WELLAND

RAILWAY Co.

v.

BERRIE.

[ *423 ]

tion to the previous call, so as to prevent the incongruity of a shareholder paying two calls, one of which was invalid. That is the common sense mode of proceeding, and ought to be adopted by Railway Companies, where a call has been made which cannot be enforced and it becomes necessary to make another valid call. My objection to this replication is of a technical nature: it seems to me that it does not contain enough to make a good argumentative traverse. If the plaintiffs had simply traversed the allegation in the plea that the call was made in excess, the real question might have been tried and decided upon that issue.

WILDE, B.:

I am also of opinion that the defendant is entitled to judgment; and upon this short ground, that the plaintiffs are empowered to call for a certain sum of money within the year, and no more. That is distinctly provided by the clause set out in the declaration. This call having been made, the defendant says, "You cannot make it, because you have already called for more than you are entitled to call for within the year." The plaintiffs answer, "That is very true, but those calls were void." The question then is, whether that is an answer as it stands, or whether the plaintiffs ought not to have shown in some way that they were not calling for more money than could be lawfully demanded within the year. Now, though the previous calls might be void for want of some formality, the greater part of the money may have been paid, and, if so, *the plaintiffs would in fact be calling for more money than they were entitled to call for within the year. My objection to this replication is that it does not negative that state of things. I do not consider the objection to it as merely technical, and for this reason, that if we held the replication a good answer to the plea, and the issue went down to trial, the plaintiffs would succeed by showing that the previous calls were invalid, although in fact they had received the greater part of the money called for, and would thus be enabled to obtain more money within the year than the statutes allowed them. Therefore it seems to me that this is not a mere formal objection; for the Company, by saying that the calls were void, without saying that they have not taken the benefit of them, would be in a position which the statutes never intended. I think that it is important that the replication should show in some way that the Company have not had the benefit of the calls.

My brother CHANNELL, who has left the Court, desired me to say that he is of the same opinion.

Judgment for the defendant.

READ v. STOREY.

(6 H. & N. 423 – 430 ; S. C. 30 L. J. M. C. 110; 7 Jur. N. S. 344 ; 3 L. T. N. S. 674; 9 W. R. 418.)

The Beerhouse Act, 1840 (3 & 4 Vict. c. 61), s. 13, which imposes a penalty on persons selling beer by retail without a license, applies to persons selling beer at one penny halfpenny the quart.

[SECT. 13 of the Beerhouse Act, 1840, is repealed by the Licensing Act, 1872. The case turned partly on the construction of s. 12, which is not repealed: but it appears to be of no practical value. As to section 12, POLLOCK, C. B., in delivering the judgment of the COURT said:]

Now he [the defendant] relies on the preceding section. [s. 12] which speaks of houses kept for the sale of beer at a penny halfpenny or less the quart, and of the seizure of beer they are not entitled to sell. This, it is said, assumes there is some beer they are not entitled to sell, and as the previous section (11) applies to licensed beerhouses, section 12 must be taken to apply to unlicensed beerhouses, and so it appears such persons may sell some beer, which can only mean beer of the price at which the defendant sold. The section will not bear a critical examination, but probably is intended to apply to houses, not licensed at all, but kept for the sale of beer at the rate of 1d. or less a quart, and no other, and to authorize the seizure of some quality of beer.

* *

*

The assumption therefore, in sect. 12 of the 3 & 4 Vict. c. 61, that there is beer which a person may be entitled to sell, though not licensed (if there is such an assumption), is erroneous, and the section certainly cannot be treated as an enactment that such beer may be sold. Section 12 was probably introduced in relation to the then state of things, viz., that there were places not licensed at which beer was sold at the rate of 11⁄2d. or less a quart, and it was as necessary to give a right to excise officers to enter and search there, as in licensed houses.

JAURALDE v. PARKER.

(6 H. & N. 431-434; S. C. 30 L. J. Ex. 237; 3 L. T. N. S. 751; 9 W. R. 346.) [A judgment creditor, who had taken his debtor in execution under a ca. sa., could not attach his debts under the garnishment clauses of the Common Law Procedure Act, 1854.]

HAZARD . MARE (1).

(6 H. & N. 434-444; S. C. 30 L. J. Ex. 97; 3 L. T. N. S. 743; 9 W. R. 252.) To an action of debt the defendant pleaded, that after the accruing of the debt he became bankrupt, and that, after the bankruptcy, he and P. R., in pursuance of the 230th section of the Bankrupt Law connection therewith in Williams on Bankruptcy, 9th ed. p. 78

(1) See now s. 3 of the Bankruptcy Act, 1890. This case is discussed in

1861. Jan. 12.

[423]

[ 429 ]

[430]

1861. Jan. 16.

1861. Jan. 12.

[434]

HAZARD

7.

MARE.

[ *435]

Consolidation Act, 1849, made an offer of composition, which was accepted by nine-tenths in number and value of the creditors, the offer being to pay 4s. in the pound in full satisfaction of his debts, such composition to be paid to all the creditors in cash within fourteen days after the second sitting, to be appointed under the 280th section : that the COURT ordered the adjudication to be annulled that P. R. joined in making the offer of composition in consideration of all the effects of the defendant being assigned to him by the defendant: that the defendant and P. R. paid the composition to the other creditors, and that the defendant had always been ready and willing to pay, and brought into Court the amount of the composition on the plaintiff's debt ready to be paid to him: Held, that the plea was bad for not showing a payment or tender within the fourteen days. DEBT for goods sold and delivered.

Plea. That after the accruing of the causes of action, and after the coming into force of the Bankrupt Law Consolidation Act, 1849, &c., the defendant was a trader, &c., and then, and for six months next preceding the time of filing the petition, carried on business as such trader within the jurisdiction of her Majesty's Court of Bankruptcy, in *the district of and acting in London, and being unable to meet his engagements with his creditors, and being desirous of laying the state of his affairs before them, under the superintendence and control of the Court, and of submitting himself to the jurisdiction thereof, and then having assets ready to be produced to the Court, to the value of 2001. and upwards, duly, and according to the provisions of the same Act, presented his petition to her Majesty's Court of Bankruptcy for the district aforesaid, setting forth the true cause of such inability as aforesaid, praying that his person and property might be protected from all process; and in order that such proposal as he might be able to make, or such modification thereof as by three-fifths in number and value of his creditors might be determined, might be carried into effect under the superintendence of the said Court, according to the provisions of the said last-mentioned Act, such petition being in the form mentioned in Schedule A., &c. (The plea then stated, that the petition was verified by affidavit: that the petition, with the affidavit annexed, was duly filed: that all things happened to give jurisdiction to the Court to act in the matter of the petition: that a proposal by the defendant for the future payment of his debts was duly made: that such proposal was not assented to at the first private sitting or any adjournment thereof that all things happened necessary to authorize and empower the Court to adjudge the defendant a bankrupt: that the Court, after such private sitting, adjudged the defendant a bankrupt and adjourned the proceedings into the public Court, &c. that assignees were appointed and notices of adjudication given and published: that meetings were appointed for the purposes of the defendant surrendering: that the defendant

surrendered himself and submitted himself to be examined touching the disclosure and discovery of his debts. The plea then proceeded as follows.) In the last of the said meetings, on the *day and at the place appointed in that behalf, the defendant finished his examination on oath before the said Court, and upon such examination made a full disclosure and discovery of his estate and effects; that all meetings, notices, and things were held, given, done, and executed, necessary to entitle the defendant to call and hold the meetings hereinafter mentioned; that after he had so passed his last examination, within the true intent and meaning of the statute, the defendant called a meeting of his creditors, according to the provisions of the statute, whereof, and of the purport whereof, twenty-one days' notice was duly given in the London Gazette, according to the true intent, &c.; that such meeting was accordingly held at the time and place and in all respects according to the said lastmentioned notice, and at the last-mentioned meeting the defen. dant and one P. R. then made an offer (in writing and signed by the defendant and the said P. R. (1)) of composition to all the defendant's creditors within the true intent and meaning of the statute, and then offered and agreed to pay to all such of the creditors of the defendant as had received a dividend of 1s. 6d. in the pound, already declared under the said bankruptcy, a composition at the rate of 2s. 6d. in the pound on the debts respectively due to them from the defendant, in full satisfaction and discharge of such debts, and to pay and satisfy all such of the creditors of the defendant as had not yet (2) received the amount of 1s. 6d. in the pound then already declared, a composition at the rate of 4s. in the pound on the debts respectively due to them from the defendant in full satisfaction and discharge of such debts, such composition to be paid to all the said creditors in cash within fourteen days after the second sitting to be appointed under the 230th section of the said Act, if *nine-tenths in number and value of the creditors present at such sitting should agree to accept such offer, and nine-tenths in number and value of the creditors, within the true intent and meaning of the statute, assembled at such last-mentioned meeting, which was duly held in all respects according to the said Act, agreed to accept the same, &c.: that all things then occurred and happened and existed necessary to render the same a valid agreement within the true intent, &c. ; that thereupon another meeting, for the purpose of deciding upon such offer, was appointed to be held according to the pro

(1) These words were inserted when the plea was amended.

R.R.-VOL. CXXIII.

(2) Struck out when the plea was amended.

39

HAZARD

v.

MARE.

[ *436 ]

[ *437 ]

HAZARD

".

MARE.

[ *438]

visions of the said statute, as by the said statute is specified and required; that notice thereof was duly given; that the meeting was afterwards accordingly duly held at the time and place in all respects according to the said notice and the said statute; that at such second and last meeting nine-tenths in number and value of the creditors of the defendant, &c., then being present at, &c., did also agree to accept such offer within the true intent, &c.: that thereupon the said acceptance of the said offer having been duly testified by the last-mentioned creditors in writing, &c., and all sums directed by the Court to be paid having been paid and discharged, the COURT, upon the application of the defendant, then duly made, by its order dated the 24th of November, 1857, and sealed with the seal of the Court, after reciting that such application, as last aforesaid, had that day been made to the Court by the bankrupt, it was, upon reading the order of bankruptcy whereby adjudication was made, and also the certificate made in pursuance of the rules and order of the Court relating to composition after bankruptcy, and also the order ordering composition to be paid, ordered that the petition of the bankrupt should be dismissed, and that the adjudication of bankruptcy against the defendant should be and it was thereby annulled. Averments: that all things occurred and existed necessary to render the said order valid and effectual, and the aforesaid agreement and acceptance of the said offer binding and obligatory upon the plaintiff (1); (and the same was so made and became so valid and effectual long before the commencement of this suit: that P. R. joined in making the said offer of composition in consideration of the defendant having agreed to convey to the said P. R. all the assets of the defendant's estate then in the

(1) Struck out, and the words below in brackets substituted, when the plea was amended.

To the plea as it originally stood there was a replication, which, after setting out the offer of composition, &c., alleged that P. R. and the defendant did not, nor did any or either of them, within fourteen days after the said second sitting in the said offer mentioned, which period had elapsed long before the commencement of this suit, or at any time whatsoever, pay or tender to the plaintiff, or to any one on his behalf, the amount of the composition due and payable to the plaintiff as a creditor, according to the force, form and effect of the provisions contained in the Bankrupt Law Consolidation Act, 1848.

Demurrer and joinder.

This demurrer was argued in Easter Term (April 25), 1860, by Hayes, Serjt., for the defendant, and Macnamara for the plaintiff, when, in addition to the cases cited on the second argument, Taylor v. Pearse, 2 H. & N. 36, and Tindall v. Hibbard, C. B. N. S. 199, were cited. The COURT asked if the defendant would bring the amount of the composition into Court; and it was ultimately arranged between the counsel that all proceedings should be stayed on payment of the amount of the composition, with interest and costs, within a week. The money not having been paid at the time stipulated, the COURT ordered that the defendant should be at liberty to amend the plea on paying into Court the amount of the composition, &c.