QUEEN'S BENCH. implements of his trade, and converted and disposed of the same, &c. QUEEN'S BENCH. Pal seizure took place, and is not retrospective.] COURT OF COMMON BENCH. Esqrs. Barristers-at-Law. Thursday, Feb. 20. GERALOPULO v. WIELER. Held, that duplicates (made after action brought) Moscow. The case of Vandewall v. Tyrrell, Moo. & M. 87, Assumpsit.-The first count stated that on the The second plea denied that the bill was protested, and the third denied the payment under protest. On those pleas issue was joined. COMMON BENCH. supra protest for the honour of the drawer of the bill, in which case it was insisted that it was not sufficient that the facts recorded in the protest should have taken place, but that a formal instrument of protest must be drawn up or extended before the payment for honour, and consequently that the allegation that the bills were continued and paid under protest was not proved, inasmuch as the protest must be understood to mean such protest as would The defendants pleaded, 1st, Not guilty; 2ndly, That the goods were not the goods of the plaintiff'; 3rdly, That the goods were seized after the passing of the County Courts Act, and under that Act, and that no notice of action was given; 4thly, That before the seizure of the goods a plaint was levied by one Steward against Woodcock (the plaintiff) in the Whitechapel County Court for the sum of Reported by JOHN THOMPSON and DANIEL THOMAS EVANS, give a right of action to the person praying for 17. 19s.; that Steward recovered judgment for that sum and costs; that the sum recovered was ordered by that Court to be paid at the rate of 8s. per month; that Woodcock did not pay according to the order of the Court, whereupon, after default made, the clerk of the court, at the request of Steward, issued a fi. fa. and a warrant of execution directed to the bailiffs of the said court, forthwith to make and levy the amount upon the goods of the plaintiff, except the wearing apparel and bedding of the plaintiff and his family, and the tools and implements of his trade, if any, to the value of 57.; that he had no goods in the Whitechapel district, whereupon a warrant issued into the district of Lambeth County Court, and was there executed; and under the said warrant the goods and chattels of the plaintiff found in his apartments were seized, for the purpose of levying the moneys so directed to be levied by the warrant of execution; that the landlady of the apartments gave notice to the bailiffs of her claim for 14s. as arrears of rent; and that they distrained as well the amount of rent as the debt and costs under the writ, and took the goods in the declaration mentioned, as a distress (specifying the goods exactly as they were specified in the declaration) for rent, and afterwards sold the same, as they were not replevied. The plaintiff took issues on the other pleas, and demurred to the last. The question raised on this demurrer was, whether a bailiff executing the process of a County Court for debt and costs, and on whom notice of a claim for rent by a landlord is served, can make a general levy on the bedding and implements of the trade of the debtor under the value of 51. paying thereout the rent owing by the debtor to his landlord. The 96th section of the County Court Act (9 & 10 Vict. c. 95), provides "that every bailiff executing any process issuing out of the County Court against the goods and chattels of any person, may, by virtue thereof, seize any goods and chattels of such person, except the wearing apparel and bedding of such person and his family, and the tools and instruments of his trade to the value of 51. which shall to that extent be protected from seizure." The 107th section authorises the landlord, by any writing under his hand, or the hand of his agent, to be delivered to the officer making the levy (the writing At the trial before Maule, J. at the sittings after stating the terms of the holding and the rent payable last Hilary Term, it appeared that the bills had been for the same) to claim any rent then due to him, not duly presented and protested for non-payment on exceeding the rent of four weeks, where the tene- the 10th of December; and that on the 11th they ment is let by the week; and in case of the claim were respectively paid by the plaintiff through a being so made, the officer making the levy shall dis-notary under protest for the honour of the second train as well for the amount of the rent so claimed indorsers. The protests were regularly drawn up, and the costs of such additional distress as for the and were forwarded by post on the 11th of December, amount of money and costs for which the warrant of addressed to the second indorsers at Moscow. These execution issued under this Act, and the costs of the protests were not produced at the trial, but secondary evidence was given of their contents, and also of the acts of honour for the bills; and duplicates of them, drawn up by the notaries from their books in Hake, in support of the demurrer. Can the exe-March and April last, after the commencement of cution creditor and the bailiff of the County Court the action and before the trial. A verdict was found compel the landlord to take the debtor's wearing for the plaintiff for 4957. with general leave to the apparel and implements of trade? Was it the in- defendant to move for a nonsuit or verdict for the tention of the statute to give them any such power? defendant. Clearly not. Section 96 expressly protects those articles from seizure under an execution; and when section 107 gives power to the bailiff to distrain for the landlord's rent, the subject matter of the section is confined to the goods liable to be taken in execution; and that excludes the implements of trade and wearing apparel. [COLERIDGE, J.-But the tenant may replevy the goods seized as a distress for the rent; and he cannot replevy those taken in execution.] Both are in the nature of an execution, as appears by the use of the words" additional distress.' If that were not so, the greatest confusion would follow; because all MAULE, J. after stating the pleadings as above, the other provisions of the Act relating to the sale and appraisement of the goods expressly apply to proceeded as follows:-Two points were insisted on taken in execution." [COLERIDGE, J.-on behalf of the defendant: first, that there was no The law had already provided for goods dis- primary evidence of the protest; and, secondly, that trained.] Then there must be one appraisement under secondary evidence was not admissible. As to the s. 106, of the County Courts Act, of goods taken in first point it was argued for the plaintiff on shewing cause that neither of the protests produced were execution, and a separate appraisement under the original instruments, and that when the fact recorded statute of Anne, of goods distrained for rent. in the protest had taken place, and had been duly [WIGHTMAN, J.-If the tenant replevied, the bailiff would return the excepted articles, and sell the entered by the notary in his book at the time of the others.] [COLERIDGE, J.-How does the tenant transaction it was sufficient if the formal protest was suffer? If the landlord came in personally, he might brought. For this several authorities were cited drawn up afterwards, even although after action take the exempted articles. The officer becomes the bailiff of the landlord for one purpose, but he is the and the known course of practice relied on. On the officer of the Court for the other.] The statute 13 part of the defendant it was not denied that such was & 14 Vict. c. 61, s. 20, requires the landlord to be the general rule, but it was contended that this rule paid out of the moneys raised by the execution. was liable to exception in the case of payment [WIGHTMAN, J.-But that statute passed after this sale. The case was argued before Patteson, Coleridge, Wightman, and Erle, JJ. goods The second count was on a bill for 2201. In other respects, that count and the pleadings on it were to the same effect as the first count and the pleadings on it. A rule nisi was accordingly obtained. Authorities cited:-Vandewall v. Tyrrell, Moo. JUDGMENT. (a) Patteson, J. had gone to chambers. honour. The authority on which the defendant relied in support of the necessity of extending the protest before payment was that of Vandewall v. Tyrrell, which has sometimes been considered as supporting the doctrine contended for by the defendant. That case as reported was an action of assumpsit for money paid by the plaintiffs to the use of the defendant; the defendant, who resided in Jamaica, drew four bills dated the 9th of September, 1824 for 15007. on Willis and Company in London at nine months after sight; the bills were duly ac cepted, but were dishonoured and noted for nonpayment, at the time they became due, the 30th of July, 1825; the plaintiff's at the request of the acceptors paid the bills for the honour of the drawer on the 8th of August, 1825, and gave notice to the defendant the first foreign post. In May, 1826, the notary public was instructed to protest the bill for non-payment, which he did; the protest purported to have been made before the payment, and in form stated, that the "plaintiffs were ready to pay for the honour of the drawer;" he stated that the custom was to protest formally before the payment. The chief justice said, "the plaintiffs must be nonsuited; they sue on the custom of merchants; that custom clearly is that a formal protest should be made before payment is made for the honour of any party to the bill."-Nonsuit. This report being short and somewhat obscure, the Court took time to consider its authority, and requested the parties to obtain further information respecting it. We have since been furnished with a brief, which one of the counsel in the cause held at the trial, and this has thrown much light on the question. It appears from the brief and the notes of counsel that the bills in question in that case were duly presented and noted on the 30th of July, 1825, the day they fell due; that the plaintiff paid the amount of the bills to the holder on the 8th of August. The payment was made by the clerk of the plaintiffs, no notary being present, and nothing as far as appeared being said by the clerk when he made the payment to the holder as to paying for the honour of any person. There was undoubtedly no intervention of a notary with regard to the payment until May, 1826, when the plaintiff applied to the notary, who had protested the bills for the holder, who then drew up acts of honour on the same papers as the original protests for non-payment: the protests for non-payment were in the usual form, and stated that the notary, on the 30th of July, 1825, presented the bills to the acceptor, who refused payment; the acts of honour were not dated, but followed the signature of the notary to the protests for non-payment, and were in these terms: "Afterwards, before me, the said notary and witnesses, appeared Messrs. Vaudewall and Tippler, of London, merchants, and declared that they were ready and willing to pay the bill of exchange before protested, under protest for the honour and upon the account of Joseph Tyrrell, Esq., the drawer of the said bill; holding, neverthe less, the said Joseph Tyrrell and the acceptor of the said bill, and all others concerned, always bound and obliged to them, the said appearers, for the reimbursement in due form of law, and according to the custom of merchants, quod attestor, signed by the notary." The notary stated in evidence, according to the notes of counsel at the trial, that when a payment is made for the honour of the drawer, the protest is made before payment. The same note represents Lord Tenterden as saying-"You must recover by the custom of merchants; you have not complied with it by protesting your bills before payment," and, thereupon, the plaintiff was nonsuited. It appears, therefore, that in this case the plaintiff paid the bills on the 8th of August, 1825, without declaring to the notary, or otherwise, that he paid for the honour of by procuring an act of honour to be drawn up nine the drawer, and attempted to remedy that omission months after the fact recorded by the notary in that document; that is, the declaration by the plaintiffs, of their readiness and willingness to pay to the honour of the drawer, never having actually taken place. Now, it is a part of the mercantile law respecting payments for honour that they must be preceded or of the notary for whose honour he pays the bill, accompanied by a declaration, made in the presence which should be recorded by the notary, either on the protest, or on a separate instrument. Beawes, It would, indeed, be contrary to the general principle on Bills of Exchange, placit. 57; and Marius, 128. of law and justice if a person who made a payment, or did an act simply without limit or qualification, could afterwards, by a subsequent declaration, limiting or qualifying its effect, affect the rights of others: no per son, therefore, paying money simply to the holder of a duly made before notaries, and these facts recorded EXCHEQUER. : bill could, by the general rules of law, by a subse-a declaration that payment was made for honour insurance upon grain and in the course of the quent declaration cause a payment so made to assume the character of a payment for honour. The custom of merchants requires the declaration which is to qualify the payment to be made in the presence of a notary. In the case of Vandewall v. Tyrrell there was a substantial omission of the declaration in the presence of the notary, which is necessary to give the payment the quality of a payment for honour, and not merely an omission to draw up a formal statement of such declaration, and this substantial omission was a clear ground of nonsuit, and the decision may be sustained on that ground. But it also appears that it actually proceeded on that ground. The formal protest which Lord Tenterden, as reported in Moody and Malkin, says, should be made before payment for honour, and the protesting the bills before payment, mentioned in the note of COURT OF EXCHEQUER. Esqrs. Barristers-at-Law. Friday, Nov. 22, 1850. REIMER AND AN OTHER T. RINGROVE. question in this case is, whether there has been a PARKE, B.-The rule was granted on the point voyage the vessel sustained considerable damage by sea, and in consequence thereof was obliged to pet into a port in Norway, and the cargo of corn on board, being partially damaged, was taken out for the purpose of enabling the parties to repair the ship, and to continue the voyage. When the corn was taken out, it appeared that it had sustained considerable sea damage. The question before the Court at Nisi Prius, mainly, was, whether or not this loss was a total or average loss, because, in consequence of the memorandum usually contained in all policies of insurance with respect to corn, if there be only an average loss the parties cannot recover at all upon it, but if it be a total loss they can. The question, therefore, arose, whether this was or Iwas not a total loss: if the damage sustained by the corn in the course of the sea voyage be such as to be voyage had been continued, the corn would have counsel of what Lord Tenterden said, "you have Reported by FREDERICK BAILEY and C. J. B. HERTSLET, properly left to the jury whether it was such as, if the not complied with it, by protesting your bill before payment," are to be understood not of the protest for non-payment, or not of that alone, but either of the protest and declaration before the notary that the payment is for honour together, or of that declaration alone. In the report in Moody and Malkin the reporters seem to have considered the protest for non-payment and the act of honour as one instrument, which they might naturally do, as they were on the same paper; and it was the plaintiff's interest to treat the protest and act of honour as one instrument. The language of the reporters is :-"The protest purported to have been made before the payment, and in form asserted that the plaintiffs were ready to pay for the honour of the drawer." Now, the protest for non-payment bore date the 30th of July, 1825, long before the payment, and it is in the act of honour, and not in the protest for non-payment, that the assertion of readiness and willingness to pay is contained. The reporters, therefore, in This was an action on a policy of insurance, claimspeaking of the protest, must mean either the in- ing for total loss. It was tried at York at the last strument itself or the act of honour alone. In assizes, before Alderson, B. when a verdict was found either case the word "protest," as used by for the defendant. A rule nisi for a new trial, on them, must comprehend the instrument which the ground of misditection, was subsequently obcontains the assertion of readiness and willing-tained, against which cause was now shewn by ness to pay; and Lord Tenterden, in speaking Watson, Q.C. (Hoggins, Q.C. with him).-The of a formal protest, must be understood as speaking of such formal declaration before a notary as is before mentioned. Lord Tenterden is represented in the note of counsel to have said, "You have not complied with the custom of merchants, by protesting your bill in time." This seems to point to an omission of something which, according to the usual course, the plaintiffs would have to do, and is more properly applicable to the omission of the notarial declaration which they ought to have made before payment, than to any omission of drawing up the protest for non-payment, supposing such omission to have taken place. Protesting the bill for nonpayment was a thing to be done, not by the plaintiff on the 8th of August, but by the holder on the 30th of July. It is no where stated in express terms at what time the protest for non-payment in the case of Vandewall v. Tyrrell was drawn up or extended. There is no doubt the bills were protested for nonpayment on the 30th of July, the day they became due, and probably the protest was drawn up before the payment, for it appears that the payment was made on the 8th of August, in order to prevent the bills being sent to Jamaica under protest by the packet which sailed on the 9th. The brief for the Watson. The jury found that by application of plaintiff states that the bills, on being dishonoured, reasonable means it would have arrived as a cargo of were regularly protested by the holder and indorsee, merchantable corn. There never was a total loss, Mr. Simon Taylor, of London, for non-payment, and there could not, therefore, have been an abanand the bills of exchange and protests were as fol- donment. (Thompson v. Royal Exchange Comlow: then it sets out the bills and protests for non-pany, 16 East.; Arnold on Insurance, p. 1121; payment, and it afterwards states-"The parties Freeman v. East-India Company, 5 B. & Al. 617; applied to the notary who had originally protested Anderson v. Wallace, 2 M. & Sel. 240.) This was the bills to prepare the extension of the act of always a partial loss only. honour, and he prepared it on the same sheet of paper as the original protest." There seems no doubt, from these circumstances, that the protests for non-payment had been extended before payment, and were, on the 8th of August, in the hands of the holder, Simon Taylor, who was about to send them to Jamaica the next day. We have minutely examined this case, because it has sometimes been referred to as affording the high authority of Lord Tenterden to a proposition which introduces an inconvenient and anomalous exception to the general rule with respect to notarial instruments-that a duplicate made out from the original or protocol in the notarial book is equivalent to the original made out at the time of the entry in the book. It appears on this examination that that case decides only, and in conformity with the general law, that a subsequent declaration cannot qualify a previous act, but that in order to have such effect the declaration must precede or accompany the act, in conformity with the law of merchants, and in cases of payment for honour the declaration must be formally made before the notary. There is, therefore, nothing in that decision which establishes any exception to the general rule, or prevents its application to the present case, and we are of opinion thot the bills having been in fact duly protested, and Watson. The vessel was perfectly capable of carrying the cargo to Hull. The question at the trial was, whether the corn could have been brought to Hull in the state of corn. The meaning of total loss is explained in Labone v. Hatton, 19 L. J. 161. C.B.; Roux v. Salvador, 1 N. C. 526; Moss v. Smith, 19 L. J. 228, C.B. PARKE, B.-The meaning of total loss is "of no use or value to the plaintiff." Willes (Unthank with him) contrà.-The question Willes, contrà.-The question then is, whether JUDGMENT. BANKRUPTCY. IRISH BANKRUPTCY COURT, Reported by J. LEVY, Esq. Barrister-at-Law. (Before Mr. Commissioner MACAN.) Tuesday, Jan. 28. Ex parte KEARNEY, re KEARNEY. of creditor to be remitted to his original debt, BANKRUPTCY. in case of composition-Principal creditor becoming security for compounding debtor-Valuing pledge. Alhough a creditor is not paid the amount of a composition entered into with his compounding debtor, he will not be remitted to his original debt, in case of the bankruptcy of his debtor, if he himself was security for payment of the composition to the other creditors, and if by his conduct in the transaction it may be fairly inferred that he induced the other creditors to enter into the composition; in such case his proof will be confined to the balance of the original debt, after deducting the amount of the composition. If he hold a security, he will be allowed to place a value on it and deduct it from the sum for which he is entitled to prove; and if he hold back any part of his debt at the time of the composition, which he is subsequently paid, it will be deducted from his proof. This case was argued by Levy, for Kearney, a creditor, who sought to be remitted to his original debt, in consequence of not being paid a composition entered into with the bankrupt. He sought also to have a value put on a policy of insurance which he held, to have that value deducted from his debt, and to prove for the difference. In support of the right to revert to the original debt under such circumstances, Ex parte Vere, 1 Rose, 281; Ex parte Wood, 2 Dea. & C. 508; and Ex parte Bateson, 1 Mont. D. & D. were cited. As to the right of a creditor valuing his pledge, De Gex's Bank. Prac. 195, and cases there collected, were cited. Walsh, for the assignee, opposed the proof, on the ground that the claimant had by his conduct induced the other creditors to enter into the composition; that he had not disclosed to them that he held a security; and that having himself become security for the composition of the compounding debtor, and having assumed her debt, his right to prove for the composition was gone. He also contended that the policy of insurance, which he held as a pledge, should be brought in, and sold for the benefit of the estate; and the claimant, if entitled to prove at all, it should only be for the balance, after deducting the composition. To sustain these propositions, Richard v. Leers, 6 Adol. & E. 469; Cullingworth v. Lloyd, 2 Beav. 385; McKenzie v. McKenzie, 16 Ves.; and Cowper v. Green, 7 Mee. & W. were cited. The facts sufficiently appear in the able JUDGMENT. ing. The assignment does not appear on the face of the creditor also releases the pledge which he holds, it to be given as a collateral security, but purports that he loses his right to retain a written instrument to be a sale of the policy, accompanied by a condi- deposited with him by the debtor as a security for the tion, that the premiums were to be paid by the bank- debt. Whilst I fully concur in this doctrine as a rupt herself, who, in point of fact, did pay them up general rule, I do not think it applies to this case. to the time of bankruptcy, these payments amount- The policy of insurance appears to have been someing to a sum exceeding 1207. It appears that about thing beyond a mere collateral security for the adthe month of November, 1848, the bankrupt became vance made to Mr. Kearney. The bankrupt's deembarrassed in her circumstances, and she proposed position, upon which the assignee relied, stated that a composition of 10s. in the pound to her creditors, she was to keep up the premium, the amount of to be secured by composition bills in this way-her which was equivalent to the interest of the own bills for the first instalment of 2s. 6d. and her 4001. at 5 per cent.; and that when Mr. Keardrafts on Mr. James Kearney for the remaining in-ney was paid his debt, the insurance was to stalment of 7s. 6d. in the pound, at eight and twelve be a provision for her children after her death. The months; and the condition of the deed was, in con- distinction between the present case and that of sideration of such composition notes or bills, being Chillingworth v. Lloyd, in 3 Beavan, where the handed to the creditors, they should take and re- security was a mortgage, is quite apparent. The ceive the same in full payment of their respective assignment of the policy of insurance is nothing more debts; and that, upon payment of said bills and than a contract, from which the creditor is to derive notes or cash, the bankrupt should be released from a benefit if the security fail. It is clear, that if Mr. all claims on the part of said creditors; and, in Kearney be now bound to give up the policy of point of fact, all the creditors were actually paid the insurance, he would have been bound to have given composition in full, except Mr. James Kearney himself, it up at the time of the composition. I do not think who, it appeared, never was paid anything on foot of he was bound to give it up then, and that he is not said composition in cash or otherwise, and never ap- bound to give it up now, but that he is entitled to plied for payment. I have, as I stated, looked into put a value on it and deduct that value from the many authorities; but I could not find a case in all amount which he is entitled to prove for. With respects similar to this. Here we have Mr. Kearney regard to the second point in the case, namely, the the principal creditor under the composition deed, right to revert to his original debt, which had been and who was the first to sign it, actually securing contended for by claimant's counsel, I must take the composition to all the other creditors by his own leave to dissent from it. I admit, as a general rule, acceptances, whilst the condition of the deed was, that where a composition is entered into, and that that all the creditors, upon being handed up these default is made before the bankruptcy of the comcomposition bills, should receive them in full satis-pounding debtor, the creditor is entitled to revert to faction of their respective debts. The arrangement, his original debt, but that rule does not apply in the therefore, on the face of it, as far as regards Mr. present case, and I think the arguments of the James Kearney, is perfectly absurd. It enjoins an assignee's counsel on that point and the cases cited impossibility; and the law never requires the per- by him are unanswerable. The case of McKenzie v. formance of things impossible. Here we have Mr. McKenzie, 16 Ves. is perfectly applicable in my James Kearney assuming the debts of his com- opinion. Here we find Mr. Kearney, who was by pounding debtor by giving his acceptances to pay far the heaviest creditor, the first to sign the deed, them, and how could he be handed up his own ac- thereby holding out an inducement to the other ceptances to pay himself the composition on his 4001. creditors to sign it; we have him next, as I have which was the sum set down opposite his name in already observed, becoming security for payment of the schedule of creditors, and which was the amount the composition, and putting himself in the place of undoubtedly lent by him to the bankrupt in June the compounding debtor, and under these circum1845? He was not handed his own acceptances to stances, although he has never been paid the composipay himself,-the proceeding would have been too tion, and indeed never sought payment of it, I do not absurd,-nor was he made any payment on foot of think the general rule applies to him, but that, on the composition. It was then very strongly con- the contrary, his right to prove for it has been lost. tended for by his counsel that inasmuch as no pay- Besides the cases cited by counsel for the assignee, I Mr. Commissioner MACAN.-In the matter of ment had been made on foot of the composition, he have, in looking into the authorities, discovered Mary Kearney, who had been a widow lady, trading was now remitted to his original proof; that he had another case, which completely sustains this view; it in Waterford, Mr. James Kearney has put forward a right to prove for the whole of his 4007.; and that, is that of Good v. Cheeseman, 2 Adol. & E. 328. a proof for 5471. which appears to have been founded by a well-known rule in bankruptcy, he had a right There, a debtor being unable to meet the demands upon a loan of 4001. originally advanced to the to put a value on the security held, deduct it from of his creditors, they signed an agreement, which was bankrupt in 1845, and a sum of 2071. composed of his debt, and then retain the security for his assented to by the debtor-to accept payment by his bills indorsed by Mr. Kearney for the bankrupt's own benefit. As a general rule, these princi- covenanting to pay two-thirds of his annual income use, and subsequently paid by him. These two ples were, no doubt, well established in bankruptcy. to a trustee of their nomination, and give a warrant of sums, amounting to 6077, from which the claimant If a debtor enter into a composition, and make de- attorney as collateral security. The creditors never undertakes to deduct 60%. the value upon which he fault in the payment of it before bankruptcy ensues, nominated a trustee, and the agreement was never has put upon a policy of insurance for 6001, upon the creditor is remitted to his original proof; and if acted on, and one of the creditors brought an action the bankrupt's life, which, it was stated, he holds as a creditor hold a pledge, he is entitled to either put against the debtor for his demand. The debtor a security, constitute his present claim of 5471. a value on it, deduct that value from his claim, and appeared to have been always willing to perThe case has been argued before me by counsel for prove for the balance, or else have it brought in and form his part of the engagement; and in that the claimant and counsel for the general creditors; sold for the benefit of the estate, and take his divi- case it was held that the agreement, although and as it involves some very nice questions of law, I dend on whatever it may produce. But it was power- not properly on record and satisfaction, was have taken the trouble of looking into various autho- fully urged by counsel for the assignee, that the still on a great defence the general issue, rities besides those cited, before giving my judgment, circumstances of the present case and the conduct as it constituted a valid new contract between and I was unable to find a case precisely analogous of the claimant were such as to disentitle him from the creditors and the debtor capable of being to the present. It appears that some time after the the benefit of the application of those rules; that immediately enforced; and the consideration of death of Mrs. Kearney's husband, Mr. James Kearney, in the first place, when entering into the composition which to each creditor was the forbearance of the her brother-in-law and the present claimant, ad- with the bankrupt along with the other creditors, he rest; and that a creditor shall not bring an action vanced her a sum of 4001. to enable her to carry on had not informed them that he held the policy of where others have been induced to join him in a her business; and in the month of October, 1845, he insurance as a pledge, and that upon a composition composition with the debtor, each party giving the obtained a judgment for that amount against her. between a debtor and his creditors, a creditor could rest reason to believe that in consequence of such The balance, consisting of the bill of exchange re- not ostensibly accept a composition and sign the engagement his demand will not be enforced. In ferred to, has not been objected to by the assignee, deed which expressed his acceptance of the terms, such case there is in point of fact and in point of and, therefore, no question arises with regard to their and at the same time stipulate for and secure to law a new agreement substituted for the original amount, as it appears that the indorsement and pay himself a peculiar advantage which was not expressed contract with the debtor, the consideration to each ment of them by Mr. James Kearney took place some in the deed; that a creditor holding a security for creditor being the engagement of the others not to time subsequent to the deed of composition, to which his debt might stipulate to have the benefit of it to press. I think, on the whole of this case, that the I am about to refer. The circumstances connected with the amount of the composition offered by a debtor claimant having by his acts evidently induced the other the advance of the 4007. by Mr. Kearney to the to his creditors, but that he must hold himself en- creditors to enter into the composition, and having then bankrupt were highly creditable to him. The entry tirely aloof from the other creditors, or distinctly become security for the payment of it himself, rendered in his ledger stated that the money was advanc cd communicate with them on the subject if he at all it an impossibility, according to the very terms of the loan to pay Messrs. Taylor, of Liverpool, a debt acts in concert with them. The case of Chilling-deed, that he should pay himself by his own acceptwhich no doubt they were pressing. And if subse- worth v. Lloyd, in 2 Beav.-a most important one-ances, he is now precluded from "proving for the quent events render it impossible, in my opinion, in has been cited in support of this doctrine; and it amount of that composition, and that his proof must point of law, to permit Mr. Kearney to prove for his was argued that, inasmuch as Mr. Kearney had not original debt, I regret it, because I can duly appre- communicated the fact to the other creditors of his ciate the motives that induced him to come forward holding the policy of insurance, he should deliver and aid the widow of his brother, and enable her, it up for the benefit of the general creditors, and be after her husband's death, to continue business, for content to take his dividend on whatever it might the support of herself and her family. It appeared produce; whilst on the part of Mr. Kearney it was that the 4001. had been advanced in June, 1845, and contended that he had a right to put a value on it, that a policy of insurance for 6007. effected on the deduct that value from his original debt, and prove life of the bankrupt, was about the same time for the balance. Whilst I admit to the fullest extent assigned to Mr. Kearney as a further security for the the principle laid down in Chillingworth v. Lloyd, I advance, besides a bond and warrant of attorney. do not think it applies in this case. The case of But I think I am warranted in saying that the policy Cowper v. Green, 7 Mee. & W. was also relied on of insurance was effected originally for a purpose to shew that the creditor had a right to give up the wholly irrespective of the advance of the money. It pledge to be sold for the benefit of the creditors. is now before me, and bears date in February; and The doctrine sustained by that case is to the effect the assignment was not until the end of June follow-that by the release of a debt by a composition deed, be restrained to the balance after deducting the composition. It was contended, on first opening the case, that his right to prove for any portion of the 4001. was gone, but that position was, I think, very properly given up. There is, however, another item which must go in reduction of his proof; it is thisand as there is an important principle involved in it, I could not pass it over, although it was not alluded to, or relied upon by counsel for the assignee. I found, on reading over the bankrupt's deposition, that, since the composition, she paid Mr. James Kearney a sum of 351. in full, which was due to him at the time of the composition, but was not taken into account then. It cannot be permitted to any creditor to keep back a part of his demand when entering into a composition with his debtor, and BANKRUPTCY. afterwards he paid that demand in full. I cannot permit it to appear that there was a shilling more due to Mr. Kearney at the time of the composition than the sum set opposite to his name in the composition deed, and he must now deduct that 351. from his proof. Let Mr. Kearney be at liberty to prove for the balance of his original debt after deducting the amount of the composition, and from this must be deducted the 357. and the value set upon the policy of insurance which he is allowed to retain for his own benefit; he will of course prove also for the amount of the bills paid by him for the bankrupt's use long subsequent to the composition; either party is of course at liberty to appeal to the Lord Chancellor from this decision. It was intimated that no appeal would be taken. PREROGATIVE COURT. Reported by Dr. WADDILOVE, of Doctors' Commons. Monday, March 10. In the goods of Rev. S. WELLS. On a former occasion (suprà, p. 412), the Court was moved to grant administration, with the will annexed, of the goods left unadministered, to the next of kin of the widow, the executrix and residuary legatce (who had died, having left a will, but appointing no executor or residuary legatee) of the original testator, all the effects of such executrix being in the archdeaconry of Totnes; and the unadministered estate of the original testator, consisting of his equitable interest, as surviving trustee, of part of a sum of money, being in the Funds, and, therefore, bona notabilia. The Court rejected the motion, saying it could not treat the next of kin, Mrs. W. (the widow), and the executrix and residuary legatee as representing the original testator through the Totnes grant. NISI PRIUS. previously affirmed, and they had therefore postponed Lord CAMPBELL, C.J.-The defendant has had NISI PRIUS. Knowles, Q.C. for the defendant, in addressing the jury, contended that to constitute him a trader within the bankrupt laws, he must get his living by trading. (Ex parte Patterson, re Bryant, 1 Rose, 405.) Where a man sold stone which was dug from his own land, it was held insufficient to make him a trader (Ex parte Gallimore, 2 Rose, 424.) In this case the farm was the chief source of profit, and was chiefly used to supply the farm-labourers. M. Chambers, Q.C. still pressed the objection, relying upon the words of the statute, which were as follow:- "That if any action at law, or any suit JERVIS, C.J. (to the jury.)-To constitute a in equity for an account, shall be brought in respect trading, there must be a buying and selling, not a of any alleged infringement of such letters patent single act, but a continuing buying and selling; even heretofore or hereafter granted, or any scire facias one act will do, if there is an intention to continue to repeal such letters patent, and if a verdict shall it. As a farmer he cannot be made a bankrupt, but pass for the patentee or his assigns, or if a final as a dealer in goods he may; the dealing must not decree or decretal order shall be made for him or be with the farm produce only. If I feed pigs or them upon the merits of the suit, it shall be lawful cows by means of my farm, and then sell them, I do for the judge before whom such action shall be tried not thus become a trader; but if I buy milk and to certify on the record, or the judge who shall retail it, I do become a trader. If a person buys make such decree or order to give a certificate under, horses and sells them again, and has the intention of his hand, that the validity of the patent came in continuing to buy and sell, he is a trader. So here, question before him, which record or certificate if Clark bought and sold flour, and either continued being given in evidence in any other suit or action or intended to continue to buy and sell it, he is a whatever touching such patent, if a verdict shall trader, whether he so retailed it in exchange for pass, or decree or decretal order be made, in money or goods. But, on the other hand, if he favour of such patentee or his assigns, he or they merely sold his own flour, whether he received in taxed at three times the taxed costs, unless the to make him a trader. Is there, then, in this case a shall receive treble costs in such suit or action, to be exchange for it money or goods, it is not sufficient judge making such second or other decree or order, buying and selling of goods by Clark otherwise than that he ought not to have such treble costs." or trying such second or other action, shall certify as a farmer? If so, Clark was a trader, and you This will find a verdict for the plaintiff. clearly contemplated that the evidence should be given on the trial and before verdict. and it appears to me that the proper course has been this has been. Evidence admitted. and Denison, for the plaintiff. The Solicitor-General, M. Chambers, Q.C. and COURT OF COMMON BENCH. Declarations made by the plaintiff at the time of Jenner now renewed the motion. The will of Mrs. W. having been rightly proved in the Archdeaconry Court at Totnes, cannot be transmitted to this Court; and the persons to whom administration, with the will annexed, has been granted, cannot therefore become her personal representatives by its authority. The other course open to the parties interested in the fund sought to be dealt with under this administration, is to join in nominating some person to take administration with the will annexed, limited to the fund in question. That course, however, would be very inconvenient and expensive. It is a rule in the Registry of the Court not to grant administration limited to a portion of a sum standing in the name of a trustee in the Bank of England. Almost all the persons beneficially entitled to share in the fund have consented to the grant as prayed. It appears that it has been the practice in the printed the Literary Gazette for its proprietors. Registry to permit such grants under similar circum-He had made the contract with Jerdan, one of the stances without objection. Several instances were proprietors; and a partnership between him and the present defendant was proved, the defendant having been a dormant partner. mentioned. Sir H. JENNER FUST.-I am disposed to make this grant, it being for the benefit of the parties interested, and in accordance with the ordinary practice in the Registry, as is shewn by the cases adduced. SITTINGS IN LONDON AFTER HILARY TERM. Patent-Infringement-Costs. Held, that after such verdict the record of a former Watson, Q.C. for the plaintiff, then tendered a Entries in the plaintiff's shop-books were admitted for the same purpose. This was an action for goods sold, and for work and labour. The plaintiff was a printer, and had for some time called by him, whether the plaintiff said anything Byles, Serjt.-The gist of the action was, whether JERVIS, C.J.-For that purpose the evidence is, I think, admissible; but for that purpose only. You cannot use it to shew the part of a partnership. Evidence admitted. Entries in the plaintiff's trade books were also Byles, Serjt. and Maynard for the plaintiff. Thursday, Feb. 20. A farmer had a room in his house for selling flour Held, that if there was a continuing buying and a This was a feigned issue to try the right to some verdict. It ought to have been given in evidence property. The plaintiffs were the assignees of a during the trial. bankrupt named Clark, and the defendant held under a bill of sale. Clark was a farmer, and kept also shop or room in his house for the sale of flour and pork. The principal point in dispute was, whether Clark was a trader or not Sir F. Thesiger, Q.C. for the plaintiff, said, that they did not wish to prejudice the defendant's case by proving during the trial that the question had been previously tried, and the validity of the patent Verdict for the plaintiff. Byles, Serjt. and H. Hill, for the plaintiff. Knowles, Q.C. and Tomlinson, for the defendant. krish Reports. ROLLS COURT. Reported by W. ST. LEGER BABINGTON, Esq. Monday, Dec. 2, 1850. SWEETING . COWAN. Injunction-Ploughing up rabbit warren waste. The ploughing up by a tenant of land stocked with rabbits, is not waste, where the land has neither been specifically demised as a rabbit warren, or is not a warren by charter or prescription. tinue, until the hearing of the cause, an injunction In this case it was sought by the plaintiff to conwhich had been obtained to restrain the defendant from breaking up a certain portion of the premises in the bill mentioned, which had been known and used appear sufficiently from the judgment of the Court. as a rabbit-warren. The peculiar facts of the case a JUDGMENT. The MASTER of the ROLLS.-The injunction in this case was obtained to restrain the defendant and portion of the demised premises, known as the his workmen, &c. and each of them, from cutting up rabbit-warren; and the case which has been made by the bill appears to be this:-Thomas Church being entitled to a lease of the lands under the see of Derry, on the 29th July, 1835, made a sub-lease There were 309 acres contained in the demised lands, to the defendant for 18 years, at the rent of 60%. a year. lying along the shore of Lough Foyle, of which the bill alleges that 190 had never been broken up, but remained a rabbit warren, consisting of small holes and long grass. The value of rabbit warrens has materially decreased, and, since the potato failure, as sandy, unbroken ground, is considered the best to avoid the disease, although the ground of the de fendant is light, it is alleged that persons were found who were disposed to pay 41. an acre for it. The bill then charges that, exclusive of the cultivated ground, the tenant was about to plough up the rabbit warren, thus making it no longer available for the usual purposes to which this part of the land has been applied; and that the removing the rabbit holes would cause the sand to be loosened, and drift over on the arable ground. That is the short outline of the bill. The defendant, in his answer, denies that two-thirds of the lands have been used for the purposes of a rabbit warren; and he also states that he has used the farm under the eye of the plaintiff, bringing as much of it into cultivation as possible, and he denies that any portion of it has been let to him as a rabbit warren; and the lease supports this view of the case. The plaintiff's view of the case assumes the law to be, that the ploughing up of a rabbit warren constitutes waste at common law; and if this assumption is not warranted, then the plaintiff's whole case is at end. In 22 Viner's Abridgment, 433, tit. "Waste," which, as far as Rolle goes, is a translation of that author, after stating what is waste, the ploughing up of a rabbit warren is considered not be waste, unless it is a warren by charter or prescription. The same proposition is laid down in other abridgments, and Hargraves, in his note to Coke on Littleton, 53A, note 8, states, that unless there is a warren by charter or prescription, the ploughing up of land stocked with conies would not amount to waste. I do not mean IRELAND. to say that if a person leases a rabbit warren, as such, the lessee could divert it to any other purpose; but that is not the question before the Court. The case does not appear a plain one at law in favour of the plaintiff; and the rule laid down by Lord Cottenham, in Stevens v. Keating, 2 Phill. 333, ought to be followed, namely, that an injunction ought not to be continued until the hearing, if it is at all likely that the plaintiff's title is without foundation; for the adopting any other course might be inflicting an irreparable injury on a defendant. The injunction, therefore, must be refused. COURT OF EXCHEQUER. ORR and BAGGOT, Assignees of PURDY, lous and vexatious; if he. waits until it assumes a graver shape, it is said he has acquiesced, and is therefore precluded from complaining." In the present case there is no continued acquiescence. Innocent v. The North Midland Railway Comthe Northern Bridge v. The London and Southampton Railway Company, 1 Railway Cases, 653; Barnard v. Wallis, 2 Railway Cases, 186.) Express authority to consent should appear. (Wood v. Ledbitter, 13 Mee. & Wels. 838.) is verified by an affidavit of the solicitor for the This was a motion to restrain the defendants from proceeding with the Cork and Bandon Railway under the following circumstances. The LORD CHANCELLOR.-In this case the owners of the land taken by the railway company are entitled to compensation, and the company having failed to comply with the provisions of the Act, and entered into possession, stand at present in the condition of persons dealing with the property of others without any title, and the plaintiffs have a right to Certain land, suitable for building-ground, in the the interposition of this Court, to say they should neighbourhood of Cork city, was the subject of ne- not proceed farther without making compensation. In Stoppage in transitu-Bankruptcy-Trover. gociation between the plaintiffs and the Cork and strictness, therefore, the injunction should go. I do M. and others, distillers, residing in Scotland, Bandon Railway Company. The company did not not consider there has existed such delay on the having sold twelve puncheons of whisky to P. proceed under the Act to have the amount of com- part of the plaintiffs as amounts to acquiescence; but who resided at Newry, in Ireland, they bonded pensation, which was disputed, duly assessed by a the defendants also rely on the consent which has the whisky in the Queen's stores at Newry, injury, but relied upon some negociation between the been given. No doubt, if this was established, there their own names, giving to P. a delivery order to solicitor of the plaintiffs and of the company, which might be considered enough to prevent the injunc the excise storekeeper, and an invoice; P. from the company treated as giving a consent to enter the tion issuing; but it lay upon the parties relying time to time, took eight of the puncheons out of land, and accordingly they made cuttings, which the on consent in this cause, when some of the parties the bonded warehouse, but his insolvency having bill was now filed to prevent being proceeded with. are abroad, to shew a clear and definite consent. I become known to the distillers, they stopped the On the 8th of March, 1850, the plaintiffs' solicitor do not think the company have taken the proper delivery of the other four puncheons and sold furnished an abstract of the title, but no steps were steps presented by the Act to get possession of this them to the defendant; P. having become a taken by the company until the 8th of July, when a land. The valuation was not in compliance with bankrupt: notice was served, offering 647. as the value of the the Act; I must therefore treat it as made for their Held, on the authority of Haig v. Wallace (2 Hud- land. The plaintiffs claimed 1,6001. and the com- own information merely. It appears pretty plain son & Brooke's Rep. 671), that the right to stop pany having entered on the land on the 22nd of that the company were not disposed to go before a in transitu was gone, and that trover by the July, the bill for injunction was filed on the 7th of jury if they could possibly avoid doing so. The assignees of P. lay to recover from the defendant September. The defendants, by their answer, relied solicitor of the company seemed to think he should the value of the four puncheons sold to him. on consent and acquiescence, and the defendants' be required by the plaintiffs to go before a jury; but This was an action of trover, brought by the as- solicitor made an affidavit verifying the answer, this is not so. There is considerable discrepancy in signees of one Purdy, a bankrupt, to recover the stating that the solicitor for the plaintiff's consented the details of conversation given by the respective value of four puncheons of whisky, which had been to allow the company into possession, in consider- solicitors, and when this is so, the Court will not act sold to Purdy by certain Scotch distillers. It ap- ation of the solicitor for the company expediting pro- on them. If I granted this injunction, I should be peared from the evidence that the firms of Menzies ceedings, to ascertain the amount to be paid to the doing great mischief to the company without any and Co. of Edinburgh, and Stewart and Co. of plaintiffs. This affidavit was replied to by the corresponding benefit to the plaintiffs, by stopping Paisley, sold twelve puncheons of whisky to Purdy, solicitor for the plaintiffs, who contradicted the great public works. All the plaintiffs seek is comwho resided at Newry. This whisky was sent from details of conversations in the affidavit of the compensation for the injury to their ground. They do Scotland, and bonded in Newry under the Bonded pany's solicitor. not suffer any loss by the works going forward. The Warehousing Acts in the distillers' names, and a land is valuable for building-ground, and the evidelivery order and invoice were given to Purdy, dence can be given of this, although the railway is who, from time to time, drew out eight of the made. I therefore do not think I ought to grant the puncheons from the bonded stores; but upon his Coppinger, Q.C. with Green, Q.C. for the railway injunction under the circumstances of this case, insolvency having become known to the distillers, company, contended, no answering affidavit could when a great public injury would result on the one they stopped the delivery of the other four pun- be used. (Rock v. Mathews, 2 De Gex & S. 227; hand, without any corresponding benefit on the cheons, and sold them to the defendant, and now Norway v. Rowe, 19 Ves. 141.) They did not seek other. I shall therefore adopt a middle course, and the assignees of Purdy, who had become a bank- to rely on the affidavit filed with the answer, which say,-no rule in this motion; the railway company rupt, brought the present action to recover the value was filed because the defendants' answer, being that undertaking at once to issue their warrant for a jury of the four puncheons which had been so sold to of a corporation, and not on oath, appeared to re-to assess damages; plaintiffs accepting notices, and the defendant. Upon this state of facts, quire verification. M'Donough, Q.C. and Lery called on the Lord Chief Baron to direct a verdict for the defendant, contending that, inasmuch as the whisky was bonded in the distiller's name, he therefore was still liable to the Crown for the duty. A clear distinction existed between a bonded store, and the store of a wharfinger used by a vendee, and the right to stop the whisky in transitu upon the insolvency of the purchaser existed at any time up to the moment that he paid the duty, and the whisky came to his hands. (M'Ewan v. Smith, 13 Jur. 265.) Fitzgibbon, Q.C. and S. D. Fitzgerald, Q.C. for the plaintiffs, argued that the delivery order to the Excise Storekeeper so changed the possession and ownership, that the right to stop in transitu was gone; and that upon the bankruptcy of Purdy the right to the whisky became vested in the plaintiffs as his assignees. (Croker v. Lawder, 9 J. L. R. 21; Haig v. Wallace, 5 Hud. & Br. 671.) PIGOT, C.B. said, that though at first he had inclined to the opinion that the right to stop in transitu existed, yet, on the authority of Haig v. Wallace, 2 Hud. & Br. 671, he was bound to tell the jury to find for the plaintiffs, leaving it to the defendant to raise the question before a Court of Error. The defendant's counsel then tendered a bill of exceptions to his lordship's charge. Verdict for the plaintiffs. COURT OF CHANCERY. Nov. 5 and 6, 1850. HARE and OTHERS v. CORK AND BANDON Railway company taking possession of land irre- VOL. XVII. No. 419. The motion being opened by J. D. Fitzgerald, Q.C. with whom was Morrison, for the plaintiffs, and on proceeding to state the answering affidavit, Fitzgerald, Q.C.-The defendants do not rely on their affidavit, because it is displaced by our answering affidavit. That such an affidavit might be used when no title is disputed appears from Gibson v. Nichol, 6 Beav. 422; Madox v. Veevers, 5 Beav. 503. It is where title is in dispute the rule applies that affidavits filed after answer cannot be used. (Manson v. Jennings, 2 Hare, 630.) The LORD CHANCELLOR. When an affidavit is filed to verify an answer, is it not an admission of the party's willingness to allow the case to be disposed of on affidavits? I do not know any case like this. I think the affidavit may be used. Fitzgerald, Q.C.-We are clearly entitled to this injunction. This case is within the Lands Clauses Consolidation Act, section 21. There should have been the verdict of the jury as pointed out by secs. 38 and 39. Another course may have been open to the company, viz. power to enter on the land before the amount of compensation is decided by lodging money in the bank, and giving the bond prescribed by the 85th sec.; but then the full amount claimed should be lodged. (Willey v. The South Eastern Railway Company, 6 Railway Cases, 100; The River Dun Navigation Company v. The North Midland Railway Company, 1 Railway Cases, 153; Frewin v. Lewis, 4 Myl. & Cr. 254; Lee v. Milner, 2 Y. & Col. 618; Gray v. The Liverpool and Bury Railway Company, 10 Jurist, 364.) Green, Q.C. and Coppinger, Q.C. contrà.-The company have availed themselves of one of the modes pointed out by the Act. There is a provision in the Act that arbitration may be resorted to. Here it would be impossible to comply with the 85th section, as the plaintiffs never informed us how much they claimed, and we had the lands valued by a magistrate conversant with valuing land, who valued them to 641. There has been acquiescence on the part of the plaintiffs; and the defendants went into possession with the consent of the plaintiffs, through their the company, having been in the wrong, to pay the costs which have been incurred, but not the costs of the conversations between the respective solicitors, or their affidavits, which have been irregular on both sides, and neither party ought to be visited with them. Friday, Feb. 7. WORRALL and WIFE v. WHITE. Practice-New solicitor-Right of former solicitor to have the papers in the cause produced at the taxation of his costs. The solicitor in a cause gave the papers to a third party to draw the bill of costs; the solicitor died, and the solicitor to whom the conduct of the cause was then given obtained the papers from the third party, without paying the costs due to the first solicitor, or making any agreement with his personal representative: Held, that by cause petition or bill was the proper mode of proceeding against the new solicitor to compel him to produce the deeds and papers for the purpose of allowing the costs of the first solicitor to be taxed, and that he was bound to produce them. Semble, the same resalt might have been effected by a motion in the cause. This was a cause petition, and prayed that the respondent, should deliver to the petitioners all the documents and papers he had received from a person named John Kelly, in order to enable the petitioners to have such costs prepared for taxation, the petitioners undertaking to return them within a week after taxation, and the petitioners undertaking to pay the sum of 71. 10s. paid by the respondent to Kelly. It appeared that the wife of the petitioner had been the widow and administratrix of a solicitor named Bevan, who died in the year 1848, and to whom in his lifetime a sum of 1,5117. 12s. 11d. had become due for costs and advances in his capacity as solicitor for the plaintiff in a cause of Tuthill v. Russell, and that the estate about which that suit Morrison, for the plaintiffs, replied.-It has been was conversant was the sole fund for the paytruly observed in one of the cases on this subject-ment of the petitioner's demand. It also appeared "There are two arguments invariably adduced by that Bevan, previously to his death, had given these companies: if the plaintiff comes to the Court the principal portion of his papers in that cause complaining of an injury at the commencement, it is to a person named Kelly to draw a bill of the costs said that the damage is trifling, and the action frivo- incurred in carrying on the cause; that at the death solicitor. |