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and the boarders allowed to be taken by the on the authority of The Attorney General head master excluded from participating in v. the Corporation of Ludlow (2), the Vice them.
Chancellor varied the scheme settled by the Whether the trustees of charity lands are Master, and directed that the exhibitions entitled as of right to be heard in support of the Grammar School to certain colof the Attorney General appearing for the leges at Oxford, Cambridge and Durham charity-quære.
should be confined to the boys on the founAn information on behalf of a charity dation, and that the head master's boarders against a corporation claimed certain lands should not be eligible to hold them. long since confounded by the latter with its own property, and of which it had granted Mr. Cooper and Mr. W. H. Bennet, for building leases. The claims of the charity the relators, asked that the corporation only partially succeeded, and no fraud was might be ordered to pay the costs of the imputable to the corporation. The informa- proceedings. Two grounds were urged for tion also prayed for a scheme in respect of the application : first, that the corporation the charity. The Court, to avoid the expense had not properly let the charity lands; and, and difficulty of apportioning and setting off secondly, that it had concealed from the the costs, gave none to the corporation, and relators information which it possessed ordered those of the other defendants and respecting the state of the charity property. of the relators to be paid out of the charity At all events, the corporation ought to pay funds.
as between party and party the costs which
had been incurred up to the time of proAt the hearing of the original informa. ducing the book or rent-roll in the Master's tion (filed on the 16th of November 1832, office. They cited when the office of Attorney General was The Attorney General v. the Skinners vacant), and of the supplemental informa
Company (the Tonbridge School tion (filed after the passing of the Municipal case ), Jac. 629. Corporation Act (1), against the charity East v. Ryal, 2 P. Wms. 284. trustees of the corporation of Bath), it was The Borough of Hertford v. the Poor of referred to the Master to ascertain the state
Hertford, 2 Bro. P.C. 377. of the charity property belonging to the The Attorney General v. the Burgesses of Free Grammar School and a Hospital at
East Retford, 2 Myl. & K. 35 ; . c. Bath ; to inquire into certain leases of that 8 Law J. Rep. (N.s.) Chanc. 49. property granted by the corporation of The Attorney General v. the Drapers Bath; to settle a scheme for the manage Company, 4 Beav. 67. ment of the school and hospital, and to
The Solicitor General and Mr. Wray take accounts, &c. The corporation opposed the inquiries, and gave no information
appeared for the Crown. to the relators or to the trustees of the cha Mr. Walker and Mr. Fooks, for the rity. Part of the property claimed on feoffees of the charity lands, submitted that behalf of the charity consisted of a piece of the corporation ought to pay the whole of land called Warbrough Mead, and the right the costs. They cited The Attorney Geneto it was established by means of a rent- ral v. the Corporation of Leicester (3). roll made in the year 1780 and entered in [WIGRAM, V.C. said he permitted the one of the books of the corporation. This last-mentioned counsel to take part in the book was first produced by the corporation discussion because he had been informed in the Master's office. Another part of the that the Master of the Rolls had determined property claimed on behalf of the charity that their clients should be heard and should consisted of the White Hart Inn, but the be bound by the decree in this suit. But right to it was not proved.
he hoped that it would not be construed The causes now came on for further into a precedent that trustees of charity directions and costs.
lands were to be heard as of right in supUpon the suggestion of Mr. Wray, and
(2) 2 Ph. 685. (1) 5 & 6 Will. 4. c. 76.
(3) 9 Beav. 546.
port of the Attorney General, or those to whom he intrusted the cause. In cases of informations against the trustees, where the Attorney General appeared for the charity, and the trustees differed bona fide from the relators, the Court would hear the trustees; but it would not hear them in a case where a charity was contending hostilely with a corporation, and was represented (and in general most effectually) by the Attorney General. Perhaps there should be an alteration in this practice of the Court; but it might be remarked that the House of Lords thought two counsel sufficient to represent the most important interests.]
Mr. Wood and Mr. E. F. Smith, for the corporation, argued that as the decree was in the supplemental suit the corporation bad nothing to do with it, and therefore could not be ordered to pay any costs. They cited— The Attorney General v. Caius College (4).
Mr. Teed and Mr. Denison appeared for the schoolmaster, who had been made a defendant.
Mr. Cooper replied.
March 22.-Wigram, V.C. said that this was an information to administer the charity estates of a hospital, and the Free Grammar School at Bath, and to recover from the corporation of Bath certain lands alleged to belong to the charity, but which the corporation had for many years past claimed and dealt with as its own. The information charged the corporation with gross breaches of trust, and stated that some of them had been committed to favour friends of the corporation by granting certain leases of the property. It also prayed a scheme for the future management. This scheme and the rights of the parties had been already settled by decree, and the only question reserved at the hearing, and which now remained to be disposed of, was that of the costs. It was due to the corporation to say that there was no ground for imputing any fraud to the individuals who constituted the corporation at the time the information was filed. The breach of trust which had been established against the corporation consisted in confounding the boundaries of
its own lands with those of lands belonging to the charity ; but it was manifest from the evidence that this had been committed previously to the year 1735. The right of the charity to the piece of land called Warbrough Mead had been discovered by evidence which came out of the possession of the corporation in the present suit. There was no ground for imputing to the corporation actual notice of the matter so discovered, although the Court might be compelled to fix it with constructive notice of it. Instead of damage having been sustained by the charity from the corporation having dealt with Warbrough Mead as its own property, it was manifest that such dealing, although a breach of trust, would be attended with great pecuniary benefit to the charity. The corporation had let it on building leases for three lives, a course which it could not be supposed the trustees of the charity would have taken with its lands; and when those lives should have dropped, the charity would receive 1,0001. or 1,100l. a year instead of the rent from land used for ordinary agricultural purposes. The charity had established its right to one part of the lands claimed by the information but had failed as to another part. Taking the most favourable view of the case for the corporation, it would not be right between two innocent parties to diminish the funds of the charity by giving to the corporation the general costs of the suit. The charity had elected to take the leases granted by the corporation : but it was clear that in principle the corporation was liable to the costs of the inquiry necessary to enable the charity to make its election. The fact that the charity property had been improved by the acts of the corporation might be properly taken into account in disposing of the costs; but the present was not a case in which that of The Attorney General v. Caius College, where the costs were given to the corporation, ought to be followed. If the information had been simply confined to the claim to Warbrough Mead, this case might possibly have been bound by that of The Attorney General v. the Burgesses of East Retford. Here there were some costs which the relators ought to bear and some which they ought to receive. As, for example (and only for example), the costs of establishing the right to Warbrough Mead and of the inquiries respect
ing the leases ought in strictness to be borne by the corporation, and those respecting the White Hart Inn, on the same principle, by the relators. Again, accounts were asked against the corporation which were never directed by this Court to be taken except in cases of gross and wilful fraud. These costs, if any, and also, under the circumstances, those of the scheme, ought to be received by the corporation. Instead, how ever, of treating this information as one having several distinct objects, some of which had succeeded and some failed, ascertaining what costs in particular ought to be borne by the respective parties, and setting off such costs against the others (which was always attended with great difficulty and expense), the right course, and one not unfrequently adopted by the Court, would be to give no costs to the corporation, and to allow the other defendants and the relators to receive theirs out of the charity funds.
13th of December 1848. On the 5th of February 1849 a fiat was issued against the defendant, J. R. Nicholls, and on the 8th of that month he was declared a bankrupt, and a Mr. Whitmore was appointed his official assignee: the creditors' assignees had not yet been appointed.
The defendant, upon coming to the age of thirty years, applied to the executor that the leaseholds to which he was entitled might be assigned to him. This was objected to by the plaintiff, on account of the great liability to which he, as executor of the testator, was subject in respect of the covenants in the lease; the plaintiff submitting that he could not be adequately protected against such liabilities unless the testator's estate was administered in this court.
To this bill the defendant J. R. Nicholls put in a plea, setting up his bankruptcy, and alleging that by reason of such bankruptcy all right and interest to which he would otherwise be entitled in all the said property were now vested in Mr. Whitmore, the official assignee, for the benefit of his creditors, and that, consequently, he could not be compelled to make any further answer to the bill.
TURNER V. NICHOLLS. March 13.
Pleading— Parties — Bankrupt- Official and Creditors' Assignees— Plea.
In a suit for the administration of a tes. tator's estate, A. B, in whom certain lease. holds were vested, was made a party. A.B. became bankrupt, and an official assignee was appointed. Before the creditors' as. signee was appointed A. B. put in a plea, alleging his bankruptcy :-Held, that the plea could not be supported, and that the bankrupt was a necessary party prior to the creditors' assignee having been appointed and having elected to take the leaseholds. Until that time there could be no final vesting of the property.
Mr. Rolt and Mr. E. F. Smith appeared in support of the plea, and contended that the defendant, J. R. Nicholls, was not a necessary party to the suit, all his interest in the leaseholds having passed to the official assignee, who had elected to take the leaseholds. A bankrupt could not be made a party. Under these circumstances the suit ought to be stopped by a plea, as regarded this defendant. The following cases and statutes were relied upon
Turner v. Robinson, 1 Sim. & S. 3.
Law J. Rep. (N.s.) Chanc. 79. Robertson v. Southgate, 5 Hare, 223;
s. c. 16 Law J. Rep. (n.s.) Chanc. 30. 5 & 6 Vict. c. 122. S. 23. 1 g 2 Will. 4. c. 56. s. 25.
This bill was filed for the administration of the estate of a testator named Edward Nicholls, under whose will the defendant, Joseph Robert Nicholls, was entitled to certain leasehold property, which was to become vested in him upon his attaining the age of thirty. Joseph Robert Nicholls attained his age of thirty on the 10th of October 1848. This bill was filed by the executor and trustee of the will, on the
Mr. Bethell and Mr. Barber, for the bill, contended that the plea could not be supported, and that the bankrupt was a necessary party until the creditors' assignees had been appointed and had elected to take the leaseholds. There had as yet been no final vesting of the property, and could not be until the creditors' assignees were appointed.
The Vice CHANCELLOR.—The fact that the official assignee had accepted is not sufficient. Suppose the official assignee accepted, what can be done when you come to appoint the creditors' assignees and they refuse? It never could have been intended that part of the estate should vest in one and part in the other. It is true that in ordinary cases you cannot make a bankrupt party to a suit; but there certainly are some cases in which it is necessary to make a bankrupt a defendant My opinion is that in this case there has been no effectual vesting of the leaseholds in question in any person. I do not think that Turner v. Robinson applies to this question. The whole case turns on the liability of the executor as to the breach of covenants in the lease. The plea, I think, cannot be sustained. The proper course would have been to have put in an answer stating the bankruptcy.
stock, crops of grain, hay, and implements of husbandry, and all other the effects and premises in or about his dwelling-house and farm at Haversham, as a security to the said defendant for the sum of 1,3001.; that on the 21st of February 1849 the said defendant, by his bailiff, took possession of all the said household goods and furniture, farming stock, crops and effects; and the said defendant gave his bailiff a warrant and authority to sell the same by public auction or private contract, in such manner as the defendant should thereafter direct ; that on the 8th of March 1849 the said H, A. Small filed his petition for protection under the provisions of the Insolvent Debtors Act, and thereupon all his estate and effects became vested in the plaintiff as his official assignee; that notice of such petition was immediately given to the defendant; and the defendant was requested by the plaintiff to withdraw forthwith from possession of the goods, chattels, and effects contained in the said bill of sale ; that the defendant had previously caused the said furniture and farming stock and other effects to be advertised for sale by public auction, but in consequence of the notice served upon him by the plaintiff, he had caused notice of the postponement of the sale to be advertised ; that the defendant after this informed the plaintiff that he had taken advice concerning the sale, and that he should proceed to sell the said goods and effects immediately, and had again advertised them for sale.
The bill prayed that an account might be taken of all the goods, chattels and effects formerly belonging to the said H. A. Small, which had been possessed or received by the defendant ; and that he might be decreed to deliver up possession thereof to the plaintiff, and for an injunction to restrain the sale of such goods and effects. The injunction was granted on the 28th of March; and the defendant having put in his answer,
Mr. Malins and Mr. Metcalfe now moved to dissolve the injunction restraining the sale of the insolvent's effects, and said the first question which arose was, whether the bill of sale given by the defendant in January 1848 came within the 21st section of the act 7 & 8 Vict. c. 96, and whether he could now avail himself of it, notwith
It was then agreed between the counsel that the plea should stand for an answer.
PARROTT V. CONGREVE. March 28. }
Insolvency–788 Vict. c. 96. ss. 19, 21. -Bill of Sale—Taking Possession.
A bill of sale as to personal properly was given by an insolvent to a creditor more than a year before his insolvency; but possession was not taken by the creditor till one month prior to the insolvency :-Held, that the credilor must be restrained from proceeding to sell the property, and could only avail himself of the bill of sale under the insolvency.
The bill stated that on the 26th of Janu ary 1848, the Rev. Harry Alexander Small delivered to his solicitor, the defendant, John Freer Congreve, a bill of sale of the household goods and furniture, and of the plate, linen, china, live and dead farming
standing that statute. All the property of Small vested in the plaintiff, the official assignee, on his bankruptcy; that was evident; but this property was disposed of long before his insolvency. It was assigned over a twelvemonth previously to Congreve, who took possession a month before the act of insolvency, and proceeded to sell. He was required to desist ; but when it was found that he persisted in his intention, this bill was filed for an injunction. The question turned upon the effect of the 19th and 21st sections of the statute (1). There was an assignment and possession taken; but the goods had not been actually converted into money, although they were completely in the possession of the defendant. The
(1) 7 & 8 Vict. c. 96. s. 19, “ And be it enacted, that if the petitioner shall before or after the filing of his petition, in contemplation of his becoming insolventor being in insolvent circumstances, voluntarily convey, assign, transfer, charge, deliver, or make over any estate, real or personal, security for money, bond, bill, note, money, goods, or effects whatsoever to any creditor or creditors, or to any person who is or may be liable as surety for such petitioner, every such conveyance, assignment, transfer, charge, delivery, and making over shall be deemed fraudulent and void as against any assignee or assignees of the estate and effects of such petitioner appointed under the provisions of the said recited act and of this act, or either of them : Provided always, that no such conveyance, assignment, transfer, charge, delivery, or making over shall be so deemed fraudulent and void, if made at any time prior to three months before the filing of the petition, and not with the view or intention by the party so conveying, assigning, transferring, charging, delivering or making over, of petitioning the Court for protection from process."
Sect. 21. “And be it enacted, that in all cases where any petitioner for protection from process, whose estate shall have been vested in an assignee or assignees, under the provisions of the said recited act and of this act, or either of them, shall have executed any warrant of attorney to confess judgment, or shall have given any cognovit actionem, or bill of sale, whether for a valuable consideration or otherwise, no person shall after the filing of the petition of such petitioner avail himself of any execution issued or to be issued upon any judgment obtained or to be obtained upon such warrant of attorney or cognovit actionem, either by seizure and sale of the property of such petitioner, or any part thereof, or by sale of such property theretofore seized, or any part thereof, or avail himself of such bill of sale; but that any person or persons to whom any sum or sums of money shall be due in respect of any such warrant of attorney or cognovit actionem, or of such bill of sale, shall and may be a creditor or creditors for the same under the said recited act and this act.”
assignment was not made with any view of petitioning the Court.
The question was, whether the 21st section had the effect of destroying the security. The proviso at the end of the 19th section was chiefly relied upon. The deed vested in the defendant the right of property. It was not a legal title till possession was taken, but the two together—the deed and the delivery-made together a legal title.
Under the Bankrupt Acts there were decisions that in case of assignment of chattels, provided the assignee had taken possession any time before the act of bankruptcy, that was a complete transfer, and that without any regard to the three months; and if under the Bankrupt Acts an assignment of the chattels should have taken place more than three months prior to the bankruptcy, and a taking possession any time prior to the act of bankruptcy, that had been held to take the goods out of the possession of the bankrupt, and pass them to his assignee. The law ought to be construed as if it had been an act of bankruptcy; and if so, the goods would not have vested in the official assignee of the bankrupt: they were not in the reputed ownership of the bankrupt; the goods were taken possession of a month prior to the filing of the petition ; and that being the case, the defendant had transferred to himself the legal title.
Mr. Selwyn, in support of the injunction, contended that the defendant could not avail himself of the bill of sale, for. although the assignment had been made more than three months before the insolvency, still no delivery had been effected till within the period of three months; the property assigned included farming stock and a portion of the property now claimed had come into existence after the execution of the deed. It was clear that a legal assignment of this stock, which did not exist at the time, could not be effected. The following cases were relied upon :
Gale v. Burnell, 10 Jur. 198.
The VICE CHANCELLOR.-If I had any real doubt on the question, that might. make me hesitate and continue the injunction till the hearing, in order that that