CASES IN CHANCERY, ETC.

MICHAELMAS TERM.

[36 GEO. III. 1795.]

CALLOW, Ex parte.

[1795, Nov. 11.]

DEFENDANT at law having lain two months in prison was made a bankrupt, and discharged under a supersedeas, the Plaintiff not having proceeded for two Terms. The Plaintiff then proved his debt under the commission; and before a dividend took the bankrupt in execution in a fresh action: the bankrupt's petition for an order on the Plaintiff to release him was dismissed.

CALLOW was arrested for a debt of 311. and continued in prison two months; upon which a commission of bankruptcy issued against him. The Plaintiff in the action, who was not the petitioning creditor, not having proceeded for two Terms, the bankrupt obtained a supersedeas, and was discharged. The creditor then proved his debt under the commission, and afterwards arrested the bankrupt in a second action, but soon discharged him, and at length took him in execution; at which time no dividend had been declared. The bankrupt petitioned, that the Plaintiff might be ordered to release him from custody. When the petition came on upon the 8th of August, the Plaintiff refusing in Court to consent to discharge the petitioner, the Lord Chancellor was inclined to make an order for that purpose: but Ex parte White, ante, Vol. II. 9; 4 Bro. Ch. Ca. 114, being mentioned, and several gentlemen of the Bar expressing great doubt, whether the Lord Chancellor, sitting in bankruptcy, could stop the creditor at law, the petition was ordered to stand to Michaelmas Term.

Mr. W. Agar, for the petition. The bankrupt was discharged in Ex parte James, 1 P. Wms. 610, and Anonymous, 2 P. Wms. 394, upon his own petition. In those cases the creditor proceeding at law was not the petitioning creditor. The same order has been

made as against the petitioning creditor proceeding at law: Ex parte Ward, 1 Atk. 153. In Ex parte D'Orvilliers, 1 Atk. 221, the creditor was obliged to elect. There is no difference between the petitioning creditor and the other creditors coming in: 1 Bro. Ch. Ca. 271. In all the cases, where a creditor has upon re[*2] funding a dividend been permitted to proceed *at law, the action was commenced before the bankruptcy. The bankrupt was in employment, when he was arrested, and has been in prison four months. It is not the course to grant an injunction. Lord CHANCELLOR [LOUGHBOROUGH]. It is a very oppressive case on the part of the creditor, and a case of great cruelty: but I am very much obliged to the Bar for interposing; for I am quite satisfied I have no authority to make the order. If I could have exercised a jurisdiction over the creditor, I should have been very glad to have done so. The case of the petitioning creditor is quite different: he submits himself to all orders the Court shall make. The cases, in which the creditor is permitted to refund, are vastly strong. I cannot bar this creditor of his legal remedy (1).

THE 59th section of the statute 6 Geo. IV. c. 16, enacts, that proof or claim under a commission of bankruptcy shall be deemed an election by the creditor to come in under the commission, with respect to the debt so proved by him. But it is one thing to say, that no person shall come in under a commission without relinquishing all proceedings at law in respect of every demand provable under that commission, and quite another thing to say, that a person who has proved one debt under a commission shall not subsequently bring an action in respect of a distinct demand. Ex parte Glover, 1 Glyn & Jameson, 270. See, ante, the note Ex parte Hopkinson, 1 V. 159.

(1) Ex parte Hopkinson, ante, vol. i. 159. Since that case the general rule was settled, that a creditor could not be compelled to elect before a dividend; subject to exception upon special grounds. See post, Ex parte Sharpe, vol. xi. 203; Ex parte Grosvenor, xiv. 587. By statute 49 Geo. III. c. 121, the creditor could not claim under the commission without relinquishing his action; and the proof or claim was an election. A similar provision is contained in stat. 6 Geo. IV. c. 16, s. 59. The claim for this purpose must be admitted upon the proceedings by the Commissioners: Ex parte Frith, 1 Glyn & Jam. 165. Before the statute a creditor, having signed the certificate, could not refund his dividend and proceed at law: Ex parte Freeman, post, vol. iv. 836.

MILDMAY, Ex parte.

[1795, Nov. 14.]

BANKRUPTCY of the committee of the person of a lunatic is a sufficient cause for removing him on account of the fund for maintenance: but the custody of the person will not be changed, if the Master finds it proper with regard to the comfort of the lunatic, that it should continue. (a)

IN August, 1784, a commission of lunacy issued against George Pescod, under which Richard Jeston Case and Cassandra, his wife, who was cousin-german to the lunatic, were appointed committees of the person. Upon the bankruptcy of Case this petition was presented by Jane Mildmay, one of the relations of the lunatic, praying, that Case and his wife might be discharged from being committees of the person of the lunatic, and that other committees might be appointed. The other relations of the lunatic consented to the petition for which the bankruptcy was the only ground. The committee by his affidavit represented, that he had every assurance, that his certificate would be allowed in a very short time; that he had taken the lease of a house at Chelsea, and furnished it for the accommodation of the lunatic; and that he scarcely ever interfered in the management of the person, but left it wholly to his wife. The affidavit also stated, that the lunatic was much restored from a most deplorable state by the treatment he had received, which was very affectionate and tender, and that a removal would be dangerous; in which particulars it was confirmed by the affidavits of the surgeon and apothecary, who had attended the lunatic. Mr. Armitage, for the Committee. The Court looks to the comfort and advantage of the lunatic; and in this in- [*3] stance all the circumstances connect his comfort and advantage with his present situation. At least there ought to be an inquiry whether a removal will be for his benefit.

Lord CHANCELLOR. It does not follow, that if another Committee is appointed, I shall change the care of the personal attendance of the lunatic: but they would have the administration of the money. If I order a sum of money for his maintenance, I cannot put that sum into the hands of a person, over whose administration of it I have no control. If another Committee is appointed, he will receive the allowance but if the Master find it proper with regard to the comfort of the lunatic, that the custody of the person should remain where it now is, if you make out that case, I will not remove

(a) See, ante, notes to Oxenden v. Compton, 2 V. 69; 2 Barb. Ch. Pr. 235-244. According to the practice of New York, the committee must execute a bond with sureties, conditioned for the faithful performance of his trust. Ib. 237. The committee should have regard entirely to the care, comfort and health of the lunatic. Ib. Property held in trust does not pass to the assignees of the agent or trustee, in case of bankruptcy, or insolvency. Dexter v. Stewart, 7 Johns. 52.

that custody. Refer it to the Master to appoint another Committee (1).

THE doctrine laid down in this case was approved, as affording a good general rule, in Ex parte Proctor, 1 Swanst. 531; where, however, it was observed, that there might be instances in which it would not be practicable to secure the due application of a lunatic's allowance, after the committee of his person was become a bankrupt, without changing the custody. That the leading object in the administration of the jurisdiction in lunacy is the comfort and advantage of the lunatic himself, was recognized in the case just cited, as well as in numerous others, see, ante, the note to Ex parte Chumley, 1 V. 296.

WENTWORTH v. TURNER.

[1795, Nov. 19.]

TENANT for life having made a lease of coal-mines amounting to a forfeiture, cannot join the remainder-man in a bill for an injunction.

Tenant for life, liable to waste, having sold timber, cannot prevent the vendee from cutting it.

TENANT for life made a lease of coal-mines to the Defendant.

Mr. King, on the part of the tenant for life and the remainderman in fee, who joined in the bill, moved for an injunction to restrain the Defendant from taking coal; alledging, that the lease was made by mistake, and was a forfeiture of the estate for life.

Lord CHANCELLOR. I cannot help that. I cannot help that. I cannot hear a man coming to disaffirm his own lease. If tenant for life liable to waste had sold timber, he could not prevent the vendee from cutting it. It is collusion to bring forward the remainder-man. If he complains, he must file a bill alone.

THERE are cases, no doubt, in which a tenant for life, without being joined by the remainder-man, may sustain an injunction against waste: Davies v. Leo, 6 Ves. 787 but those are cases in which the interest, or the satisfactory enjoyment, of the tenant for life has been, or is threatened to be, illegally encroached upon. It would be quite a different thing to allow him to complain of acts which he has himself, as far as in him lay, distinctly authorized. If those acts are prejudicial to the rights of the remainder-man, he unquestionably may be entitled to relief, provided he stands clear of all collusion with the tenant for life. See, ante, note 2, to Lee v. Alston, 1 V. 78, and notes 3, and 4, to Pigottv. Bullock, 1 V. 479.

(1) See Ex parte Proctor, 1 Swanst. 531.