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596 List of Private Acts, not Printed.-Superior Courts : Lord Chancellor. leasehold hereditaments in the county of Corn-, stated that this was an appeal from a decree of wall; and to enable the said trustees to convey the Master of the Rolls, and involved a prethe reversion in fee simple in the same here- liminary question respecting the evidence of ditaments, vested in them for that purpose two of the plaintiff's former partners, who were under the will of the Reverend John Moles- now made defendants by order of Lord Chanworth Saint Aubyn, deceased, to the uses of cellor Lyndhurst, contrary to the opinion of the said will and codicil of the said Sir John his Lordship the Master of the Rolls, (1 Phila Saint Aubyn, so as to convert such leaseholds 594). The bill was filed for a partnership acinto a fee simple estate in possession; and for count, and for the purpose of making the estate other purposes.

of a Mr. Nash, deceased, and one of the al34. An Act for the better support and better leged partners, liable for a certain proportion regulation of the Hospital of the Holy Jesus, of the loss sustained in a corn speculation founded in the Manors in the town and county stated to have been entered into by the plaintiff of Newcastle-upon-Tyne, at the costs and conjointly with Nash, Carpenter, Webb, and charges of the mayor and burgesses of the Sheppard, who were respectively to have partown of Newcastle-upon-Tyne, in the county of ticipated in given proportions in the profits, if the town of Newcastle-upon-Tyne aforesaid, any, of the transaction, and to have contributed and for confirming sales and other dispositions in like manner to any loss which might be susmade of estates formerly part of the possessions tained. The adventure having been unsucof the said hospital; and for other purposes ; cessful, Carpenter paid his portion of the de and for repealing an act of the last session of ficiency, and an account had been settled beparliament for the same purposes.

tween the plaintiff and Webb (who had become 35. An Act to authorize the construction of insolvent) and Sheppard; money had been paid a canal on the estates devised by the will of by the latter two, and they, upon being released the late Mr. Jonathan Passingham, for the by the plaintiff from all his demands upon transport of bricks manufactured on such them, had released all their claims in the partestates, and to enable the trustees of the will to nership affair. The object of the bill was to complete the purchase of an adjoining estate obtain from the executors of Nash bis proporcontracted for by them ; and for other tion of the loss, and the Master of the Rolls purposes.

had permitted the evidence of Webb and

Sheppard to be read for the purpose of estaPRIVATE ACTS,

blishing the fact of the partnership. An objection was taken, that they had such

interest in the suit as would disqualify them 36. An Act to dissolve the marriage of from giving evidence in the cause, but the Robert Montgomery Martin, Esq., with Jane learned counsel contended that they were Avis Francis Martin, his now wife, and to merely formal parties, and might therefore, by enable him to marry again; and for other the practice of the courts of equity, be made purposes therein mentioned.

witnesses. 37. An Act to extend the Relief given by an Mr. J. Russell and Mr. Smythe, contrà, subact of the 6th and 7th years of the reign of her mitted, that the plaintiff could not, by releasing present Majesty, intituled “An Act to declare two of several partners, obtain evidence from that certain Persons therein mentioned are not them whereby the remaining co-partners might Children of the Most Honourable George be damnified. They argued that the defendants Ferrars Marquis Townshend.”

were substantial parties, as they had an interest 38. An Act to dissolve the marriage of in the subject-matter of the suit. Another Thomas Brooks with Mary his now wife, and objection was, that there was no order that to enable him to marry again; and for other their evidence should be read, but simply an purposes.

order to admit it, saving all just exceptions.

They cited Murray v. Shadwell, 2 Ves. & Bea. RECENT DECISIONS IN THE SUPE- 401; Blackett v. Weir, 5 Barn. & Cres. 385; RIOR COURTS.

and Exparte Benfield, 5 Ves. 424.

The Lord Chancellor, without calling for a reply, said, he had no doubt from the state.

ment that the evidence was receivable. To Lord Chancellor.

prevent it there must be an interest resulting Hills v. Nash. July 26th, 1847.

from the suit, and not merely a remote con

tingent interest. After stating the facts, his PARTNERS.

lordship said the suit had terminated as to the A bill having been filed by the plaintiff for one who had paid his share. The other two

contribution from his co-partners in an un. had been released by the plaintiff and had dissuccessful adventure, Held, that the evi-claimed all interest. It might have been difdence of those defendants who had dis- ferent if there had been any profits. Their disclaimed all profits and had been released by claimer would enable the plaintiff to reimburse the plaintif from all demands by him, was himself out of the estate of Nash, and it apadmissible for the purpose of establishing peared to his lordship, therefore, that the the fact of the co-partnership.

Master of the Rolls came to a right conclusion Mr. Roupell, with whom was Mr. Piggott, when he decided that their evidence might be

received.

NOT PRINTED.

REPORTED BY BARRISTERS OF THE SEVERAL

COURTS.

EVIDENCE

OF

UNINTERESTED

Superior Courts : Rolls.-J.C. Knight Bruce-Vice-Chancellor Wigram. 397
Kolls Court.

hibit interrogatories to establish the interest of

the bankrupt. Anon. July 28, 1847.

Mr. Bacon, for the plaintiff, now moved for SOLICITOR.-7 & 8 Vict. c 73.-ARTICLES. liberty to prove the allowance of the certificate,

and the execution of a release by the bankrupt, To induce the court to exercise the power and to re-examine the bankrupt on the inter

given it by the 9th sect. of the 7 & 8 Vict. c. rogatories upon which he had already been ex73, of directing that the service of an articled amined, or upon other interrogatories for that clerk shall be taken to commence before the purpose. The motion was supported by an filing of the affidavits required by the 8th affidavit that the omission to obtain the exectsect., some ground for the non-compliance tion of the release was purely accidental. He

with the regulations of the act must be shown. referred to Milward v. Atkins, (cited in a note Mr. Toller moved, under the 9th sect. of the to Cox v. Allingham, Jac. 339.) 6 & 7 Vict. c. 78, that the service of an articled

Mr. Russell, for the defendants, opposed the clerk, whose articles bore date in Feb. 1846, motion, and cited Vaughan v. Worral, 2 Swanst. might be directeil to commence from the date 401, of the articles, notwithstanding the omission of

June 19. His Honour this day ordered, that the solicitor to whom he was articled to file the the plaintiff should be at liberty to examine the affidavit of the execution of the articles required bankrupt on the same interrogatories on which by the act, within six months after their execu- he had before been examined, or to examine tion. He dwelt upon the hardship of the clerk other witnesses to prove the certificate and rehaving to suffer for the neglect of the attorney, lease, but that the plaintiff must pay the costs but could not adduce any other reason for the of the application and of the former examinanon-compliance with the statutary requirements tion as between solicitor and client. than inadvertence. Lord Langdale said, that for aught he knew

Vice-Chancellor Ulligram. the attorney might be answerable in damages

Fisher v. Fisher. April 21 & 22, 1847. to the clerk, but before he could interfere, some

PARTIES.--EVIDENCE.-INSOLVENT. ground for interference must be shown him. To hold that in any case of inadvertence, the

The court refused to make an order for exrule might be dispensed with, would make it

amining an insolvent who had been plaintif absurd, as would be seen by supposing such a

in the original suit, although his assignees provision to be inserted in the act.

had, in consequence of the defect, filed a
supplemental bill for the same objects, and

asked leave to examine him.
Cice-Chancellor Knight Bruce.

This was a motion, on behalf of assignees, Bousfield v. Mould. June 12 & 19, 1847. who were plaintiffs to the supplemental bill

, for EVIDENCE.

leave to examine the insolvent, who was plain

tiff to the original bill, the object of both bills A bankrupt from whom a purchase had been being identical, viz., for an account of costs made was examined as a witness for the ceived them for the plaintiff (the insolvent)

due from the defendant, as agent, who had re-
plaintiff in a suit instituted by the pur- his principal. The issue raised between the
chaser. Upon an objection being taken to
his evidence, on the ground of his interest parties was, as to the fact of agency at the time

when the costs were received.
in the surplus of his estate, the cause was
ordered to stand over. A release was then

Mr. J. Russell and Mr. Sidney Smith ap-
executed, and liberty was given to the plain- that the insolvent's evidence was admissible,

peared in support of the motion, and contended
tif to prove the execution, and to examine his interest having ceased from the date of the
the bankrupt upon the old interrogatories, insolvency, or of the filing of the supplemental
or upon the new, the plaintiff paying the bill by his assignees.
costs as between solicitor and client.

The motion was opposed by Mr. Bagshawe,
This suit was instituted by the purchaser who submitted that the insolvent still remained
from the assignees of Joseph Mould, a bank- liable in respect of the costs, and his evidence
rapt, of his interest in a mortgage debt, secured was not therefore receivable. If he were not a
upon certain leasehold premises, of which the party, the present special application was unne-
mortgagor was a tenant in common with some cessary. Upon both grounds, therefore, it
of the defendants. The bill was filed for the ought to be refused.
purpose of obtaining payment of the mortgage The following cases were cited :-Hewatson
debt. The plaintift" had examined the bank- v. Tookey, 2 Dick, 799; Armiter v. Swanton, 1
rupt as a witness to prove his interest, at the Amb. 393 ; Mutteux v. Mackreth, 1 Ves. J.
time of the bankruptcy, in the mortgage debt, 142; Ewer v. Atkinson, 2 Cox, 393 ; The Cor-
but the cause coming on to be heard, an ob- poration of Colchester' v. 1 P. Wms.
jection was taken to his evidence being read, in 595; Wheeler v. Malins, 4 Mad. 171; Sharp v.
consequence of his not having released his in- Hullett, 2 S. & S. 496 ; Benson v. Chester, Jac.
terest in the surplus under the fiat, and it 577; Lord Huntingtower v. Sherborn, 5 Beav.
was accordingly ordered that the cause should 380; Edwards v. Goodwin, 10 Sim. 123 ;

over, with liberty for the plaintiff to ex- Robertson v. Southgate, 5 Hare, 223.

COSTS.BANKRUPT. VENDOR
AND PURCHASER.

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598

Superior Courts : Vice-Chancellor Wigram.-Exchequer. April 22. Sir James Wigram, V.C., now de- think, on reading that case, that the Lord livered judgment as follows:- This case is Chancellor did so on the ground suggested by manifestly one, merely one of form, and of Dickens, namely, that the insolvent or bankmore or less expense. It is clear that the as- rupt remains a party, not in name only, but signees, although at liberty to drop the suit, liable for costs. "In Ewer v. Atkinson, 2 Cox, have not done so, but have adopted it. They 393, three persons were made parties; the might have commenced a new suit, and then three filed the bill, and the three became bank. they might, as a matter of course, have ex- rupt. Application was made by the assignees amined the insolvent as a witness, saving just for leave to examine one of the three. The exceptions. Having, however, thought proper Master of the Rolls, in that case, after observto adopt the suit, they will have to take the ing that the bankrupt was clearly a good witconsequences of doing so. The question is, ness, ordered the original bill to be amended whether the exclusion of the insolvent's evi- by striking out the name of the bankrupt whom dence is one of those consequences of the the assignees desired to examine, and that adoption by them of the original suit--whether being done, the assignees should be at liberty the insolvent, upon these pleadings, is, for any to examine the bankrupt as a witness in the purpose, to be considered as a party. If he suit. The Master of the Rolls thought that the is, he cannot be examined; if he is not, then regular course, and I cannot think the right to he is a competent witness for the assignees in examine a witness depends upon the question their supplemental suit. First, then, is he a whether he was a sole plaintiff, or whether party? Will he be liable for the costs ? Now, there were others joined with him as cothe practice is well settled, that where a sole plaintiffs. If, however, in this case, the plainplaintiff becames bankrupt, and his assignees tiffs were to amend the bill by striking out the do not choose to adopt the suit, the defendant name of the insolvent, there would then be no may dismiss the bill, but without costs. Wheeler cause in existence. It has been said, indeed, v. Malins, 4 Mad. 171; and Lord Hunting- by Mr. Bagshawe, that if the insolvent is not a touer v. Sherborn, 5 Beav. 380, are authorities party, a special application would not be necesfor that proposition. And it has been admitted sary. If, however, I were at liberty to act upon by the defendant's counsel, that the insolvent my own opinion, I should not be deterred by does not remain a party upon the record as to that observation from making the order prayed any demand for costs in the cause. Then, as at once. It is quite enough to show that a to his interest in the result of the suit, it ap- special application is necessary, inasmuch as no pears that all the interest and liabilities of the case has occurred in which the order has been insolvent have been transferred to his assignees. made, although the case must be one of com. Then, does he remain a formal party to the suit? mon occurrence. I think, therefore, that the It is admitted that his name must remain in the proper course will be, not to make such an original suit, and that all future orders and order as that which is asked, as, by doing so, decrees will be entitled in the original suit; but I should be opposing the order of the Lord this does not appear to answer the question. Chancellor, and that of the Master of the Rolls ; The original cause was instituted by, and in the but I strongly recommend an application to the name of the insolvent, and his name will still Lord Chancellor, who, probably, may think it be used therein as a means of describing that a fit case in which to make the order. suit; but the question is, whether the original

Motion refused, with costs. suit is not merged in the supplemental, and the insolvent as completely discharged as if the

@rchequer. assignees had filed an original bill. Although, for the purpose of describing the original suit,

Vollans v. Fletcher. Trinity Term, May 26, the name of the insolvent must be still used,

1847. he will not have to be served with any proceed- RAILWAY COMPANY.—LETTER OF APPLICAing in the cause, nor, in the event of his death,

TION.-LETTER OF ALLOTMENT.-STAMP. will his personal representatives be necessary parties to any future proceedings. In the ab

A party applied by letter for shares in a prosence of authority upon the point, my conclu

jected railway company, and received in resion would have been, that the insolvent had

ply a letter, stating that ten had been alceased to be a party, and that the assignees

loited to him, and that he must pay the had, in truth, suppressed the proceedings in the

deposit into a banker's named by a certain original suit, and that nothing remained but

day, or the committee might cancel the al. the supplemental suit. I do not, however,

lotment : Held, that these letters were admean to go beyond the case before me, nor to

missible in evidence without a stamp. say what my decision would be in the possible Assumpsit for money had and received for case of the bankruptcy being disputed. Robin- the plaintiff's use : Plea, non assumpsit. son v. Southgate, 5 Hare, 223. The remain- At the trial before Pollock, C. B., it appeared ing question is, how far the present case is that the action was brought on the authority of affected by the decisions in Hewatson v. Tookey, Walstab v. Spottiswoode, 15 M. & W. 501; and Ewer v. Atkinson? In the former of these against a managing director of a projected rail. cases, Sir Lloyd Kenyon had made an order way company, which was afterwards abandoned, similar to the one now asked, which the Lord to recover back the sum of 211., being the Chancellor had discharged. I cannot but amount of a deposit paid by the plaintiff on

it was

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Superior Courts : Exchequer.-Court of Review.

599 ten shares allotted to him. The plaintiff pro- Robinson v. Drybrough, 6 T. R. 317, says, that posed to give in evidence the following letters,- “thus particularly penned to obviate any To the Provisional Committee of the Bir- objection which ingenuity might raise to creep

mingham, West Bromwich, Wednesbury, out of it.” and Walsall Junction Railway.

Martin, in support of the rule. The letter “ Gentlemen,-1 request that you will allot of application and the letter of allotment do not me 30 shares of 201. each, in the above-named constitute the contract, which only arises upon company, and I hereby undertake to accept the the plaintiff's acceptance of the shares allotted. same or any less number you may allot me, to His letter contains a request for shares, to pay the deposit of 21. 2s. per share thereon, which the company reply by offering some upon and to sign the parliamentary contract and sub- certain terms, which must be complied with scribers' agreement when required.

before there can be any valid contract between “ J. W. T. VOLLANS." the parties. Until the payment of the deposit To that letter the following answer was into the banker's, there is no evidence of the sent,

plaintiff's assent to accept the shares upon the “Not transferable.

conditions stated. A mere proposal in writing Birmingham, West Bromwich, Wednesbury, for a contract does not require a stamp, Peninand Walsall Junction Railway.

fold v. Hamilton, 2 Stark. 475; Edgar v. Bluk, “Provisionally registered.

1 Stark. 464 ; Drant v. Brown, 3 B & C. 665. Capital 200,0001. in 10,000 shares, of 201. In this case, if the plaintiff had refused to pay each. Deposit 21. 2s. per

share. the deposit into the bank by the day named, it “ Allotment, No. 348. Ten shares. Deposit is clear that there would have been no contract. 211.

This clause of the Stamp Act was under conBirmingham, 29th Oct. 1845. sideration in Vaughan v. Brine, 1 Man. & G. Sir,-We are directed to inform you that 359, and Beeching v. Westbrook, 8 M. & W. the committee of management have, in com

411. pliance with your application, allotted to you

Pollock, C. B. We are all of opinion that no ten shares in this undertaking, and that the stamp was requisite. The true test is this, was deposit of 21. 2s. per share, amounting to the the plaintiff at liberty on receiving the letter of sum of 211., must be paid to one of the under- allotment to refuse to accept the shares on the mentioned bankers, on or before Thursday the terms mentioned. We think he was: and 6th day of Nov. next, who upon receipt there therefore the rule must be absolute to enter a of will sign the voucher at the foot of this verdict for the plaintiff. letter.

Alderson, Rolfe and Platt, B.'s concurred. “In default of payment of the above-named

Rule absolute.a deposit by the day mentioned, the committee reserve the power of cancelling the allotment

Court of Hicbicw. without notice.

Exparte Hall, in re Carey. July 5 & 21, 1847. “This letter, with the banker's receipt, must

OFFICIAL ASSIGNEE.-OMISSION.-COSTS. be exchanged for scrip certificates, which will be granted upon your executing the subscribers' A proof of a debt having been made and a agreement and parliamentary contract, without

dividend declared, but the name of the crewhich no person will be recognized as a sub

ditor having been omitted in the dividend scriber or be entitled to any interest in the

list, whereby the whole estate had been diundertaking.

vided among the other creditors, the official “We are, Sir, your obedient servants,

assignee was held to be personally answer“ W. H. Reece, Solicitor.

able for the amount of the proof to which “ W. R. KETTLE, Sec. pro temp."

the creditor would have been entitled had his (Here followed the names of several bankers.)

name been included in the list, and for the It was objected, on behalf of the defendant,

costs. that the above letter amounted to an agreement,

The fiat in this case was issued on the 4th and should have been stamped accordingly. of April, 1842, and creditors' and an official

The learned judge was of that opinion, and assignee were duly appointed, Mr. Belcher nonsuited the plaintiff, reserving leave to move being the latter. The petitioner, James Hall, to enter a verdict for him. A rule nisi having was a creditor, and proved for 353l. 14s. 2d., been granted,

and his affidavit of debts was filed with the Crowder and Ball showed cause. The letter proceedings. The official assignee delivered of application and the letter of allotment were to the commissioner a list of the bankrupt’s evidence of a contract between the company and estate, the amount of debts and dividend, but the plaintiff, and therefore required an agree- omitting the name of the petitioner. The commenit stamp, under the 55 Geo. 3, c. 184, sche-missioner, acting on this, declared a dividend dule title “agreement.” There was a proposition of ls. 01d. in the pound. The solicitors to the on the part of the plaintiff to take an allotment fiat, upon this, made out the usual list for the of 30 shares, or any less number, and an agree- official assignee to make out dividend warrants, ment by the company to allot ten. The language and, on the solicitor of the petitioner applying of the 55 Geo. 3, c. 184, is similar to that of for his warrant, he was told that his naine did the old Stamp Act, 23 Geo. 3, c. 58, with respect to which Lord Kenyon, in the case of a See Clarke v. Chaplin, ante, p. 567.

600

Superior Courts Court of Review.-Analytical Digest. not appear in the list and both the solicitors and the dividend payable to him, and shall keep to the fiat and the official assignee declining the list specifying the securities in his custody, all responsibility, the petition was presented, and shall take or send the books containing praying a declaration that Mr. Belcher had such warrants, together with the Kist, (not specirendered himself liable for 18l. 10d., the amount fying the securities,) to the accountant in bankof dividend on 353l. 14.. 2d. at 1s. 01d. in the ruptcy, who shall ascertain that the amount of pound, and also the costs of the application, such warrants does not exceed the sum standand the costs, charges, and expenses incurred ing in his name to the credit of the bankrupt's by the petitioner in endeavouring to obtain estate, &c., and shall return the warrants to the payment of the dividend.

official assignee for delivery to the creditors." The affidavit of the clerk to the official as- I take it this could not be done without the signee stated that, according to the practice in lists being perfected in the presence of the bankruptcy, the solicitor to the estate ought to official assignee. My impression is, that it is make out correct lists of the creditors, for which the duty of the official assignee not to sign the he is paid, and the official assignee has no list without ascertaining that it is correct. That means of knowing whether the list is correct, is my impression. I am very much confirmed without referring to the original proceedings or in the view I take of the matter by Mr. Fonhis private memoranda. He also swore that blanque, who concurs with me, wbo is so well the name of the petitioner had been purposely acquainted with the practice and the whole omitted, under the mistaken idea that the word course which this matter has taken. There“exha” inserted in the margin to denote that fore, the official assignee, not asking that the his proof had been exhibited meant that it had solicitor may be brought here either to take been expunged.

the whole burden, or to share it with him, I Mr. Bacon and Mr. Willes, on behalf of the am afraid that I must charge the respondent. official assignee, called the attention of the The petitioner can have only as much as he court to the 1 & 2 W. 4, s. 22, appointing would have had, had his debt been included. official assignees; and to the rules of Novem- The petitioner must have the dividend he ber, 1842, which described in detail their would have had if this dividend had been cal. duties. From these it was to be inferred that culated, and the respondent will recoup hinthe official assignees were merely the official self out of the estate which has come in or accountants in bankruptcy, and, as such, could may come in. The petitioner's equity is only not be justly held responsible for an omission to have such amount as he would have had, if such as that which had occurred in the present the debt had been included in the calculation

The next thing will be to make good to the Mr. Russell and Mr. Tillotson, on behalf of assignee what he pays. There is not the the petitioner, insisted that the official assignee slightest ground for the imputation of neglia was appointed exclusively for the purpose of gence. I make the order without the slightest protecting the funds, and distributing them imputation upon him. He is, I understand, properly, and that, as it was by his negligence an excellent officer. This is an unlucky slip, the omission had occurred, he was the party of which he may not have been the original really liable.

author. There is no offensive imputation upon The Chief Judge asked the counsel for the him. I am afraid the official assignee must official assignee, whether it was desired that the pay the costs. I make this order with the solicitor to the fiat should be served with this greatest respect. Mr. Fonblanque is the petition, so as to enable the court to decide highest possible testimony upon that subject, whether such solicitor, if a party to the error, and he considers him to be an excellent officer. should share the responsibility?

I do not know what order the court would The respondent's counsel, after taking time have made if the solicitor had been brought to consider the suggestion of the court, said here. I hope that in future official asssignees their client was willing to leave that to the will consider it their duty to ascertain that the court, but they did not desire it.

lists agree. I have no doubt that there is not The Chief judge. The official assignee de- another official assignee, whether in town or clines to ask that the matter should stand over country, who, under the same circumstances, for the service of the petition upon the solicitor would not have fallen into the same error. I to the fiat. The 24th clause of the Order of trust, however, that now it will be well known 12th November, 1842, points out the mode of that the court has put that construction upon making a dividend, and directs as follows:- the order, that the assignee must ascertain for That where a dividend has been, or may be, himself that every creditor is included. declared, the solicitor shall prepare lists and so on, and then “the official assignee shall ex- ANALYTICAL DIGEST OF CASES, amine and sign the several lists, if correct, and

REPORTED IN ALL THE COURTS. shall prepare books at the expense of the estate, containing as many blank warrants as may be

Common Lai Courts. necessary, according to the form given in the schedule, and shall number and fill up a war

PRACTICE. rant for each dividend, and insert in each

AFFIDAVIT. · warrant the name of the creditor, to which the Title. A defendant described in the writ of number of such warrant is prefixed in the list, summons as "W.W. Kipin,” entered an ap

case.

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