Superior Courts: Rolls.-Vice-Chancellor.

RECENT DECISIONS IN THE SUPERIOR COURTS,
REPORTED BY BARRISTERS OF THE SEVERAL COURTS.

were not so, the defendants having set forth part of the deed upon their answer, could not Latimer v.

Attorney-General of the Duchy of Cornwall v. refuse to produce the original.

Mr. Turner and Mr. Elmsley, for the motion, contended that the deed and map in question would, or at least might be, evidence for the Duchy, since if they showed a title in the defendant to the lands in dispute only as lord of the manor, they would at the same time show a joint | title in the Duchy. Combe v. Corporation of Mr. Faber, for Eleanor Malcolm, Mr. Follett London, 1 Y. & C. 631; Neesom v. Clarkson, and Mr. Smythe, for the representatives of the C. P. Cooper, 193. And that even if this children of W. Todd, except Fryer Todd, con

504

Superior Courts: Vice-Chancellor.-V. C. Knight Bruce.

tended that the fund ought to be divided into
five parts, and one part given to each of the
children of W. Todd, Fryer Todd excepted.
Mr. Metcalfe, for the children of Fryer,
urged that the fund should be divided amongst
the children of W. Todd, except as to one
share which was to be given to Margaret Todd
for life, remainder to the children of Fryer Todd.
The Vice-Chancellor said, he could not give
the fund in the way contended for in favour of
the children of Fryer Todd; the words of the
residuary clause did not sanction such a con-
struction of the meaning of the testator. He
thought the right view of the case was the one
taken by the counsel for the representatives of
the other children of Mr. Todd, and he should
order the fund to be divided accordingly.

Vice-Chancellor Knight Bruce. (In Bankruptcy.) Exparte Oldaker, re Oldaker. 20th, 1847. FREEDOM FROM ARREST. —SURRENDER IN

DISCHARGE OF BAIL.

then applied to his creditors Gibbons and Crookes, through their solicitors, for his discharge, and also to the keeper of the gaol for the same purpose by reason of his protection, but all refused, and he then took out a sum mons before a judge to show cause why he should not be discharged. On the 9th of December the summons was heard before Mr. Justice Patteson, and on the following day the same was dismissed, the learned judge indorsing it thus :-"The bankrupt not having been arrested, but having rendered in discharge of his sureties, is not within the acts respecting protection from arrest, and this summons must be dismissed. J. P. Dec. 10, 1847."

Mr. Russell and Mr. Glasse, in support of the petition, insisted that Mr. Justice Patteson had taken an erroneous view of the act 5 & 6 of the Queen, which, by the 22nd section, enacted that a person adjudged bankrupt shall be free from arrest or imprisonment during the Dec. 15th & time limited for his surrender, and from such time as should be allowed for the proceedings of his examination as the Court of Bankruptcy should by indorsement on his summons ap point. The time limited by the commissioner did not expire until the 21st of December, and he was in custody in discharge of his sureties before that time, and therefore entitled to his discharge. The learned judge must have held, and erroneously, that the words "arrest or imprisonment" meant "arrest and imprison ment," a reading of the act contrary to the true meaning. He must have considered that a debtor was not entitled to his protection, unless he was both arrested and imprisoned by the creditor. In the case of Exparte Leigh, 1 Glyn & Jam. 264, it was held that a debtor who is at large on bail is not in custody within the meaning of the exception in the statute then in force, the words of that statute (5 Geo. 2, c. 30,) being the same as the present, and in that case Lord Eldon, after taking the opinion of Lord Ellenborough, ordered the bankrupt to be discharged who had been a rested or had had detainers lodged against him.

A party who, under the 8th section of statute 1 & 2 Vict. c. 110, executes a bond, and has a verdict given against him, and who afterwards has a fiat issued against him, to which he surrenders and then renders in discharge of his bail in the bond, is not entitled to his discharge under the 23rd section of the statute 5 & 6 Victoria, c. 122. THE petitioner was indebted to Messrs. Crookes and Gibbons, for goods sold and delivered in 173l. 10s. Mr. Gibbons filed an affidavit of the debt on 18th of Sept., 1847, and on the 21st a copy of it was served on the petitioner, Mr. Oldaker, and with a notice requiring immediate payment of the debt and interest to the time of payment. On the 7th of the following month the petitioner, with J. Pulley and M. Racster as bis sureties, executed a bond pursuant to the act 1 & 2 Vict. c. 110, s. 8, conditioned for the payment by him of Mr. Speed opposed the petition, contending such sum of money as should be recovered that, in the first place, the proper court wherein against him in any action for the debt, or for to review the decision of Mr. Justice Patteson the render of him to the gaoler of the court in was the Court of Queen's Bench in Banco, and which the action should be brought, according secondly, that the petitioner was within the to the rules and practice of such court. On the express words of the exception of the statute 18th of Sept. Gibbons and Crookes had com- 5 & 6 Vict. c. 122, the 23rd section of which menced an action in the Court of Queen's concluded with the words, "Provided he be Bench, and a verdict was returned for them for not in custody at the time of such surrender." 2031. 13s. debt, interest, &c. On the 3rd of To show that the bankrupt, who was out on bail December following a fiat issued against him, of his sureties, was in custody in contemplation and on the 6th, between 1 and 2 o'clock, he of law, namely, the custody of his bail, it was surrendered and received a certificate or pro-needful only to refer to Exparte Gibbons, 1 Atk. tection from arrest, indorsed on the summons 238: Anderson v. Hampton, 1 Barn. & Ald. served upon him to appear and be examined, 308; Exparte Johnson, 14 Ves. 36. If, how up to the 21st of December. Between 3 & 4 ever, the petitioner were not within the ex o'clock of the same day the petitioner rendered himself in discharge of the bond and of his sureties J. Pulley and M. Racster, according to the practice of the Court of Queen's Bench, and he was thereupon committed to the custody of the keeper of the Queen's Prison. He

ception of the statute, he was plainly not within the enacting part, for his custody was his own seeking, his own act; the creditor did nothing but the debtor rendered of his own accord. The bail in that bond were no creditors, but only sureties, and the act protects against both

Superior Courts: V. C. Knight Bruce.-Exchequer.

505

arrest and imprisonment by a creditor, but not the question. I think it is one of doubt and by a bail. Beyond this the effect of the court difficulty, whether considered with or without holding that a surrender by a debtor in dis-reference to the decision of that learned judge. charge of his bail is an imprisonment by a cre- It is, however, not impossible, in the absence ditor, would be to deprive the creditor of his right to prove under the fiat, for by the taking of a debtor in execution after a fiat the creditor elects, and is debt is thereby satisfied. Exparte Knowell, 13 Ves. 192.

Mr. Russell replied.

Sir J. L. Knight Bruce. At present I feel too much doubt to enable me to surmount the weight of the authority of Mr. Justice Patteson, and to say that I have no doubt about it. Having such respect, which I entertain in common with the whole profession, for his judgment, which is of the highest order, I should have been bound to act at once, as I must at last, upon my own opinion. Unless I can deliver my mind from doubt upon the subject, I shall not feel myself able to act against the authority of that learned judge. I shall consider the case, and shall be glad to find that I can discharge the party.

of precedent, that I might have been able to decide in favour of personal freedom, and therefore in favour of the bankrupt's discharge; but I cannot, upon a merely legal question, which is involved in the obscurity of two acts of parliament, discharge my mind of the doubts I entertain, with satisfaction to myself, or with propriety against such an authority as that before me. I must leave the petitioner to the ordinary legal remedy open to every prisoner who considers himself illegally detained in custody. I therefore dismiss the petition, without costs, and without prejudice to any application to any other court or judge.

Exchequer.

Ley v. Barlow. Jan. 28, 1848.

RAILWAY COMPANY.-RIGHT OF ALLOTTRE
AS AGAINST COMMITTEE-MAN, TO MAKE
EXTRACTS FROM PARLIAMENTARY CON-
TRACT AND SUBSCRIBERS' DEED.-LIEN
OF ATTORNEY.

When the parliamentary contract and the
subscribers' deed are in the possession of a
party to such deed who has acted on the
committee, or of his attorney, or of the at-
torney to the company, the court will
compel the production of the deed for the
inspection of an allottee who has commenced
an action against such party, in order that
such allottee may be enabled to take ex-
tracts necessary for him properly to frame
his action.

Dec. 20th. Sir J. L. Knight Bruce, V. C. In this case, when the fiat issued,-when the bankrupt regularly surrendered which he did under it, and when, upon that surrender, he regularly received the ordinary protection from the commissioner, covering a time not yet expired, he was not in custody,-in any other custody at least than the virtual custody, if any, of persons who, under the provisions of the statute mentioned in the petition, being one of the statutes upon which the argument turned at the bar, had before the fiat become his surety. He was not actually in custody, nor was he under any restraint. The imprisonment from which he asks to be discharged commenced after the protection granted, but it was of his own seeking by yielding himself in exeTHIS was an action by the plaintiff, as alcution under a judgment obtained against him lottee of railway shares, to recover deposits paid before the fiat in an action upon the demand to upan 100 shares in the Grand Junction and which the suretyship related. He did that of Midland Union Railway Company. A rule his own motion and accord. There is neither had been obtained calling upon the defendant arrest nor intervention in the least of any other and his attorney to show cause why the plainperson, either by any plaintiff or by the surety, tiff and his attorney should not be allowed to although probably the object was to discharge inspect and take copies of the parliamentary or relieve the sureties. I suppose they are or contract, and of the subscribers' agreement. will remain discharged. Whether the bankrupt The rule was obtained upon reading the affiis wrong in his present contention, or whether davit of the attorney to the plaintiff, and of the he is right in it, may be less clear, but I give secretary to the company, to the effect that the no opinion. He there spontaneously puts him- defendant was a member of the managing comself in imprisonment. He then applied to Mr. mittee of the said company, and had frequently Justice Patteson to be discharged. That interfered with the management of the affairs, learned judge heard and refused the applica- and upon the affidavit of the plaintiff that he tion, holding that the other statutory provisions was, with the defendant, a party to the deed, upon which the bankrupt relied did not apply and did not know how to frame his case withto the case. The same application,-except, out seeing it. From the affidavit of the deof course, in the difference of jurisdiction, the fendant it appeared that he had subscribed to same application in effect has been made to me, the company as an allottee; that he was a party and I have considered it. Had I been able to form a clear opinion upon this question, probably it would have been my duty to act upon it, although at variance with that of Mr. Justice Patteson, (the great weight of whose authority every lawyer acknowledges,) but I have not been able to form a clear opinion upon

to the deed no otherwise than as the plaintiff was; that he was not one of the cominittee until it was found that the company could not go on; that he took shares and signed the parliamentary contract in order to assist in winding-up the affairs of the company; that he had taken no part in obtaining the bill; and that

506

Superior Courts: Exchequer.-Bankruptcy

the parliamentary contract was not in his Wyld v. Hopkins, 15 M. & W. 517; and subcontrol. The affidavit of defendant's attorney mitted the rule ought to be made absolute. was, that he was not acting for the defendant Per curiam. We are of a different opinion. as attorney to the company, but as attorney to Rule absolute. the defendant only.

At

Bankruptcy.

In re Phillips. March 11, 1848.
FOR CERTIFICATE.-
PRACTICE.

APPLICATION

Mr. Commissioner Fonblanque said, that, under the circumstances of this case, he declined to entertain the bankrupt's application for his certificate. As no trade assignee was appointed, it was impossible the bankrupt could have complied with the provision of the statute, (5 & 6 Vict. c. 122, s. 39,) which re quired that notice of the certificate meeting should be given to the solicitor of the trade assignee. Here there was no solicitor but the solicitor of the bankrupt.

Bramwell, for the defendant, contended that this was not a case in which the deed was held by one of the parties for the benefit of both. Where there was a contract between two parties, and one of them only had possession of the deed, there was an implied agreement on the part of The court will not entertain a bankrupt's that one who had the deed to produce it when required to do so by the other party. application for his certificate, when no In such trade assignee has been appointed. case the court would interfere to compel the production. So again, where in the agreement THE bankrupt, J. Phillips, who carried on there was a stipulation to produce it. But this the business of a boot and shoemaker at Camwas different from either of those cases. bridge, came up this day, pursuant to adver the time of the execution of the deed the de- tisement, for his certificate. It appeared that fendant was not a covenanting party, and had the fiat had issued upon the bankrupt's own entered into no undertaking to produce: he petition, under the statute 7 & 8 Vict. c. 96, did not hold the deed in the character of s. 41; that he had no estate to distribute trustee, and therefore the court would not in- amongst his creditors; and that, although his terfere to compel him to produce it. Besides, debts amounted to between 500/. and 600l., no it did not appear that the defendant had the creditor had proved and no trade assignee was deed in his possession, such a presumption appointed. could not arise from the fact of his being one of the managing committee, but, on the contrary, it appeared from the evidence that when the secretary ceased to act for the company, he delivered over to the attorney of the company all books, papers, documents, vouchers, &c., belonging to the company. Suppose this action had arisen in respect of a promissory note, or bill of exchange. [Parke, B. This deed was for the benefit of the subscribers. With regard to a bill of exchange, I cannot understand, but for the practice, why a party to it should not be allowed to see it.] Would the court hold that because a person came in and got possession of a deed for his own protection, he was to produce it for any one who was a party to it in the first instance? [Parke, B. If a person holds a deed belonging to a company for the purpose of settling the affairs, then, prima facie, all the parties have a right to see it.] In this case, also, the attorney claimed a lien upon the deed, Kemp v. King, 2 M. & R. 437); if, therefore, the deed was in the custody of the attorney upon a lien, it was out of the custody of the defendant. [Alderson, B. I remember a case tried before Lord Tenterden, in which my client held a deed under a lien, and his lordship compelled us to suffer an inspection of the deed, although by such inspection our lien became useless, because the parties thereby ascertained the fact, for the suppression of which only the deed was valu able.] The affidavit of the plaintiff, "that he had signed and was a party to the deed, and that he did not know how to frame his case without seeing the deed," did not disclose any sufficient ground for the interference of the court, (Rowe v. Howden, 4 Bing. 539, note). [Parke, B. If you are a trustee for the plaintiff, surely he has a right to see the deed to know whether he can support his action.] Upon the fact that the plaintiff had only signed to assist in winding-up the affairs, he cited Reporter.

Mr. Thorndike, who appeared as solicitor for the bankrupt, submitted that it was not unusual for bankrupts to apply for and obtain their certificates in this court, where no as signee had been appointed. The bankrupt's debts exceeded 3007., and therefore he was unable to obtain protection under the Insolvent Acts, and had no alternative but to become a bankrupt.

Mr. Commissioner Fonblanque said, the bankrupt might have obtained protection from the Insolvent Court under its ordinary jurisdic tion. A person who had not a single pound to distribute amongst his creditors was not aft subject for the operation of the Bankrupt Laws.

Mr. Thorndike said, the bankrupt's property had been taken in execution shortly before his bankruptcy, which accounted for his having no estate to distribute.

Mr. Commissioner Fonblanque. He ought to have made himself bankrupt sooner. He cannot have his certificate.

Mr. Thorndike applied for protection for the bankrupt for a limited period, to enable him to consider what should be done. The commissioner declined to grant the bankrupt any protection.

Application refused.

• See Steadman v. Arden, 15 M. & W. 587

t

Analytical Digest of Cases.-House of Lords.
ANALYTICAL DIGEST OF CASES.
REPORTED IN ALL THE COURTS.

507

House of Lords.

APPEALS.

The previous Sections of this Series of the
Digest will be found as follow: —

Registration of Voters' Appeals, pp. 15, 347.
Law of Attorneys, p. 42.
Law of Railways, pp. 71, 178.
Courts of Equity :

Law of Wills, p. 121.
Construction of Statutes, p. 149.
Principles of Equity, p. 222.
Pleading, p. 241.

Practice, p. 268.

Costs, p. 197.

Evidence, p. 299.

Courts of Common Law:

Construction of Statutes, p. 373.

Grounds of Actions and Principles, pp. 396,

The intention of the legislature must be ascertained from the words of a statute, and not from any general inferences to be drawn from the nature of the objects dealt with by the statute. Fordyce v. Bridges, 1 House of Lords'

Ca. 1.

CONSTRUCTION OF STATUTES.

suit. The law was the same in England and Scotland upon this point previous to the passing of the 6 & 7 Vict. c. 85. Willox v. Farrell, 1 House of Lords' Ca. 93.

Cases cited in the judgment: Ralston v. Rowatt, 1 C. & F. 424; Bent v. Baker, 3 T. R. 27.

EXCISE LICENCE.

Grocer.-Publican.-Construction of statute. -The act 6 & 7 W. 4, c. 38, s. 3, extends to prevent a person who is already a publican from obtaining a licence to carry on the business of a grocer on the same premises, as absolutely as it does to prevent a person, licensed as a grocer, from carrying on in the same premises the business of a publican. M'Kenna v. Pape, 1 House of Lords' Ca. 6.

GUARANTIE.

Costs.-A., by a trust settlement, gave to his son "a like sum of 5,000l. sterling, payable, &c., after my decease, from which provision shall be deducted any sum that I have already advanced, or may still advance for him, to enable him to carry on his business." A. entered into a guarantie for 2,000l. for the firm of which his son was a partner. A. was compelled coming bankrupt, he obtained from its assets a to pay that sum, and the firm afterwards besmall dividend: Held, that this was an advance of money advanced to the son to enable him to to the son, which came within the description carry on business, and that the son could only claim the balance of the 5,000l., after deducting

the sum thus advanced.

The practice of allowing the costs in such a case to be paid out of the estate, was disre

See Apportionment of Rent; Excise Licence. garded. Berry v. Morse, 1 House of Lords"

COSTS.

See Guarantie; Lease; Railway Act.

DIVORCE.

Ca. 71.

LEASE.

Statutes in Ireland, an equitable mortgagee of his interest filed a bill for redemption against the landlord.

Equitable Mortgagee's right to redeem. Parties.-Costs.-A lessee having been evicted Action dispensed with.-Lapse of time.-A for non-payment of rent under the Ejectment petitioner for a divorce bill held excused for not having brought an action for damages against the adulterer, upon the statement of his witnesses, that they did not find him until three years after the discovery of the adultery, and the petitioner was not able to pay the expenses

of an action.

A lapse of 16 years from the adultery not made an objection to the application for divorce at the end of that time. In re Martin's Divorce Bill, 1 House of Lords' Ca. 79.

EVIDENCE.

Interest of witness.-To render a person incompetent in the Scotch courts to be a witness, he must have a direct and immediate interest in the result of the suit in which he is called to give evidence, or he must be able to give the verdict in that suit in evidence in his own favour in another proceeding.

An interest in the result of a suit, which is to render à person incompetent to be a witness, must be an interest of a substantial nature, and it must be the direct and necessary result of the

Held, Ist, that the mortgagee was entitled, under the earliest of these statutes (11 Anne, c. 2,) to redeem the evicted premises; and 2ndly, that trustees of a settlement, to whom the lease had been assigned, were not necessary parties to the suit. Although the general rule is to make the party seeking a redemption pay the costs of the suit, the Court has jurisdiction to look to the landlord's conduct, and to throw the costs on him according to its discretion. Gerahty v. Malone, 1 House of Lords' Ca. 81.

MARRIAGE SETTLEMENT.