valid judgment. Then a bankruptcy notice is served upon the debtor, calling upon him to pay the amount due upon that judgment within seven days. If he does not do so that is an act of bankruptcy, upon which he can be made a bankrupt. If he is made a bankrupt, the bankruptcy Judge can do what no other Court can -he can go behind the judgment and see whether it was founded on a good cause of action. In the present case, if we look behind the judgment, it is clear that these costs were a debt in respect of which there was a right of action. The objection to this bankruptcy notice is based entirely upon the dictum of Mr. Justice CAVE in I re Shirley (5). I do not agree with that dictum, and I think that it must be treated as overruled.

LOPES, L.J.: I am of the same opinion. Upon the interlocutory order for the payment of costs no bankruptcy notice could issue. But in this case there were further proceedings. An action was brought for the amount of the costs, and judgment in default of appearance was obtained. There is no question but that that was a final judgment. The Bankruptcy Court has, no doubt, power to go behind that judgment and inquire whether the debt is a good one apart from the judgment. But in the present case such an inquiry would show that there was a perfectly good debt. I think that the registrar was wrong, therefore, in setting aside the bankruptcy notice founded on that judgment. I agree with what the Master of the Rolls has said as to the opinion expressed by Mr. Justice CAVE in In re Shirley (5).

RIGBY, L.J.: I am of the same opinion.

Solicitors: Hores & Pattisson, for the Appellant.
W. C. Goulding, for the Debtor.

Appeal allowed.

A. H. B.

IN RE LOW, EX PARTE GIBSON,

1895, March 15. LORD ESHER, M.R., AND LOPES AND RIGBY, L.JJ. Bankruptcy Bankruptcy Notice-Immaterial Defect-Error in Description of Judgment Debt-Issue of Notice against one of Joint Debtors-Bankruptcy Act, 1883 (46 & 47 Vict. c. 52), s. 4, subs. 1 (g); s. 143.

Where, in an action against six defendants, judgment was obtained against four, and a bankruptcy notice founded on that judgment was issued against one of the four, in which notice the judgment was erroneously stated to be against all six, but was otherwise correctly described :

Held, that, as the mistake was one which could not mislead the debtor, the notice was valid.

A bankruptcy notice can be issued against one only of four debtors jointly liable under a judgment, and need not be also directed to the three whom it is not intended to serve.

APPEAL from the refusal of the registrar to make a receiving order. An action had been brought by Gibson against Low and five other defendants, in which judgment was recovered for 5,000l. against Low and three of the other defendants jointly. In respect of that judgment debt, Gibson subsequently issued a bankruptcy notice against Low, which stated that Low was indebted to Gibson upon a final judgment against him and five others, naming the persons against whom the action had been brought. This notice was directed to Low only, and was served upon him. Low did not pay the amount within the specified time; and thereupon Gibson presented a bankruptcy petition against him.

The registrar refused to make a receiving order, and dismissed the petition, on the ground that the judgment was stated in the notice as being against six persons, whereas in fact it was only against four.

The petitioning creditor appealed.

F. Cooper Willis, for the appellant, referred to section 143, subsection 1 of the Bankruptcy Act, 1883.

M. Muir Mackenzie, for the debtor, referred to Ex parte Hughes, In re Howes (1).

(1) 4 R. 4; [1892] 2 Q. B. 628; 62 L. J. Q. B. 88; 67 L. T. 213; 40 W. R.

647.

Lord ESHER, M.R.: This case has been argued with great care and skill by the respondent's counsel; but the main answer to his argument, in my opinion, is that, of all the proceedings known to the law, bankruptcy proceedings ought to be less technical than any other. In bankruptcy all technicalities should be swept away, and a Bankruptcy Court may go further in disregarding technicalities than any other Court of law or equity. In this case the respondent's counsel has gone with the utmost minuteness into the most rigid technicalities that it is possible to conceive.

I think that it is true to say that there was an irregularity in this bankruptcy notice in describing the judgment upon which it is founded as being against six defendants when it was in fact only against four. But the debtor knows that judgment was obtained on a particular day against him jointly with some of the six persons who are named in the notice. He knows very well that there was an action brought against him and the five other defendants mentioned in the notice, and he knows that the judgment was only against himself and three of the other defendants, and that that judgment was on the day stated in this notice. How could he be in any doubt as to that being the judgment described in the notice? He could not be, unless it is to be said that he might reasonably doubt whether there had not been on the same day as this judgment which he knew of against himself and three others another judgment against himself and those three and two others. That is an impossible suggestion. It is obvious to my mind that this point is purely formal, and that the misdescription in the bankruptcy notice could not do any injustice at all. Consequently, the notice cannot be treated on that ground as a bad notice.

The other point seems to me to be of the same kind. It is said that a bankruptcy notice cannot be given in respect of a judgment against four defendants unless it purports to be a notice as against all of them. But it is admitted that any one of the four may be made bankrupt on the judgment, and that the bankruptcy notice need not be served except upon that one. What possible object can there be in putting into the bankruptcy notice the names of debtors whom it is not proposed to serve? Therefore, that point also is a technicality of the strictest kind, and is one which we ought not to give effect to. The case cited to us was one in which the Court was

of opinion that there was an irregularity which might cause substantial injustice; and, therefore, in that case the notice was set aside.

LOPES, L.J.: I am of the same opinion. It appears to me that there is a broad distinction between an irregularity that may prejudice or embarrass the party complaining of it and an irregularity which is purely technical and cannot have any injurious effect. I am of opinion that the irregularity complained of here is immaterial in this sense, that it could not possibly embarrass the debtor. It is quite clear that he must have known that the judgment which is stated to be against six defendants was intended to describe the judgment against four of them in the action against those six.

I have nothing to add on the second point to what has been said by the Master of the Rolls.

RIGBY, L.J.: I am of the same opinion. In this case there has been a slip in the bankruptcy notice, and the question is whether any substantial injustice could be caused by it to the person served with the notice. I can see no possibility of any such injustice. If we were to hold that any irregularity whatsoever would invalidate a bankruptcy notice, we should be not only going against section 143 of the Act, but in the teeth of many decisions. This is the case of a slip which could occasion no substantial injury, and which, therefore, does not render the notice bad.

On the other point, I cannot see why it should be obligatory to address a bankruptcy notice, intended for service on one defendant, to every other defendant named in the judgment, although it is not upon the intended to follow that up by service of bankruptcy notices others.

Solicitors: Faithfull & Owen, for the Appellant.
Drake, Son & Parton, for the Debtor.

Appeal allowed.

A. H. B.

IN RE CARRUTHERS, EX PARTE TOBIT.

1895, March 28. VAUGHAN WILLIAMS, J.

Bankruptcy Disclaimer-Lease-Measure of Damages-Assignee-Depreciation of Premises-Dilapidations-Bankruptcy Act, 1883 (46 & 47 Vict. c. 52), 8. 55.

Where the assignee of a repairing lease had become bankrupt, and his trustee had disclaimed the premises, which had become depreciated in letting value, the Court allowed the assignor under his covenant of indemnity to prove as damages (i.) two quarters' rent from the date of disclaimer so as to allow him time to repair and re-let; (ii.) the diminution in letting value for the residue of the term; (iii.) the amount of the dilapidations.

THIS was an appeal against the rejection by the trustee in the above bankruptcy of a proof for damages claimed in respect of injury sustained by the trustee's disclaimer of certain leasehold premises vested in Carruthers-the bankrupt at the commencement of the bankruptcy.

The leasehold premises in question, No. 90, High Street, Kensington, were leased in 1877 on a repairing lease to one Phillips for a term of twenty-one years, at an annual rent of 1007. Phillips assigned to Tobit, the present appellant, who entered into the usual covenant to indemnify his assignor, and Tobit again assigned to Carruthers, who also entered into the usual covenant to indemnify Tobit. In 1894 Carruthers became bankrupt, and his trustee, in December of that year, gave notice to disclaim. At the date of the disclaimer there still remained four years of the term unexpired.

Tobit claimed by way of damages under the bankrupt's covenant of indemnity a sum of 4007., representing the full rent for the four years unexpired, and a sum for dilapidations. There was evidence that the letting value of the premises in question and of the property in the neighbourhood generally had fallen considerably; also that the premises were in disrepair.

Edward Clayton (Crump, Q.C., with him):

The premises are unlettable. The trustee offers to allow us to prove for one quarter's rent from December, the date of disclaimer,