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1849. Feb. 19.) La

Ex parte Addison in re hooPER. Fiat, Annulling-Act of BankruptcyDenial to Creditors.

A fiat in bankruptcy issued against a trader who had carried on business in the city ; the alleged act of bankruptcy being a denial to creditors, evidenced by a statement that inquiry had been made for him at his place of business, and that the housekeeper had denied all knowledge of him. In support of a petition to annul the fiat on the ground of no act of bankruptcy, it was stated that he had carried on business in partner ship, but had ceased to carry on business in July 1848; that the fiat issued in January 1849; that an entry had been made in the diary kept at the place of business that let. ters for him were to be forwarded to a district post-office in London; that he lived near that place and might have been found by inquiries at that post-office. The respondents not requiring further investigation, the fiat was ordered to be annulled.

and absenting himself with the intent to defeat and delay creditors. This was grounded on an affidavit that inquiries had been made for him at the house in Lawrence Pountney Lane, where the business had been carried on, and that the housekeeper there had stated that she had no knowledge where he lived.

This was a petition to annul the fiat against Mr. Ralph Addison on the ground that he had not committed the alleged act of bankruptcy.

In support of this petition, the bankrupt made an affidavit to the following effect :When the partnership was dissolved, he left Lawrence Pountney Lane and took a bedroom in Quebec Street, which was near the residence of his brother, that he took his meals at his brother's house, and that he and his brother had it in contemplation, during this time, to take a house where they might live together. There was contained in a diary at the counting-house in Lawrence Pountney Lane an entry that all letters for Mr. Ralph Addison should be addressed and forwarded to Mr. Chews' post-office, Crawford Street, Bryanston Square. He received all letters sent there. He made no secret of his residence, and any one inquiring at Mr. Chews' might have found out where he lived and seen him. Mr. Addison, the brother of Mr. Ralph Addison the bankrupt, was examined in court, and confirmed the statement made by the bankrupt, and stated that to the best of his knowledge there never was any secrecy as to the movements or residence of the bankrupt.

Mr. Russell and Mr. J. T. Humphry, for the petition, contended that the fiat ought to be annulled on the grounds above stated.

Mr. Bacon contended that the act of bankruptcy had been made out.

S ir J. L. KNIGHT BRUCE offered Mr. Bacon an opportunity of having the matter further investigated.

Mr. Bacon declined to avail himself of it.

Mr. Hooper and Mr. Ralph Addison carried on business in partnership together as wine-merchants in Lawrence Pountney Lane, London, up to the 24th of August, 1848, when the partnership was dissolved. The partners had lived together at their place of business up to the time of the dissolution of the partnership. On the 9th of January 1849, a fiat in bankruptcy issued against Messrs. Hooper and Addison. The alleged act of bankruptcy committed by Mr. Ralph Addison was a denial to creditors,

Sir J. L. KNIGHT BRUCE. - Had the respondents desired to examine witnesses orally, I would have adjourned the hearing of the case for that purpose; but, as they have not expressed such a desire, I am of opinion that, on these materials, I am bound to annul the fiat as against Mr. Addison ; but I think that it is not a case for costs.

1849. 2
Feb. 19. S Ex parte stewart in re

STEWART
May 2.)
Builder- Annulling Fiat,

A party, by profession a barrister, took a lease of three pieces of building ground, and at his own expense erected thereon upwards of two hundred houses, which he let as opportunity offered. Upon a trial at law, the jury found that he did not buy and sell building materials for profit, was not a builder, in the sense of being ready to build a house for any one who would give him an order, and meant to confine himself to the above-mentioned speculations, and did not intend generally to embark in other building speculations. Held, (on a petition to annul a fiat issued against him as a builder) that he was not a builder within the meaning of the bankrupt laws.

During these proceedings, Mr. Stewart accepted a bill in which he was described as "Mr. Stewart, builder." He also brought an action against Mr. Patch in respect of certain words alleged to have been spoken by Mr. Patch, and to have tendency to injure him, Mr. Stewart, in his character of a builder, liable to the bankrupt laws. This action, however, was never tried.

By the 6 Geo. 4. c. 16. s. 2, it was enacted, that “ builders" should be liable to the bankrupt laws.

On the 15th of March 1847 a fiat in bankruptcy issued against Mr. Stewart as a builder, and Mr. Sloper, the petitioning creditor, was duly appointed creditors' assignee. Immediately after the fiat issued a petition was presented by Mr. Stewart to annul the fiat, on the ground that he was not liable to the bankrupt laws. This petition stood over for a long time with a view to a settlement between Mr. Stewart and his creditors. No arrangements having been come to in this respect, the petition was brought on for hearing on the 19th of February 1849.

Mr. Russell and Mr. Tripp, for the petition, contended that Mr. Stewart was not a builder within the bankrupt laws.

Mr. Swanston, Mr. Bacon, and Mr. Duncan, for Mr. Sloper, contended that Mr. Stewart was a builder within the meaning of the bankrupt laws, and cited

Ex parte Neirinckx, 2 Mont. & Ayr.

384 ; s. c. 4 Law J. Rep. (n.s.)

Bankr. 73; and
Ex parte Edwards, 1 Mont. D. & D. 3;

s. c. 9 Law J. Rep. (n.s.) Bankr. 11.

In 1842, Mr. Stewart, a barrister by profession, took a lease of two pieces of building ground; one situated at Notting Hill, and the other, adjoining to it, situated at Shepherd's Bush. Mr. Stewart then entered into a contract with a Mr. Patch, that Mr. Patch should build a certain number of houses on the property at a certain price. There was another agreement with Mr. Patch, under which Mr. Stewart was, at a certain sum, to supply Mr. Patch with timber, for the purpose of building these houses. Some timber was supplied by Mr. Stewart, but for some reason it was not used, and was afterwards sold for what it would fetch.

The contract with Mr. Patch as to the building of the houses was partly performed, and subsequently abandoned. Mr. Stewart then, himself, bought bricks, timber, and other building materials, and built, with them, a great number of houses on the property. The number of houses so built amounted to two hundred. After the houses were built, they were let by Mr. Stewart as opportunity offered.

Mr. Stewart also took a lease of a piece of ground situated in Bolton Row, and built two or three houses on it.

Sir J. L. KNIGHT BRUCE said that the case before him was too near Ex parte Neirinckx for him to annul the fiat in that stage ; but that he would give liberty to the petitioner to bring an action, for the purpose of having the question tried at law.

By the order then made it was ordered that the further hearing of the petition should be adjourned, and that the petitioner should be at liberty to bring an action of troyer in the Court of Exchequer, to recover goods admitted to have been taken by Sloper under the fiat.

An action was brought accordingly, and the cause was tried, at the Kingston Assizes, 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

possession of them at the time of his bankruptcy. A petition by B. to have the benefit of his security was dismissed with costs, upon B.'s declining to file a bill in equity to have the question tried in a suit.

correctly answered the other questions put to them, whatever answer they might have given the third question, as altered in the manner proposed by Mr. Swanston and Mr. Bacon, it would have made no difference in my estimate of the case ; and I should have held still, as I now hold, that this gentleman was not a builder within the meaning of the act.

I am satisfied, therefore, that this fiat is bad in law, and must be annulled.

As to the question of costs, without saying whether the ruling of the learned Judge at the trial, or the ruling of the Court of Exchequer upon the application for a rule nisi for a new trial, or my decision now on this fiat that it must be annulled, is consistent or inconsistent with the case of Ex parte Neirinckx, it is impossible to say, on the question of costs, that the existence of that case is a matter to be forgotten. To that consideration are to be added the facts, that this gentleman has accepted a bill drawn upon him by the description of " Mr. Stewart, builder," and has brought an action, upon a declaration in which he has described himself as a trader, subject to the bankrupt laws. The consequence of these circumstances is, that I shall give the successful party here no costs up to the time of my order directing or allowing the trial. The costs in this court, since the trial, must be paid by the petitioning creditor. Upon the costs of the trial I have not fully made up my mind. I will communicate to Mr. Vizard my conclusion on that, which is the only point now not decided.

Mr. Clarke, the bankrupt in this case, was a worsted-dyer, and was entitled to divers fixtures, as steam-boilers, tanks, coppers, dye-tubs, and other utensils used in his business. These fixtures were in a house in Aldersgate Street, occupied by him as tenant, and he was entitled to remove them. By an indenture, dated the 8th of January 1849, Mr. Clarke mortgaged the above-mentioned fixtures to the petitioner Mr. Sykes, to secure a sum of money then advanced by Mr. Sykes. The different articles mortgaged were enumerated in a schedule to the mortgage deed.

The bankrupt continued in possession of these articles after the date of the mortgage deed, and was in such possession at the time of his bankruptcy.

On the 28th of February 1849, a fiat issued against Mr. Clarke on his own petition.

Mr. Sykes now presented a petition, praying to have the benefit of his security.

Mr. Cole, for the petition, contended that the petitioner was entitled to the goods in question, and that the point had not been covered by authority.

Mr. Swanston and Mr. Sholto Douglas, for the assignees, contended that the goods in question formed part of the bankrupt's estate, as they were in his order and disposition at the time of the bankruptcy. They cited Bryson v. Wylie (1), and Hallen v. Runder (2).

SIR J. L. KNIGHT BRUCE said that, sitting in bankruptcy, he should decline to decide the question raised by the petitioner in his favour. He would, however, give him liberty to file a bill.

Mr. Cole, for the petitioner, declined to avail himself of this offer.

His Honour subsequently gave the petitioner the costs of the trial, not exceeding 501., and also allowed the costs to be paid by Mr. Sloper to be set off against the debt due from Mr. Stewart to Mr. Sloper.

1849. , May 23. Ex parte sykes in re CLARKE.

Fixtures-Order and Disposition.

A worsted - dyer, by deed, mortgaged 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 fractures after the mortgage, and was in

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Affidavits-Practice.

A petition and the affidavits in support of it were filed under an incorrect title. The petition was amended. The affidavits were ordered to be taken off the file, amended as to the title, and then re-sworn.

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The petition in this case, and the affidavits in support of it, had been filed under an incorrect title. The petition had been amended by an order of the Court.

A motion was now made that the affidavits might be taken off the file; that the title should be amended, and that they should be then re-sworn and again put on the file.

Mr. Bacon, for the motion.

Mr. Vizard, in answer to a question put by the Court, having stated that there were precedents for such a course,

Costs-Mortgage-Written Memorandum - Custom.

Shares were deposited by A. with B. a banker, to secure the purchase-money of the shares, but no written memorandum was given. A. became bankrupt. B. presented a petition for the sale of the shares and liberty to prove for the difference, supported by an affidavit that it was not the custom in the course of business to require a written memorandum under such circumstances : Held, that B. was entitled to costs, as in the case of a mortgage with a written memorandum.

Sir J. L. Knight Bruce made the order.

1849. May 23. Ex parte smith in re FIELD.

CostsMortgageLiberty to bid. A mortgagee of a bankrupt's estate presenting a petition for liberty to bid is not entitled to the costs of the petition.

The bankrupts purchased shares, and deposited them with the petitioners, who were bankers, to secure certain sums advanced by them in respect of the purchasemoney of the shares. There was no written memorandum of deposit. After the deposit the bankruptcy of the bankrupts took place.

This was the usual mortgagees' petition presented by the petitioners for a sale of the shares, and liberty to prove for the difference. The petition was supported by

(1) 10 Ves. 190. New SERIES, XVIII - BANKR.

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

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