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or any other person, I left Newmarket and proceeded to London, and from thence to Plymouth, from which place and port I sailed for the Cape of Good Hope on or about the 28th day of the same month. I had previously had disputes with my wife's father on pecuniary matters, but my reason for quitting England was the embarrassed state of my affairs. On leaving Newmarket I took with me various goods, consisting of cutlery, guns, bridles, and whips, for the sale of which I afterwards obtained, in different places at the Cape, 1401. On leaving Newmarket I also took with me, in money, about 100l.” He also stated that he had brought back some curiosities from the Cape, and some of the bridles, and about 601. in money, and that he had since sold some of the whips and curiosities for 15l., and that he had given up the remainder of the whips to the messenger, and 111, only in money to the official assignee.
Upon this statement being made the Commissioner made the following certificate: _“I have declined to take such surrender, inasmuch as the reason assigned by the bankrupt, on examination this day before me, for absenting himself from his place of business, and departing this realm, is incon sistent with his affidavit made in support of his petition to his Honour Vice Chancellor Knight Bruce, for leave to surrender.” The Commissioner also ordered that the taxation of the costs should be suspended.
A petition was now presented by the assignees, stating all the above circumstances, and praying that the order of the 15th of November 1848 might be discharged; and that all the costs of that peti. tion, and of the petition now presented, might be paid by the bankrupt.
Mr. Swanston and Mr. Sheffield, for the petition.
Mr. W. L. Thomas, for the bankrupt. — First, the conduct of the bankrupt is not such as to deprive him of the costs. Secondly, had the question of conduct been raised on the bankrupt's petition, it ought not to have affected the question of costs, as it was for the advantage of the estate that the bankrupt should surrender. He is entitled to costs on that ground, without reference to the question of conduct. In none of the cases on the subject is there any mention of the conduct of the bankrupt.
The conduct of the bankrupt may, of course, be a proper subject of discussion when the time arrives for asking the Commissioner for his certificate. Until that time arrives it is premature to raise that question at all. Thirdly, the assignees having been present when the order was made, and allowed it to pass, cannot now dispute it.
Mr. Swanston, in reply, contended that he was entitled to the order which the assignees asked for, as the bankrupt had obtained his order on false representations.
[SirJ.L. KNIGHT BRUCE.—This question may be properly raised when the bankrupt applies for his certificate. He may never deserve it ; but that is not the question now before me.]
The assignees, when the bankrupt's petition was heard, did not know of his conduct, and had no means of knowing it.
[Sir J. L. KNIGHT BRUCE.—If the assignees had then asked me to have the bankrupt examined, I would have ordered it.)
The petition has been presented by the direction, at least with the approbation, of the Commissioner.
Sir J. L. KNIGHT BRUCE asked what evidence there was of the approbation of the Commissioner ?
The solicitor for the petitioners was then examined as to this point; but his evidence came short of any express direction or approbation of the Commissioner.
Sir J.L. Knight Bruce.— I have not intimated, and do not intend to intimate any opinion as to the course which the Commissioner has taken, or as to any course he may hereafter take. I shall dismiss this petition. If I had been given to understand, by proper evidence, that the petition had been presented by the recommendation of the Commissioner, I would have ordered that the costs should be paid out of the estate : but, as no such evidence has been produced, I shall dismiss this petition with costs. I may add, however, that my decision is not to have the effect of preventing the Commissioner from giving the costs of this petition to the assignees out of the estate, if he shall so think fit. On this point I leave the Commissioner to exercise his own discretion.
1848. | Ex parte Rylands in re crowd Dec. 20. S
Costs — Petition for Liberty to prove against the Estate of Bankrupt Trustee.
A petition was presented by cestuis que trust for liberty to prove against the estate of a bankrupt defaulting trustee, whom they had put into prison for contempt, for not obeying an order for the payment of the money, made by the Court of Chancery in a suit instituted against him in respect of the breach of trust. The bankrupt appeared on the petition, and applied for his discharge from custody. The Court, under these circumstances, allowed the bankrupt 40s. for his costs of appearing on the petition.
Crowdson was entitled to any costs in respect of the petition.
Mr. De Gex, for the petitioners.—The usual course of practice in such petitions as this is, that the bankrupt is served, but that he never appears, and the order is made on affidavit of service. By these means no costs are incurred with reference to the bankrupt. If the bankrupt has no objection to make to the petition, there is of course no use in his appearing on it; and if he appears without any reason, he ought not to be allowed costs. In this case, Mr. Crowdson was a solicitor, and must therefore have known, himself, the nature of the petition; and, in addition to this he did not appear when the petition first came on.
Mr. Bacon, for the bankrupt.-There is no such rule or practice as laid down on behalf of the petitioners. The prayer of the petition is for liberty to prove, and for the appointment of new trustees, and “such further or other order in the premises as the Court may please to make.” The bankrupt has a right to appear at the hearing for the purpose of seeing that, under the general prayer of the petition, no order is made against him ; and so appearing is entitled to costs. He cited Ex parte Whitley (1).
Sir J. L. Knight BRUCE. -Under the particular circumstances of this case, let the bankrupt have 40s. costs.
The petitioners, Mr. and Mrs. Rylands, filed a bill against the bankrupt, Mr. Crowdson, who was a solicitor, in respect of certain trust funds for which he was answerable, and in which they were interested. Mr. Crowdson having, by his answer, admitted his liability, an order was made that he should, within a certain time, pay the amount admitted to be due from him into court. This order not having been complied with, Mr. Crowdson was taken under an attachment, and put into prison. A fiat afterwards issued against Mr. Crowdson on his own petition. A petition was presented in the bankruptcy by Mr. and Mrs. Rylands, for liberty to go in and prove for the amount for which Mr. Crowdson was liable, and for the appointment of new trustees. Mr. Crowdson was served with this petition. The petition came on to be heard ; but stood over for the purpose of bringing before the Court new trustees of the funds, to be appointed at once, without a reference. At this hearing Mr. Crowdson did not appear. Notice was given to Mr. Crowdson of the day when the petition was to come on again. When this petition came on again to be heard, Mr. Crowdson appeared by counsel, and applied that he might be discharged from custody, on the ground that the debt due from him was about to be proved in the bankruptcy. This application was refused. An order was then made according to the prayer of the petition. In drawing up the order a question arose whether Mr.
New Series, XVIII.--BANKR.
} Ex parte MILLER in re SWANN. Jan. 24. }
Annuity — Inrolment — Annuity Act, 53 Geo. 3. c. 141.
In consideration of 500l. paid by A. to B, B. gave a bond to A. for 500l., conditioned to be void on payment of an annuity of 601. to A. for his life ; and B. also deposited with A. the title deeds of a real estate belonging to B, with a written memorandum. The bond was inrolled, but not the memorandum. B. became bankrupt. A petition by A. for a sale of the mortgaged property,
(1) 1 Deac. 478.
and the application of the purchase-money The 3 Geo. 4. c. 92. s. 2. states that doubts to his claim, was dismissed, with costs. had arisen whether, under the 53 Geo. 3.
c. 141. the omission to inrol a memorial of By a bond dated the 11th of April 1835, any one of the assurances for securing any in consideration of 5001. paid to John Swann annuity did not vitiate the whole transaction, by the petitioner Martha Miller, John notwithstanding the inrolment of a memoSwann, Charles Henry Swann and William rial of another deed, bond, instrument, or Swann, became bound to Martha Miller in other assurance granting the same, and that the sum of 5001., conditioned to be void on it was expedient to remove such doubts; punctual payment of an annuity of 601, to and enacts, “ that every deed, bond, instruMartha Miller, for her life.
ment, or other assurance granting any anOn the same day, John Swann deposited nuity, of which a memorial shall be inrolled the title deeds of a copyhold estate, belong. pursuant to the said act, notwithstanding ing to him, with Martha Miller, with a the omission to inrol any other deed, bond, written memorandum, by way of further instrument, or assurance for securing such security for the payment of the annuity. annuity, shall be valid, notwithstanding a
A memorial of the bond was duly inrolled memorial of any other deed, bond, instruin Chancery, in pursuance of the 53 Geo. 3. ment or assurance for securing the same c. 141. There was, however, no inrolment annuity shall not have been duly inrolled of the memorandum.
pursuant to the said act." A fiat in bankruptcy issued against John Mr. Webb, for the petition, contended Swann, Charles Henry Swann and William that the transaction relating to the equitSwann, on the 21st of September 1848. able mortgage was valid, and that it was
A petition was now presented by Martha not required by the Annuity Act that the Miller, praying that a value might be set memorandum should be inrolled. He cited on the annuity, and that the copyhold estate Morris v. Jones (1). might be sold, and that the purchase-money M r. Russell, for the assignees. — The might be applied towards payment of the transaction as to the equitable mortgage is sum at which the annuity should be valued, absolutely void for want of the inrolment of
that the petitioner might be at liberty the memorandum. It appears from the cases to prove against the bankrupt's estate for
on the 17 Geo. 3. c. 26. s. 1. that every the difference.
security relating to annuities granted, while By the 17 Geo. 3. c. 26. s. 1. it is enacted, that act was in force, ought to have been that a memorial of every deed, bond, instru inrolled— Rosher v. Hurdis (2), Bac. Abr. ment, or other assurance, whereby any an- tit. ' Annuity and Rentcharge,' Sandilands nuity shall be granted, shall, within twenty v. Marsh (3). The language of that section days of the execution of such deed, bond, is not distinguishable from the language of instrument, or other assurance, be inrolled the 2nd section of the 53 Geo. 3. c. 141. in the High Court of Chancery, and that The decisions, therefore, under the former every such memorial shall contain, &c.; act apply ot this act. The petitioner's case otherwise every such deed, bond, instru- is not aided by the 3 Geo. 4. c. 92. ment, or other assurance shall be null and void to all intents and purposes.
Sir J. L. Knight Bruce said that he By the 53 Geo. 3. c. 141. s. 2. it is en- thought there was no substantial difference acted, that within thirty days after the between the two acts. He would, however, execution of every deed, bond, instrument, give the petitioner the opportunity of trying or other assurance, whereby any annuity the question again. The order would be, shall be granted, a memorial of the date of that the petition should be dismissed, with every such deed, bond, instrument, or other costs ; but that the petitioner should be at assurance, of the names of the parties, wit liberty to enter a claim and file a bill. nesses, annuitants, &c. shall be inrolled in Chancery, &c., otherwise every such deed, bond, instrument, or other assurance shall
(1) 2 B. & C. 232; s.c. 1 Law J. Rep. K.B. 243.
(2) 5 Term Rep. 678. be null and void to all intents and purposes. (3) 2 B. & Ald. 673.
1849. Ex parte HOOKINS in re this bond to her three children, John Jan. 24. Š GUNDRY.
Hookins the petitioner, Philip Hookins, Proof-Voluntary and Substituted Bond
and Mrs. Atkins, and died in 1840. The -Contemplated Bankruptcy.
interest on the bond had been regularly paid
until her death. A. gave a voluntary bond to B. in 1812 After the death of Mrs. Hookins a for 3,0001. and interest, with an agreement arrangement was made between Mr. S. that, on regular payment of interest, the Gundry and the three children of Mrs. principal was not to be called in until five Hookins, under which the bond for the years after the death of A. B. bequeathed 3,0001. was given up, and, instead of it, this bond to her three children, and died in Mr. S. Gundry gave to each of the three 1840. In 1841 an arrangement was made children a bond, dated the 21st of July. between A, and the children, under which 1841, for 2,0001., conditioned to be void on the old bond was cancelled, and a new bond the payment of 1,0001., at the end of five was given to each of the children, for 1,0001. years after the death of Mr. S. Gundry, and interest, with like agreement to that on and the payment of interest at 51. per cent. the old bond as to the calling in of the prin- on 1,000l. in the mean time. cipal. In 1847 A, who carried on business Mrs. Atkins's bond was paid off, and the as a banker, was made a bankrupt. In 1841, petitioner, John Hookins, bought his browhen the bond was given, the debts of A. ther's bond for 1,0001. considerably exceeded his assets, and this In November 1847, a fiat in bankruptcy state continued until the bankruptcy; but issued against Mr. S. Gundry and his there was no suggestion of any fraud, mala partner, Mr. W. E. Gundry, who had carfides, contrivance to defeat creditors, or of ried on business as bankers. the contemplated bankruptcy of A. on the The petitioner, John Hookins, tendered part either of the obligor or obligees :-Held, a proof in respect of the two bonds before that, under these circumstances, the new the Commissioner, which was rejected. The bonds ought to be admitted to proof.
present petition now came on by way of Ex parte Berry, 19 Ves. 218, observed appeal from the decision of the Commisupon.
In opposition to the petition, on the part This petition stated the following case : of the assignees, affidavits were filed by the Mr. Gundry, who died in 1793, by his will principal cashier in the bank and the official left his son, Samuel Gundry, the bankrupt, assignee. The case in opposition, stated the bulk of a very considerable property, and in these affidavits, was as follows:-Mr. made a very slender provision for his daugh- Joseph Gundry and Mr. S. Gundry carried ter Mrs. Hookins. This produced a good on business as bankers at Bridport up to deal of ill feeling between them— Mrs. 1823, when the partnership terminated by Hookins insisting that it had been the tes- the death of Mr. J. Gundry. In consetator's intention to provide for her more quence of some differences which took place amply, and that her brother, Mr. S. Gundry, between Mr. S. Gundry and the executors was morally, if not legally, bound to carry of Mr. J. Gundry, the affairs of the bank out such intention. Mr. S. Gundry was at were submitted to arbitration, and it aplength prevailed upon to accede to Mrs. peared, by the award made thereunder, that Hookins's request, and accordingly gave her the debts of the partnership, at the time of a bond, dated the 15th of September 1812, the death of Mr. J. Gundry, exceeded their for 6,000l., conditioned to be void on pay- assets by 36,0001. The bank was carried ment of 3,0001. on or before the 15th of on by Mr. S. Gundry alone until 1825, March then ensuing. There was, however, when his son, Mr. W. E. Gundry, was taken an agreement indorsed on the bond to the into partnership. No capital was then effect that, if interest at 5l. per cent. should brought in, and the debts at that time be regularly paid, payment should not be exceeded the assets by 40,0001. The bank demanded until five years after the death was carried on by Messrs. S. & W. E. of Mr. S. Gundry.
Gundry from 1825 until their bankruptcy. Mrs. Hookins, by her will, bequeathed The substituted bonds were given in July 1841. It appeared from the books of the given Mr. S. Gundry's separate estate and firm, that in the stock-taking from the 1st of the banking firm were both insolvent. From January 1841 to December 1841, the debts the state in which the bank had been in for of the bank exceeded their assets only to nearly twenty years before 1841, Mr. S. the extent of 1,7011. In fact, however, the Gundry must bave known what his circumdeficiency was upwards of 25,0001.—the stances were. At any rate he must be taken appearance in favour of the bank having to have known them, and ignorance of them been effected by the insertion of debts, on the part of the bankrupt cannot be set which had long been perfectly hopeless and up by the petitioner. The solvency of the irrecoverable, among the assets of the firm, obligor is an essential element in the vaand instances were given of debts from lidity of a bond given merely in substitupersons who had been bankrupts in 1824 tion of a voluntary one. and 1833 being treated as good debts. The separate estate of Mr. S. Gundry in 1840 Sir J. L. KNIGHT Bruce.- There does was estimated to amount to about 20,0001., not appear to have been any affidavit in the while his separate liabilities in that year case of Ex parte Berry; I suppose thereexceeded 30,000l. This relation between fore that it was argued upon the admission the separate estate and the separate liabili- of facts. My impression of the case of Ex ties of Mr. S. Gundry continued to be nearly parte Berry is, that Lord Eldon did not the same until the bankruptcy. The estate act upon the mere evidence of insolvency, of the bankrupts was estimated to realize but inferred from it that the second security about 118. in the pound. Mr. S. Gundry had been given, not only with a knowledge was clearly insolvent in 1841, when the of the failing circumstances of the obligor, bonds were given.
but with a view to bankruptcy, and for the The affidavits against the petition were purpose of assisting and improving the case confined simply to the above statements, of the obligor. This is my impression. and there was no suggestion that Mr. S. So understanding the case of Ex parte Gundry, in 1841, knew minutely the state Berry, I entirely agree with it. In the of his affairs, or had bankruptcy or insol- present case it is not suggested that the vency in contemplation, or had any view or obligees had, at the date of the bonds, any design to give a benefit to his relations to knowledge of the insolvency of Samuel the disadvantage of his creditors. There Gundry or of the Bridport bank, or that was also no suggestion that the petitioner or they had any fraudulent or unfair intention. Mr. P. Hookins, at the time the bonds were This is, I believe, the state of the evidence given, knew anything of the affairs of the as to them. As to the obligor it may be bank.
that he at least suspected bad circumMr. Russell and Mr. E. W. Cox, for stances, or would have done so if his attenthe petition. The bonds given to John and tion had been directed to his affairs; but, Philip Hookins in 1841, were not volun- on his part, I believe that neither his pecutary, as they were given in consideration of niary circumstances nor the circumstances the bond of 1812 being cancelled. The sub- of his house entered into his mind in giving stituted bonds being bonds given for con- the bonds. I believe that, on his part, the sideration are good, unless the transaction transaction was not in the slightest degree is tainted with mala fides, or fraud, or is connected with actual or apprehended inmade out to be a contrivance against cre- solvency, with apprehended or expected ditors—Ex parte Berry (1). There is no bankruptcy, or with any view or notion fraud or mala fides, or such contrivance that would not equally have been in his even suggested here on the part of the peti- mind if he had been one of the wealthtioner or his brother Philip, or Mr. s. iest men in England. I believe that the Gundry. The bonds therefore ought to be transaction was fair in every respect, and admitted to proof.
in no sense with the view or intention of Mr. Swanston and Mr. Shapter, for the bettering the case of either of the obligees, assignees.--At the time the bonds were as against the general creditors of the ob
ligor, the bankrupt. That being so, I think (1) 19 Ves. 218.
that the proof must be admitted. I would