« EelmineJätka »
ment of a guardian to the plaintiff and his brothers and sisters; directions for the maintenance and education of the plaintiff during his minority, having regard to the circumstances of his brothers and sisters; accounts; and a receiver. The solicitor employed by the next friend died pending the suit. The plaintiff, on attaining majority, adopted the suit. On a petition presented under 23 & 24 Vict. c. 127, s. 28, by the personal representative of the solicitor, for an order charging the plaintiff's real estate "preserved" by the suit with the solicitor's costs: Held, that the petitioner was entitled to the relief prayed: (Baile v. Baile, 26 L. T. Rep. N. S. 283. V.C. W.)
DONATIO MORTIS CAUSA-GIFT OF CHEQUE, AND DELIVERY OF BANK PASS-BOOK-CHEQUE NOT PRESENTED DURING DONOR'S LIFETIME.The delivery of the donor's bank pass-book, together with a cheque on his banker, which was not presented until after the donor's death, does not constitute a good donatio mortis causá: (Beak v. Beak, 26 L. T. Rep. N. S. 281. V.C. B.)
PRACTICE-AFFIDAVIT OF DOCUMENTS-PARTNERSHIP ACCOUNTS-EXECUTORS.-The executors of a deceased partner, two of whom were also members of the firm, employed part of their testator's assets in the business of the firm in which there were also other members. A bill was filed against the executors for the administration of the testator's estate, and for an account and payment of that portion of it which was employed in the partnership business. The defendants, in their affidavit of documents, refused to produce certain documents on the grounds that they were in the join possession of the firm. The plaintiff excepted to the sufficiency of this affidavit. Held, that the defendants must set out in their affidavit a list of all the documents in the joint possession of the firm: (Vyse v. Foster, 23 L. T. Rep. N. S. 282. V.C. B.)
PRACTICE SPECIAL CASE - AMENDMENT.Where, after a special case had been set down for
UNCLAIMED STOCK AND DIVIDENDS IN THE
BANK OF ENGLAND.
Transferred to the Commissioners for the Reduction of the
WHISTLER (Anne), 26, Pulteney-street, Bath, spinster. Two
APPOINTMENTS UNDER THE JOINT-STOCK
ROYAL NAVAL MILITARY AND EAST INDIA COMPANY LIFE
CREDITORS UNDER ESTATES IN CHANCERY.
hearing, one of the parties, who was a spinster ANDREWS (Samuel), Pershore, Worcester, maltster and
NUISANCE GLASS WORKS SMOKE AND VAPOUR-DELAY-INJUNCTION.-The owners of certain glass works which were erected in 1815, erected in the year 1817 and subsequent years down to 1863 seven new furnaces, which lagely increased the amount of smoke and vapour which was emitted from their works. The plaintiff, who was the owner of property adjoining the works which he and his predecessors in title had enjoyed long antecedent to the erection of the works, had at considerable expense prepared a portion of his estate for building purposes, but in consequence of the smoke and vapours from the glass works he had been unable to let the land for that purpose. Upon a bill filed in March 1870, for an injunction to restrain the emission of smoke and vapours from the new works: Held, that the plaintiff was not barred by delay, but that he was entitled to an injunction as to the whole of the new works, although one of the chimneys was erected more than twenty years before the filing of the bill: (Savile v. Kilner, 26 L. T. Rep. N. S. 277. V.C. B.)
Friday, April 19.
(Before Master UNTHANK.)
LEVY AND ANOTHER 1. FREAME AND OTHERS. Ejectment-Non-production of deed of assignment. THIS is an action of ejectment to recover possession of two houses at Brockley Rise, in the county of Kent, for breaches of covenant in a building lease, the breaches being the non-payment of rent and the non-production of a deed of assignment of the houses, subject to the charges thereon, within one month from execution, to the lessor's solicitor for registration and payment of his fee of a guinea.
W. G. Harrison, counsel for the defendants, now applied to stay the action upon payment of the rent and the solicitor's fee, and
Joyce (instructed by Solomon, of Finsburyplace) appeared on behalf of the plaintiffs.
It appeared from the affidavits that the deed in question had been tendered for registration, but refused, as a month had elapsed after its execu tion before it was tendered, and also that the rent had been from time to time tendered, and also refused, on account of the breach of covenant.
After hearing the counsel on both sides at length, the MASTER made an order, that upon payment of the rent and solicitor's fee into court, the proceedings as to them to be stayed, and left the defendants to apply to the Court of Chancery for an injunction to stay the action in respect of the non-production of the deed of assignment within the month, according to the covenant contained in the lease.
farmer. May 19; Fraucis W. P. Wagstaff, solicitor,
BOYCE Elizabeth, Ashill, Norfolk. May 18; Henry B. B.
Boyce John), Ashill, Norfolk, gentleman. May 18 H. B. B.
BROWN Jas.), Westbourne, Sussex, innkeeper. May 10:
FOWLER (Geo., Newington - terrace, Kennington - park,
GREGORY (Wm.), 10, Adelaide-road North, St. John's-wood,
HERRING (Thos. F.), Ewell. Surrey, beer retailer. May 22;
HILL (Jas.), The Rookery, Streatham, Surrey, and 176,
HURST John, Temple Cowley, Oxford, farmer. May 22;
LINCOLN (Benjamin), Mill-hill, Hendon, Middlesex, gentle-
PROCTOR (Thos.), Leamington Priors, Warwick, lodging
RUDDY (Jas., Ashridge, Herts, house steward to the
(Thos.), Chobham, Surrey, gentleman. May 21:
SAWYER (Sophia, i, Vincent- quare, Westminster. May 11;
YORKE (Edmund, Esq. 2, Alexander-square, Brompton,
Middlesex, a Fellow of St. Catherine's o lege, Cambridge.
CAWDRON (John), Branston, Lincoln, farmer. June 21;
EYRE Joshua H.), 33. Carey-street, Lincoln's-inn-fields,
FENNAH (Thomas), 9, Ledbury-rond, Westbourne-grove,
FORMBY (Maria H., Coombe Head House, Somerset, and
GARDINER (Thomas G.). Esq., Twickenham, Middlesex,
GOVER (Eleanor), 29, St. George's-road, Pimlico. May 15;
HOFKEN (Gerhard), 12, Pitt-street, Liverpool, licensed
HUNT (Geo., Esq., Brentford Butts, Middlesex; July 1;
LAMBERT Thomas Middlesborough, North Riding, York,
LATIMER Elizabeth S., 21, Toll-square, North Shields,
LONSDALE Rt. Hon. Wm. Earl of, Lowther Castle, West-
MAKIN (WI.. Preston St. Mary, Suffolk, farmer. June 1;
MENLOVE (Amelia), Wheatsheaf Inn, Newtown, Mont-
MONKS (Robert), 3, Denmark-terrace, Bethnal-green,
MOSELEY (ROert. Derby, painter. May 6; S. Leech, soli-
PARKER (James', Passey-honse, Brackley-road, Beckenham,
PARKER Thomas, 19, Brunswick-square, Camberwell, Sur-
PARRATT (John, Magdalen-road, Essex, builder. June 19;
PIGGOTT (Geo.), Moseley, Worcester, gentleman. June 1;
PITMAN (Joseph), Esq, The Hill, Amblecote, Stafford.
POTT Jas, E., Kennet Pans House, Clackmannan, N.B.,
POWELL (Wm.), 11, High-street, Camden Town, N.W., gentleman. May 31; Saffery and Huntley, solicitors, Tooley-street, S.E.
PRING Thos. 23. Great St. Helen's, E.C., and 16, Heathcot-street Mecklenburgh-square, Middlesex, ship broker. May 19; G. F. Hudson, Matthews, and C5., soliators, 23, Bucklersbury. E.C.
CREDITORS UNDER 22 & 23 VICT. c. 35.
and Co., solleitors, 16, Bedford-row, W.C.
PRITCHETT (Mary), Ladywood road, Birmingham. June 1;
ROBINS (Sarah), 17. Baxendale street, Barnet - street, Hackney-ord, Middlesex. May 10; Boys and Tweedies, solicitors, 5, Lincoln's-inn-fieles,
RONALDS (Jonn). Weymouth, Dorset, and Brentford, Middlesex, gentl nan. July 5; B schic and Co., solicitors,
4. Great Winchester-street-buildings, E.C.
SANDERSON (Ana), Prockter-street, Rochdale, Lancaster. June 10; J. Holland, solicitor, Rochdale.
NOTES OF NEW DECISIONS. MUNICIPAL CORPORATION MORTGAGE RATES UNDER A LOCAL ACT-PROVISION FOR
SELLWOOD (John Newmarker, innkeeper and farmer. June REPAYMENT AMOUNT.-The corporation of a 1; James N. York, solici or, Newinarket. SHEPPARD (Mary), The Coach and horses, 11, St. Johnstreet-road, Clerkenwell, Middlesex. May 15; James and John Horood, solicitors, 17A, Whitehail-place, W. SMITH (Sir Peter), C.B... New Finchley-road, Middlesex. May 31; Barnes and Bernard, solicitors, 11, Great Winchester-street, E.C. SNEEZUM (Chas.), 151, Camberwell-ron-1, Surrey, wine merchant. May 13; G. Fry, solicitor, 62, Mark-lane, E.C. SPICER (Jo, W.), King's Langley, Hertford, plumber, glazier, and painter. May 27, R. B. Pugh, solicitor, Wa.. ford, Herta.
THOMSON (David), 27, Upper Berkeley-street, Prtman. square, Middlesex, baker. June 8; J. Hudson, solici or, 4. Fenchurch-buildings, E.C.
borough were, by their local Act, authorised to raise a certain sum of money for the purposes therein mentioned, by mortgage of the general district rates. In the form of mortgage prescribed by the Act no time was specified for the repayment of the money; and the only mode of repayment mentioned in the Act was that the corporation should yearly and every year pay off £100, at the least, of the moneys borrowed on the credit of the Act, and the particular mortgage to be paid off was to be ascertained by ballot. On a bill file1 by a mortgagee to have the principal moneys that the mortgagee was not entitled to be paid the principal sums owing to him, except by the means and in the manner provided by the local Act. Semble, the court will not appoint a receiver of parish rates: (Preston v. The Corporation of Great Yarmouth, 26 L. T. Rep. N. S. 235. V.C. B).
TOPKEN August E. C. Clifton-villas, Semapho e-hill,
TURNER (Thos.), Tettenhall, near Wolverhampton. June 24; Gough and Colebourn, solicitors, 13, King-street, Wol verhampton. WADSWORTH Wm.), Luton, Bedford, brewer. May 10; G. D. Cooke, solicitor, 20, Devereux-court, Temple, E.C. WESTACOTT (Geo., Mitre-square, E., builder and d. corator. June 21: Rivington and Son, solicitors, 1, Fenchurchbuildings, E.C.
By Messrs. NEWBON and HARDING, at the Mart. Battersea Nos. 1 to 7, Meeting House-row, long leaseho'dsold for £600.
Fulham. A ground-rent of 247 per annum, term 82 yearssold for 670.
A ditto of £11 1's. per annum-sold for £160,
Nos, 6 to 9, Caroline-place, term 82 years-sold for £150. An improved ground-rent of 29 per annum, term 20 yearssold for £150.
REAL PROPETY AND CONVEYANCING.
NOTES OF NEW DECISIONS. LANDLORD AND TENANT-LESSOR AND LESSEE EQUITABLE ASSIGNMENT OF FARM BY LESSEE PAYMENT OF RENT TO LANDLORD BY LESSOR. -The plaintiff, being tenant of a farm to L. under a lease from Michaelmas 1858, for seven, fourteen, or twenty-one years, at the option of the tenant, at a rent of £80 a year, payable half-yearly, entered into an agreement with the defendant by a memorandum of agreement in writing, but not under seal, dated the 10th March 1869, to assign the residue of his interest in the premises to the
Stratford. Suzar House-lane, manufacturing premises, defendant, who thereupon entered and occupied
By Mr. H. E. MARSH, at Guildhall Tavern. term 15 years-sold for £115. Battersea. A freehold ground-rent of £15 108.-sold for £100.
the farm. No legal assignment was ever actually executed. because L.,the landlord, refused to give his written licence, which, under the terms of the lease to the plaintiff, was a necessary requisite of a valid assignment of his term. The defendant, in March 1870, gave notice to L. of his intention to quit the farm at the ensuing Michaelmas, which he accordingly did. He paid rent for the farm, during the time he was in occupation of it, to L. for the L., though the latter never actually objected to his occupation, otherwise than by withholding his licence as above mentioned, and he might, had he so chosen, have continued in occupation of the premises, which, in fact, remained empty and un
Peckham-ryc. A plot of freehold land, containing fa. Or. 7p. plaintiff, but he was never accepted as tenant by
By Messrs. FAREBROTHER, CLARK, and Co., at the Mart. -sold for 22320.
No. 4. Peckham-rye, freehold-sold for £700.
A freehold ground-rent of £22 per annum-sold for £580. A freehold residence, known as the Red House-sold for £830.
Nos. 1 and 2, Sternhall-place, freehold-sold for £10 each. No. 3, adjoining-sold for £370.
A freehold ground-rent of £25 per annum, short reversion-occupied after Michaelmas. In March 1871, the
sold for £2000,
Two plots of freehold land, containing 0a. 2r. 26p.-sold for A plot of building land, containing 40a. Ir. 15p.-sold for Borough. No. 210, Kent-street, and a plot of land, freehold
for the rent of the farm from the preceding plaintiff, being called upon by L., paid him £40 Michaelmas, and then brought the present action him, either upon an implied indemnity, or as rent, against the defendant to recover that amount from or for use and occupation, and it was held by the Court of Exchequer (Martin, Bramwell, and Pigott, BB.) that, the plaintiff was not entitled to maintain his action, there being no implied promise, on the defendant's part, under the circumstances, to indemnify the plaintiff against rent accruing due after the defendant had ceased actually to occupy the premises, nor any relation of landlord and tenant existing between them, entitling the plaintiff to recover the amount in ques tion, either in the shape of rent, or as a compen sation for use and occupation: (Crouch v. Tregonning, 26 L. T. Rep. N. S. 286. Ex.)
LANDLORD AND TENANT-FORFEITURE BY BREACH OF COVENANT-WAIVER OF CLAIMS.The plaintiff demised a house by lease, creating a forfeiture upon breach of lessee's covenants, one of which was not to permit a sale by auction on the premises; another was to pay rent within a certain time. The lessee executed a bill of sale of his goods, by which he agreed that in case of default the mortgagees of the goods might sell and dispose of the goods on or at the house or premises, or remove the goods and sell the same whenever and wheresoever they should think proper, by private contract or public auctior. The lessee then underlet the premises by way of mortgage to the defendant. The lessee then assigned all his estate and effects to trustees under the Bankruptcy Act 1861. Afterwards the grantee of the bill of sale sold the goods assigned to him by public auction on the premises, without the lessee's knowledge, and without the assent of the defendant, who was mortgagee. The plaintiff claimed possession, by the particulars ordered in this ejectment, on the grounds of forfeiture by breach of covenant not to permit a sale by auction, and also of forfeiture by non-payment of rent accrued since the sale by auction, Held by the Exchequer Chamber, affirming the Court of Queen's Bench, that these facts constituted a forfeiture of the lease by breach of the covenant not to permit a sale by auction on the premises; and that the
plaintiff had not waived that forfeiture by claiming a forfeiture by non-payment of subsequently accrued rent: (Toleman v. Portbury, 26 L. T. Rep. N. S. 292. Ex. Ch.)
NOTES OF NEW DECISIONS. CANAL COMPANY-MINES HELD AS A SEPARATE
TENEMENT-KIGHTS AND LIABILITIES OF COMPANY AND MINE OWNERS.-By a canal Act it was provided that no owners of any mines should carry on any work for the getting of coal or minerals within 12yds. from the canal, or any reservoir to be made by the canal company; nor should any coals or other minerals be got under any part of the canal or towing paths thereunto belonging, or any such reservoir, or under any land or ground lying within the distance of 12yds. of either side of the canal, or any reservoir, except as thereinafter mentioned, without the consent of the company. It was also provided that when the owner of any coal mine, &c., lying under the canal, towing paths, reservoir, &c., or within the distance thereinbefore limited, should be desirous of working the same, then such owner should give notice of his intention to the company three months before he should begin to work such mines lying as aforesaid; and upon the receipt of such notice it should be lawful for the company to inspect such mines in order to determine what coal or other minerals might be come at and gotten without prejudice to the canal, &c.; and it the company should neglect to inspect such mines within thirty days next after the receipt of such notice, then the owners of such mines were authorised to work such part of the said mines as lay under the canal, &c., or within the distance aforesaid; and if upon inspection the company should refuse to permit the owners of the mines to work such part of the mines lying as aforesaid, or any part thereof as they might have come at and gotten, then the company should, within three calendar months pay to the owners the value thereof. Another clause of the Act provided that nothing in the Act contained should defeat the right of any owner of lands or grounds in, upon, or through which the canal, &c., should be made, to the mines lying within or under the lands or grounds to be set out or made use of for such canal, but all such mines were reserved to such owners respectively; and that it should be lawful to such owners, subject to the conditions therein contained, to work all such mines, provided that in working such mines no injury be done to the said navigation. Plaintiffs, the owners of coal mines under the canal, gave notice of their intention to work the mines to the company, who did not inspect, and refused to purchase them. After to work the mines in an ordinary and proper the expiration of the notice, plaintiffs proceeded manner, but without regard to the surface, and that the effect would be to let down the surface without attempting to support it, and knowing and probably dislocate the strata, and that the water from the canal might escape into the mines; and the result of their working was that the strata became dislocated, and the mines were flooded with water from the canal, which percolated into them through the fissures. The canal company had done all they could to keep the canal watertight, and the canal was, at the time of the commencement of the working, in good order; and they were guilty of no negligence, unless it was their duty to have let the water out of the canal while plaintiffs were working the mines. Plaintiff's having brought an action against the company for the damage done to the mines by the water which had flooded them: Held (per Cockburn, C.J., Mellor and Lush, JJ, dissentiente Hannen, J.), that the action could not be maintained; the proximate and immediate cause of the injury done to the plaintiffs' mine being their own wilful and intentional act, done with a knowledge that the injury would be the probable consequence of the act so done by them; and the defendants having been guilty of no negligence. Per Hannen, J., dissentiente, that the action was maintainable; the defendanrs having been guilty of a wrongful act in keeping the water in their canal without having made use of all the means open to them to prevent the injury done, one of which was an exercise of the power to purchase the plaintiffs' coal mine. Fletcher v. Ryland (19 L. T. Rep. N.S. 220; L. Rep. 1 Eq. 265; L. Rep. 3 H. of L. 330) commented on and distinguished: (Dunn v. The Birmingham Canal Navigation Company, 26 L.T. Rep. N. S. 241. Q. B.)
ILLEGAL ACTS OF DIRECTORS-SHAREHOLDERS
NOT BOUND BY, WITHOUT NOTICE
there still, however, remained a large balance due
NOTES OF NEW DECISIONS.
FOREIGN ENLISTMENT ACT-ARREST OF VES
SELS BY THE CROWN-MOTION FOR INDEMNITY
agreed with C., the manager of the defendant bank, and S. a promoter of the company, that an account should be opened at the bank in the name of S., to be drawn on by S. to an amount not exceeding £30,000 (for advances to which amount on that account the company gave a guarantee to the bank under their common seal), and that another account should be opened with the bank in the name of the plaintiffs, who were to guarantee the repayment to the bank of any money drawn by S., on the account opened in his name, and to charge with such repayment any balance in their favour on the account opened in their name; such accounts were accordingly opened at the bank, that in G.'s name with a loan in advance of £1500 from the bank, and that in the plaintiffs' name with a payment of £1500 of the plaintiffs' money. Thereupon, pursuant to the arrangement with C. the manager, the money drawn by S. on the account opened in his name was immediately paid in by him to the account opened in the company's name, as and purporting to be deposits received from allottees of shares in the company, such allottees being real persons whom S., and one of the directors of the company, had induced and procured to apply, or pretend to apply, for shares, and to whom shares were in fact allotted, but who never paid, and were wholly incapable of paying the amounts of the shares allotted to them, and who had no intention of really being shareholders, and who immediately handed over to S. their letters of allotment and blank transfers. was part of the above agreement that the plaintiffs should pay to the bank a bonus of £600, and to C. a remuneration of £1000 for his services and co-operation in carrying out the arrangement. The directors of the bank were not aware of the real object and purpose of the above arrangement and scheme, and the mode in which the accounts were dealt with by S. and C., and that C. was to receive any remuneration in the matter, but were informed and believed that the money was to be advanced to S. as the agent, and for the legitimate wants and purposes of the company. Nor were DEFINITION OF NECESSARIES-BROKERAGE the shareholders of the plaintiff company aware PAYMENT OF CHARGES-ADVANCES-PILOTAGE of the arrangements for placing shares in the DOCK DUES.-The term "necessaries," where company, or for giving the guarantie above used in the statutes giving the Admiralty Court mentioned. Application was subsequently made jurisdiction over such claims, has the same meanby the company to the committee of the Stocking as is given to it by the common law courts, Exchange for a settling day, and, with a view to and signifies, whatever the owner of a vessel, as a assist in obtaining it, a certificate was given by prudent man, if present under circumstances in C. in the name of the bank, but without the which his agent, in his absence, is called upon knowledge of the bank directors, for the purpose to act, would have ordered. Webster v. Seekamp of being produced before the committee, that (4 Barn. & Ald. 352) followed. Premiums paid by £23,006 for deposits on 11,503 shares in the a shipbroker at the owner's request to procure company had been paid in. The application insurance on freight are necessaries. Charges for a settling day, was, however, refused by the paid by a shipbroker at the owner's request for committee; and, shortly after, by order of the entering, reporting, and piloting a ship, and for Court of Chancery, it was directed that the tonnage and light dues, and for noting protest, company shauld be wound-up. The total amount are within the meaning of the term " necessaries.' credited on the above transactions Advances at the owner's request for travelling exto the penses of the master and goods supplied for the ship's use are necessaries. Brokerage charges made by a ship's broker for acting as ship's agent, and for negotiating a charter-party, may be neces saries within the meaning of the statutes, but must be proved to come within the definition. Where a petition merely alleges that money was advanced for necessary expenses at the owner's request, without stating what those necessary expenses were, such a claim will be struck out on motion to reject or alter the petition: (The Riga, 26 L. T. Rep. N. S. 202. Adm.)
account in the name of the company at the bank, and for which the official liquidator of the plaintiff company brought his action, £25,045 6s., consisting of the sums paid in as deposits on shares by S., and the £1500, the money of the plaintiffs, paid in on the opening of the account in their name. Against this, the defendants sought to set-off the sum of £24,506 8s. 4d., as due to them on the account opened in the name of S., and they paid £600 into court in satisfaction of the rest of the plaintiffs' claim. Held by the Court of Exchequer (Bramwell, Channell, and Pigott, BB.), that the scheme detailed in the case being fraudulent, the plaintiffs, who were ignorant of it, were not bound by what was agreed to on their behalf, or by the acts of the directors, which were void; and, as the facts were known to C., the defendants' manager, the defendants had notice of the illegality and invalidity of the transaction. But the defendants were bound to refund any money received by them, because, though C. had no authority to bind them to the contract he entered into, yet if they received the plaintiffs' money under it, the plaintiff's (though not their directors), being innocent parties, the defendants must refund it. The plaintiffs had failed to show a larger sum payable to them than £1500, which sum only, therefore, the defendants were liable to pay; and £600 having been paid into court, there would be judgment for the plaintiffs for £900. Gray v. Lewis, before Malins, V.C. (20 L. T. Rep. N. S. 282; L. Rep. 8 Eq. Cas. 526), considered, discussed, and distinguished: (The British and American Telegraph Company (Limited) v. The Albion Bank, 26 L. T. Rep. N. S. 257. Ex.)
WINDING-UP-PROMISSORY NOTE TO SECURE BALANCE AT THE BANK-LIABILITY-Four of the directors of a company drew, in favour of H. S., who was the manager of the bank where the company had an account and also a director of the company, a promissory note for the accommodation of the company, and for the purpose of being transferred to the bank as a security for any balance which might be due from the company to the bank. The note was indorsed by H. S. to the bank. Shortly afterwards the company was ordered to be wound-up, and one of the directors paid the amount due on the note to the bank;
made by the valuer, and confirmed by the Inclosure Commissioners, in pursuance of the above Act under which he claims. From evidence adduced on the part of the defendants, and which I have tested and confirmed by a view, it appears that there exists at present a clearly marked and well- used footway across the land in question, leading from the highroad between Godalming and Farnham to the village of Tilford, and that, excepting one narrow and precipitous branch footpath from it to an occupation road below, there appears to be no other footpath actually existing across this land, and that this footway subsequently passes across two other ancient inclosures, entering them in one case over a stile, and in the other through a gate until it reaches the village of Tilford. From further evidence adduced by the defendants, it also appears that this footway has existed in its present state for sixty years, and witness after witness deposed to having passed over it on their way to the church, post-office, and shops at Tilford, and in their ordinary occupations, and several instances of funerals passing along it were also mentioned. Upon this evidence I feel no doubt that, although much stronger evidence is undoubtedly required of the dedication of a way to the use of the public across open and uninclosed lands than across fenced and inclosed lands, still in the present case a jury ought certainly to find that a public right of way has existed for at least forty years, and does now exist, over the lands in question to the village of Tilford, as contended by the defendant, unless the same has been stopped up by the award under which the plaintiff claims. With regard to the operation of the award it will be necessary to consider first the provisions of the Act with reference to the stopping up of ways, and next the proceedings of the valuer and the contents of the award and map in the present case. The 62nd section of the Inclosure Act, 8 & 9 Vict. c. 118 (under which this inclosure was made), directs that the valuer, before the division and allotment of the land, shall set out and make and widen public roads and ways, and stop up, divert, or alter, existing roads and ways, provided that before any road or way be discontinued the valuer shall cause to be fixed at each end of such road or way a notice to the effect that the same is to be discontinued, stopped up, or diverted, or altered, as the case may be, from and after a day to be mentioned in such notice, to be advertised for four successive weeks, and affixed to the church door on the four Sundays of such weeks, and such road or way shall, from and after the day in such notice mentioned, be deemed to be discontinued, stopped up, and diverted or altered, as the case may be, subject to appeal to the justices at quarter sessions as provided by the Act. By the 102nd section it is provided that the valuer acting in the matter of any inclosure, shall, as soon as conveniently may be after the divisional (probably a typographical error for division and) allotment of the land to be enclosed shall be completed, draw up a report in writing, with a map thereunto annexed, which shall specify all the claims allowed, and all allotments, exchanges, and partitions made in the matter of such inclosure, and all roads, and ways, and works set out, or directed to be made by the said valuer, and such report shall contain all such particulars in relation to such allotments, roads, ways, and works as are by this Act directed, and all such other directions and determinations authorised by this Act as the said valuer shall think proper for the purposes of the inclosure, including, of course, the stopping up, diverting, or altering of any ways, and the map to be annexed to such report shall comprise and show the land to be inclosed, and the lands exchanged, and also the lands in respect of which any allotments of the land inclosed shall have been made, and shall distinguish by proper references the allotments made in respect to the several lands respectively, and such other particulars as the commissioners shall by any general or special instructions in relation to such report, direct the valuer to set forth therein, and such report shall be signed by the His HONOUR this day delivered his judgment as valuer, and shall, together with the map therefollows:-The plaintiff in this case sued the defen- unto annexed, be sent to the office of the commisdants for breaking into and entering upon certain sioners. In this section it will be observed that lands of the plaintiff, situated near Charles Hill, only newly set out and widened roads and ways, in the parish of Farnham, and claims 40s. da- and roads and ways which are stopped up, diverted, mages. The action is brought to assert the right or altered, are directed to be specified in the of the plaintiff to inclose and fence an allotment report, and that it is doubtful whether even these awarded to him under the Inclosure Act (8 & 9 are directed to be set out in the map, which appears Vict. c. 118), so as to stop up a footway or track, to be confined to lands inclosed and exchanged. which exists across such allotment, and to pre- By the 103rd section the report is to be deposited vent all persons passing along such footway, or at some convenient place for inspection and obtrack, or across such allotment. The defendantsjections, and by the 104th section the award is to deny such right in the plaintiff, and allege that be drawn up and engrossed by the valuer, with the footway in question is a public footway exist. the map annexed, and confirmed by the Coming for upwards of sixty years, and that the de- missioners, and by the 105th section the confirmafendant's wife, in the lawful use of such way, tion of the award is to be conclusive evidence broke down the fence, and entered into and that the directions of the Act had been obeyed. passed over the allotment in question. The plain- It appears that in the present case the valuer has tiff replies by denying that such way ever existed, never by any word or writing signified expressly his and further alleging that if such way ever existed intention or determination to stop up or divert it was stopped by the operation of the award the footway in question, no notices of any stopping
MANGLES v. MARSHALL AND WIFE.
Ere for defendants.
up or diversion of it were given as directed by the 62nd section, nor of course was any day fixed from which it was to be stopped up, as provided by the same section, and this appears to me to be fatal to the paintiff's argument, as it is absolutely impossible to fix the time at which this right ceased, as alleged. Having given no notice of his intention or determination to stop up this footway, the valuer proceeded to make his award, and by it expressly stops up certain roads and ways not in cluding it, and also sets out certain other roads and ways not including it, which is never mentioned in the award, and then annexes the map showing the new roads and ways set out, and certain old roads and ways, but not showing this footway, and upon the absence of any mention of this footway in the award, and the omission of it in the map, the plaintiff must rest his case. I cannot, however, discover any provision in the 8 & 9 Vict. rendering the absence of any mention of a footway in the award, and the omission of it in the map, equivalent to a stopping of such way, or to supersede the necessity of an express act by the valuer stopping up such way on a particular day after due notice as provided by the Act. The 11th section of the Inclosure Act of the 41 Geo. 3, c. 109, indeed, appears to have had such operation in respect of roads and ways not set out in the award under its provisions (see the cases of White v. Reeves, 2 Moore, 23; and Gwyn v. Hardwick, 1 H. & Nor. 49), and the omission of a similar clause in the 8 & 9 Vict. c. 118, appears to me to show clearly the intention of the Legislature not to give any such operation to the award under the latter Act; and I think that this right of way might even be held to be expressly saved or confirmed under the 93rd section of it. I would also observe that an Act of Parliament which of necessity interferes so greatly and so arbitrarily with the rights of property, and I may even say with personal liberty, as an Inclosure Act, ought always to be strictly construed, and no operation given to it by implication beyond what is clearly expressed in its provisions. I would also remark that in the present case it is in evidence that the valuer actually put in stumps along the footway in question, six feet apart, in three or four places, evidently intending thereby to mark it out for the purpose of the map, and I am inclined to think that its omission in the map must be regarded as purely accidental. However this may be, I consider such omission to be perfectly immaterial, as also the absence of any mention of this footway in the award; and I am, therefore, of opinion that the award did not operate so as to take away the existing right of way, and that the defendants have justified the acts constituting the alleged trespass. There will be a verdict for the defendants, and I shall, of course, certify that the title was in issue, and although the damages claimed are under £5, the defendants will be entitled to their costs on the scale fixed under the 11th and 12th sections of the County Court Act, 1867, including counsel and attorney, according to the cases of Gyll v. Squire, and Kemp v. The Local Board of Teddington, decided by me in Chertsey and Kingston County Courts, and reported in the Low Times and in the County Courts Chronicle, Vol. i. N.S., pp. 224 and 410.
ABERDARE COUNTY COURT. (Before T. FALCONER, Esq., Judge.) Re LINDSAY AND FISHERS. Bankruptcy - Disclaimer of a lease by the trustee.
HIS HONOUR said. in giving judgment on a motion before him :-" By sect. 23 of the Bankraptey Act 1869 power is given to the trustee under a bankruptcy to disclaim what is called “onerous property, and a trustee, notwithstanding he has endeavoured to sell, or has taken possession of such property, or has exercised any act of ownership in relation thereto, may by writing disclaim such property. Formerly there was considerable litigation respecting acts which were alleged to amount to an acceptance of a lease, such as endeavouring to sell, taking actual possession, or remaining in possession, it being sometimes held that the assignees were liable to pay rent, and sometimes they were discharged of this liability. Cases on these points will be found collected in Doria and Macrae's Bankruptcy, p. 610. section has determined and disposed of such questions, and it further enacts that upon the execution of such disclaimer, the property disclaimed shall, if the same is a contract, be deemed to be determined from the date of the order of adjudication, and, if a lease, be deemed to have been surrendered on the same date. Any person also, interested in any disclaimed property, may apply to the court, and the court may upon snch application order possession of the disclaimed pro. perty to be delivered up to him, or make such
other order as to the possession thereof as may be just. The order no doubt should require early possession to be given after such disclaimer. Then the section further directs that any person injured by the operation of this section shall be deemed a creditor of the bankrupt to the extent of such injury, and may prove the same as a debt under the bankruptcy. Thus, in the case of Er parte Llynvi Coal and Iron Company, in Re Hyde, where there had been the disclaimer of an agreement for a lease for ten years, at a rent of £500 a year, the measure of injury sustained was the difference between the rent to be paid under the agreement and what could then be obtained for the property. The broad provision of the Act, said Lord Justice James, is that the bankrupt is to be a freed man; freed not only fron. debts, but from contracts, liabilities, engagements, and contingencies of every kind. On the other hand, all the persons from whose claims and from liability to whom he is so freed are to come in with the other creditors, and share in the distribution of the assets.' So also Lord Justice Mellish said: "The bankrupt being so relieved, it is plainly also the intention of the Legislature that the person deprived of the right of action against the bankrupt, and of the benefit of the contract which he made with the bankrupt, should be turned into a creditor in respect of what the Act describes as the injury he had received." "That, I think," said Lord Justice Mellish," must mean in respect of what he would have been entitled to recover against the bankrupt, if the bankrupt had remained solvent." Between the lessor and the bankrupt, the tenancy ceased, from the date of the adjudication, through the disclaimer. The trustee did not become tenant, and no question can now arise respecting the accept ance of a lease on the part of the trustee on account of those acts which I have named, which formerly created a liability to pay rent on their part. The inquiry through the operation of the 23rd section is, that the lease ceased from the date of the adjudication, and it is on this account only that proof can be made for damages. But by sect. 21 the trustee is not entitled to disclaim any property when an application has been made to him by a person interested in it requiring him to disclaim or not, and the trustee for twenty-eight days after such application has declined or neglected to give notice whether he disclaims or not; so that the lessor, if he pleases, can now obtain possession of the property within a short interval of time, after the trustee is appointed, through his own act. The former state of the law was thus summed up in the case Williams v. Taylor (21 L. T. Rep. N. S. 620): "If the bankrupt's assignees elected to take the lease, the bankrupt was not to be liable to payment of rent from the time of his bankruptcy. If they took the lease, they were liable to the performance of all the covenants. If they did not elect to take it, the bankrupt remained liable. If the assignees did not disclaim the lease, then the bankrupt was not liable, if within fourteen days he surrendered the lease to the lessor." The change made in the law by the Act of 1869 is thus plainly perceptible by contrasting this statement with sect. 23, which I have already cited. "But," said Lord Campbell, in Goodwin v. Notte (8 E. & B. 604), "it was highly desirable the lessor should have availed himself of the power given by the statutory enactment in the 145th section of the Bankruptcy Act (12 & 13 Vict. c. 106), to apply to the Court of Bankruptcy that the assignees might be put to their election. The plaintiff might thus," he said, "have got possession, and thus expensive litigation might have been entirely avoided." So in this case, any inconvenience the lessor has suffered through exclusion of possession, since the bankruptey might have been limited by the Act, and interference of the lessor herself in demanding possession. In the case of Williams v. Taylor, it was said by Kelley, C.B, that "all the assigness had to do was to convert the effects into money, which could have been effected within the space of a month or six weeks at the furthest." I myself wish such an early solution of the difficulties of a bankruptcy, and of the labour of a trustee, would occur in every case; but in numerous bankruptcies there are delays and numerous methods of charging costs and expenses on the estate which some legis lative provision is needed in order to check.
LIVERPOOL COUNTY COURT. Thursday, April 11. (Before Mr. Serjeant WHEELER, LL.D., Judge.)
Re COUSTON, THOMSON, AND CO. Petition for liquidation-Registration of resolutions where creditors have not had notice of meeting-Practice.
THIS was an application to direct that certain resolutions of creditors come to at the first meeting held under the petition for liquidation presented by Messrs. Conston, Thomson, and Co., of Leith, Leeds, and Liverpool, wine and spirit merchants, be registered. It appeared that at the meeting
there were thirty-one creditors present, either in person or by proxy, whose debts amounted to £32,187 2s. 1d. Of the thirty-one present, twentythree voted for the liquidation, leaving eight neutrals, and regarded as dissenting. The debts of the assenting creditors amounted to £28,499 18s., and those dissenting to £3337 4s. 1d. There were forty-five creditors whose names were inadver. tently omitted from the list of creditors, to whom notice of the meeting was sent, and to whom notice of the intention to apply to register the resolntions has since been given by registered letter. Of the forty-five there are nineteen under £10, whose total debts amount to £68 13s. 10d.: of that £68 13s. 10d., £10 8s. 4d. are the debts of preferential creditors; there is, therefore, £585s. 6d. indebtedness to creditors under £10 to whom notices were not sent, leaving fifteen creditors on open account. Of the rest of the creditors who had no notice of the meeting twenty are over £10, and their debts amount to £2258 35. 21., and of these twenty, thirteen are preferential creditors, and their debts amount to £637 8s. 1d., leaving £1620 15s. 1d. of indebtedness to creditors above £10 to whom notice of the meeting was not given, and thirteen creditors on open account. Upon this state of facts Mr. Registrar Watson refused to register the resolutions, and referred the matter to the court.
Wheeler, instructed by Barrel and Rodway, now appeared in support of the registration. Browne, from the office of Norris and Son,.to oppose.
Wheeler, after briefly referring to the facts, read the atfidavits of Mr. Rodway and Mr. Bolland, the trustee, by which it appeared that the omis sion to give notice to the forty-five creditors had been occasioned by the inability of the solicitors, owing to the imperfect state of the books, to ascertain the names and addresses of all the creditors. Their numbers were legion, being over 400, and it was only at the last moment, too late to apprise them of the meeting, that the solicitors were in possession of the fact that forty-five creditors had been omitted. The duty of the registrar was to see, on the presentation of the resolutions, that the requirements of the statute had been complied with, namely, that all the creditors had been duly apprised of the meeting, and, in the event of a failure in that respect, to refuse registration. There was, however, a further provision that the resolutions shall not be objected to or refused by the registrar, unless he is of opinion there is such informality or non-com. pliance with the statute as is matter of moment. In the present case, Wheeler contended that it was not a matter of moment, as substantially the views of a statutable majority in number and value of the creditors had been expressed, and no vote on the part of those who had not notice of the proceedings could have affected the validity of the resolutions. Technically, the learned registrar might have been right in refusing registration, as it had been decided he was merely a ministerial officer, although such a decision was scarcely consistent with the rule that he was only to regard objections which were matters of moment; but broadly he was wrong, for so long as it ap peared to him the omission of these forty-five small creditors was not a matter of moment, the resolutions he submitted should have been regis tered. Delay in this case was most detrimental to the creditors as well as to other persons who had claims to goods in the warehouses of the debtors, valued at £28,000, which had been paid for long ago, but which claims had to stand in abeyance from the 26th Feb. to the present time. As he had stated, the registrar had only acted on the authority of decisions in the London court, but it was unfortunate there was no opinion of the Court of Appeal on the point. With respect to the objection which had been lodged by a Scotch creditor, who had taken proceedings in Scotland to sequester the estate, &c., he contended that ke had no locus standi. It was true that he appeared at the meeting of creditors, but he did not then prove his debt, and had no right to be heard, and if he had no right to be heard then, surely, he could not be heard by the court.
His HONOUR said that there was something in the objection; but as the debtors, by their statement, admitted him to be a creditor, and had given him notice of this application, he thought it advisable to hear any objections he had to make. Browne then submitted that the jurisdiction of the court over these debtors' affairs was ousted by the sequestration proceedings in Scotland, and that, assuming that were not so, there had not been a sufficient compliance with the requirements of the statute as to warrant registration of the resolutions. The view taken by Mr. Registrar Watson was perfectly right, and one adopted by all the courts. If the omission of notice to forty-five creditors was not a matter of moment, what was?
His HONOUR, after some discussion, gave judg ment as follows: The registrar had, very properly. refused to register the resolution of the creditors to liquidate by arrangement on the ground that a
number of them had not received the statutable notice of the meeting, and were not, therefore, present at it or represented. Hence this application. Upon going into the figures, which I need not repeat here, it appears that the meeting may be said to have very fully represented the inte. rests of the creditors, and that the absentees, by reason of want of notice (supposing each one of them to have dissented from the resolution), could not have affected the result. It further appears that those creditors have had notice of this application to me to-day, and have been called upon to show cause why it should not be acceded to. None of them, however, appear. And I have no evidence or suggestion that any substantial injustice has been done to them by the failure to give them notice of the meeting, which failure, moreover, arose from inadvertence; scarcely from carelessness, because the debtor's books are very complicated. Nor does it appear that their interests can, in any way, be separable and distinct from those of the general body of creditors who have pronounced in favour of a private winding-up. The only remaining objection is founded upon the pendency of an application in Scotland at the instance of a creditor there-Mr. M'Farlane, of Glasgow for a sequestration, which application was not made until nearly a month after proceedings in this court had been instituted. Now, I have some doubt whether it is competent to Mr. M'Farlane to take that objection here, inasmuch as he has not proved any debt on the estate, although he attended the meeting of creditors in this country. But I see nothing in the objection to induce me to stay my hand from making an order which will have the effect of winding-up the estate in accordance with the views of the great bulk of the creditors, and, as I believe, in their true interests, especially bearing in mind that the liquidation will reach the bankrupt's estate in Scotland, as well as in England, and that three-fourths of it are, as appears, in England. An order was accordingly made for the registration of the resolutions. Fullager, from the office of Messrs. Laces, watched the proceedings on behalf of creditors.
In the same case, subsequently, the question of the right to precedence of the proceedings for sequestration in Scotland over the liquidation proceedings ia England, came before the Lord Ordinary, and as the decision thereon disposes of a point of novelty and doubt, we append a full
the Act of 1869 (and "liquidation by arrange- and individuals, but of the firm of Couston, Thomment is equivalent to an adjudication in bank. son, and Company, whereas in England the firm ruptcy), carries the whole estate of the bankrupt, are not declared bankrupt in so many words, but whether situated in England or in Scotland, and only David Couston and James Thomson, trading thus renders sequestration of these estates in Seot-in co-partnership under the firm of Couston, Thomland unnecessary and incompetent. The Bank- son, and Company. It was said that the English ruptcy Act 1869 is an Imperial statute, and, though bankruptcy does not attach the company effects. it does not apply to Scotland or Ireland, except in The difficulty, however, is more apparent than so far as expressly provided (sect. 2), it contains real, and arises from the different phraseology many provisions applicable both to Scotland and used in Scotland and in England, and not from any Ireland, and to the British dominions, and the difference in the legal import or effect of what is courts of England, Scotland, and Ireland are done. The law of England does not recognise a made auxiliary to each other for the purposes of mercantile firm as a separate persona, but it cancarrying out the provisions of the Act. Liquida- not be disputed that under the English bankruptcy tion by arrangement is one of the modes in which the property of the company is attached. It is so, the estates of bankrupts may be wound-up and being considered as the "joint property" of the distributed under the Act; and by sect. 125, partners; and the rules for distribution provide liquidation by arrangement is put, in almost every for separate ranking and distribution of the assets respect, on the same footing as an ordinary bank--the joint assets among the joint, that is, the ruptcy under the previous clauses of the Act. The company creditors, and the individual assets term "the property of the bankrupt"-that is, among the creditors of the individual partners what falls under the operation of the Act-is respectively. If there had been any averment defined (sect. 4) to mean and include "money, of latent or additional partners in Scotland, goods, things in action, land, and every descrip- the Lord Ordinary would have been disposed tion of property, real or personal; also all obliga- to award sequestration in aid or in suppletions, easements, and every description of estate, ment of the English proceedings, but a special interest and profit, present or future, vested or case would require to be made for a remedy contingent, arising out of or incident to property so special. It is not called for under the preas above defined.' And sect. 15 amplifies this sent petition. If the Lord Ordinary awarded definition, and while it excludes trust property sequestration even in aid of the English proand certain chattels of a limited description, it ceedings he could hardly stop there. He must includes property held on reputed ownership, and appoint a meeting for election of trustee, and the in certain other ways. No doubt the words occur- whole machinery must be put in motion. This ring in the Scotch Bankruptcy Act "wherever would lead, he thinks, to most needless embarrassituated" are not used, but the Lord Ordinary ment and expense-the more so as a judgment thinks that this cannot be held as a restriction awarding sequestration is not subject to direct leading to a different interpretation of the review, but would drive the parties to a new English and Scotch Acts respectively. Sect. 13, petition for recall. If the Lord Ordinary is wrong sub-sect. 8, provides for the registration of in refusing to award sequestration, his judgment the certificates of the trustees' appointment is subject to simple review, and no harm is done as a conveyance of property in any part of in the mean time, as the English trustee is attenthe British dominions, and it seems difficult ding to and preserving the whole assets. With to resist the conclusion that such registration the dismissal of the petition for sequestration the in the register of sasines would be equivalent to appointment of the judicial factor necessarily infeftment in Scotch real estate. Personal pro- falls; but, to prevent any mistake or misunder perty, again, has no locality, and necessarily falls standing, the Lord Ordinary has expressly reunder a conveyance of the bankrupt's whole estate. called the appointment. As to costs, the ordinary In the present case it was explained, and seemed rule would subject the petitioners in the expenses to be admitted, that the bankrupts had no real necessarily caused by the trustee's successful estate in Scotland, but only personal property and opposition. Looking to the importance and, debts. It would be most anomalous and most under the new Act, to the novelty of the point startling to hold that, while a Scotch sequestration raised, however, and to the natural anxiety of the carries the bankruptcy property in England, an petitioners and the compearing creditors to secure English bankruptcy would not carry the property that, the distribution of the Scotch assets and the locally situated in Scotland, even although that equalisation of Scotch creditors shall be placed property should be simply movable, or even only beyond all doubt, the Lord Ordinary thinks that debts and obligations. Under the Bankruptcy justice is done by simply allowing the petitioners Acts formerly in force, it was decided more than to bear their own costs. once that an English bankruptcy carried even real estate in Scotland. It is thought the existing Act is not less wide in its application. When a trader carries on business both in England and Scotland, it seems very clear, in point of expediency, that there should not be two distinct and independent processes for the distribution of his estates. This would lead to double expense, and to the most unseemly and needless contests for the administration of particular assets. There would require to be double raukings, and the decisions of the trustees or liquidators might vary, and even the rules of ranking might conflict. In such cases it seems to have been held, and the rule is reasonable, that priority in bankruptcy proceedings should determine under which the liquidation should take place. This occurs when sequestrations have been awarded by different sheriffs, and the rule has been applied under the former English Acts to British bankruptcies. This raises the question whether, in the present case, the English or the Scotch ceedings are first in date. It was urged that the date of the English proceedings must be held to be the date, not of the petition (26th Feb. 1872), but of the appointment of trustee, or rather his registration of appointment (11th April 1872), whereas the Scotch sequestration, if awarded, would draw back to the date of the first deliverance (23rd March 1872). This view was pressed from the very words of the English Act (s. 125, sub-sects. 4, 5), which seem to make the appointment of the trustee the true date. The Lord Ordinary, while admitting the force of this, holds himself bound by the decisions on appeal to Chancery in the case of Duignan, re Bissell, 26th July, 1871 (L. Rep. 6 Ch. App. 606). In this case it was held, first, that a petition for liquidation was an act of bankrutey; and, secondly, that in a question of attachment of property, the date of the petition was the date to which the whole proThe LORD ORDINARY, after hearing Mr. Watson, ceedings drew back, or, as it is expressed, related took the matter into his consideration, or back, and this notwithstanding the peculiar what is termed in Scotland arizandum, and expressions in sect. 125. The Lord Ordinary, issued his interlocutor, dismissing the Scotch even if he differed in opinion from the judgment petition for sequestration, and recalling the (which he does not), would hold himself absolutely judicial factor who had been appointed in Scot-bound by the judgment of the Appeal Court in land. Appended to the interlocutor was the following note The Lord Ordinary is of opinion that an adjudication of bankruptcy in England, under
This was an application made on Wednesday, 17th April, to Lord Giffard, sitting as Lord Ordinary at the Bill Chamber Office, Edinburgh, which involved points of the greatest importance in the administration of the Bankruptcy Act. Messrs. Couston, Thomson, and Co., as has been already announced, on the 26th Feb. presented their petition to the Liverpool court for liquidation of their affairs by arrangement. They carried on business as wine merchants in Leith, Leeds, and Liverpool. On the 15th March a meeting of their creditors was held, at which it was resolved to wind-up the estate by liquidation and appoint Mr. Bolland trustee. Those resolutions, in consequence of the omission to give some of the creditors notice of the meeting, were not registered until the 11th instant. Prior to that date, however, and two days before the meeting of creditors, Messrs. M'Farlane, of Glasgow, distillers, prosented a petition to the Scotch court for seques. tration of the estate, and Tnesday was appointed for the hearing.
Watson and Campbell Smith, (instructed by Leburn, Henderson, and Wilson W.S., and Bushby, of Liverpool), appeared for Mr. Henry Bolland,
Asher (instructed by Millor, Allardyce, and Co., W.S.) for the creditors seeking sequestration. Smith, after shortly stating the facts, submitted that as the proceedings for liquidation in England had been initiated before the sequestration proceedings in Scotland, they took precedence, and that, notwithstanding the omission of words from the English Act, specifically stating that under an English bankruptcy or liquidation, property in Scotland passed to the trustee, he contended that the general words of the English Act were sufficient to cover property wherever situated. Asher, in reply, urged that the English proceed. ings were no bar to proceedings in Scotland, and that unless the latter were in force, all the property of the debtors could not be reached, as there were no words in the English statute which gave an English trustee a right to property in Scotland.
Enland interpreting an English Act. A further
Re HORN, GOW, AND Co. Liquidation petition-Practice on registration. THIS was a motion made to direct the registrar to register resolutions for liquidation by arrangement of the affairs of Horn, Gow, and Co, come to at a meeting of the creditors held on the 27th March last. The debtors, who were merchants in Liverpool, filed a petition for liquidation of their affairs on the 9th March last, and under that petition a first meeting of creditors was called. At that meeting a resolution was agreed upon to liquidate by arrangement and appoint Mr. Bolland trustee, but on the resolutions being presented for registration it appeared that the debtors had omitted to give ten of the creditors notice of such first meeting, as required by the Act of Parliament. On that ground the registrar had refused to register the resolutions. The debtors' statement of accounts showed debts due to unsecured creditors to the amount of £17,590; creditors fully secured, 29713; creditors partly secured, £822; and liabilities on bills discounted, £11,627; which liabilities were not, however, expected to rank on the estate. It appeared from the statement of J. J. Yates, in support of the motion, that the majority of the creditors who had not had notice of the meeting were holders of bills drawn by the debtors and accepted by parties who held security. Those bills were not due at the date of the meeting, and the acceptors being solvent the holders could not have proved on the bills and could not have voted at the meeting. There were eightyone creditors in all, and of these seventy-one had had notice of the meeting. Eighteen creditors attended the meeting, who proved debts to the amount of £7563. They all voted in favour of the resolutious, whereas the debts of all the creditors who could have proved against the estate, and who had not had notice of the meeting, only amounted to £650, and had they been all dissentient their votes could not have prevented the passing of the resolutions. No creditor appeared in opposition to the motion, and
His HONOUR said that under the circumstances he should grant the application subject to proof being furnished that the debtors had not been guilty of any undue negligence in omitting to give notice to the creditors omitted.