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Superior Courts : Lord Justice3.–V. C. Kindersley.- Queen's Bench,
will directed, and the residue to W.: Held, In re Palmer, erparle Crabbe and another. in a suit by the plaintiff, on behalf of himFeb. 22, 1856.
sof and the other creditors of the testator, BANKRUPT.-APPEAL WHERE ADJUDICA
against the trustees and W. 10 administer TION REFUSED.-LYING IN PRISON ON
the estate, that W. was not a necessary CRIMINAL CHARGE.
party under the 15 & 16 Vict. c 86, s. 42, A trader, after being taken in custody under rule 9, and where he had been made a sea ca. sa , and who was still undischarged,
parate defendant and had answered sepawas afterwards removed on the coroner's rately, the bill was dismissed as against warrant on a charge of murder : Quare, him with costs to be paid by the plaintiff. whether this lying in prison was an act of The testator by his will gave all his estate bankruptcy within the 12 8. 13 Vict. c. to certain trustees upon trust, after paying his 106, s. 69?
debis, &c., as therein mentioned, and the resiThe Commissioner Balguy having held that it due to a Mr. Welch. The plaintiff filed a bill was not, refused an adjudication, semble, to administer the estate on behalf of himself that an order of the Cominissioner must be and the other creditors of the testator against obtained under s. 14, in order to enable the the trustees, and making Mr. Welch a separate petitioners to appeal for the purpose of ob. defendant and be answered separately. taining an adjudication.
| Tripp, for the plaintiff, contended he was a This was an appeal from the decision of Mr. necessary party under the 15 & 16 Vict. c. 86, Commissioner Balony, of the Birmingham Dis. s. 42, rule 9.' trict Court, refusing to adjudicate William Baily for Mr. Welch contrà; Hawkins for Palmer, a surgeon avd apothecary, a bankrupt. other parties. It appeared that the trader had been taken into The Vice-Chancellor held that he was an uncustody at the suit of the petitioners under a necessary party, and dismissed the bill as ca. sa., and that he had been removed under against him, with costs to be paid by the plainthe coroner's warrant on a charge of murder, — tiff. the ca. sa. being still undischarged. The Court of Queen's Bench. Commissioner having held that this was not a Regina v. Uitermere. Jan. 12, 1856. lying in prison sufficient to constitute an act of bankruptcy under the 12 & 13 Vict. c. 106. s. GENERAL HIGHWAY ACT.-RATE TO MEET 69,' and refused an adjudication, this appeal
EXPENSES OF DEFENCE OF INDICTMENT was presented.
FOR NUISANCE.-TITLE OF RATE. Daniel and A. Smi!h in support referred to Ileld, that a rate of 3s. in the pound, signed s. 14, which enacts, that “all appeals from de by two justices pursuant to a peremptory cisions or orders of the Commissioners shall be mundamus, for the expenses of the defence brought on by way of petition, motion, or spe
of an indictment for a nuisance, which had cial case, subject to any general rule or order been done by agreement of the inhabitants, to be made by the Vice-Chancellor or by the was good under the 5 & 6 Wm. 4, c. 50, S. Lord Chancellor, relating to such appeals.” 1
ill, although it was not entitled as bring De Gex for William Palmer.
an extraordinary rate, notwithstanding s. The Lords Justices said, there was a doubt! 29 of the Act. whether, as there was no adjudication, this This was a rule nisi on the Justices of SoCourt had jurisdiction, and the petition was mersetshire to issue a distress warrant for a accordingly directed to stand over to obtain an rate of 3s. in the pound on an inhabitant of the order from the Commisssioner.
parish of Aller, for the purpose of paying the
costs of defending an indictment for a nuisance, Vice-Chancellor Kindersley. which had been done by agreement of the in
Smith v. Andrews Feb. 23, 1856. habitants of the parish, and for the costs of EQUITY JURISDICTION IMPROVEMENT ACT.
which a rate had been signed, pursuant to a -CREDITORS' SUIT. -- PARTIES. --TRUS- Peremptory mandamus, by two justices. I TEES.-RESIDUARY LEGATEE. A testator gave all his estate to trustees in
Which enacts, that “in all suits concerntrust, after paying his debts, &.c., as his
ing real or personal estate, which is vested in
trustees under a will, settlement, or otherwise, 1 Which enacts, that “if any such trader such trustees shall represent the persons benehaving been arrested or commited to prison ficially interested under the trust, in the same for debt, or on any attachment for non-pay- manner and to the same extent as the adminis. ment of money, shall, upon such or any other trators in suits concerning personal estate rearrest or commitment for debt or non-payment present the persons beneficially interested in of money, or upon any detention for debt, lie such personal estate; and in such cases it in prison 21 days, or having been arrested or shall not be necessary to make the persons committed to prison for any other cause shall beneficially interested under the trusts parties lie in prison 21 days after, any detainer for debt to the suit; but the Court may, upon consilodged against him and not discharged, every deration of the matter, on the bearing, if it such trader shall thereby be deemed to have shall so think fit, order such persons or any of committed an act of bankruptcy.”
them, to be made parties."
TERROGATORIES IN EJECTMENT.-WHEN
Superior Courts: Queen's Bench.- Common Pleas.
351 question was, whether the rate should have and that a set-off for nearly 20!. was proved, been entitled as an additional rate under the 5 whereupon the plaintiff obtained a verdict for & 6 Wm. 4, c. 50.
41. 148. odd. The Master having taxed the By sect. 29 of this Act it is enacted, that costs on the higher scale, although the Judge
Every rate shall contain the name of the oc- had not certified, this motion was made for a cupiers,” &c., “and no rate to be levied or 'rule nisi to review his taxation.
assessed as aforesaid shall exceed at any one Hawkins in support; Lush showed cause. + time the suin of 10d. in the pound, or the sum The Court said, that the smaller sum, and
of 2s. 6d. in the pound in the whole in any one not the original amount for which the action year : Provided, nevertheless, that with the ' was brought, was all that the plaintiff recovered, consent of four-fifths of the inhabitants of any and that the costs should be taxed on the lower parish contributing to the highway-rate as. scale: Parker v. Serle, 6 Dowl. P. C. 334, and sembled at a meeting specially called for that the rule would therefore be made absolute.' purpose, 10 days previous notice of the same having been given by the surveyor of the said
Court of Common Picas. parish, the rate to be levied and assessed as aforesaid may be increased to such sum as the
Chester v. Wortley. Jan. 30, 1856. said inhabitants so assembled may think pro
COMMON LAW PROCEDURE ACT, 1854.-IN. per;" and by s. 111, that "if the inhabitants of any parish shall agree at a vestry to defend OBJECTION TO BE TAKEN. any indictment found against any parish, &c., A rule was made absolute for leave to the it shall and may be lawful for the surveyor of
plaintiff to deliver interrogatories to the the parish to charge in his account the reason. defendant under the 17 & 18 Vict. c. 125, able expenses incurred in defending such pro
s. 51, and held that any objection to ansecution, &c., after the same shall have been swer must be made ofter the interrogatories agreed to by such inhabitants at a vestry or are delivered. public meeting as aforesaid, and allowed by This was a rule nisi for leave to the plaintiff two justices of the peace within the division to deliver interrogatories to the defendant in where such highway shall be; which expenses, this action of ejectment for non-observance of when so agreed to and allowed, shall be paid by such parish out of the fines, forfeitures, See Directions to the Taxing Masters, 7 & payments, and rates authorised to be collected 8 of Hilary Term, 1853, which direct, that and raised by virtue of this Act: Provided, "7. In all actions on contract, other than cases nevertheless, that if the money so collected and wherein by reason of the nature of the action raised is not sufficient to defray the expenses no writ of trial can by law be issued, where the of repairing the highways in the said parish, sum recovered or paid into Court, and accepted as well as of defending such prosecutions, &c., by the plaintiff in satisfaction of his demand, the said surveyor is hereby authorised to make, or agreed to be paid on the settlement of the collect, or levy an additional rate in the same action, shall not exceed 201. (without costs), manner as the rate by this Act is authorised to the plaintiff's costs as against the defendant be made for the repairs of the highways.” shall be taxed according to the lower scale of
The present rate was merely described as allowances in the schedule of costs hereunto an assessment for carrying the 5 & 6 Wm. 4, annexed : Provided, that in case of trial before C. 50, into effect.
a Judge of one of the Superior Courts, or Thring showed cause.
Judge of Assize, if the Judge shall certify on The Court (without calling on Lush in sup- the postea that the cause was proper to be port) said, that the omission in the title of the tried before him, and not before a Sheriff or rate was no objection, as no form was given Judge of an inferior Court, the costs shall by the Act; and made the rule absolute ac be taxed on the higher scale.". cordingly.
“8. Where in like actions the sum endorsed
on the summons shall be more than 201., but Tongue v. Chadwick. Jan. 28, 1856. the plaintiff fails to recover more than that
sum, and the Judge does not certify as aforeCOSTS, TAXATION
said, the plaintiff's costs against the defendant, MORE THAN 201. AND
whether between party and party or as between LESS RECOVERED.-SET-OFF.
attorney and client, shall be taxed as upon a Where an action was brought for more than writ of trial before a Judge of a Court of Record
20!. and the claim was reduced by payment where attorneys are not allowed to act as advobefore action and set off to less than that cates, as hereinafter provided for, but the deamount : Held, making absolute a rule nisi iendant's costs, if any, are to be taxed upon the to review the taxation, that the costs were higher scale; provided, that in cases triable tarable on the lower scale.
before the Sheriff or Judge of an inferior Court, This was an action to recover money due to where the Judge shall refuse to make an order the plaintiff from the defendant, who pleaded for such trial, the Judge may, if be shall never indebted, payment, and set-off
. It ap- think fit, direct at the time of such refusal on peared on the trial before Wighlman, J., that what scale the costs of ach party shall be the original claim was 811., and that 561, odd taxed, and in default of such direction i he costs o had been paid before the action was brought, both parties shall be taxed on the higher scale."
Superior Courts : Common Pleas -- Exchequer. the covenants of a lease, under the 17 & 18 Atherton and Manisty showed cause against Vict. c. 125, s. 51, which enacts, that "in all the rule. causes in any of the Superior Courts, by order The Court (without calling on H. Hill and of the Court or a Judge, the plaintiff may, with Gray in support) said, that as there was no the declaration, and the defendant may, with reason for supposing the valuation was unfair, the plea, or either of them by leave of the Court or for there being any collusion or fraud, the or a Judge may, at any other time, deliver to rule would be made absolute to enter the verthe opposite party or his attorney (provided dict for the defendant. such party, if not a body corporate, would be liable to be called and examined as a witness Hutchinson v. Harding. Jan. 30, 1856. upon such matter) interrogatories in writing ACTION BY CREDITOR OF INSURANCE COM• upon any matter as to which discovery may be
PANY, WHERE WINDING-UP ORDER UNDER sought, and require such party, or in the case'
11 & 12 vicT. C. 45.-STAYING PROCEEDof a body corporate any of the officers of any i
INGS. such body corporate, within 10 days to answer the questions in writing by affidavit, to be
A rule 'was made absolute on appeal from sworn and filed in the ordinary way; and any
Crowder, J., at Chambers, to stay the proparty or officer omitting without just cause,
ceedings in an action by a creditor of an sufficiently to answer all questions as to which insurance company against which a wind. a discovery may be sought within the above ing-up order had been obtained under the
11 & 12 Vict c. 45, where the claim of the time, or such extended time as the Court or a' Judge shall allow, shall be deemed to have
plaintiff on affidavit had been deemed incommitted a contempt of the Court, and shall!
sufficient by the Master, who required the be liable to be proceeded against accordingly."
plaintiff's attendance to be examined vivå The questions were, whether interrogatories could be delivered in ejectment, and whether This was a rule nisi on appeal from Crowder, the defendant was bound to answer as it would J., at Chambers, to stay the proceedings in tend to a forfeiture.
this action by a creditor of the Amazon Life Byles, S. L., showed cause against the rule, Insurance Company, against which a winding. which was supported by T. Chitly.
up 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 vivá voce, but that the plaintiff had ing it: Osborn v. London Dock Company, 10 not attended, but had brought this action. Exch. R. 698, and the rule was accordingly Roxburgh showed cause, referring to the 11 ipade absolute.
& 12 Vict. c. 45, 8. 73, which enacts, that
! “ after the first appointment of an official maCourt of Archequer.
nager, no creditor or other person shall, exHernaman and another y. Bowker. Jan. 19. cept so far as the Master shall permit, have 1856.
power to commence or to proceed with any ac
tion against the official manager or against the SHERIFF.--SALE OF GOODS UNDER VALUA
company, or any other person representing the TION TO EXECUTION CREDITOR, VA
same, or who is sued as a contributory thereof, LIDITY OF.
until after proof, or exhibiting or making such Certain goods were seized under a fi. fa. and proof as he may be able, of his debt or demand were valued and taken possession of by the before the Master, as hereinafter mentioned ; execution creditor. The debtor afterwards and it shall be lawful for any Judge of the became bankrupt : Held, making absolute Court in which such action shall be pending. a rule nisi to set aside the verdict for the upon summons taken out before him for that plaintiffs, the debtor's assignees, and to
purpose, to order that all further proceedings enter it for the defendant (the execution in such action shall be stayed until such proof creditor), that the sale was valid, and they shall have been made or exhibited before the could not recover in trover.
Master.” This was a rule nisi to set aside the verdict Asplund in support. for the plaintiffs, the assignees in bankruptcy The Court said, that the Master had clearly of a debtor, in this action of trover to recover authority under s. 47,' to give directions as to possession of certain goods which had been the mode of proof, and it was not to be allowseized under a fi. fa. at the suit of the defended that the plaintiff should take no notice of ant. It appeared that after the goods had been his requirements, and commence an action. seized under the fi. fu. that the sheriff had given The rule would therefore be made absolute, notice to the defendant, who agreed to take them on a valuation, and took possession of
| Which enacts, that “the Master shall, on them accordingly. The debtor afterwards be- request of any party interested, give certificates came bankrupt, and his assignees sought to under his hand of any decisions, entries, or recover.
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,
"Stin attorneyed at your service." --Shakespeare.
SATURDAY, MARCH 8, 1856.
part of this Act, shall mean the District AMENDED BILL. Commissioners of the Court of Bankruptcy
having jurisdiction over the district in In our last Number we stated the effect which the registered Office of the company of the amendments made in the Partnership
is situate. In the case of a limited comBill, 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 5,0001., the of Commons have made in the “Joint-Stock same expression shall mean the CommisCompanies” Bill.
sioners of Bankrupt in Ireland. Sereral clauses have been introduced for
In all cases not hereinbefore provided the purpose of extending the Bill to Scot- for, the same expression shall mean, as reland, which was previously excluded from spects companies registered in England, the its operation, and these provisions are High Court of Chancery of England, and adapted to the peculiarities of Scottish as respects companies registered in ScotLaw and Practice.
land, the Court of Session in either Division The most important clauses added by the thereof, and as respects companies registerCommittee are the following:
ed in Ireland, the Court of Chancery of If any company, registered under the Act, Ireland ; s. 58.1 carries on business when the number of
In cases where the Court of Chancery in shareholders is less than seven, every per: winding-up a company, it may, if it think
England or Ireland makes an order for son who is a shareholder in such company 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 con- jurisdiction within the district where the tructed during such time, and may be registered office of the company is situate. sued for the same without joining in the Upon such order being made, the Court of action or suit any other shareholder ; s. 37, Bankruptcy therein named shall have the (Clause A.)
same jurisdiction with respect to windingWe apprehend this will occasion great up such company as it would have in a case risk to the partners who intend to incur declared by this Act to be within its jurisa limited liability only; and we conceive diction; s. 72, (Clause D.) that the object of the clause would be suffi
As soon as the creditors are satisfied, the ciently attained by imposing an adequate Court shall proceed to adjust the rights of penalty on the infringement of the pro- the purpose of such adjustment it may
the contributories amongst themselves. For visions of the Act.
In the case of a limited company regis- make calls on the contributories to the extered in England whose registered nominal tent of their liability for payment of such capital does not exceed 5,0001., and whose sums as it deems necessary. It may in registered office is situate more than 20 making a call take into consideration the miles from the General Post Office, the ex- | This very important amendment is not pression “the Court,” as used in the third marked in the re-print like other clauses.
VOL. LI. No. 1,461.
Joint-Stock Companies Amended Bill. probability that some of the shareholders Transfer on presentation to be entered; may partly or wholly fail to pay their re- s. 21 of former Bill. spective portions ; s. 79, (Clause E.) Calls to be a debt, not a specialty debt;
The Court. may also make such order as s. 23. to the costs, charges, and expenses incurred A registered office to be provided, instead in winding-up any company as it thinks of a principal office; s. 29. just; s. 80, (Clause F.)
Alteration of articles of association, &c., 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 Such are the amendments in the Bill, for winding-up companies. But, subject to made during its progress through the Com. such rules, the general practice of the mittee, and it now stands re-committed for Courts of Bankruptcy in cases within their the 10th March. As originally framed, it ordinary jurisdiction, shall as far as the was intended to delegate all the business of same is applicable and not inconsistent with winding-up these companies to the Court of this Act apply to all proceedings under the Chancery, with power only to call in aid the Act ; s. 92, (Clause H.)
District Commissioners of Bankruptcy for Notices of any special resolution to wind- the purpose of taking evidence; but by the up a company is to be given, as to English amendments it will be seen, that under seccompanies in the London Gazette; as to tion 58 the general jurisdiction of the Court Scotch companies in the Edinburgh Ga- of Chancery in winding-up cases, extends to cette ; and as to Irish companies in the 20 miles from London, and beyond that disDublin Gazette ; s. 96, (Clause I.) tance, where the registered capital does not
In order to ensure the correctness of the exceed 5,0001., the District Commissioners statements and list of shareholders which of Bankruptcy are to carry the Act into are required to be delivered to the registrar, effect; and by section 72, the Court of the same is to be verified by a declaration Chancery is empowered to remit the windof two of the directors or two other prin- ing-up to the Court of Bankruptcy having cipal officers of the company, according to jurisdiction within the district where the the 6 Wm. 4, c. 62; s. 106, (Clause K.) registered office of the company is situate.
Amongst the temporary provisions re- We last week inserted some reasons in lating to existing companies applying to favour of transferring the business of be registered under this Act, it is provided, winding-up joint-stock companies from the that on compliance with the requisitions of Court of Chancery to the Court of Bankthe Act, the registrar is to certify that the ruptcy. The paper proceeded from the company is incorporated under the Act, pen of a Solicitor who enjoys the largest and in case of a Limited Company, that it bankruptcy practice in London, and there is limited. Thereupon all the provisions of may be good ground for enabling the the Act shall apply to such company, sub- Bankruptcy Courts to undertake the colject to the existing rights of creditors. lection 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 a large part of its jurisdiction, a Court for company; s. 108, (Clause M.)
the administration of assets; and the new The certificate of registration is to be mode of proceeding by summons before a conclusive evidence of the registration of Judge at Chambers affords as speedy and the Act having been complied with ; s. 109, cheap a remedy as the Court of Bankruptcy. (Clause N.)
Besides it should be recollected that imThe following clauses in the Bill when portant questions will frequently arise in the first introduced, have been struck out or course of these winding-up cases; and in altered by the Committee:
the Court of Chancery there is the great