cases of Thompson v. Waithman (1) and Bristow v. Miller (2) support the view I have taken; and the former of these cases I consider an important authority as to this, although it has since, in Jackson v. Woolley (3) and other cases, been held that the ViceChancellor took an erroneous view in holding the Act of Parliament to be retrospective. In Bristow v. Miller, Crampton, J., said: Kilgorn v. Finlyson (4) is a clear authority to shew that after a partnership is dissolved one of the late firm cannot by his act or admission involve his co-partner in any new legal liability. In that case one partner had upon a dissolution been appointed to liquidate the debts of the partnership, but it was held that any acknowledgment of debt by him would not affect the other partner. The acknowledgment was referred to the new capacity of the partner as manager to wind up the concern." It does not appear that the £300 was in fact paid out of partnership assets collected by Benjamin. Indeed, I think it is to be inferred from paragraph 11 of the bill, from the banking-book of Benjamin (which was produced), and from what appears in the deeds as to the sources from which payments had been made, that it was not. At all events, the Plaintiff has not proved that it was so paid. I do not say that, had he proved so, this would have sustained his bill. It was attempted to get rid of the effect of the Statutes of Limitation by saying that they do not apply to cases like the present, there being, it is said, a fiduciary relation amounting to a trust. Burdick v. Garrick (5) was cited as to this, but that case, I think, depended on the special nature of the deed under which moneys were to be received and invested, and the case of In re Hindmarsh (6) is an authority that the relation of trustee and cestui que trust does not ordinarily exist between solicitor and client, although the solicitor may have received moneys from or for the client. It was further attempted to get rid of the statute by saying that William had given an acknowledgment of the debt which would take the case out of the statute. This alleged acknowledgment was contained in a letter written to his solicitor for the purpose of (1) 3 Drew. 628. (2) 11 Ir. L. Rep. 461. (4) 1 H. B. 155. V.-C. H. 1875 WATSON V. WOODMAN. 1875 V.-C. H. being, as is alleged, communicated to the testator, and which it is said was so communicated. I consider that the letter, whether it be read alone or in conjunction with the evidence as to it, was not sent to the solicitor for the alleged purpose, and that this contention fails. WATSON v. WOODMAN. It is unnecessary for me, having regard to what I have already said, to consider the further contention of William's counsel, that if the £300 should be deemed to be his payment, certain other sums paid by Benjamin to the testator, which, it was said, appear, or at all events upon an account being taken would, it was said, appear, to be more than the amount of the Plaintiff's claim, should also, especially having regard to Benjamin's obligations under the dissolution deed, be considered to be payments on account of the partnership debt; nor whether, as was contended by the Plaintiff, such other sums were in fact paid, or if in fact paid, should, under the circumstances, be deemed to have been paid in respect of new dealings and transactions between Benjamin and the testator, leaving the partnership debt unsatisfied except to the extent of the £300. Nor is it necessary for me to consider whether, as was contended on behalf of William, the testator accepted Benjamin as his sole debtor, and thus released William. On the whole, I consider that the Plaintiff has not made out his case, and that the bill must be dismissed with costs as regards William Woodman and Edward Thomas Row, who is a formal party as executor of the testator. Solicitors: Messrs. Gregory, Rowcliffes, & Rawle; Mr. Evans; Messrs. E. Flux & Leadbitter. Ex parte ROBERTSON. In re MORTON. Bankruptcy-Jurisdiction-Foreign Creditor resident Abroad-Effect of Proving A foreign creditor, residing out of the jurisdiction of the Court of Bankruptcy, by proving a debt in a bankruptcy or liquidation, brings himself within the general jurisdiction of the Court as to the administration of the estate, just as if he were residing within it. An order can therefore be made on him to restore property of the bankrupt or debtor improperly in his possession. A notice of motion was served out of the jurisdiction on the Respondent. No order authorizing the service had been obtained from the Court. The Respondent appeared on the hearing of the motion, and objected to the jurisdiction of the Court. On his objection being overruled, he asked for and obtained an adjournment to enable him to answer the case on its merits :Held, that there had been a mere irregularity in the service, and that it had been waived. THIS William Morton and Edmund Morton, potato merchants at Newcastle, filed a liquidation petition on the 18th of February, 1874, and the same day a receiver and manager of their property and business was appointed. At the first meeting of the creditors, on the 13th of March, 1874, the creditors resolved on a liquidation by arrangement, and appointed J. B. Benson and J. Greener trustees of the debtors' property. The debtors had been in the habit of purchasing potatoes from Donald Robertson, a potato merchant, who resided at Mayfield, in the parish of Cupar, in Scotland, and was a domiciled Scotchman. He had no residence or place of abode in England. On the 17th of February, 1874, the debtors owed him £367 2s. 11d. for potatoes, and they sent him by post a cheque for £120, drawn upon Messrs. Lambton & Co., bankers at Newcastle. He received this cheque on the 18th of February, and paid it to his bankers, by whom it was sent the same day back to Newcastle, and it was on the 19th of February honoured by Lambton & Co., who were then ignorant of the filing of the liquidation petition. C. J. B. 1875 May 24; C. J. B. 1875 Ex parte ROBERTSON. In re MORTON. Robertson proved in the liquidation for £247 2s. 11d., the balance remaining due to him after giving credit for the £120; the proof was admitted by the trustees, and on the 27th of October, 1874, they paid him a dividend of 4s. 6d. in the pound. The above-mentioned facts afterwards came to the knowledge of the trustees, and on the 6th of March, 1875, Robertson was served at Mayfield with a notice of motion on their behalf, stating that an application would be made to the County Court on the 12th of March for an order that he should repay the £120 to the trustees. No order for service on him had been made. On the 12th of March, Mr. Philipson, a solicitor at Newcastle, appeared on behalf of Robertson, and objected that the Court had no jurisdiction over him. The Judge overruled the objection, and Mr. Philipson then asked for an adjournment, on the ground that he was not then prepared to go into the merits of the case. The Judge granted an adjournment for a month, on the terms of Robertson paying £100 into Court within a fortnight, and also paying the costs of the adjournment. On the subsequent hearing of the motion on the 23rd of April, counsel appeared for Robertson, and took the objection as to the jurisdiction. The Judge overruled it, and Robertson's counsel withdrew before the evidence on the merits of the case was heard. Robertson had filed an affidavit in which he took the objection of want of jurisdiction, on the ground that he was a domiciled Scotchman, having no residence in England, and also deposed to facts bearing on the merits of the case. The Judge made an order in the terms of the notice of motion. Robertson appealed. Mr. De Gex, Q.C., and Mr. Finlay Knight, for the Appellant:An English Court of Bankruptcy has no jurisdiction over a domiciled Scotchman resident in Scotland. If this had not been a case of bankruptcy, no action could have been brought in an English Court against the Appellant to recover this money; he must have been sued in Scotland. Sects. 66 and 72 (1) of the (1) Sect. 65 provides that "the Chief Judge in Bankruptcy shall have all the powers, jurisdiction, and privileges possessed by any Judge of Her Majesty's Superior Courts of Common Law at Westminster, or by any Judgeof Her Majesty's High Court of Chancery, and the orders of such Judge Bankruptcy Act, 1869, do not give the Court of Bankruptcy a jurisdiction larger than that of the Court of Chancery or one of the superior Courts of Common Law. Moreover, the notice of motion was not effectually served on the Appellant. In Ex parte O'Loghlen (1) it was held that a debtor's summons could not be served out of the jurisdiction, there being no power given by the Act or the Rules to effect a service there, and that such a service, though made under an express order of the Court, was a nullity. This applies equally to service of a notice of motion under Rule 50 of the Bankruptcy Rules, 1870 (2), for no power is given to serve the notice out of the jurisdiction, and the shortness of the interval allowed for service shews that the rule could not have contemplated service out of the jurisdiction. [They were stopped by the Court.] Mr. Little, Q.C., and Mr. Colt, for the trustees: The Appellant having proved and received a dividend, the Court has complete jurisdiction under sect. 72 to compel him to refund any part of the debtors' estate which is improperly in his hands. Sect. 74 of the Act enables the Scotch Courts, which have jurisdiction in bankruptcy, to enforce in Scotland orders made by the English Bankruptcy Courts, and sect. 75 makes the English and Scotch Bankruptcy Courts auxiliary to each other. The order in this case was rightly made by the English Court, but it must be shall be of the same force as if they were judgments in the Superior Courts of Common Law, or decrees in the High Court of Chancery.” Sect. 66: "Every Judge of a local Court of Bankruptcy shall, for the purposes of this Act, in addition to his ordinary powers as a County Court Judge, have all the powers and jurisdiction of a Judge of Her Majesty's High Court of Chancery, and the orders of such Judge may be enforced accordingly in manner prescribed." Sect. 72 provides that, "Subject to the provisions of this Act, every Court having jurisdiction in bankruptcy under this Act shall have full power to decide all questions of priorities, and all other (1) Law Rep. 6 Ch. 406. (2) Rule 50 provides that a notice of motion must be "served upon the party or parties to be affected thereby four clear days at least before the day named in such notice as the day when the motion is to be made." C. J. B. 1875 Ex parte ROBERTSON. In re MORTON. |