Lush, on a former day in this term, moved for a rule calling upon the plaintiffs to show cause why all further proceedings in this cause should not be stayed, on the ground that the action had been brought without first obtaining the leave of the commissioner, pursuant to s. 153, which enacts that the assignees, with the leave of the court, upon application to such court, but not otherwise, may commence, prosecute, or defend any action at law or suit in equity which the bankrupt might have commenced and prosecuted or defended, and in such case the costs to which they may be put in respect of such suit or action shall be allowed out of the proceeds of the estate and effects of the bankrupt. He submitted, that, although there were no prohibitory words in the act, the policy of the enactment was sufficiently obvious; and he referred to Dance v. Wyatt, 6 Bingh. 486, 4 M. & P. 201, where (upon the statute 7 G. 4, c. 57, s. 16) the objection was taken as a ground of nonsuit. He further objected that the action had been brought by the trade assignees in the name of the official assignee without his consent. [CRESSWELL, J.-The trade assignees had a right to use the name of the official assignee, if he did not choose to interfere. Upon the other point there seems ground for a rule.]

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Prentice, on a subsequent day, showed cause.-The 153d section of the 12 & 13 Vict. c. 106 is a provision for the internal management of the bankruptcy; and the only persons who can complain of a breach of it, are, the creditors, and such breach clearly forms no ground of objection in the mouth of a defendant. It is placed in that *part of the statute which is introduced by the words,-" And with respect to the choice of assignees, and their rights and duties," and is evidently intended as directory to them. It is somewhat similar to the provisions as to what shall be done or omitted to be done by the directors, contained in acts for the incorporation and regulation of public companies, an instance of which is to be found in the case of The Thames Haven Dock and Railway Company v. Rose, 2 Dowl. N. S. 104. The 108th section of the company's act (6 & 7 W. 4, c. cviii.) provided that the business and concerns of the company should be carried on under the management of twelve directors, to be chosen from amongst the proprietors holding ten shares each, to whom the general management and control of the business of the company was intrusted, and who were authorized to do all things necessary or expedient for carrying on the business and concerns of the company, and to enforce, perform, and execute all the powers, authorities, privileges, acts, and things in relation to the said company: s. 112 provided, that, when and so often as any director should die or resign, or become disqualified or incompetent to act as a director, it should be lawful for the remaining directors to elect some other proprietor, duly qualified, in his place: s. 116 provided, that, at all meetings of directors five should be a quorum: and s. 123 enabled the company to sue for

calls. An action having been brought under the act for calls, the defendant (on the 8th of March) suffered judgment by default; and, on the 31st of May (in Trinity Term), he applied to set that judgment aside, on the ground, that, at the commencement of the suit, and during its continuance, the direction consisted of seven proprietors only instead of twelve. The court refused to interfere, as well on the ground of the delay in the defendant's application, as because the objection might have been raised by plea: and they *further held, that the provisions of the 108th and 112th sections of the act were directory only, and that the business of the company might well be conducted by seven directors, unless the shareholders should interfere to require the completion of the whole number; but that, at all events, those provisions were intended for the internal management of the company only, and could not be taken advantage of by a person in the position of a stranger. So, here, if there be anything in the objection, it should. have been raised by plea; or, if it could be taken advantage of on summary application, such application should be addressed to the Court of Bankruptcy: Ex parte Magnus, 3 Mont., D., & De Gex, 693.(a)

[*4

Lush, in support of his rule.-The words of the 153d section are plain; and its object manifestly was, to prevent the estate of the bankrupt from being squandered by recklessly bringing actions. Under the 6 G. 4, c. 16, there was no power given to the assignees to summon debtors; nor any provisions giving them any control in the bringing or defending of actions. In this act, both are found: and the power conferred by the 120th section has been already exercised in this case. The only question is, whether this is a matter which the court can deal with upon motion. It clearly could not be pleaded; for, the consent of the Court of Bankruptcy might be obtained the next day. This, therefore, is the only way in which the objection can be presented. [CRESSWELL, J.-Is there not a provision somewhat similar to this in the Winding-up Act, 11 & 12 Vict. c. 45? Prentice.-The 60th section provides that "no action, suit, or other proceeding in any of Her Majesty's superior courts at Westminster or Dublin shall be instituted or brought or proceeded with by *the official manager, whether [*5 against a contributory of the company or any debtor or other stranger thereto, but with the leave or according to the general direction of the master, to be obtained in that behalf by the official manager, who shall accordingly apply for the same; and that no such action, suit, or other proceeding shall be proceeded with if the master shall, by writing under his hand, direct that the same shall be stayed or discontinued: Provided always, that the want of such leave as aforesaid shall not be set up as or in anywise constitute a defence to any such action, suit, or other proceeding."] The provisions of the Winding-up

(a) See 6 G. 4, c. 16, s. 88; and see Piercy v. Roberts, 1 Mylne & K. 4, and Jones v. Yates, 3 Y. & J. 373.

Acts are addressed to a totally different object. That which the legislature had in view here, was, to prevent the bringing of improper actions, and to give the control and management of the proceedings when commenced to the assignees. [WILLIAMS, J.-What is the consequence if the assignees sue without leave?] The assignees get no costs. [WILLIAMS, J.-They are to have costs only in the event of their suing with the leave of the court. COCKBURN, C. J.-Is it compulsory on the assignees to summon the debtor under s. 120?] Leave to sue is never given by the commissioner unless the party has been previously summoned. Here, the action was commenced on the very day on which the defendants were summoned to appear.

COCKBURN, C. J.-The point being a new one, we will take time to consider before we decide it. Cur. adv. vult. WILLIAMS, J., now delivered the judgment of the court. This was a rule obtained in an action brought by the assignees of a bankrupt, to stay proceedings, on the ground that the plaintiffs had brought the action without having first obtained the leave of the Court

of *Bankruptcy, pursuant to the 153d section of the Bankrupt Law *6] Consolidation Act, 1849,-12 & 13 Vict. c. 106.

The language of that section at first sight seems strongly to support the present rule; for, it enacts that "the assignees, with the leave of the court first obtained upon application to such court, but not otherwise, may commence, prosecute, or defend any action," &c.

It was contended that the right of the assignees to sue, being a thing created by the act alone, must be taken with the qualification annexed to it by the act, viz. that they shall not have the right to sue, unless they shall have obtained the leave of the Court of Bankruptcy. But this argument would prove too much; for, it would show that the fact of no such leave having been obtained would furnish a good plea to the action, and, consequently, that the present rule was misconceived.

On consideration, however, we are satisfied that the statute intended to make the obtaining of the requisite leave a matter only between the assignees and the Court of Bankruptcy, and not at all between the assignees and the other party to the suit. The enactment, it must be observed, extends to the defence by the assignees of actions which the bankrupt might have defended, as well as to the commencement and prosecution of actions which he might have commenced and prosecuted. And, if the assignees were to defend such an action without having obtained the leave of the Court of Bankruptcy, it is difficult, if not impossible, to suggest how the court of common law in which the action was pending could interfere with the defendants' proceedings.

If the assignees neglect to obtain the requisite leave to sue or defend, the act provides that the costs to which they may be put shall not be allowed out of the *bankrupt's estate. And the Court of Bankruptcy may, it should seem, under the general powers conferred by the act,

*7]

make such orders on the assignees with respect to the cause, as the court may deem right. But it appears to us that no recourse can be had to the court of common law in which the cause is pending. We therefore think this rule must be discharged, but without costs. Rule discharged, without costs.

WHITE v. THE GREAT WESTERN RAILWAY COMPANY. Feb. 20.

In an action against a railway company for negligence in forwarding goods, whereby they lost a market, the declaration alleged that the defendants were common carriers, and received the goods in question to be carried by them as such common carriers for hire and reward. Plea, traversing the averment that the defendants received the goods as common carriers. It appeared in evidence that the defendants did not receive any goods to be carried by them, unless the consignor signed a paper containing various conditions, subject to which they were to be carried. The judge, holding that the conditions were reasonable, and the contract a special contract within the 17 & 18 Vict. c. 31, s. 7, and that consequently the defendants did not receive the goods to be carried by them as common carriers, directed a nonsuit:Held, that the nonsuit was right.

THIS was an action against the Great Western Railway Company. charging them, as common carriers, with negligence in the conveyance of goods, whereby they arrived at their destination too late for the market.

The declaration stated that, the defendants being common carriers by railway for hire, the plaintiff, on the 12th of November, 1855, caused to be delivered to them, at their request, and they accordingly then received from the plaintiff, a quantity of cheese, to be by them, as such common carriers, carried and conveyed on a certain railway, from Bath, to wit, to Basingstoke, for hire and reward then paid by the plaintiff to them in that behalf: yet the defendants, by the negligence and default of themselves and their servants, wrongfully, and contrary to their duty in that behalf, neglected and omitted to carry or convey the said [*8 cheese as aforesaid for a long and unreasonable time in that behalf; and, by means thereof, the plaintiff lost a market for the sale of the said cheese, and was obliged to sell the same at a subsequent market, for a less sum of money than he could and would have done had the defendants carried and conveyed the said cheese as aforesaid within a reasonable time in that behalf; and the plaintiff was also necessarily put to great expense in and about the endeavouring to procure and in procuring the defendants to carry and convey the said cheese from Bath to Basingstoke aforesaid, and in and about necessary travelling to and from the said market by reason of the premises, and which became and were thereby wholly useless: Averment that all conditions precedent and all matters and things necessary to entitle the plaintiff to maintain the action, had happened and existed before suit: And the plaintiff claimed

507.

The defendants pleaded,-first, that the plaintiff did not cause to be delivered to the defendants, nor did they receive from the plaintiff, the said cheese, to be by them carried and conveyed as alleged,―secondly, not guilty,-thirdly, that the said cheese in the declaration mentioned was delivered by the plaintiff to, and accepted and received by, the defendants, to be carried and conveyed under and subject to a certain contract and condition, which rendered them not liable for the loss, damages, or expenses in the declaration mentioned, to wit, that the company would not under any circumstances be liable for loss of market or other claim arising from delay or detention of any train, whether at starting, or at any of the stations, or in the course of the journey, and that the company did not undertake to send goods by any particular train, if there were an insufficient number of trucks at the station, or the trucks could not be conveniently used for the purpose, *notwithstanding the *9] goods might have been taken to the station before the time appointed by the company; and that the plaintiff's claim was a loss within the true intent and meaning of the said condition, and not otherwise,-fourthly, that, at the time of the delivery of the said cheese to the defendants as aforesaid, the plaintiff agreed to bear the risk of all loss or damage relating to the carriage or conveyance of the said cheese, in consideration of the defendants charging him at a reduced rate for the carriage thereof; and that the plaintiff was accordingly charged at such reduced rate, and the said cheese was carried and conveyed by the defendants under and subject to that agreement, and not otherwise; and that the loss or damage in the declaration mentioned was and is part of the loss or damage agreed to be borne by the plaintiff as aforesaid, and not any other loss or damage.

The plaintiff joined issue upon each of the above pleas: And, for a further replication to the third plea, the plaintiff said that the contract in the declaration mentioned was made and entered into after the passing and coming into operation of the Railway and Canal Traffic Act, 1854, (17 & 18 Vict. c. 31), and that the said contract and condition in that plea mentioned was and is unjust and unreasonable within the true intent and meaning of that statute: And, for a further replication to the fourth plea, the plaintiff said that the agreement in that plea mentioned was made after the passing and coming into operation of the same act of parliament, and was and is a special contract within the true intent and meaning of the 7th section of the said act; and that such agreement was not signed by the defendants or by the person delivering the said cheese for carriage, as by the said act of parliament is required in that behalf.

The plaintiff also new assigned, to the third plea,-that he sued the defendants in this action not only for *the loss arising as in that *10] plea mentioned, but also for that the defendants, after they had received into their custody the said cheese for the purpose of so carrying