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preparation or presentation of their petition ; he should Saunders, in reply, not, however, make them pay any ; and the respon- The Court has no such discretion, dents might add their costs occasioned by the second Ex parte Great Northern Railway Company, 5 petition to those of the first, and take them out of the Rail. Ca. 269 ; fund in Court.

Ex parte Stevens, 5 Rail. Ca. 437.

Even if the Court had, it ought not to exercise it. Wood, V.-C.

Re The BIRMINGHAM, WOLVER- The costs of the suit in 1851 are not ascertained : non 19 DEC. 1863.

HAMPTON, AND DUDLEY Rail constat that there are any.

Wood, V.-C., said that the latter part of section 87 Practice-Lands Clauses Consolidation Act, ss. of the Lands Clauses Act did not apply to such a 85, 87-Condition of Bond not Fulfilled.

case as the present, where the only reason why the

condition of the bond was not fulfilled was that neither Where a railway company gave notice to take lands party desired it. It was quite different from the case under their compulsory powers, and paid a sum of of the company giving notice, and then refusing to money into Court, and the landowner filed a bill to complete by reason of pecuniary inability, which was restrain the railway company from taking possession, the evil against which the clause in question was and ultimately the land was not taken :

aimed. The South Staffordshire Company must reHeld, that the money deposited might be paid out, cover their costs of the suit in the ordinary way. and that the latter part of section 87 of the Lands Clauses Act relating to the non-fulfilment of the condi

Wood, V.-C. tion of the bond, did not apply.


9, 10, 21 Dec. 1863, This was a petition for the transfer to the Bir

Will_Construction-Domicile - "Child." mingham, Wolverhampton, and Dudley Railway Company of a sum of 3,3651. 15s. 5d. Bank Annuities, being The will of a testator must be construed according to the investment of a sum of money paid into Court in the law of the place of domicile of the testator. the year 1851, under section 85 of the Lands Clauses An English testator left a legacy to the children of his Consolidation Act, in respect of certain lands belong nephew C, who was at the time of the making of ing to the South Staffordshire Railway Company the will and of the death of the testator, an Englishman which the Birmingham Company were desirous of living abroad. Subsequently acquired a French taking under the powers contained in their Act. domicile, and married a French woman, by whom he

On the Birmingham Company proceeding to take had previously had a daughter. This daughter was possession of the lands in question, which were to be duly acknowledged by C after the marriage, and legitiused for making a junction between the two lines, the mised according to French law :South Staffordshire Company filed a bill to restrain

Held, that she was not entitled to the legacy. them. A motion for an injunction was heard in August, 1851, and stood over till the next term. In of the will of James Clegg, so far as the same related

This was a suit for the administration of the trusts November, 1851, the motion was mentioned, and stood

to a certain legacy of 50001. over generally, upon an undertaking by the Birmingham Company not to take any further steps without will

, dated the 13th of March, 1843, the sum of 50001.

The testator, who was an Englishman, gave by his giving notice to the Staffordshire Company. Since then nothing was done in the suit.

to trustees upon trust to pay the dividends to his

The time fixed by the Act for the exercise of the Bir nephew E. B. Clegg during his life, and after his death mingham Company's powers long since expired : the after the death of the survivor to pay and divide the

to his widow for her separate use during her life, and land in question now forms the site of a station on the Staffordshire line ; and the Birmingham Com

principal “to and amongst his children attaining the pany have now power to make their junction at a

age of twenty-one years equally, or if only one such different point.

child, then to that only child”: and if there should

be no such child, then the sum in question was to form H. C. Saunders, for the petitioners.

part of the testator's residuary estate.

The testator died on the 19th of August, 1843. Speed, for the South Staffordshire Railway Company, At the date of the will and of the death of the urged that the stock should not be transferred till pro- testator E. B. Clegg was residing abroad, but had not vision had been made for payment of the costs of the lost his English domicile. suit of 1851. The conditions of the bond given by Subsequently, however, he acquired a French domithe company had not been fulfilled ; and under these cile, and in 1858 married the defendant Maric Anne circumstances the Court had a discretion as to allowing Croc at Lyons, having previously to the marriage had the money to be paid out,

by her a child, the defendant Catherine Edmée Croc, Lands Clauses Act, s. 87.

who was born after E. B. Clegg had acquired a French


domicile. E. B. Clegg, subsequently to his marriage, of 1001., he would be held to mean 1001. currency, duly acknowledged the defendant Catherine Edmée and not 1001. sterling. Here the testator giving a Croc to be his daughter in the form prescribed by legacy to the child of E. B. Clegg, must be held to the French Code, and she thus became the legitimised mean such a child as is recognised by English law. child of E. B. Clegg.

If there had been any allusion to the circumstance of There was no other issue of the marriage.

E. B. Clegg being doniciled abroad, there would have E. B. Clegg died abroad in 1859.

been an additional ingredient in favour of the deShortly after his death the bill was filed by the fendant; but, as it stood, the matter was quite clear. trustees of James Clegg's will against Marie Anne Croc, His Honour then referred to Anstruther v. Chalmers Catherine Edmée Croc, and John Bedale, the residuary (loc. cit.), cited with approbation in Yates v. Thomson legatee under the will of the testator.

(3 Cl. & Fin. 544), as an English decision in support At the hearing, the usual inquiry as to the children of the view taken by Story. of E. B. Clegg was directed, and the cause now came The same question might arise under the Statute of on to be heard on further consideration.

Distributions, not with regard to the meaning of the The question was, whether Catherine Edmée Croc word “child,” which would be determined by the was a child of E. B. Clegg, so as to be entitled to the domicile of the intestate, but with regard to the meanlegacy of 50001.

ing of “representatives” of deceased children, which

he thought to mean representatives according to Rolt, Q.C., and G. L. Russell, for the plaintiffs.

English law. So also, a gift by an English testator Daniel, Q.C., and Drewry, submitted that Catherine to the heir of a domiciled Frenchman, must mean Edmée Croc was entitled to the legacy, being a

the heir not according to French law, but according legitimate child of E. B. Clegg, according to the law to English. of France. They cited,

Minute. - The Court being of opinion that the Re Wright's Trusts, 2 K. & J. 505 ;

defendant Catherine Edmée Croc takes no interest in Lloyd v. Lloyd, 13 Beav. 401 n. ;

the legacy of 50001., dismiss the bill as against her. Ex parte Donaldson, 4 Drew. 494. W. M. James, Q.C., and Karslake. — This will is

Wood, V.-o. that of an English testator, and must be construed as


17, 21 Dec. 1863. such. Child means “legitimate child.” C. E. Croc has only been “legitimated” by subsequent acknow

Practice - Service of Defendants out of ledgment, according to French law. This proceeding

Jurisdiction.Cons. Ord. X. 7. cannot affect her status in this country any more than an Act of Parliament passed to declare a person legiti- The practice of the Court, with reference to service on mate would affect his status abroad. They cited, persons out of the jurisdiction, adhered to, as established Anstruther y, Chalmers, 2 Sim. 1 ;

by Whitmore v. Ryan, 4 Hare, 612, notwithstanding Price v. Derchurst, 8 Sim. 279 ;

Cookney v. Anderson, 2 N. R. 140. Reynolds v. Kortright, 18 Beav. 417;

The bill in this suit was filed by Edward Steele, Watts v. Shrimpton, 21 Beav. 97 ;

carrying on business as a soap-manufacturer at LiverBirtwhistle v. Wardill, 7 Cl. & Fin. 895.

pool, against Alexander Stuart, Robert Towns, James Daniel, Q.C., in reply.

Stuart, Joseph Gordon Stuart, and Thomas Mitchell

Staig. The suit arose out of business transactions 21 DEC. 1863.

between the plaintiff and defendants, which were conWood, V.-C., said, that the cause came on in a very ducted in accordance with the following arrangements. inconvenient form for determining the rights of the The plaintiff was in the habit of consigning parcels child of E. B. Clegg, inasmuch as his widow, who had of soap to the defendants Towns and Alexander Stuart, a life interest in the legacy was still alive. However, who carry on business in partnership at Sydney, under as she had been made a defendant, he thought he was the firm of R. Towns & Co., for sale there on behalf of in a position to determine the point.

the plaintiff, with instructions to remit the proceeds of There was, no doubt, that, according to French law, such sales to the firm of Staig & Stuart, who were the E. B. Clegg was the father of the defendant, Catherine agents and correspondents at Kircaldy, in Scotland, of Edmée Croc; and the sole question was, whether he R. Towns & Co. The defendants Thomas Mitchell was her father in the sense used by this testator. No Staig and Joseph Gordon Stuart comprised the firm of case had been decided exactly in point ; but the law Staig & Stuart. seemed to his Honour quite clear, as laid down in When goods were shipped to R. Towns & Co., the Story's Conflict of Laws (479 a.), that a will was to plaintiff advised Staig & Stuart of the shipments. The be construed according the law of the place of the plaintiff, or Messrs. Staig & Stuart, then drew against testator's domicile. Thus, if a testator in Canada left the shipments; and the drafts, when accepted, were to his son, who was domiciled in England, a legacy discounted by Messrs. Staig & Stuart, and the pro

ceeds remitted to the plaintiff, by way of advance Stuart and James Stuart, the latter of whom was resi. against the shipments.

dent within the jurisdiction, and active process was Messrs. Staig & Stuart reimbursed themselves out prayed against him. of the proceeds of the goods sold by R. Towns & Co., In Cookney v. Anderson (loc. cit.), the whole of the and remitted to them; and the surplus, after sa defendants were out of the jurisdiction, the subjecttisfying the bills or drafts, was handed over to the matter was out of the jurisdiction, and the deed under plaintiff.

which the plaintiff's rights arose was a Scotch instruIn accordance with the above arrangements, certain ment. The plaintiff alone happened accidentally to parcels of soap were shipped by the plaintiff to be in this country. Such a case was totally distinguishR. Towns & Co. in the months of June, August, and able from the present, and the Lord Chancellor never October, 1860 ; and advances were made in respect intended his judgment to apply to a case where the thereof by Staig & Stuart, by means of bills which subject matter of the suit and a defendant, against were discounted with the Union Bank of Kirkcaldy. whom active process was prayed, were within the juris

A correspondence was set out in the bill, in which diction. He also remarked that it was stated that, by the direction of Staig & Stuart, Whitmore v. Ryan, 4 Hare, 612, R. Towns & Co. had remitted the proceeds of the sales on which the practice was founded, had not been overof the above-mentioned parcels to the firm of Stuart ruled. Brothers (consisting of James Stuart and Joseph Gordon If these defendants could not be served, it would be Stuart), bankers in London, as the agents of Staig & impossible to take the accounts, Stuart.

Kirwan v. Daniel, 7 Hare, 347 ; The bill alleged that the remittances, before and Mitford, Equity Pleadings, 190 (5th ed.). when they came into the hands of Messrs Stuart Brothers, were ear-marked as made specifically in Whitehorne, in reply. respect of or against the proceeds of sale of the plaintiff's parcels of soap. It contained, however, no 21 DEC. 1863. express averment that the remittances had actually Wood, V.-C., said, that he considered this branch come to or were in the hands of Messrs. Stuart of the Court far too weak to upset what had been the Brothers.

uniform practice for a long period. The bills discounted having arrived at maturity, The orders relating to service out of the jurisdiction were not taken up, and the plaintiff was threatened were made in 1845, by all the Judges of the Court for with an action in respect of them by the Union the time being, under powers conferred by the Act Bank.

3 & 4 Vict. c. 94. In accordance with that Act the The bill prayed that it might be declared that the rules were to be laid before each House of Parliament, proceeds of the sale of the parcels of soap had been and were not to have effect till each House of Parliaeffectually appropriated in equity to meet bills drawn ment should have sat for thirty-six days after the on and accepted by the plaintiff by way of advance rules had been laid before it. If, however, that thereon, and discounted by Messrs. Staig & Stuart ; number of days elapsed without the rules being objected that an account might be taken of all moneys received to by vote of either House, they were to become as by the defendants and their firms respectively in binding and obligatory as if they had been enacted by respect of the proceeds of the sale ; that the defen- Parliament. The orders in question not having been dants might be decreed to make good the amount objected to, had thus obtained the sanction of the thereof; and that such amount might be applied in Legislature. It was proper, however, to observe, that satisfaction of the bills, and the surplus paid to the the sanction might have been given, because the rules plaintiff.

were not peremptory but simply permissive. An order having been obtained, giving leave to serve In 1846, the case of Whitmore v. Ryan was decided Staig and Joseph Gordon Stuart out of the jurisdiction ; by Vice-Chancellor Wigram. In arguing that case, to-day

every argument adduced by the Lord Chancellor in Whitehorne moved on behalf of the last-mentioned Cookney v. Anderson was used : nevertheless, the other defendants that the order might be discharged, on the side were not called on to reply to them. The Viceground that this suit did not fall under the statutes Chancellor there decided that these orders were not con2 Will. 4, c. 33, and 4 & 5 Will. 4, c. 82. He cited,

fined to such suits as are mentioned in the two statutes

of Will. 4 (loc. cit.); the facts of that case tried the Cookney v. Anderson, 2 N. R. 140.

principle as much as possible, but the decision was not Druce, for the plaintiff, opposed the motion. appealed from, and had been uniformly followed, up

The object of the suit was not to enforce payment of to the present time. bills payable in Scotland, but to compel a banking Further, those orders had been re-enacted by all the firm in London to pay to the plaintiff moneys in its Judges of the Court under the presidency of Lord hands specifically appropriated by the Australian firm Campbell. for that purpose. That firm consisted of Joseph Gordon The present Lord Chancellor, however, in Cookney


v. Anderson, had founded his judgment on grounds
which would show the present practice to be in- Goulburn, Comr.

} Re correct. The express decision, however, in that

16 DEC. 1863. case did not go nearly that length: as there the Court Bankruptcy Act, 1861, Section 70, r. 1-Service had no jurisdiction either over the subject matter of

of Petition Abroad-Practice. the suit or the parties to it.

Considering the amount of sanction, however, Service of a petition on a debtor residing abroad, under which the present practice had obtained, his Honour Section 70 of the Bankruptcy Act, 1861, will be void felt himself too weak to alter it after it had been unless application be made previously under rule 1 of adopted for seventeen years without the express that section. decision of a higher tribunal : but from the respect which he entertained for the judgment of the Lord sional Life Assurance Company," asked for an adju

Roxburgh, for the official manager of the “Profes. Chancellor he had felt it necessary to explain his dication of bankruptey against a debtor under the folreasons as to what he was about to do in the present lowing circumstances. The company was being wound The Judge had under the order in question a dis- up under the Joint-Stock Acts of 1848 and 1849, the

debtor had been placed on the list of contributories, and cretion as to granting leave to serve the defendants

an order for a call had been made by the Master of the out of the jurisdiction. Here the litigation was

Rolls in the present year. The debt in this case mainly Scotch, having arisen out of dealings with amounted to 1,9211. 138. 8d., being a balance of a Scotch firm. The bill contained no distinct aver

account for calls. The debtor was residing now, and ment that the subject-matter of the suit was within hal been residing for two years, at Boulogne. There the jurisdiction ; and, therefore, in exercise of the

was an affidavit of the official manager that the debtor discretion given him, he should discharge the present intended residing out of England, in order to defeat order. Had the bill contained proper averments that his creditors, and also an affidavit of the service of the the subject matter was within the jurisdiction, he should have been inclined to follow what he had done petition on him at his present place of residence, and

it was contended that, as the debtor was non-trader, in the case of Venning v. Lloyd (see 6 Jur. (N. s.) 81). the debt here owing was a debt or liability which came Note. - See also,

within the 90th section of the Bankruptcy Act, 1861. Official Manager of the National Insurance and He cited, Investment Association v. Carstairs, 2 N. R. 348.

In re Royal Bank of Australia, 3 Sm. & G. 272,

6 De G. M. & G. 572.


Wood, V.-C.

C. Lewis (solicitor) contrà. 22 Dec. 1863.

Here the petition had been served on the debtor

(who was a non-trader) out of the jurisdiction of the Practice-Suit by an Infant.

Court, without any application having been inade for

that purpose to the Court, as enjoined by the 70th It is too late at the hearing of a suit by an infant to section of the Bankruptcy Act of 1861. He submitted, object that the suit is not for the benefit of the infant.

that in the absence of such application, the service was This was the hearing of a suit for the administration totally null and void. of the trusts of a will under which the plaintiff, who

Roxburgh, in reply. was an infant and sued by his father as next friend,

Here the debtor appeared, and such appearance took certain interests,

cured any defect in the service of the petition. Amphlett, Q.C., and Martindale, were for the

His HONOUR, however, said, that that could not plaintiff.

avail in the face of a positive statutory enactment that W. Pearson, for the defendant, took various objec- such application, as in the present case had been tions to the frame of the suit : and also strongly urged omitted, should be made. He must, therefore, refuse that the suit was not for the benefit of the infant.

to make the adjudication.

Wood, V.-C., said that the objection that the suit

Goulburn, Comr. was not for the benefit of the infant ought to have been


21 Dec. 1863. made at an earlier stage of the suit : and as the suit had been allowed to come to a hearing, he must make Bankruptcy Act, 1861, Section 70, r. 5-Service a decree for the administration of the trusts of the of Petition Abroad-Proof of Service. will.

Service of a petition on debtor residing abroad must be either personal, or the Court must be satisfied of the attempts made to serve it, according to the fourth


part of the 70th section of The Bankruptcy Act, 1861.
It must also be proved by affidavit. A memorandum Goulburn, Comr.

.} Re HEAD. endorsed, though purporting to be signed by the debtor,

21 DEC. 1863. of its receipt, will not be sufficient.

Bankruptcy Consolidation Act, 1849, s. 125

Order and Disposition-Fixtures-Furniture. Roxburgh, after stating that his Honour had some time since given leave to serve the petition for Purniture remaining in a bankrupt's dwelling-house adjudication on this debtor, who was a non-trader for the use of which the bankrupt had agreed with his and residing abroad, and that on the 10th of Novem- landlord to pay him a yearly sum (which he had not ber, 1863, the petition had accordingly been served, paid), will pass to his assignees under section 125 of the applied for an adjudication of bankruptcy against the Bankruptcy Consolidation Act, 1849. debtor under section 70 of the Bankruptcy Act of 1861, Secus, as to fixtures, and also as to furniture in a rule 5. The service in this case was proved by a copy house which a bankrupt had underlet. of the petition served, with a memorandum of receipt

This was a special case, stated for the opinion of the by the debtor indorsed upon it. The question was, it

Court. being admitted that an act of bankruptcy had been

By deed dated January 8th, 1858, Mr. Cobbold, committed, as to the nature of the petitioning credi. M.P., demised to the bankrupt, as tenant from year to tor's debt. The debtor was a shareholder in the Waterloo Insurance Company, which was being wound year at an annual rent of 201., a hotel at Walton-on

the-Naze. At the same time it was agreed that the up by the Court of Chancery, and this petition was based on an order of that Court made the 4th of August, furniture and fixtures then in the hotel, and should

bankrupt should pay an additional yearly sum for the 1863, and making a call on the debtor in respect of the shares held by him in the company.

purchase the same on or before January, 1859. By

deed dated the 5th of May, 1859, Mr. Cobbold deHe contended that this was a sufficient debt on which to found the petition.

mised a private house (unfurnished) to the bankrupt

at a rent of 281. This house the bankrupt furnished Chidley (solicitor), cited, contrà,

himself. He also added some furniture to that in the In re Royal Bank of Australia, 3 Sm. & G. 272 ; hotel. On the 2nd of December, 1862, a fresh demise 6 De G. M. & G. 572 ;

by the landlord was made to the bankrupt of the hotel, Warwick and Worcester Railway Company, 30 and at the same time the bankrupt also underlet his L. J. 530 (Equity).

private house. For some time previous to his bank

ruptcy, he had been greatly indebted to Mr. Cobbold, His Honour, without entering into any question and had, in fact, neither purchased nor ever paid any as to the nature of the debt, held, that in the pre- sum for the use of the hotel furniture according to his sent case there was not sufficient evidence of the per- agreement mentioned above. The messenger of the sonal service of the petition, so as to justify him in Court had taken possession of the furniture and fixmaking the adjudication prayed for. Application had tures in both houses. The question now been made to him for leave to serve the petition between the landlord and the assignees of the bankrupt, abroad, and on that application it was ordered that which of them was entitled to this property or any the 16th of December should be the time specified part thereof. wherein the debtor should appear (s. 70, rule 2), and

Bagley, for Mr. Cobbold, cited, as to the fixtures, that a copy of the petition should be served personally

Ex parte Barclay, 1 De G. M. & G. 454; on the debtor. He found no affidavit whatever in the

Ex parte Reynal, 2 M. D. & D. 443. proceedings of service. There was a copy of the petition, with a notice written thereon by somebody

H. Jones (solicitor), for the assignees. that the paper had been received “by me," and signed by the name of the debtor, but there was no affidavit that the question in this case arose on the 125th section

His Honour, after stating the facts as above, said as to such signature. If that were proper service, a person might be made bankrupt on the receipt of a

of the Bankruptcy Act of 1849, whether the property letter by the post. Nothing appeared to satisfy the in dispute was at the date of bankruptcy in the bank

rupt's possession, order, and disposition, within the Court that, supposing personal service had not been

meaning of the Act. effected, every reasonable effort had been made to do

First as to the fixtures, which he would consider so, and that the attempts to serve the debtor had come to his knowledge and had been defeated by him that the Act had no operation on these, and that

apart from the furniture, he was clearly of opinion (s. 70). The Court would, therefore, decline to adju- they belonged to the landlord. He would next condicate, but the time for adjudication would be enlarged sider the furniture in the private house, and this he for a week from this date.

held could not be said to be at the time of the bankruptcy in the order, &c., of the bankrupt, being in fact in that of his sub-lessee. Then as to the



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