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proceedings from the Lord Mayor's Court to the Court of Queen's Bench, but the deponent was advised that unless bail was put in to the said action on or before four o'clock the following day, the plaintiffs would be at liberty, notwithstanding the writ of certiorari, and by means of a writ of procedendo which would be granted as a matter of course by the said Court, to obtain and take possession of the funds of the said company; that the whole amount of the funds in the hands of the bankers of the company amounted to the sum of 3971. 108., which constituted the entire assets of the company. Upon this statement the injunction was granted.
Mr. Bethell and Mr. Jessell, in support of the motion to dissolve, contended, that the Court had no jurisdiction to grant the injunction, where the proceedings had been commenced prior to the order for winding up the affairs of the company, and that the subsequent order and appointment of an interim manager did not alter the case.—The 22nd, 58th (1), and 118th sections of the act were particularly referred to.
Mr. Rolt and Mr. Hetherington, in support of the injunction, referred to the 17th, 19th, 61st, and 73rd sections of the act, and contended, that it was expressly provided that when a manager had been appointed, the funds of the company could not be attached by any creditor until his debt should have been proved before the Master. By the operation of this act the directors of the company had, in fact, been deprived of
their property in the company, and it was · but just that any proceedings against them should be stopped.
(1) Sect. 58. “That except as is by this act ex pressly provided, nothing in this act contained, nor any petition or order under the same for the dissolution and winding up, or for the winding up of any company, shall extend or enlarge, diminish, prejudice, or in anywise alter or affect the rights or remedies of creditors or other persons not being contributories of the company, or the rights or
rights of remedies of creditors being also contributories, but being creditors of the company upon a distinct and independent account, whether against the company or against any of the contributories of the same, nor the rights or remedies of the company against any contributories or other persone, nor shall alter or affect any contracts or engagements entered into by or with the company, or any person acting on behalf of the same, previously to any such petition, nor any actions, suits, or other proceedings pending at the date of such petition."
The Vice CHANCELLOR.-I apprehend that these special injunctions must always stand or fall upon the merits which they possess at the time they are granted. When the application was made to me I recollect the substance of the case was stated, and I remember the observation was made that the greatest number of these companies were in the city of London. Never having had my attention however particularly directed to the provisions of this act, I did not feel sufficient confidence to say that this Court had not jurisdiction; and as I did not think any harm could arise from granting the injunction, I did not like to delay Mr. Hetherington when he applied to me, and I thought I might put it in this way, that if he believed he could sustain the order he might take it. Upon looking at the act now, I do not think that the Court has jurisdiction. The language of the 58th section is very strong, it is this:-"that except as is by this act expressly provided, nothing in this act contained, nor any petition or order under the same for the dissolution and winding up, or for the winding up of any company, shall extend or enlarge, diminish, prejudice, or in anywise alter or affect the rights or remedies of creditors, or other persons not being contributories of the company, or the rights or remedies of creditors being also contributories,” &c. ; and then it says, “nor shall alter or affect any contracts or engagements entered into by or with the company, or any person acting on behalf of the same, previously to any such petition, nor any actions, suits, or other proceedings pending at the date of such petition.” It is true that I do not find any express enactment applying to the case made before me when the special injunction was granted, that is, to the case of creditors suing in the Lord Mayor's Court, but the fact of an interim manager having been appointed since the date of the appli. cation does not appear to me to make the act apply, and I do not think that the injunction can be sustained, upon a supposed analogy between this case and that of a common creditors' suit depending in this court. It therefore appears to me that upon the act there is nothing to justify the interference of this Court. The application was a mere experiment which has failed, and the injunction must be dissolved with costs.
SHADBOLT V. THORNTON.
v.c. 1 June 22. )
Mortmain, Statute of — Conversion of Leaseholds- Payment of Debts.
A testatrix gave all her property, consisting of leaseholds and personalty, to her brother, who died nine days after her, and by his will bequeathed the whole of his property to charities :-Held, that as it was the duty of the representatives of the testatrix to sell the leaseholds for payment of debts, fc., the brother who had made no election took the leaseholds as personalty, and the charities were, therefore, entitled to them under his will.
were bound to convert them into money for the general administration of her estate. If Frederick Noble had elected to take them as leaseholds the case would have been different, but he died without making any such election, and the leaseholds must therefore be considered as having been converted into money, as in fact they were three months after her death.
Mr. J. Parker, Mr. Leach, Mr. De Gex, Mr. Baggallay, Mr. Smythe, and Mr. Nichols appeared for other charities interested in the estate.
Mr. Wray appeared for the Crown, and claimed the leaseholds in the absence of next-of-kin, on the ground that Frederick Noble not having made any election, the leaseholds came to him without conversion, and the gift of such leaseholds to charitable purposes was consequently void. The personal property of Harriet Noble was sufficient for the payment of her debts and funeral and testamentary expenses; there was therefore no necessity for her representatives to have sold the leaseholds, and it could not be considered that they had done so for such purpose.
The bill stated that Harriet Noble, by her will, dated in January 1847, gave all her estate and effects to her brother, Frederick Noble, who died nine days after his sister, and by his will bequeathed certain annual sums for the benefit of the poor of St. Mark's, Kennington, and St. Mary's, Newington, and gave the residue of his estate to various other charities. The property of the testator, Frederick Noble, consisted entirely of personalty, but part of the property bequeathed to him by his sister, Harriet Noble, consisted of lease. holds, which were sold by the executors of Frederick Noble several months after his decease. The suit was instituted by the executors of Frederick Noble for the ad. ministration of his estate, and the only question now raised was, whether the charities to which the testator had given his property were entitled to the leasehold estate of Harriet Noble, which had not been converted into personalty at the death of Frederick Noble, or whether such leaseholds came within the Statute of Mortmain, in which case they would be undisposed of, and would go to the Crown in consequence of Frederick Noble having left no next-of-kin.
Mr. Amphlett appeared for the plaintiffs.
Mr. Bethell and Mr. Marett appeared for one of the charities entitled to part of the residue of Frederick Noble's estate, and claimed the leaseholds on the ground that the representatives of Harriet Noble
The VICE CHANCELLOR.-As the testator, Frederick Noble, did not exercise any election with regard to the leaseholds, my opinion is that he took them as personal property, since it was the duty of those who administered to the estate of Harriet Noble to sell the leaseholds for the payment of her debts and funeral and testamentary expenses. The leaseholds must, therefore, be considered to have been converted, and the charities will be entitled to the leaseholds as well as the rest of the property.
V.C. ) June 25. )
PARKYN V. CAPE. Affidavits-Molion by way of appeal from the Master-Order for enlarging Publication-3 & 4 Will. 4. c. 94. s. 13.
Upon motion by way of appeal against an order made by the Master for enlarging publication, it was held that no affidavits could be read which had been filed after the order made by the Master.
This was a motion, under the 13th sec
THE ATTORNEY GENERAL v. tion of the 3 & 4 Will. 4. c. 94. (1), by
by May 23, 25.)
THE GUARDIANS OF THE way of appeal against the decision of the
( POOR OF SOUTHAMPTON. Master who had made an order for enlarg
2018 Injunction - Expenses of obtaining an ing publication in the cause.
Act of Parliament - Jurisdiction of the Mr. Bethell and Mr. Kinglake supported Court-Poor Law Board. the motion.
The guardians of the poor of SouthampMr. Stuart and Mr. Prior appeared in ton applied for an act of parliament to support of the order made by the Master, authorize the levying of poor-rates upon and proposed to read affidavits filed since the owners instead of the occupiers of small the date of the order. This was opposed, tenements. The bill, which contained a on the ground that as the motion was by proviso for payment of the costs incurred in way of appeal from the decision of the promoting the same out of the poor-rates, Master, no new evidence could be adduced. was rejected. An injunction was granted to It was contended contrà, that there was restrain the guardians from paying these no prohibition in the act against the pro- expenses out of the rates. duction of fresh evidence in a case like the present, and as this decision was to be This was an information filed by the final, it would be unjust to exclude any Attorney General at the relation of Richard evidence which might be relevant. Sup. Andrews, Esq., an inhabitant of the town pose the Master had refused to make any of Southampton, against the guardians of order, and the parties had then come to the poor of Southampton, and it stated the court, it could not be said that in such that by a local act of parliament, the 13 a case fresh affidavits might not be used. Geo. 3. c. 50, it was enacted, that a body
should be incorporated under the name of The Vice CHANCELLOR said, it was not the guardians of the poor within the town necessary for him to decide whether, if the and county of Southampton; and that Master had made no order, the parties such body should consist of the mayor might have filed fresh affidavits. In this and bailiffs, recorder, three senior aldermen case the Master had made an order en and the resident Justices of the Peace, and larging publication, and that order could eighteen other inhabitants of the town to only be disturbed by a motion by way of be elected as therein mentioned ; that the appeal from that order, and whether the said guardians should have power from Master was right or wrong could only be time to time to make and ordain bye-laws, decided upon the evidence which was rules, ordinances and regulations, and also adduced before the Master: corsequently to vary, alter, change, or repeal the same no fresh affidavits could now be used. for the better governing such corporation,
and the poor which should be under their
care, and for other ends and purposes of (1) 3 & 4 Will. 4. c. 94. s. 13. enacts “ That the
the act; and that a certain house therein Masters in Ordinary of the High Court of Chancery
mentioned should be settled and vested in shall hear and determine all applications for time the said corporation for ever, to be used to plead, answer, or demur, and for leave to amend as a workhouse for the habitation and embills and for enlarging publication, and all such
ployment of the poor within the said disother matters relating to the conduct of suits in the said Court as the Lord Chancellor, with the trict; that quarterly meetings of the said advice and assistance of the Master of the Rolls, guardians should be held in manner therein and Vice Chancellor, or one of them shall by any mentioned, and at such meetings they general order or orders direct, in such manner and
should have power to rate and assess and under such rules and regulations as by any general order or orders to be also issued by the Lord Chan to raise by taxation of every inhabitant, cellor with the advice and assistance aforesaid shall parson, vicar and others, and of every be directed; and that it shall be lawful for either occupier or renter of any houses, lands, party to appeal by motion from the order made on
tenements and tithes, such sums of money such application to the Lord Chancellor, Master of the Rolls or Vice Chancellor, and that the order as they should think necessary for defraymade on such appeal shall be final and conclusive.” ing the expense of repairing, fitting up, New SERIES, XVIII.-CHANC.
altering and enlarging, the said workhouse, 21st of November 1848, and presided over or for purchasing or erecting any other by the mayor, resolutions were passed conworkhouse for the purposes in the said act demning the intended measure, and apmentioned, and for paying the interest of pointing a committee to conduct the oppoany money borrowed under the act, and sition to its further progress; that at a for defraying the expenses of the current meeting of the town council, held in Januquarter, and for paying off the principal of ary last, a resolution strongly condemning any sums to be borrowed by them, and the bill was passed, but notwithstanding the money so to be raised should be from these attempts to stop its progress, the time to time paid to the treasurer of the bill was introduced into parliament and said corporation ; and that the said rates read a first time, but on the motion for the or assessments should be levied and reco. second reading it was rejected by a convered in such manner as the rates made siderable majority; that the bill being for the relief of the poor were directed to thus lost, it only remained to provide for be levied and recovered by the act of the the payment of the expenses incurred in 43 Eliz. c. 2. And it was thereby en- its promotion, amounting to about 5001., acted, that it should be lawful for the and the court of guardians decided to pay overseers of the poor out of the monies to them out of the poor-rates, and resolutions be by them collected, to pay and discharge were passed by them authorizing the paythe annual rate, commonly called the ment of the said expenses by the treasurer county rate, in and for the said town and out of the rates. The information prayed county, in such and the same manner as an injunction to restrain the defendants they had theretofore done out of the rates from paying the sum carried to their sepaby them respectively made for the relief rate account, and any other monies in their of the poor, which sum so paid should be hands in respect of the poor-rates, towards allowed to such overseers and deducted the expenses incurred in promoting the out of the money by them received ; and said bill. it was thereby further enacted, that all The injunction was granted ex parte, on sums of money which by any law then in the 7th of March last, and the defendants being were directed to be paid out of the having put in their answer, the case now rates collected for the relief of the poor came on upon motion to dissolve that should from and after the passing of the injunction. said act be paid out of and remain a charge The answer of the defendants set forth upon the rates to be collected under and the inconvenience and injustice occasioned by virtue of that act.
by the present mode of levying the rates, That in the latter part of 1848 the de- by which so great a loss was yearly occafendants proposed to obtain an act of parlia- sioned, and that it was for the benefit of ment to authorize the rating of the owners the town and county of Southampton that instead of the occupiers of small tenements a bill should be obtained authorizing the in Southampton, the annual rent or rate assessment of rates upon the owners instead able value of which did not exceed 121. of the occupiers of small tenements. That per annum, alleging as the ground and the same inconvenience and injustice had reason for this proposition, that thereby been felt by other large towns, and similar 2,0001. and upwards a year would be acts of parliament had been passed on gained, because the rates then assessed their behalf. That under these circumwere payable by people who were unable stances the defendants determined upon to pay them, while by the proposed alter- taking such steps as might be necessary ation the burden would be thrown on the for the purpose of obtaining an act to richer class of the owners of property. effect their object. That in pursuance of
The information stated that a committee such intention the defendants had applied of the members of the court of guardians to the poor law board requesting their was appointed to superintend and direct sanction to the proceedings, so that the the passing of the bill; that at a large and expenses incurred by the board of guarrespectable meeting of the inhabitants of dians in obtaining the act might be allowed the town of Southampton, held on the by the district auditor out of the poorrates. That in answer to this application those interested as owners of small tenethe poor law board sent a letter stating ments in resisting the alteration of the that whenever acts of parliament had been law, and did not fairly represent the feelobtained in other towns for the purpose of ings and opinions of the town generally. making landlords liable to be assessed to It was also contended that these expenses the poor-rate in respect of property of were properly chargeable upon the poorsmall annual value there had been almost rates, and that under the act of parliament invariably clauses introduced making the instituting the corporation of guardians of costs and expenses incurred in procuring the poor they had in fact the power to pay the act a charge upon the poor-rates the expenses out of the rates, which were raised after its passing: and that as the made liable to defray “the current exprinciple of such an act was one fully penses of the quarter." This expression recognized by the legislature, which had must necessarily include all expenses of passed numerous acts to enforce it, the every kind which the guardians were justiboard did not anticipate that any oppo- fied in incurring; and that they were jussition would be successful against an act tified in applying for the bill in question for such an object in the case of South was proved by the letter of the poor law ampton. That the defendants believed board, who expressly sanctioned the meathe meetings alluded to in the information sure, and stated that, as various large towns at which resolutions had been passed con- had procured similar acts of parliament, demning the intended measure, were packed, they did not suppose there would be any and did not represent the general feeling opposition to the same measure being of the rate-payers, and that the majority adopted in respect to Southampton. at such meetings were owners of property Mr. Bethell and Mr. Rogers, in support which would have been affected by the of the injunction, contended that the poorproposed measure, but they believed that rates were not properly applicable to pay the great majority of the rate-payers were these expenses. The powers given to the favourable to the objects of the bill, and guardians must be construed strictly, and they submitted that the sums of money the expression in the act alluded to as now in their hands which had been raised to defraying the current expenses of the for the relief of the poor were properly quarter could never have been intended to applicable to the expenses incurred in mean expenses of this kind, but merely prosecuting the said bill, and that such expenses attending the management of the application would not be illegal and would poor. It had been urged that the poor be no breach of trust on the part of the law board had exclusive jurisdiction as to defendants. It further appeared that the the allowance or not of these payments, bill which had been introduced into par- but there was nothing in any of the acts liament, and thrown out on the second referred to to take away the jurisdiction of reading, contained a clause providing for this Court, and if the poor law board had the payment of the expenses out of the jurisdiction, still it must be concurrent poor-rate.
with that possessed by this Court. It Mr. Rolt and Mr. Giffard appeared in had been said that the poor law board had support of the motion to dissolve, and sanctioned the application to parliament, contended that under the 7 & 8 Vict. but this was not correct. They had only c. 101. and the 11 & 12 Vict. c. 91. the stated that similar acts had been obtained poor law board was the only competent in regard to other towns, and they exauthority to decide on the propriety of the pressly alluded to the fact that in other expenses incurred in promoting the act acts of this nature a provision had been being paid out of the rates, and that such inserted authorizing the payment of such payment had in fact been approved of by expenses out of the poor-rates. It was that board. That the attempt to procure evidently their opinion that these costs the bill was fair and bona fide, and that if could not be allowed without the authopassed the bill would have produced results rity of parliament; and the bill having been highly beneficial to the town, and that the thrown out, the clause which had been inopposition to it was composed only of serted providing for the payment of the