. R. 612.)

The wife petitioned for a dissolution of marriage on the
ground of her husband's adultery and cruelty.

The respondent alleged that the adultery and cruelty had
been condoned.

The wife admitted the condonation, but there was evidence
that the respondent had taken liberties with and solicited the
chastity of a female servant.



DIVORCE. 287

Held, condonation only constituted a conditional forgive-
ness, and that misconduct of that /rind on the husband 1 s
part, though falling short of actual adultery, is a breach of
the condition of forgiveness, and that therefore the cruelly
and adultery, although condoned, were revived by the
husband' 's misconduct.



Condonation of Adultery after Decree nisi for which obtained is a
ground for Rescission of Decree.

EOGEES v. EOGEES. [1894]
(63 L. J. F. 97 ; (1894) F. 161 ; 6 E. 650 ; 70 L. T. 699.)

A decree nisi was pronounced on the wife's petition. Subse-
quently the Queen's Proctor intervened and established, first,
that the petitioner had, subsequent to the decree nisi, condoned
the adultery on account of which it had been pronounced by
allowing her husband to come to her house and go into her bed-
room, although there was no evidence that they had slept together,
and going out with him ; and secondly, that the petitioner and
respondent had been guilty of collusion for the purpose of con-
cealing such condonation by making their meetings as secretly
as possible. It was further established that the respondent had
been guilty of adultery subsequent to such condonation.

Held, that the parties having been found guilty oj collu-
sion, the decree nisi must be rescinded and the petition
dismissed, and that it was immaterial whether the condoned
adultery had been revived by the subsequent adultery of the
respondent or not ; but, secondly, that the petitioner might
nevertheless succeed in obtaining a dissolution on filing a
fresh petition alleging such adultery.



288 DIVORCE AND MATRIMONIAL CAUSES.

Desertion of Husband by Wife going to live with her Paramour is
Conduct conducing to Adultery.

CONST ANTI NIDI v. CONSTANTINIDI. [1903]
(72 L. J. P. 82 ; (1903) P. 246 ; 89 L. T. 340 ; 52 W. R. 190.)

The husband petitioned for dissolution of his marriage with
the respondent on the ground of her adultery, and there was a
cross petition charging the husband with adultery.

In 1897 the wife deserted the husband, and in 1899 the
husband obtained a decree of judicial separation on the ground
of his wife's desertion. In 1902 the wife divorced her husband
in the State of Dakota, U.S.A., on the ground of his cruelty,
and then went through the form of marriage with the co-
respondent, and they had since cohabited as man and wife.

The petitioner had on several occasions committed adultery
after his wife's desertion.

Held, that the adultery of the husband subsequent to the
desertion was no defence to his petition, as the wife had
been guilt// of conduct conducing to it.

A wife ivho leaves her husband because she has trans-
ferred her affections to another man, and ivhose hush/aid
correctly assumes this to be so, is in a serious degree
responsible for the subsequent misconduct of the husband,
and will not be allowed to evade the consequences of her
otvn misconduct by alleging that of the husband.



Leaving a Wife without Means is Conduct conducing to her Adul-
tery, especially in the case of a woman who was a Prostitute
before Marriage.

COULTHART v. COULTHART. [1859]
(28 L. J. P. & M. 21.)

On a petition for dissolution of marriage on the ground of the
wife's adultery, it appeared that the petitioner, a draper's assistant,



DIVORCE. 289

then twenty-one years of age, married in 1853 a woman whom
he well knew to be a prostitute. A montli after the marriage
they removed from lodgings to the house of the petitioner's
father, from which, after a stay of a few weeks, they were com-
pelled to remove in consequence of the wife exhibiting bad
temper and making herself disagreeable to the family. Ten
days afterwards, the husband went to America, not on business,
but because he lived unhappily with his wife, leaving her with-
out means of subsistence, and supplying her with none during
an absence of four years. After he left, his family had given
the wife a small pittance on one occasion, but in consequence of
her annoying them, all intercourse was broken off. The wife,
after her husband left, returned to her former way of life.

The Court held that before the marriage the wife was living
an immodest and immoral life, and that was perfectly well
known to the husband, and it was therefore necessary for
him, considering her former course of life, to exercise the
greatest vigilance and caution over her conduct. There ivas
a wilful separation of the husband from the wife before the
adultery complained of ivhich had been without reasonable
excuse, and in exercise of the discretion given them by
20 6f 21 Vict. c. 85, s. 31, the Court refused to decree a
dissolution of the marriage.



Re-marriage before Decree Nisi made Absolute will not prevent
the Decree being made Absolute if Second Marriage is
contracted in belief that the Decree had been made absolute.

WICKHAM v. WIOKHAM. [1880]
(49 L. J. P. 70 ; 6 P. D. 11 ; 43 L. T. 445.)

In 1868 the wife obtained a decree nisi on the ground of her
husband's cruelty and adultery. On the day of the granting of
the decree nisi her solicitor, who had since died, told her that

j. u



290 DIVORCE AND MATRIMONIAL CAUSES.

the obtaining of a decree absolute was a mere matter of form
which he would see to without troubling her. Believiug that
all the necessary things had been done and that the decree nisi
had been made absolute, she, on the 17th of September, 1871,
went through a ceremony of marriage with another man. It
was not till the 8th of May, 1880, that she discovered that the
decree had not been made absolute and that consequently her
second marriage was invalid.

She now applied to have the decree made absolute. No
opposition was offered by the Queen's Proctor.

Held, in the circumstances, the Court would make the
decree absolute.



NULLITY.



Nullity will be decreed where Marriage Ceremony gone through
in Ignorance of its being a Marriage Ceremony.

HALL v. HALL. [1908]
(24 T. L. E, 756.)

In the year 1905 the respondent, who was engaged to the
petitioner, accepted an appointment in Penang, for which place
he had to leave England early in January, 1900. It was
arranged that he should get a home ready for the petitioner,
and that they should be married in the autumn. Just before
he left, when the young couple were out for a walk together,
they passed a place which the petitioner subsequently learnt to
be the Kensington Register Office. The respondent casually
said, " Oh ! let's go in and put our names down to be married."
After some pressing she did so, and they went in together and
were duly married by the registrar. She was all the time
under the impression that it was a mere form of betrothal, as
she entertained the belief that a marriage could only take place



FORM OF MARRIAGE. 291

in a church. She said she had not paid any attention to the
questions put to her by the registrar, and never had any idea
that she was being married. The respondent, it appeared, was
equally innocent, and although he had in December, 1905, given
the proper notices for a valid marriage at the Register Office, yet
his letters written to her from Penang showed clearly that he
had no idea that lie was married, as he was planning to be
married to her in Penang.

After they left the register office they went to a theatre to see
" Peter Pan." The marriage was never consummated.

Held, per Gorell Barnes, P., that a person who was not
paying attention to what the registrar was saying might not
appreciate what the form of his words meant. The
marriage never having been consummated, and there being
nothing in the correspondence to suggest that they knew
they were married, he would pronounce a decree of nullity.



FORM OF MARRIAGE.



Restrictions and Prohibitions against Marriage are governed by
the lex loci contractus, even though one of the two parties
thereto is domiciled abroad.

OGDEN v. OGDEN. [1907]
(76 L. J. P. 9; (1907) P. 107; 96 L. T. 505; 23 T. L. E, 158;
affirmed 77 L. J. P. 34 ; (1908) P. 46; 97 L. T. 827; 24
T. L. E. 94.)

A ceremony of marriage according to English form was cele-
brated in England between Leon Philip, a domiciled French-
man, and the respondent, a domiciled Englishwoman. This
marriage was subsequently annulled in France at the suit of
Leon Philip as being contrary to the law of his domicile, he
having at the date of the celebration of it been under twenty-

u 2



292 DIVORCK AND MATRIMONIAL CAUSES.

one years of age, and not having obtained his father's consent.
At a later date, and while he was still living, the woman married
an Englishman in England.

Held, that this latter ceremony ivas bigamous, and there-
fore to be annulled at the suit of the man party to it.

Restrictions and prohibitions against marriage are decided
upon by the law of the place where the marriage is celebrated.
No nation can call upon another nation within whose
territory a marriage is celebrated to surrender its own laivs
to give effect to restrictions and prohibitions of marriage of
the former nation.

In the case of a marriage in England, ivhere the marriage
is valid of a British woman domiciled in England with a
man domiciled in a country where in the circumstances the
marriage would be invalid, the law of England, as the place
ivhere the marriage is celebrated, ivill prevail as the proper
test, at all events in England, of the validity of the marriage.

Note. — Sottomayor v. De Bar ros (49 L. J. P. 1), which is the lead-
ing case on this point, is not set out here, as the proceedings in that
case are somewhat puzzling to a student.

Note also, that the above doctrine would not apply if both
parties were domiciled abroad at the time of the marriage, even
though the marriage took place in England.



CUSTODY OF CHILDREN. 293



CUSTODY OF CHILDREN.



Legal Custody of Children is in Husband, but where he is guilty
the Custody may be given to Wife if blameless, or to Third
Parties if not blameless.

CHETWYND v. CHETWYND. [1865]

(35 L. J. Mat. 21 ; L. E. 1 P. 39 ; 4 Sw. & Tr. 151 ; 11 Jur. (N. S.)

958 ; 13 L. T. 474 ; 14 W. E. 184.)

A decree absolute having been pronounced against the husband
on the ground of his cruelty and adultery, applications were made
for the custody of the two infant children of the marriage by
their father and mother and by third persons who had been
allowed to intervene for the benefit of the children. The two
children were eight and ten years old respectively.

Held, when parents cease to live together the legal right
to the custody of children of this age is with the father.
But where the home has been broken up by the conduct of
the father, the Court frequently exercises its poiver in favour
of the injured mother. The wife, however, must be blameless
in order to justify the Court feeling at liberty to abrogate in
favour of a wife the legal right of her husband to the custody
of the children.

The Court being of opinion that in this case neither the
father nor the mother were fit to be entrusted with the care
and custody of the children, gave the custody of them to the
interveners, relatives of the husband, but directed that the
parents should be allowed reasonable access.



294 ADMIRALTY.



ADMIRALTY.



Crew are not entitled to Salvage till after bona fide Abandonment
of Vessel. Passengers are entitled to Salvage if they volun-
tarily stay on board and use extraordinary exertions.

THE VREDE. [1861]
(30 L. J. P. 209 ; Lush. 322.)

Certain passengers who were on board the Dutch barque
Vrede brought this action against the owners of the barque for
services rendered by them in pumping the vessel after she had
sustained damage by a collision with the Victor off the South
Foreland.

The ship was in no immediate danger of sinking, and the
passengers, at the request of the master, remained on board after
the collision and assisted at pumping her until her arrival in
port.

Held, this ivas not such service as to entitle the plaintiffs
to salvage reward.

Where there is a common danger it is incumbent on all
to assist. To entitle passengers to retvard for civil salvage
there must be a voluntary remaining on board, accompanied
with extraordinary exertions on behalf of the ship.

Salvage service may be performed by the seamen oj the
ship salved, ivhcn an abandonment of her has put an end to
their original contract.



ADMIRALTY. 295

Generally the Owner is not liable for Damages caused by the
Collision of his Ship with another where there is Compulsory
Pilotage and Pilot is in command.

THE OAKFIELD. [1886]

(55 L. J. P. 11; 1 1 P. D. 34 ; 54 L. T. 578 ; 34 W. E. 687 ;
5 Asp. M. C. 575.)

The defendants were the owners of the Oakfield, which, while
under the command of a pilot, collided with the Duchess of
Albany while at anchor. The weather was foggy at the time,
and vessels could only be seen when within a few hundred
yards. The defendants, while admitting that the Oakfield was
to blame, pleaded compulsory pilotage. The plaintiffs con-
tended, however, that the captain, by interfering with the pilot's
control of the ship, had rendered the owners liable.

Held, a mere suggestion by the captain of a ship to the



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