Imatges de pàgina

not so decide if I considered that, by doing and absenting himself with the intent to so, I was contravening Lord Eldon's opin- defeat and delay creditors. This was ion in Ex parte Berry; I do not think grounded on an affidavit that inquiries had that I am.

been made for him at the house in Lawrence I hardly consider myself as differing Pountney Lane, where the business had from the Commissioner. I not only con- been carried on, and that the housekeeper sider that, but I have not the same evidence. there had stated that she had no knowledge He seemed to leave it to the Court to decide, where he lived. rather than to decide it himself. However, This was a petition to annul the fiat against I have the satisfaction of thinking that I Mr. Ralph Addison on the ground that he hardly differ from him.

had not committed the alleged act of bank

ruptcy. See Meggison v. Forster, 2 Y. & C. C.C. 336; In support of this petition, the bankrupt $. c. 12 Law J. Rep. (n.s.) Chanc. 415.

made an affidavit to the following effect : When the partnership was dissolved, he left Lawrence Pountney Lane and took a bed

room in Quebec Street, which was near the 1849. Feb. 19. }

residence of his brother,--that he took his Ex parte Addison in re HOOPER.

meals at his brother's house, and that he

and his brother had it in contemplation, Fiat, Annulling-Act of Bankruptcy, during this time, to take a house where Denial to Creditors.

they might live together. There was conA fiat in bankruptcy issued against a tained in a diary at the counting-house in trader who had carried on business in the Lawrence Pountney Lane an entry that city; the alleged act of bankruptcy being a all letters for Mr. Ralph Addison should denial to creditors, evidenced by a statement be addressed and forwarded to Mr. Chews' that inquiry had been made for him at his post-office, Crawford Street, Bryanston place of business, and that the housekeeper Square. He received all letters sent there. had denied all knowledge of him. In sup

He made no secret of his residence, and port of a petition to annul the fiat on the any one inquiring at Mr. Chews' might ground of no act of bankruptcy, it was stated have found out where he lived and seen that he had carried on business in partner- him. Mr. Addison, the brother of Mr. ship, but had ceased to carry on business in Ralph Addison the bankrupt, was examined July 1848 ; that the fiat issued in January in court, and confirmed the statement made 1849; that an entry had been made in the by the bankrupt, and stated that to the diary kept at the place of business that let- best of his knowledge there never was any ters for him were to be forwarded to a dis- secrecy as to the movements or residence of trict post-office in London; that he lived near the bankrupt. that place and might have been found by Mr. Russell and Mr. J. T. Humphry, inquiries at that post-office. The respondents for the petition, contended that the fiat not requiring further investigation, the fiat ought to be annulled on the grounds above was ordered to be annulled.


Mr. Bacon contended that the act of Mr. Hooper and Mr. Ralph Addison bankruptcy had been made out. carried on business in partnership together

SIR J. L. KNIGHT BRUCE offered Mr. as wine-merchants in Lawrence Pountney Bacon an opportunity of having the matter Lane, London, up to the 24th of August,

further investigated. 1848, when the partnership was dissolved. Mr. Bacon declined to avail himself of it. The partners had lived together at their place of business up to the time of the dis- Sir J. L. KNIGHT BRUCE. Had the solution of the partnership. On the 9th of respondents desired to examine witnesses January 1849, a fiat in bankruptcy issued orally, I would have adjourned the hearing against Messrs. Hooper and Addison. The of the case for that purpose; but, as they alleged act of bankruptcy committed by have not expressed such a desire, I am of Mr. Ralph Addison was a denial to creditors, opinion that, on these materials, I am bound

May 2.' S

to annul the fiat as against Mr. Addison ; During these proceedings, Mr. Stewart but I think that it is not a case for costs. accepted a bill in which he was described as

“Mr. Stewart, builder." He also brought

an action against Mr. Patch in respect of 1849.

certain words alleged to have been spoken Feb. 19; Ex parte STEWART in re

by Mr. Patch, and to have tendency to inSTEWART.

jure him, Mr. Stewart, in his character of a

builder, liable to the bankrupt laws. This Builder--Annulling Fiat.

action, however, was never tried. A party, by profession a barrister, took a By the 6 Geo. 4.c. 16. s. 2, it was enacted, lease of three pieces of building ground, and that “ builders" should be liable to the at his own expense erected thereon upwards bankrupt laws. of two hundred houses, which he let as On the 15th of March 1847 a fiat in opportunity offered. Upon a trial at law, bankruptcy issued against Mr. Stewart as a the jury found that he did not buy and builder, and Mr. Sloper, the petitioning cresell building materials for profit, was not a ditor, was duly appointed creditors' assignee. builder, in the sense of being ready to build Immediately after the fiat issued a petition a house for any one who would give him an was presented by Mr. Stewart to annul the order, and meant to confine himself to the fiat, on the ground that he was not liable to above-mentioned speculations, and did not the bankrupt laws. This petition stood over intend generally to embark in other building for a long time with a view to a settlement speculations.-Held, (on a petition to annul between Mr. Stewart and his creditors. No a fiat issued against him as a builder) that arrangements having been come to in this he was not a builder within the meaning of respect, the petition was brought on for the bankrupt laws.

hearing on the 19th of February 1849.

Mr. Russell and Mr. Tripp, for the In 1842, Mr. Stewart, a barrister by petition, contended that Mr. Stewart was profession, took a lease of two pieces of not a builder within the bankrupt laws. building ground; one situated at Notting Mr. Swanston, Mr. Bacon, and Mr. Hill, and the other, adjoining to it, situated Duncan, for Mr. Sloper, contended that Mr. at Shepherd's Bush. Mr. Stewart then Stewart was a builder within the meaning entered into a contract with a Mr. Patch, of the bankrupt laws, and citedthat Mr. Patch should build a certain Ex parte Neirinckx, 2 Mont. & Ayr. number of houses on the property at a 384 ; s. c. 4 Law J. Rep. (N.s.) certain price. There was another agree

Bankr. 73; and ment with Mr. Patch, under which Mr. Ex parte Edwards, 1 Mont. D. & D. 3; Stewart was, at a certain sum, to supply s. c. 9 Law J. Rep. (N.s.) Bankr. 11. Mr. Patch with timber, for the purpose of building these houses. Some timber was Sir J. L. KNIGHT BRUCE said that the supplied by Mr. Stewart, but for some case before him was too near Ex parte reason it was not used, and was afterwards Neirinckx for him to annul the fiat in that sold for what it would fetch.

stage ; but that he would give liberty to The contract with Mr. Patch as to the the petitioner to bring an action, for the building of the houses was partly performed, purpose of having the question tried at law. and subsequently abandoned. Mr. Stewart then, himself, bought bricks, timber, and By the order then made it was ordered other building materials, and built, with that the further hearing of the petition should them, a great number of houses on the pro- be adjourned, and that the petitioner should perty. The number of houses so built be at liberty to bring an action of trover in amounted to two hundred. After the houses the Court of Exchequer, to recover goods were built, they were let by Mr. Stewart as admitted to have been taken by Sloper opportunity offered.

under the fiat. Mr. Stewart also took a lease of a piece An action was brought accordingly, and of ground situated in Bolton Row, and the cause was tried, at the Kingston Assizes, built two or three houses on it.

before Mr. Baron Parke, on the 2nd of April 1849. After the case for the defen- to the above-mentioned observations of the dant had been concluded, the jury expressed Chief Judge in Ex parte Neirinckx, and themselves satisfied that Mr. Stewart was also that he had so much doubt as to the not a builder within the meaning of the question whether Mr. Stewart was a builder bankrupt laws. Mr. Baron Parke then, within the meaning of the bankrupt laws after stating the law applicable to the ques- that, if the jury had found that he was a tion to the jury, put to them the three fol- builder, he should have reserved that queslowing questions:

tion for the opinion of the Court. First, was there evidence of the plain- After the trial of the action the assignee tiff's having sold timber, sand, and other first obtained possession of a box containing materials for profit? Secondly, was the various account-books belonging to the plaintiff a builder-in this sense-ready to bankrupt. These books are remarked upon build a house for any one who would give by the Vice Chancellor in his judgment him an order for that purpose? Thirdly, upon the petition. did the plaintiff pause when he had built The petition was again brought on before the houses at Shepherd's Bush, Notting Hill, the Court on the 2nd of May. and in Bolton Row, and mean to confine Mr. Russell, Mr. Bramwell and Mr. himself to those three instances, or had he Tripp, for the petition, contended that the an intention, generally, to build others ? fiat ought now to be annulled with costs.

In answer to the first question, the jury Mr. Swanston, Mr. Bacon and Mr. found that the plaintiff did not buy and Duncan pressed for a new trial, and relied sell timber, sand, and other materials with on the additional evidence contained in the a view to make a profit. Secondly, that the books of account recently discovered, and plaintiff was not a builder in the sense of contended that the questions put to the jury being ready to build a house for any one had not exhausted the matters in dispute, who might give him an order for the pur- and, in particular, that the third question pose; and thirdly, that the plaintiff intended ought to have been differently framed. to confine himself to the three instances of building mentioned in the third question, Sir J. L. Knight Bruce.--I am of opinand had no intention of entering, generally, ion that I ought to consider the answers into other building speculations. The jury given by the jury to the questions distinctly then found a verdict for the plaintiff. laid before them by the learned Judge who

In Easter term a motion, made by the tried the cause, as correct in point of fact. defendant at law to the Court of Exchequer So treating them, I have next to consider for a new trial, was refused (1).

whether if the books, which have been the In the case of Ex parte Neirinckx, Sir subject of observation to-day, had been in Thomas Erskine (then the Chief Judge of the possession of the defendant at law, in the Court of Review) said, with reference an amply sufficient time before the trial, to the bankrupt in that case (who had built and had been laid before the jury with all six houses under circumstances similar to the observations properly belonging to them, those in the present case), “if he had in- there would have been further evidence tended merely to finish and dispose of the before them, such as ought to have made a six houses and stop there, he would not be difference in the answers to any of the three within the act, as that would be merely em- questions put to them by the learned Judge. barking in one single speculation to improve I am of opinion that there would not. I his land; but the evidence proves that he think that it would not have been right to did not intend this alone, but that this was have made any difference in the verdict on only a beginning, and, with the profits of the ground of any such addition to the evithis building speculation, he intended to dence. carry on other building speculations."

It has been, however, suggested and Mr. Baron Parke, in giving judgment on argued that the three questions put to the the motion for a new trial, said that he had put jury did not exhaust the subject, and that, the third question to the jury with reference in particular, the third question ought to

have been altered or added to. I am of (1) 18 Law J. Rep. (N.s.) Exch. p. 321. opinion that, assuming the jury to have correctly answered the other questions put possession of them at the time of his bankto them, whatever answer they might have ruptcy. A petition by B. to have the benefit given the third question, as altered in the of his security was dismissed with costs, manner proposed by Mr. Swanston and upon B.'s declining to file a bill in equily to Mr. Bacon, it would have made no diffe- have the question tried in a suit. rence in my estimate of the case ; and I should have held still, as I now hold, that Mr. Clarke, the bankrupt in this case, this gentleman was not a builder within the was a worsted-dyer, and was entitled to meaning of the act.

divers fixtures, as steam-boilers, tanks, I am satisfied, therefore, that this fiat is coppers, dye-tubs, and other utensils used bad in law, and must be annulled.

in his business. These fixtures were in a As to the question of costs, without house in Aldersgate Street, occupied by him saying whether the ruling of the learned as tenant, and he was entitled to remove Judge at the trial, or the ruling of the Court them. By an indenture, dated the 8th of of Exchequer upon the application for a January 1849, Mr. Clarke mortgaged the rule nisi for a new trial, or my decision now above-mentioned fixtures to the petitioner on this fiat that it must be annulled, is Mr. Sykes, to secure a sum of money then consistent or inconsistent with the case of advanced by Mr. Sykes. The different Ex parte Neirinckx, it is impossible to say, articles mortgaged were enumerated in a on the question of costs, that the existence schedule to the mortgage deed. of that case is a matter to be forgotten. To The bankrupt continued in possession of that consideration are to be added the facts, these articles after the date of the mortgage that this gentleman has accepted a bill drawn deed, and was in such possession at the upon him by the description of “Mr. Stew- time of his bankruptcy. art, builder," and has brought an action, On the 28th of February 1849, a fiat upon a declaration in which he has described issued against Mr. Clarke on his own petihimself as a trader, subject to the bankrupt tion. laws. The consequence of these circum- Mr. Sykes now presented a petition, pray,stances is, that I shall give the successful ing to have the benefit of his security. party here no costs up to the time of my Mr. Cole, for the petition, contended order directing or allowing the trial. The that the petitioner was entitled to the goods costs in this court, since the trial, must be in question, and that the point had not been paid by the petitioning creditor. Upon the covered by authority. costs of the trial I have not fully made up Mr. Swanston and Mr. Sholto Douglas, my mind. I will communicate to Mr. for the assignees, contended that the goods Vizard my conclusion on that, which is the in question formed part of the bankrupts only point now not decided.

estate, as they were in his order and dispo

sition at the time of the bankruptcy. They His Honour subsequently gave the pe- cited Bryson v. Wylie (1), and Hallen v. titioner the costs of the trial, not exceeding Runder (2). 501., and also allowed the costs to be paid SIR J. L. Knight BRUCE said that, sitting by Mr. Sloper to be set off against the debt in bankruptcy, he should decline to decide due from Mr. Stewart to Mr. Sloper. the question raised by the petitioner in his

favour. He would, however, give him

liberty to file a bill. 1849.

in re CLARKE.

Mr. Cole, for the petitioner, declined to May 23. parte syKES

avail himself of this offer. Fixtures-Order and Disposition.

Sir J. L. KNIGHT BRUCE said he should A worsted-dyer, by deed, mortgaged then dismiss the petition, with costs. fixtures used by him in his business, which were in a house occupied by him as a tenant, and which he had a right to remove, to B. He continued to be in possession of the

(1) 1 Bos. & P. 83, n.

(2) 1 Cr. M. & R. 266 ; s. c. 3 Law J. Rep. (n.s.) fixtures after the mortgage, and was in Exch. 260.







This was the petition of a legal mortNov. 18. S

gagee for liberty to bid. The only quesFiat, Amendment of.

tion was as to the costs of the petition.

Mr. J. T. Humphry, for the petitioner, An application to amend a fiat after it contended that he was entitled to the costs had been opened, by the alteration of the of the petition out of the estate, and cited Christian name of the bankruptrefused. Ex parle Marsh, 1 Madd. 148.

Ex parte Robinson, Mont. & M.Ar. 261. This was an application to amend a fiat Ex parte Say, 1 Deac. & C. 32. after it had been opened, by the alteration of the Christian name of the bankrupt. Mr. Aspland, for the assignees, contended Mr. Glasse, for the application.

that the petitioner was not entitled to costs, The Registrar ( Mr. Vizard) mentioned and cited Anon. (1). Fisher's case (1).

SIR J. L. KNIGHT BRUCE said, that, when Sir J. L. KNIGHT BRUCE declined to the petition was not for a sale, but only accede to the application.

for leave to bid, the practice was not to give the petitioner his costs.

In the pre

sent case, therefore, he should not give 1849.

costs on either side. Feb. 8. S

Ex parte BARTON in re HARVEY. Affidavits— Practice.

A petition and the affidavits in support of it were filed under an incorrect title. The

July 9.

Ex parte moss in re DAVIES. petition was amended.

The affidavits were ordered to be taken off the file, amended as

CostsMortgage-Written Memorandum

- Custom. to the title, and then re-sworn.

Shares were deposited by A. with B. a The petition in this case, and the affida- banker, to secure the purchase-money of the vits in support of it, had been filed under shares, but no written memorandum was an incorrect title. The petition had been given. A. became bankrupt. B. presented amended by an order of the Court.

a petition for the sale of the shares and A motion was now made that the affida- liberty to prove for the difference, supported vits might be taken off the file; that the by an affidavit that it was not the custom in title should be amended, and that they the course of business to require a written should be then re-sworn and again put on memorandum under such circumstances : the file.

Held, that B. was entitled to costs, as in the Mr. Bacon, for the motion.

case of a mortgage with a written memoranMr. Vizard, in answer to a question put dum. by the Court, having stated that there were precedents for such a course,

The bankrupts purchased shares, and

deposited them with the petitioners, who Sir J. L. KNIGHT BRUCE made the order. were bankers, to secure certain sums ad

vanced by them in respect of the purchase

money of the shares. There was no writ1849.

ten memorandum of deposit. After the May 23. parle Smith in

deposit the bankruptcy of the bankrupts

took place. Costs-Mortgage-Liberty to bid.

This was the usual mortgagees' petition A mortgagee of a bankrupt's estate pre- presented by the petitioners for a sale of senting a petition for liberty to bid is not the shares, and liberty to prove for the entitled to the costs of the petition.

difference. The petition was supported by

} Ex


(1) 10 Ves. 190. NEW SERIES, XVIII – BANKR.

(1) 3 Mont. D. & D. 339.


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