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was he then acting also in pursuance of a contract to give him security? In my opinion it is hard indeed to call on the court to find that he was acting in pursuance of a contract, the existence of which he utterly denied when first examined, and the contract then insisted on, namely, an absolute sale, was bolstered up to 1 ass as a genuine sale, by misdating a document to tally with it. What excuse is to be alleged for Mr. Lefroy respecting his evidence on the 13th June? What excuse can be alleged except that he forgot this contract of security at that time, if Buch ever existed, and if he did not remember it on 13th June, what evidence have I that he knew it in April, and acted in pursuance of it then? The act done was not in pursuance of it; it was an act in furtherance of the statement made on the 13th June, and therefore, if ever such an agreement existed, it was not in his mind at all, and cannot therefore take away the voluntariness of the act done on that day the transfer was directed. But was there any such real contract or agreement at all? If this stood on Mr. Lefroy's evidence alone, I would unhesitatingly reply that none such is proved. It is by him first disproved, and I could not allow him to come forward then to prove it under the circumstances detailed in the evidence; but Mr. Shine swears somewhat loosely to it in answer to Q. 154: "Having done a couple of bills, I objected to doing any more, and he said he would give a transfer of whisky to secure me for the amount. At 224, where Mr. Lefroy gave his last version of the transaction, Mr. Shine adds: "I was distinctly promised whisky when I gave the bill." Now I do not say that I intend to cast any doubt upon Mr. Shine's veracity. No reason is stated why I should cast on him any stigma; he is meritoriously before the court as one deriving no personal profit from the transaction; but Mr. Shine is clearly not a man of business, and may very easily confound mere representation with contract and agreement, and may honestly and conscientiously, though inaccurately, now depose as he has done. And does nothing exist to confirm this view? No act in furtherance of any such agreement was ever done by any of the parties. Mr. Shine never sought to have the security promised. Mr. Lefroy did no act to give it, but Mr. Shine agrees with Lefroy afterwards to accept the version of the transaction given by Mr. Lefroy, viz., that it was a bona fide sale of whisky to him completed on the 4th March. But lastly let me consider the question, supposing such an agreement had been made, and supposing that Mr. Lefroy had not precluded himself from alleging that he acted in pursuance of it. The whole agreement, as alleged by Mr. Shine, is, on accepting the bills, "He said he would give a transfer of whisky to secure me the amount." No Lien is thereby created-no specific equity arises out of such a promise: it is too vague and general. No time is fixed; it is to be done on request; that seems perhaps the more natural construction of it. But does the existence of such a vague, indefinite arrangement as that put it into the power of the bankrupt volunteering to prefer this creditor above all his other creditors? The cases on this subject as to voluntariness and mixed motives are very numerous; and it is not agreeable on such a subject to find the judges obliged to say, as Erle and Crompton, JJ. say in Edwards v. Glynn, that the decision on it having been subject to the ebb and flow of the judicial rule, sometimes flowing in favour of the assignees, sometimes of the particular creditor, at present it seems that the tide is in favour of the particular creditor. Mr. Heron on this point very properly insisted on Lord Mansfield's definition of fraudulent preference, viz., in Harman v. Fisher. The breach he insisted on was "done in pursuance of no contract;" and he thenalleged there was a contract in this case. But in No. XIV., N.S., 347.

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every case there must be a contract; that is, every debt infers a contract to pay it; and therefore there must be some limitation to the nature of the contract then fulfilled. Would a contract to pay in money or goods when a bill falls due be such a contract as:' would protect the voluntary handing over the property of the bankrupt in contemplation of bankruptcy? If the true construction of any agreement was to hand over whisky as security on demand, would that authorise the party without any demand to prefer the particular creditor? Before I attempt giving any definition of the nature of the contract required, I will shortly refer to the cases on this matter of a contract fulfilled by the dealings. In Hunt v. Mortimer, 10 B. & C. 44, the contract was one binding specific property, and, as Parke, J. says, "creating an equitable, assignment of that particular fund; and every case cited here showed a contract as to particular property, and some of them turned, not on the question of the avoidance of a voluntary gift, but on the question as to the rights of the parties out of the contract itself. The latest case I have seen on the subject is Edwards v. Glynn, 2 Ell. & Ell. 29; in that a fund was raised, through friends going security, to meet a run on the bankrupt's bank, with the understanding that, unless it enabled the run to be met, the money would be returned. The money came to the bankrupt's hands; but the run not being met, the sureties asked for the return of the money, and it was returned. I refer to the judgments in this case as not countenancing the wide generality here contended for. Lord Campbell and Wightman, J. put their judgment on the ground of the demand made by the sureties; Erle and Crompton, JJ. on the further ground that the contract gave an equitable title binding this fund. In my judgment the contract within this rule is not answered by a wide, open, general provision to give security, but must be so far specific in its nature as to designate the very act to be done in pursuance of it. Here Mr. Lefroy had the power to select any goods of the class designated; to give away to his favoured creditor the best circumstanced portion of his stock from his general creditors. I see no mischief that could arise by simply voluntarily paying him in money that would not equally arise by leaving him at large to deal with his stock in making the payment; and in all the tidal movements of the cases no case at all bearing out the proposition here contended for has been cited to me. On all these views, and each one of them, I rule that this was a fraudulent preference. I hold it was an act done by the bankrupt when in a state of insolvency, voluntarily, on no request, and in pursuance of no contract. I find that in my opinion no such contract really existed. I find that Mr. Lefroy was not influenced by the existence of any such contract, if it did in fact exist. And I decide further, though not necessary for my judgment if the other grounds are sustainable, that the contract here alleged is not such a contract as prevents the act voluntarily done, without form or request, from being a fraudulent preference. I therefore decide that the assignees are entitled to this whisky, and I give them, of course, the costs against Mr. Shine. Attorney for the assignees, J. Perry. Attorney for Mr. Shine, Henry Oldham.

Equity Courts.

COURT OF APPEAL IN CHANCERY. Reported by THOMAS BROOKSBANK and E. STEWART ROCHE, Esqrs,, Barristers-at-Law

April 27 and June 1.

(Before the LORDS JUSTICES.) Ex parte RICHARDSON, re THE MOSELEY GREEN COAL AND COKE COMPANY (LIMITED). Winding-up-Clerk to liquidator-Joint-Stock Companies Act 1865-Sect. 91-Remuneration-Taxation.

The commissioner alone can finally decide upon the remuneration to be allowed to a clerk employed by the liquidator of a company in the course of winding-up, and the certificate of the taxing master of the sum to be allowed is not conclusive upon him; and although the liquidator may have refused to pay the certified amount as excessive, the commissioner may still refer the matter to him for his written report thereon, but that report is not binding upon him, and he may act upon it or not as he shall think fit.

This was an appeal from an order of Mr. Commissioner Goulburn under the following circumstances:

The Moseley Green Coal and Coke Company was, in May 1862, ordered to be wound-up in the Court or Bankruptcy under the Joint-Stock Companies Acts of 1856 and 1857, and in the course of the

winding-up a Mr. Hutton was employed by the official liquidator of the company, as a clerk, under the 91st section of the former Act, which provides that the official liquidators may, with the approval of the court, appoint a solicitor or law agent, and such clerks or officers as may be necessary to assist them in the performance of their duties, and that there shall be paid to such solicitor or law agent, clerks and officers, such remuneration by way of fees or otherwise as may be allowed by the court.

In the spring of 1864, Mr. Hutton sent in to the official liquidator a bill of costs for the work done by him; it was referred to the taxing master of the court, Mr. Higgins, who, on the 30th June 1864,

taxed it at 2197. 2s.

The books and papers by which the items could be vouched were produced to the taxing master, but they have since been lost or destroyed. The bill, however, was not paid, but since the taxation Mr. Hutton had got into pecuniary embarrassments, had become unable to pay his debts, and had executed a deed assigning all his property to Mr. Richardson, the present applicant, for the benefit of his creditors. In the latter part of last year, Mr. Richardson renewed his application to the official liquidator for payment of the amount of taxed costs; but notwithstanding that the taxation had taken place in his presence, and that his solicitors had made an indorsement upon the bill stating their approval in his behalf, the official liquidator ultimately refused to pay the amount claimed, on the ground that the demand was excessive, and offered to pay 50%. only, which he stated was, in his belief, a sufficient compensation.

Mr. Richardson, upon this, made an application to the learned commissioner (Goulburn) to direct payment of the amount at which the bill had been taxed, but he declined to make any other order than one referring the matter back to the official liquidator himself, for him to report what sum was proper to be paid.

The present application was an appeal from that order, and that payment of the taxed amount might be ordered out of the assets of the company.

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De Gex, Q. C. and Reed supported the appeal, and commented on the hardship of requiring the applicant to justify the charges in the bill, now after the lapse of two years, and when the materials and Vouchers were no longer available. The certificate of the taxing master was conclusive, and the sum which he had allowed ought to be paid. [TURNER, L. J.-The statute provides "that there shall be paid . . such remuneration as he may be allowed by the court."] That is so, but sect. 15 of the B. A. 1861 shows that this is to mean the court according to its usual practice, and the taxing master is the proper person to whom such questions are to be referred. However, nothing could be more extraordinary than to send back the matter to the very officer who had already come to a conclusion against the app., and who was moreover the person who would have to pay. They referred to

Allsop v. Lord Oxford, 1 Myl. & K. 564.

Bagley, for the official liquidator, submitted that the court itself could alone make a final order, and the taxation was not binding upon the commissioner. The official liquidator would best know what was the amount of work done, and whether the remuneration was a proper one. He was the official assignee in bankruptcy, and an officer of the court, and it was fitting that the commissioner, before deciding finally, should have his deliberate report in writing as to the justice of the demand.

De Gex, Q. C. having replied,

Lord Justice TURNER said:-It appears to me that the order made by the commissioner was the proper order to be made. It has been assumed in the course entirely by the report of the liquidator; but I do of the argument that the commissioner is to be guided

not so understand the order. The terms of the order are to refer it to the liquidator to report what ought to be allowed in respect of the services performed by Mr. Hutton; and when the report is made, it will be for the commissioner to decide whether to act upon it or not; it does not appear to me that the order goes beyond that. It might be thought that it would have been better to have obtained an independent opinion upon the matter, but we cannot consult his own officer, to guide him in the opinion say that the commissioner was not authorised to which he should ultimately form on the matter. We are in the habit of sending to the taxing master the constant practice of the court to take the opinion to advise the court in matters of taxation, and it is of its own officers. I think the proper course will be

to direct the matter to stand over until the com

missioner shall come to some final conclusion as to the sum to be allowed; the matter can then be mentioned again.

Lord Justice KNIGHT BRUCE.-My own view would have been in favour of discharging the commissioner's order; but, as it is the opinion of my learned brother that the order should remain as it is, this cannot be. I do not therefore see any advantage in dissenting from the course proposed by my learned brother.

Lord Justice TURNER added:-If I had thought that the commissioner was at all bound to act upon the report which the official liquidator may make, I should have agreed that the order should be discharged,

but I think it is otherwise.

Solicitors for the app., Rooks, Kenrick, and Crook, agents for Richardson, of Oundle.

Solicitors for the official liquidator, Greville, Tucker, and Co.

Saturday, June 2.

(Before the LORDS JUSTICES.)

Ex parte HARRIS, re АSH. Bankruptcy-Adjudication-Creditors' deed-B.L.C.A. 1849-Sect. 101--Bankruptcy Act 1861-Sect. 96. The court will not suppose that a section of an Act of Parliament is repealed by a later statute on the same subject, when all reference to that section is omitted from the repealing clause of the later statute.

And, therefore, where A. had executed an assignment for the benefit of his creditors, and one of the creditors who had executed the deed had, relying upon the deed, petitioned for adjudication against him, and the petition had been refused, it was

Held (reversing the decision of the commissioner), that to procure adjudication on the application of another creditor who had never assented to the deed, a fresh petition was not necessary.

This was an appeal by Mr. John Harris, a creditor of Richard Ash, from a decision of Mr. Commissioner Sanders, of the Birmingham District Court of Bankruptcy, for an adjudication of bankruptcy against Ash under the 101st section of the B. L. C. A. 1849.

On the 28th Nov. 1865 Mr. Ash had executed a deed of that date, whereby he assigned the whole of his estate and effects to John Elspey and Frederick Elspey, upon trust for the benefit of his

creditors.

On the 8th March last John Elspey, who had executed this deed as one of the trustees, and also as one of the creditors assenting thereto, petitioned the court at Birmingham for an adjudication of bankruptcy against Mr. Ash, the act of bankruptcy relied on in support of the petition being the execution of the creditors' deed. The learned commissioner, however, refused the adjudication, on the ground that the petitioning creditor had assented to the deed.

The present applicant, Mr. Harris, had not assented to the deed, and he applied to the commissioner on the 22nd March for an adjudication of bankruptcy against Mr. Ash under the provisions of sect. 101 of the Act of 1849, and without presenting a new petition. The learned commissioner was, however, of opinion that that section was repealed by the 96th section of the B. A. 1861, and that without a fresh petition there could be no adjudication.

The sections are as follows:-Of the B. L. C. A. 1849, s. 101:

That the court, under a petition filed by a creditor, shall upon certain proof adjudge the person petitioned against bankrupt; or if in case of the failure of the petitioning creditor to proceed and obtain adjudication within three days after his petition shall have been filled, or within such extended time as may be allowed by the court, another creditor shall apply for such adjudication upon such petition, then upon such application and certain stated proof, the court shall adjudge

such trader bankrupt.

And of the B. A, 1861, s. 96:

If the petitioning creditor shall not proceed and obtain adjudication within three days after his petition shall have been filed, or within such extended time as shall be allowed by the court, the court may at any time, on the expiration of such three days, or of such extended time, as the case may be, upon the petition of any other creditor to the amount required to constitute a petitioning creditor, proceed to adju

dicate on such last-mentioned petition.

The 230th section of this Act provides, by reference to a schedule and otherwise, what Acts and parts of Acts shall be repealed. Sect. 101 of the B. L. C. A. 1849 is not mentioned in that

schedule.

From this decision Mr. Harris appealed.

De Gex, Q. C. and Bardswell, in support of the

appeal, stated that there was no express repeal of the 101st section of the Act of 1849, and contended that there was no implied repeal of it by either sect. 96, under the words " upon the petition of any other creditor;" or sect. 230 (the repealing section) under the words "and all other Acts and parts of Acts which are inconsistent with this Act," of the Act of 1861. They referred to

Ex parte Cheese, 3 Mont. D. & De G. 79;
Ex parte Goodall, 1 De G. 580.
No other party appeared.

competent to the commissioner to adjudicate upon Their LORDSHIPS were of opinion that it was the application of Mr. Harris, without a fresh petition. The court could not suppose that the Legislature intended to repeal a section of a former Act of Parliament, when all mention of or reference to that section was omitted in the repealing section of the later Act. The 101st section of the Act of 1849 must therefore be taken to be still in force, and the case must go back to the commissioner.

Solicitors for the applicant, Chilton, Burton, Yeates and Hart, agents for Hodgson and Son, of Birmingham.

Tuesday, June 12.

(Before the LORDS JUSTICES.) THE IMPERIAL BANK OF CHINA, INDIA, AND JAPAN (LIMITED) V. THE BANK OF HINDUSTAN, CHINA, AND JAPAN (LIMITED).

Practice-Limited company plt.-Security for costsCompanies Act 1862-Sect. 69. The section above referred to providing that where a limited company is plt., and there is reason to believe that its assets will be insufficient to pay the costs of the defts. should the suit fail, the court may require "sufficienz security” for such costs, is not satisfied by the plts. entering into the bond for 100l. given in matters within the ordinary jurisdiction, but the court should in each case exercise its discretion, and fix the amount of security accordingly.

This was an application under the 69th section of the Companies Act 1862, whereby it is enacted that where a limited company is plt. or pursuer in any action, suit, or other legal proceeding, any judge having jurisdiction in the matter may, if it appears by any credible testimony that there is reason to believe that, if the deft. be successful in his defence, the assets of the company will be insufficient to pay his costs, require sufficient security to be given for such costs, and may stay all proceedings until such security is given.

The suit was instituted by the plts., a limited company, under circumstances which sufficiently appear in the report of the case of The Imperial Bank of China, India, and Japan (Limited), 14 L. T. Rep. N. S. 211. That was a petition to windup the Imperial Bank by the court, and amongst other grounds relied on by the petitioners were statements that an amalgamation of that company with the defts.' company, whereby all the assets, estate, and effects of the Imperial Bank were assigned to the Bank of Hindustan, was beyond the competency or authority of both the companies, and that all proceedings consequent upon it were void. The petition prayed (amongst other things) that the petitioners might be at liberty to institute proceedings at law or in equity in reference thereto, and for that purpose to use the names of the company or of the liquidators under a voluntary winding-up, which had been resolved on.

Their Lordships, on the hearing of the petition,

ordered that the petition should stand over in some respects, but gave liberty for the petitioners to take such proceedings as they might be advised for impeaching the amalgamation, and to use the name of the company or of the liquidators.

This suit was accordingly commenced with that object, and soon after the defts. moved before Wood, V. C., that the plts. might give security for costs, upon which application his Honour ordered (in the usual form) that the plts. do procure some sufficient person on their behalf to give security, according to the course of the court, by bond, the amount of such bond being 1001.

The defts. appealed against this order.

W. M. James, Q. C. and Eddis, for the appeal, contended that the ordinary course of the court did not meet the requirements of this case or satisfy the statute, which clearly required a discretion to be exercised. If the plts. failed in their suit, which the court would for the present purpose assume, they would have no assets of any kind, for every thing had been assigned to the defts. by the amalgamation, which the bill sought to upset. In fact, the defts. were now in possession of the whole of the plts.' property. They referred to French v. Maule, 4 Man. & Gr. 107, to show in what manner security is given in similar cases at common law; and to Paterson's Compendium of English and Scotch Law, 391, to show how it is given in Scotch suits. In both cases the practice is to direct an inquiry whether the proposed security is sufficient. The order of the V. C. should be discharged, and it ought to be referred to chambers to ascertain what would be a sufficient security to the defts. They referred lso to

The Australian Steam Shipping Company v. Fleming, 4 K. & J. 407. which was a case under the corresponding section (the 24th) of the Act of 1857.

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given should be cancelled, and a new one substituted for 300%.

Solicitors for the apps., defts., Flux and Argles. Solicitors for the plts., Harrison and Lewis.

COLLYER v. COLLYER.

Practice-Redemption suit-Decree-Death of sole plt. after-Revivor by devisee—15 § 16 Vict. c. 86, s. 52. The sole plt. in a redemption suit having died after decree for an account, it was

Held that the suit might be revived by the common order of revivor upon the application of the devisee of the mortgaged property.

The bill in this suit was filed by a mortgagor to redeem the mortgaged property, and by the decree dated the 8th May 1861 an account was directed of what was due to the deft. Charles Collyer, the mortgagee, and an account of what he had received in respect of rents and profits. In the month of Dec. 1865 the mortgagor, who was the sole plt., died, having by his will devised the mortgaged property to trustees upon certain trusts in favour of his children and grandchildren. The will was proved by the trustees, who were also the executors, and they with several of the cestuis que trust then applied for the usual order to revive the suits against the mortgagee and the remaining cestuis que trust, under sect. 52 of the Chancery Amendment Act. The registrar declined to draw up the order, and application was then made to Kindersley, V. C.; but his Honour, considering the conflict of authorities upon the subject, thought it would be better that the practice should be settled, and at his desire the matter was now mentioned to the Court of Appeal.

Marten, for the application, pointed out the conflict of authorities, and stated that in

Jackson v. Ward, 1 Giff. 30;

Gilbert v. Tomlinson, 3 L. T. Rep. N. S. 350; and
Eyre v. Brett, 13 W. R. 763,

the common order to revive had been made at the of the devisee on the death of the sole plt. ;

while in

Their LORDSHIPS thought that the words of the section had an express and positive meaning, and that they amounted to a special enactment in the particular state of circumstances which could not be governed by the general rules and practice of the court in the exercise of its ordinary jurisdiction. Although the notice of motion was for an inquiry in chambers what would be a sufficient security, they thought that on the whole it would be best to adopt the general course, that a bond should be given, and that it would be convenient if the sum for which the bond should be given were to be fixed

at once.

It was arranged that the bond for 1007. already

Dendy v. Dendy, 5 W. R. 221; 28 L. T. Rep. 262 ;
Williams v. Williams, 3 L. T. Rep. N. S. 770;
Laurie v. Crush, 32 Beav. 117; 7 L. T. Rep. N. S.
662; and

Townend v. Toker, 14 W. R. 300,

the order had been refused. He stated that in some of these cases the death of the plt. had occurred before, and in others after, the decree.

Lord Justice TURNER said that, in his opinion, the more convenient course would be to hold that the applicants might take the common order to revive, leaving it to the other parties, if they disputed the decree, to move to have it discharged; in which event, if the order were discharged, a supplemental bill, or an original bill in the nature of a supplemental bill, would have to be filed.

Lord Justice KNIGHT BRUCE agreed that that was the best course.

Solicitors for the applicants, Davidson and Co.

ROLLS COURT.

Reported by H. R. YOUNG, Esq., Barrister-at-Law.

June 19 and 20.

Re THE COMMERCIAL BANK CORPORATION OF INDIA
AND THE EAST (LIMITED).
Company-Winding-up-Creditor-Set-off- Official
liquidator-Negotiation of bills-Procedure.

An official liquidator appointed in a winding-up matter is in the position of a trustee of the property of the company for the benefit of all parties interested; and as such trustee he should do nothing to interfere with the rights of the parties, or prefer one of his cestuis que trust to another. He is not to be at liberty to negotiate bills in his hands without the leave of the judge in chambers; and notice should be given by him to any person for whom he is such trustee as aforesaid to come in and show cause why the court should not give leave to the official liquidator to negotiate the bills; after which, whether the cestui que trust thinks proper to come in or not, the court will adjudicate the

matter.

Creditors of a company obtained an ex parte order to restrain the company from negotiating certain acceptances given to them by the creditors. The object of that restraining order was to enable the parties obtaining it to establish an equitable right to set off against the company. A motion was afterwards made on behalf of the official liquidator of the company to discharge the restraining order:

Held, that the court could make no other order on the motion, than that the official liquidator should not negotiate the acceptances.

This matter came on to be heard, upon a motion, on behalf of the official liquidator of the abovenamed company, which had been ordered to be wound-up, to discharge an order restraining the corporation from parting with two bills of exchange. The facts of the case were shortly these:-Messrs. Smith, Fleming, and Co., of London, were the holders of four bills of exchange amounting to 63001. The bills were dated 28th April 1866; were drawn by the Bombay branch of the above named company on the London Joint-Stock Bank, and were made payable six months after sight to the order of Messrs. Nicol and Co., who had duly indorsed them to Messrs. Smith, Fleming, and Co. Those bills reached London on 23rd May 1866, and were presented at the London Joint-Stock Bank. Acceptance of them was then refused, and the holders were told "to refer to drawers." The bills were then presented to the Commercial Bank, at their head office, for acceptance; but were dishonoured. On the same 23rd May the Commercial Bank received two bills for 1485l. 2s. 2d., and 36701. 7s. 6d., dated respectively the 17th and 20th April 1866. Those bills were drawn by Messrs. Mackinnon, Mackenzie, and Co., Calcutta, on the firm of Smith, Fleming, and Co., were made payable six months after sight to the drawers' order, and were by the drawers specially indorsed to the Commercial Bank. Those two drafts had shipping documents attached to them as a security for acceptance. Messrs. Smith, Fleming, and Co. accepted those two bills, which remained in the hands of the Commercial Bank. The order for windingup the Commercial Bank was made on the 28th May 1866. In consequence of that order Messrs. Smith and Fleming were unable to take proceed ings at law for the recovery of the amount due to them from the Commercial Bank on the four dishonoured bills. Under those circumstances they claimed to be entitled in equity to retain and set off the amount due to them from the Commercial

Bank, against the amount due from their firm on their acceptances.

On the 29th May last, after the winding-up order was made, but before any official liquidator had been appointed, Messrs. Smith, Fleming, and Co., on the negotiation of the bills, which was now sought an ex parte application, obtained the order to restrain to be set aside. The official liquidator, when appointed, applied in chambers for leave to negotiate the bills, notwithstanding the order to the contrary. That application was directed to stand over till this motion was disposed of. The restraining order was not made on a bill filed, though one was prepared by counsel for the purpose.

Selwyn, Q. C. and Kekewich, for the official liquidator, supported the motion, and contended that the restraining order gave an advantage to a particular creditor, whereas it was the duty of the official liquidator, as a trustee for all parties, to do the best he could for all without any preference.

Sir H. Cairns, Q. C. and Druce, on behalf of Messrs. Smith, Fleming, and Co., contended that they were clearly entitled, in equity, to the set-off which they claimed, and that if the restraining order was discharged, they would be materially prejudiced in that respect.

Selwyn, Q. C. in reply.

The following authorities were cited in the argu

ment:

Ex parte Blagden, 19 Ves. 465;
Freeman v. Lomas, 9 Hare, 109.

June 20.-Lord ROMILLY.-I yesterday deferred giving my opinion in this case till to-day, not from any doubt in my own mind as to the proper order to be now made; but because I considered that the question involved in the case related to the mode in which this court ought to deal with such cases, and that it was very desirable that, inasmuch as many others of a like nature must arise in these winding-up proceedings, some rules should be definitely laid down for the guidance of parties in future. I have come to the conclusion that the official liquidator, or manager, in cases of this description-or rather the court itself, when conducting the whole matter--is in the position of a trustee of the property of the company for the benefit of all parties interested. That being so, it would be clearly inequitable, and in no way justifiable, for the trustee todo anything, or take any proceedings which could have the effect of giving to one cestui que trust any advantage over another. It is not, therefore, the duty of the court to interfere, and say that one class of creditors is to be preferred to another. It is the duty of the court simply to administer the rights of all parties according to the legal and equitable principles which must govern these cases. In the present case this seems

to

me to be clear, that the applicants, Messrs. Smith, Fleming, and Co., were creditors of the bank when they gave the acceptances in question. If the bills had remained in the hands of the bank till they had become due, the right of Messrs. Smith, Fleming, and Co. to their set-off, as claimed by them, would have been indisputable. This application is, virtually, for leave to allow the official liquidator of the company to negotiate these bills, and so enable a third party, a stranger, to do that which the bank itself cannot do. That is a course which, in my opinion, cannot be adopted. As I have frequently expressed myself in reference to these matters, as the tree falls so it must lie. The rights of the parties must be ascertained as they stand; and that whether they are fully worked out, or become matured by effluxion of time. It is, as I have said, clearly the duty of this court not to give one set of persons an advantage over another. The usual