November upon the warrant. There had been no sale under the execution. 1866. INSOLVENCY. In re Mr. Holroyd, for the alleged Insolvents, contrà.-In KERR & GRAY. Downie v. Graham (v) an alienation in payment of an existing debt was held not to be fraudulent within the Act; and there can be no distinction between an alienation to satisfy a debt, and an alienation to satisfy a liability such as that of the Insolvents to their sureties. Fraud will not be inferred from suspicious circumstances, but must be strictly proved in a case of this nature, which is analagous to a criminal prosecution. Mr. J. W. Stephen, in reply, referred to Gore v. Lloyd (w). MR. JUSTICE MOLESWORTH.-I do not consider that the preference of one honest creditor over another, by giving him a warrant of attorney, would be fraudulent, even though accompanied, as in the present case, by some degree of evasion of other creditors and breach of promise to them; but if one creditor is suing, and a warrant of attorney is given to another for the purpose of stopping the suing creditor, and holding an execution under the warrant as a shield between him and the Insolvent, I think it would be fraudulent within the Act. In the present case I regard the execution as a shield between the Insolvents and their creditors. It is doubtful whether it was not originally so intended, and practically it has been so used by the wish of the Insolvents. Execution appears to have issued irregularly under the warrant, and the Insolvents did not attempt to avail themselves of the irregularity, but allowed the execution to be used to keep off creditors. They have given no satisfactory explanation, and the rule. will be made absolute. (v) 1 Wy. & W., Law, 195. (w) 12 M. & W., 463. 1864. INSOLVENCY. February 11. May 3, 13. 1866. December 14. There can only be one EX PARTE FLOWER, SALTING & CO., RULE nisi, obtained on behalf of Flower, Salting & Co., creditors of this estate, calling on the official assignee to file plan of distri- a further plan of distribution of a sum of £14,000 admitted to be in his hands. bution filed in an insolvent estate. Any subsequent distribution necessary, must be effected by an alteration of Mr. Lawes moved the rule absolute. he Mr. Moore shewed cause.-The affidavits filed against the that plan; the rule shew that at the hearing of an appeal in this estate, Court having the Chief Justice, in dealing with an application made after no authority to direct the the delivery of judgment, used expressions to the effect filing of a that, if the official assignee paid any more moneys away, further plan. would do it at his own risk (x); also, that of the £14,000 now in hand, £5,000 are claimed by the bank as against the estate. The whole of the £14,000 is invested at interest. On the true construction of the Insolvent Act, 5 Vic., No. 17, sec. 91, a "further plan" of distribution can never be properly filed in any estate-the original plan must be amended, or other machinery provided by the Act, resorted to the first plan being, when confirmed, the final judgment of the Court. Mr. Lawes replied. MR. JUSTICE MOLESWORTH.-The expression attributed to the learned Chief Justice cannot, I think, absolve the official assignee from the performance of any duty which may be imposed on him by law; and when those expressions were used, the full Court expressly refused an application made with the object of relieving the assignee from his responsibility. As to the point raised on the wording of the Act, (x) 2 Wy. & W., I. E. & M., 56. I confess I feel some doubt. But, taking into consideration the balance of inconvenience, the convenience will be all one way, and the inconvenience all the other-the injury to the official assignee by filing a further plan nothing, and the injury to creditors by his not doing so possibly something considerable. If no plan be filed, no contestable claims on the estate can be made, or contested, or adjudicated on. If on the other hand, a plan of distribution be filed, any claim made on the fund can be advanced by objection to the plan, and be so determined upon. Until the plan be confirmed, no payments need be made by the official assignee; and after confirmation, any payments made under it, will be protected by the confirmation of the Court. Upon the whole, therefore, I think that the rule nisi for filing a new plan should be made absolute; but as the official assignee has been made a mark for attack on both sides, and has acted under some difficulty, I think there should be no costs given. Rule absolute, without costs. From the judgment making the rule absolute the official assignee now appealed to the full Court (y). Mr. Moore and Mr. Holroyd for the Appellant.-The Insolvent Act throughout speaks of one plan only, and under no circumstances should more than one plan be filed. Section 45 expressly sanctions the alteration of a plan of distribution after confirmation, and does not contemplate the filing of an additional plan. Any objection to the alterations or amendments can be raised in the same way as to the plan itself. Mr. J. W. Stephen and Mr. Lawes for the Respondent.The appeal depends upon a question not of jurisdiction, but (y) Coram Stawell, C. J., Barry, J., and Williams, J. May 3. 1864. INSOLVENCY. Ex parte SALTING & Co. In re RUTLEDGE & Co. of discretion. There is no express jurisdiction to require the filing of a further plan, nor is there any to compel the assignee to hand over a surplus in his hands. In each case the Court must have an inherent summary jurisdiction over the assignee as its own officer. Although the Act speaks of a plan in the singular, it may intend a series of plans, together forming and described as "the plan"-as a bill of supplement and revivor would, with the original bill, be described as "the bill." Technically a plan can only be altered by filing an additional plan. If the original plan is to be disturbed, it would require re-confirmation. Amendment by supplemental plan is adopted as the most convenient course, and is as much within the Act, as that contended for by the Appellants. It has always been the practice to file a succession of plans where alterations in the first have been required, and the practice should be followed where the statute leaves the point in doubt. Ex parte the Overseers of Tollerton (z). Mr. Moore in reply. Cur, adv. vult. May 13 THE CHIEF JUSTICE.-We think it is better to let this case await the decision of the Privy Council upon the appeal now pending from this Court, upon other questions which have arisen in this insolvency, and therefore we postpone our decision in this case until the result of that appeal is known (a). (z) 3 Q. B., 792. (a) Vide Ex parte Flower, Salting & Co., In re W. Rutledge & Co., 1 Wy. & W., I. E. & M., 143; and Ex parte Rolfe & Bayley, In re W. Rutledge & Co., 2 Wy. & W., I. E. & M., 25, 51. The decision of the Court in both these cases was affirmed by the Judicial Committee of the Privy Council, 1 Feb., 1866. Reported 1 L. R., P. C., 27. THE CHIEF JUSTICE: 1866. INSOLVENCY. Ex parte FLOWER, SALTING & Co. In re RUTLEDGE & Co. In this case an appeal has been lodged against the decision of the primary Judge sitting in Insolvency, making absolute a rule to file a further plan of distribution. A plan was filed, which had been duly prepared, and having lain open for inspection for the period required by the 88th section of the 5th Vic., No. 17, the Insolvent Act then in operation, December 14. was duly confirmed, in the manner required by the 91st section of that Act. That section, having prescribed the mode in which a plan so prepared was to be confirmed by the Court, proceeds-" And such allowance and confirma"tion shall have the effect of a final judgment of the said "Court as between the insolvent and the creditors of such " insolvent respectively and as to the amount of any debt therein specified except against such creditors as shall " afterwards be admitted by the said Court in manner here"inbefore provided to prove their debts and rank upon the same estate at any time before the final distribution "thereof." Now, the ". manner herein before provided," is that prescribed by the 45th section of that Act. That section does not in express terms authorise the Court to alter a plan of distribution, but does so merely by implication. It provides for the proof of debts, and directs that the payment of the assets distributed in liquidation of the debts so proved shall be final, except where a debt is proved after the plan of distribution has been confirmed, and in consequence of such proof, an alteration in the plan is required; in which case the expenses rendered necessary are to be borne by the creditor who thus endeavors to prove his debt subsequently to the confirmation of the plan. It is obvious, looking at these sections together, that power is given to the Court by necessary implication to alter a plan where it is absolutely required. That is the only portion of the Act which authorises any alteration after the plan has been once confirmed; and the plan, when confirmed, is to have the effect of a final judgment. |