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Superior Courts: Lord Justices.-V. C. Kindersley.-Queen's Bench,


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A trader, after being taken in custody under
a ca. sa, and who was still undischarged,
was afterwards removed on the coroner's
warrant on a charge of murder: Quære,
whether this lying in prison was an act of
bankruptcy within the 12 & 13 Vict. c.
106, s. 69?
The Commissioner Balguy having held that it
was not, refused an adjudication, semble,
that an order of the Commissioner must be
obtained under s. 14, in order to enable the
petitioners to appeal for the purpose of ob-
taining an adjudication.

THIS was an appeal from the decision of Mr. Commissioner Balguy, of the Birmingham District Court, refusing to adjudicate William Palmer, a surgeon and apothecary, a bankrupt. It appeared that the trader had been taken into custody at the suit of the petitioners under a ca. sa., and that he had been removed under the coroner's warrant on a charge of murder,the ca. sa. being still undischarged. The Commissioner having held that this was not a lying in prison sufficient to constitute an act of bankruptcy under the 12 & 13 Vict. c. 106, s. 69,' and refused an adjudication, this appeal was presented.

Daniel and A. Smith in support referred to s. 14, which enacts, that "all appeals from decisions or orders of the Commissioners shall be brought on by way of petition, motion, or special case, subject to any general rule or order to be made by the Vice-Chancellor or by the Lord Chancellor, relating to such appeals."

De Gea for William Palmer.

The Lords Justices said, there was a doubt whether, as there was no adjudication, this Court had jurisdiction, and the petition was accordingly directed to stand over to obtain an order from the Commisssioner.

Vice-Chancellor Kindersley.
Smith v. Andrews. Feb. 23, 1856.


A testator gave all his estate to trustees in trust, after paying his debts, &c., as his Which enacts, that "if any such trader having been arrested or commited to prison for debt, or on any attachment for non-payment of money, shall, upon such or any other arrest or commitment for debt or non-payment of money, or upon any detention for debt, lie in prison 21 days, or having been arrested or committed to prison for any other cause shall lie in prison 21 days after any detainer for debt lodged against him and not discharged, every such trader shall thereby be deemed to have committed an act of bankruptcy."

will directed, and the residue to W.: Held, in a suit by the plaintiff, on behalf of himself and the other creditors of the testator, against the trustees and W. to administer the estate, that W. was not a necessary party under the 15 & 16 Vict. c 86, s. 42, rule 9, and where he had been made a separate defendant and had answered separately, the bill was dismissed as against him with costs to be paid by the plaintiff. THE testator by his will gave all his estate to certain trustees upon trust, after paying his debts, &c., as therein mentioned, and the residue to a Mr. Welch. The plaintiff filed a bill to administer the estate on behalf of himself and the other creditors of the testator against the trustees, and making Mr. Welch a separate defendant and he answered separately.

Tripp, for the plaintiff, contended he was a necessary party under the 15 & 16 Vict. c. 86, s. 42, rule 9.

Baily for Mr. Welch contrà; Hawkins for other parties.

The Vice-Chancellor held that he was an unnecessary party, and dismissed the bill as against him, with costs to be paid by the plaintiff.

Court of Queen's Bench.

Regina v. Uttermere. Jan. 12, 1856.


Held, that a rate of 3s. in the pound, signed
by two justices pursuant to a peremptory
mandamus, for the expenses of the defence
of an indictment for a nuisance, which hod
been done by agreement of the inhabitants,
was good under the 5 & 6 Wm. 4, c. 50, s.
111, although it was not entitled as being
an extraordinary rate, notwithstanding s.
29 of the Act.

This was a rule nisi on the Justices of Somersetshire to issue a distress warrant for a rate of 38. in the pound on an inhabitant of the parish of Aller, for the purpose of paying the costs of defending an indictment for a nuisance, which had been done by agreement of the inhabitants of the parish, and for the costs of which a rate had been signed, pursuant to a peremptory mandamus, by two justices. The

1 Which enacts, that "in all suits concerning real or personal estate, which is vested in trustees under a will, settlement, or otherwise, such trustees shall represent the persons beneficially interested under the trust, in the same manner and to the same extent as the administrators in suits concerning personal estate represent the persons beneficially interested in such personal estate; and in such cases it shall not be necessary to make the persons beneficially interested under the trusts parties to the suit; but the Court may, upon consideration of the matter, on the hearing, if it shall so think fit, order such persons or any of them, to be made parties."

Superior Courts: Queen's Bench.-Common Pleas.

question was, whether the rate should have been entitled as an additional rate under the 5 & 6 Wm. 4, c. 50.

By sect. 29 of this Act it is enacted, that "Every rate shall contain the name of the occupiers," &c., "and no rate to be levied or assessed as aforesaid shall exceed at any one time the sum of 10d. in the pound, or the sum of 2s. 6d. in the pound in the whole in any one year: Provided, nevertheless, that with the consent of four-fifths of the inhabitants of any parish contributing to the highway-rate assembled at a meeting specially called for that purpose, 10 days previous notice of the same having been given by the surveyor of the said parish, the rate to be levied and assessed as aforesaid may be increased to such sum as the said inhabitants so assembled may think proper;" and by s. 111, that "if the inhabitants of any parish shall agree at a vestry to defend any indictment found against any parish, &c., it shall and may be lawful for the surveyor of the parish to charge in his account the reasonable expenses incurred in defending such prosecution, &c., after the same shall have been agreed to by such inhabitants at a vestry or public meeting as aforesaid, and allowed by two justices of the peace within the division where such highway shall be; which expenses, when so agreed to and allowed, shall be paid by such parish out of the fines, forfeitures, payments, and rates authorised to be collected and raised by virtue of this Act: Provided, nevertheless, that if the money so collected and raised is not sufficient to defray the expenses of repairing the highways in the said parish, as well as of defending such prosecutions, &c., the said surveyor is hereby authorised to make, collect, or levy an additional rate in the same manner as the rate by this Act is authorised to be made for the repairs of the highways."


and that a set-off for nearly 201. was proved, whereupon the plaintiff obtained a verdict for 4l. 14s. odd. The Master having taxed the costs on the higher scale, although the Judge had not certified, this motion was made for a rule nisi to review his taxation.

Hawkins in support; Lush showed cause. The Court said, that the smaller sum, and not the original amount for which the action was brought, was all that the plaintiff recovered, and that the costs should be taxed on the lower scale: Parker v. Serle, 6 Dowl. P. C. 334, and the rule would therefore be made absolute.'

Court of Common Pleas.


A rule was made absolute for leave to the plaintiff to deliver interrogatories to the defendant under the 17 & 18 Vict. c. 125, s. 51, and held that any objection to answer must be made after the interrogatories are delivered.

THIS was a rule nisi for leave to the plaintiff to deliver interrogatories to the defendant in this action of ejectment for non-observance of

See Directions to the Taxing Masters, 7 & 8 of Hilary Term, 1853, which direct, that “7. In all actions on contract, other than cases wherein by reason of the nature of the action no writ of trial can by law be issued, where the sum recovered or paid into Court, and accepted by the plaintiff in satisfaction of his demand, or agreed to be paid on the settlement of the action, shall not exceed 201. (without costs), the plaintiff's costs as against the defendant shall be taxed according to the lower scale of allowances in the schedule of costs hereunto annexed: Provided, that in case of trial before a Judge of one of the Superior Courts, or Judge of Assize, if the Judge shall certify on the postea that the cause was proper to be tried before him, and not before a Sheriff or Judge of an inferior Court, the costs shall ac-be taxed on the higher scale."

The present rate was merely described as an assessment for carrying the 5 & 6 Wm. 4, c. 50, into effect.

Thring showed cause.

The Court (without calling on Lush in support) said, that the omission in the title of the rate was no objection, as no form was given by the Act; and made the rule absolute cordingly.


Where an action was brought for more than 201. and the claim was reduced by payment before action and set-off to less than that amount: Held, making absolute a rule nisi to review the taxation, that the costs were

taxable on the lower scale.

THIS was an action to recover money due to the plaintiff from the defendant, who pleaded never indebted, payment, and set-off. It appeared on the trial before Wightman, J., that the original claim was 817., and that 561. odd had been paid before the action was brought,


"8. Where in like actions the sum endorsed on the summons shall be more than 201., but the plaintiff fails to recover more than that and the Judge does not certify as aforesaid, the plaintiff's costs against the defendant, whether between party and party or as between attorney and client, shall be taxed as upon a writ of trial before a Judge of a Court of Record where attorneys are not allowed to act as advocates, as hereinafter provided for, but the defendant's costs, if any, are to be taxed upon the higher scale; provided, that in cases triable before the Sheriff or Judge of an inferior Court, where the Judge shall refuse to make an order for such trial, the Judge may, if he shall think fit, direct at the time of such refusal on what scale the costs of each party shall be taxed, and in default of such direction the costs o both parties shall be taxed on the higher scale."


Superior Courts: Common Pleas -Exchequer.

the covenants of a lease, under the 17 & 18 1 Vict. c. 125, s. 51, which enacts, that "in all causes in any of the Superior Courts, by order of the Court or a Judge, the plaintiff may, with the declaration, and the defendant may, with the plea, or either of them by leave of the Court or a Judge may, at any other time, deliver to the opposite party or his attorney (provided such party, if not a body corporate, would be liable to be called and examined as a witness upon such matter) interrogatories in writing upon any matter as to which discovery may be sought, and require such party, or in the case of a body corporate any of the officers of any such body corporate, within 10 days to answer the questions in writing by affidavit, to be sworn and filed in the ordinary way; and any party or officer omitting without just cause, sufficiently to answer all questions as to which a discovery may be sought within the above time, or such extended time as the Court or a Judge shall allow, shall be deemed to have committed a contempt of the Court, and shall be liable to be proceeded against accordingly."

The questions were, whether interrogatories could be delivered in ejectment, and whether the defendant was bound to answer as it would tend to a forfeiture.

Byles, S. L., showed cause against the rule, which was supported by T. Chitty.

Atherton and Manisty showed cause against the rule.

The Court (without calling on H. Hill and Gray in support) said, that as there was no reason for supposing the valuation was unfair, or for there being any collusion or fraud, the rule would be made absolute to enter the verdict for the defendant.

Hutchinson v. Harding. Jan. 30, 1856.


A rule was made absolute on appeal from
Crowder, J., at Chambers, to stay the pro-
ceedings in an action by a creditor of an
insurance company against which a wind-
ing-up order had been obtained under the
11 & 12 Viet c. 45, where the claim of the
plaintiff on affidavit had been deemed in-
sufficient by the Master, who required the
plaintiff's attendance to be examined viva


THIS was a rule nisi on appeal from Crowder, J., at Chambers, to stay the proceedings in this action by a creditor of the Amazon Life Insurance Company, against which a windingup order had been obtained under the 11 & 12 The Court (after taking time to consider) Vict. c. 45. It appeared that the plaintiff had said, that the interrogatories might be deliver- taken in his claim upon affidavit before the ed, and that the defendant should object when Master, who had required his attendance to be the interrogatory was delivered as to answer-examined viva voce, but that the plaintiff had ing it: Osborn v. London Dock Company, 10 Exch. R. 698, and the rule was accordingly Inade absolute.1

Court of Exchequer.

not attended, but had brought this action.

Roxburgh showed cause, referring to the 11 & 12 Vict. c. 45, s. 73, which enacts, that "after the first appointment of an official manager, no creditor or other person shall, ex

Hernaman and another v. Bowker. Jan. 19, cept so far as the Master shall permit, have



Certain goods were seized under a fi. fa. and
were valued and taken possession of by the
execution creditor. The debtor afterwards
became bankrupt: Held, making absolute
a rule nisi to set aside the verdict for the
plaintiffs, the debtor's assignees, and to
enter it for the defendant (the execution
creditor), that the sale was valid, and they
could not recover in trover.

THIS was a rule nisi to set aside the verdict for the plaintiffs, the assignees in bankruptcy of a debtor, in this action of trover to recover possession of certain goods which had been seized under a fi. fa. at the suit of the defendant. It appeared that after the goods had been seized under the fi. fu. that the sheriff had given notice to the defendant, who agreed to take them on a valuation, and took possession of them accordingly. The debtor afterwards became bankrupt, and his assignees sought to


power to commence or to proceed with any action against the official manager or against the company, or any other person representing the same, or who is sued as a contributory thereof, until after proof, or exhibiting or making such proof as he may be able, of his debt or demand before the Master, as hereinafter mentioned; and it shall be lawful for any Judge of the Court in which such action shall be pending, upon summons taken out before him for that purpose, to order that all further proceedings in such action shall be stayed until such proof shall have been made or exhibited before the Master."

Asplund in support.

The Court said, that the Master had clearly authority under s. 47,' to give directions as to the mode of proof, and it was not to be allowed that the plaintiff should take no notice of his requirements, and commence an action. The rule would therefore be made absolute.

Which enacts, that "the Master shall, on request of any party interested, give certificates under his hand of any decisions, entries, or other matters which shall be made, done, or transacted in and about the winding up of any

See Flintcroft v. Fletcher (Exch), ante, company under this Act."

p. 292.

The Legal Observer,



"Still attorneyed at your service."-Shakespeare.




part of this Act, shall mean the District Commissioners of the Court of Bankruptcy having jurisdiction over the district in which the registered Office of the company is situate. In the case of a limited com

In our last Number we stated the effect of the amendments made in the Partnership Bill, and proceed now to set forth the alte-pany registered in Ireland, whose registered rations which the Committee of the House nominal capital does not exceed 5,000l., the of Commons have made in the "Joint-Stock same expression shall mean the CommisCompanies" Bill. sioners of Bankrupt in Ireland.

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If any company, registered under the Act,

carries on business when the number of

In all cases not herein before provided for, the same expression shall mean, as respects companies registered in England, the High Court of Chancery of England, and as respects companies registered in Scotland, the Court of Session in either Division thereof, and as respects companies registered in Ireland, the Court of Chancery of Ireland; s. 58.1

In cases where the Court of Chancery in shareholders is less than seven, every per- England or Ireland makes an order for son who is a shareholder in such company winding-up a company, it may, if it think during the time it carries on business, will fit, direct all subsequent proceedings to be be severally liable for the payment of the had in the Court of Bankruptcy having whole of the debts of the company contracted during such time, and may be sued for the same without joining in the action or suit any other shareholder; s. 37, (Clause A.)

We apprehend this will occasion great risk to the partners who intend to incur a limited liability only; and we conceive that the object of the clause would be sufficiently attained by imposing an adequate penalty on the infringement of the pro

visions of the Act.

In the case of a limited company registered in England whose registered nominal capital does not exceed 5,000l., and whose registered office is situate more than 20 miles from the General Post Office, the expression "the Court," as used in the third VOL. LI. No. 1,461.

jurisdiction within the district where the registered office of the company is situate. Upon such order being made, the Court of Bankruptcy therein named shall have the same jurisdiction with respect to windingup such company as it would have in a case declared by this Act to be within its jurisdiction; s. 72, (Clause D.)

As soon as the creditors are satisfied, the

Court shall proceed to adjust the rights of the contributories amongst themselves. For

the purpose of such adjustment it may make calls on the contributories to the extent of their liability for payment of such sums as it deems necessary. It may in making a call take into consideration the

This very important amendment is not marked in the re-print like other clauses.



Joint-Stock Companies Amended Bill.

probability that some of the shareholders may partly or wholly fail to pay their respective portions; s. 79, (Clause E.)

The Court may also make such order as to the costs, charges, and expenses incurred in winding-up any company as it thinks just; s. 80, (Clause F.)

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Any two Commissioners of Bankruptcy to be by special resolution; s. 34. appointed by the Lord Chancellor, may The 72nd clause of the former Bill as to make rules from time to time, subject to winding-up a company, when deemed benethe approval of the Lord Chancellors of ficial to the shareholders, is omitted. Great Britain and Ireland, for the purpose of regulating the proceedings in such Courts for winding-up companies. But, subject to such rules, the general practice of the Courts of Bankruptcy in cases within their ordinary jurisdiction, shall as far as the same is applicable and not inconsistent with this Act apply to all proceedings under the Act; s. 92, (Clause H.)

Notices of any special resolution to windup a company is to be given, as to English companies in the London Gazette; as to Scotch companies in the Edinburgh Gazette; and as to Irish companies in the Dublin Gazette; s. 96, (Clause I.)

Such are the amendments in the Bill, made during its progress through the Committee, and it now stands re-committed for the 10th March. As originally framed, it was intended to delegate all the business of winding-up these companies to the Court of Chancery, with power only to call in aid the District Commissioners of Bankruptcy for the purpose of taking evidence; but by the amendments it will be seen, that under section 58 the general jurisdiction of the Court of Chancery in winding-up cases, extends to 20 miles from London, and beyond that distance, where the registered capital does not exceed 5,000l., the District Commissioners of Bankruptcy are to carry the Act into effect; and by section 72, the Court of Chancery is empowered to remit the winding-up to the Court of Bankruptcy having jurisdiction within the district where the registered office of the company is situate.

In order to ensure the correctness of the statements and list of shareholders which are required to be delivered to the registrar, the same is to be verified by a declaration of two of the directors or two other principal officers of the company, according to the 6 Wm. 4, c. 62; s. 106, (Clause K.) Amongst the temporary provisions relating to existing companies applying to be registered under this Act, it is provided, that on compliance with the requisitions of the Act, the registrar is to certify that the ruptcy. The paper proceeded from the company is incorporated under the Act, and in case of a Limited Company, that it is limited. Thereupon all the provisions of the Act shall apply to such company, subject to the existing rights of creditors.

We last week inserted some reasons in favour of transferring the business of winding-up joint-stock companies from the Court of Chancery to the Court of Bank

pen of a Solicitor who enjoys the largest bankruptcy practice in London, and there may be good ground for enabling the Bankruptcy Courts to undertake the collection and distribution of the assets of Such certificate, however, is not to be companies which are actually in a state of issued unless previous notice be advertised bankruptcy. But other companies, whose in four successive weeks in some newspaper shareholders desire to put an end to their where the registered office of the company speculations, ought not to be driven into a is situate; s. 107, (Clause L.) Court of Bankruptcy, even if the name of The company may, for the purpose of the Court should be changed as proposed, obtaining registration with limited liability, to a Court of Commerce, Liquidation, or change its name by adding "limited," but Administration.

subject to the regulations of the charter, The Court of Chancery is in fact, as to deed of settlement, &c., constituting the company; s. 108, (Clause M.)

The certificate of registration is to be conclusive evidence of the registration of the Act having been complied with; s. 109, (Clause N.)

The following clauses in the Bill when first introduced, have been struck out or altered by the Committee:

a large part of its jurisdiction, a Court for the administration of assets; and the new mode of proceeding by summons before a Judge at Chambers affords as speedy and cheap a remedy as the Court of Bankruptcy.

Besides it should be recollected that important questions will frequently arise in the course of these winding-up cases; and in the Court of Chancery there is the great

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