COURTS OF LAW AND EQUITY, IN BANKRUPTCY, INSOLVENCY, NISI PRIUS, THE CRIMINAL COURTS, AND IN IRELAND,

FROM NOVEMBER 1859 TO MARCH 1860.

GLYN. HOOD.

last, I am entitled by its conditions to receive payment
of my capital stock on the 31st May next. The
amount thereof, clear of all claims, may be taken
roughly at 25,000, and I am informed by Mr. William
Bell that a portion of the balance at credit with Messrs.
Cockerell, Larpent and Co., on account of Bell and Co.
(say about 40007. or 50004), will be appropriated
towards the payment of the same. In pur-

suance of the arrangements between me and your
firm I hereby authorise Mr. William Bell, acting for
Bell and Co. in this country, to pay you the amount of
my said capital stock, say 25,000l., or thereabouts,
and your acknowledgment thereof will be a sufficient
discharge, and I hereby bind myself to enter into such
further covenant and engagements as you may require,
in order to give you a full and perfect lien thereon,
such as you may think necessary to secure to you an
exclusive title to the said balance, the same being in
consideration of and as collateral security for your ad-
vances now due, or which may be hereafter due, by the
house of Cockerell, Larpent and Co. to your firm.
GEO. LARPENT."

(Signed)

A copy of the above letter was forwarded by the plaintiff to Mr. Bell, together with a request for an intimation from him that the 5000l. above alluded to would be paid to them, and also the balance remaining due to Sir George Larpent on account of his capital. On the 14th July Mr. Bell sent to Sir George Larpent a letter addressed as follows:

[V.C. S.

"GLYN, HALLIFAX, MILLS and Co. "London, 18th Aug. 1847."

In Aug. 1847 the plaintiffs applied to Messrs. Cockerell and Co. for payment of the sum of 5000Z., mentioned in the correspondence, but were informed by them, as the fact was, that Messrs. Cockerell and Co. had no funds of Messrs. Bell and Co. in their hands, or at their disposal.

On the 25th Oct. 1847 Mr. William Bell, on behalf of the firm of Bell and Co., sent to the plaintiffs four bills of exchange of 10007. each, and on the 28th Dec. he gave them another bill for 5000l., which four sums were paid to the plaintiffs and received by them as part of Sir George Larpent's share in the firm of Bell and Co., and in part satisfaction of the 20,000l. and interest.

The promissory note for 20,000l. became due on the 31st May 1848, and was presented by the plaintiffs, but was dishonoured. In Sept. 1847 the firm of Cockerell, Larpent and Co. stopped payment, and was discovered to be insolvent.

The plaintiffs now alleged that there was due to them from Messrs. Bell and Co. the sum of 10,6881. 2s. and upwards.

The defendants, R. J. Hood and J. T. Kemp, the

Wilkinson, claimed, under the above circumstances, to be allowed, in accounting for the share of Sir George Larpent, to deduct the sum of 50007., which he by the letter of the 14th July had directed Messrs. Cockerell to pay to them.

"Cheltenham, July 14, 1847. "Messrs. Glyn, Hallifax, Mills and Co. "Gentlemen,-I beg to acknowledge receipt of your letter of the 10th inst., covering copy of a letter of same date from Sir G. Larpent to yourselves, author-representatives of Mr. W. Bell, and Messrs. Smith and ising me to make payment to you of 50007. on account of his capital with Bell and Co., Canton, and also to make further payment to you of the remaining balance of capital in that firm, say together 24,000l., or thereabouts. In compliance with your request, and with Sir G. Larpent's letter above alluded to, I beg to acquaint you that I have instructed Messrs. Cockerell and Co. to transfer to yourselves from the surplus partnership assets of Bell and Co. in their hands, the sum of 5000l., on the receipt of which you will please grant me an acknowledgment; and on behalf of myself and partners in the present Canton house, I engage to pay you in due course the remaining balance of Sir G. Larpent's capital with them, say 20,000l. or thereabouts. (Signed) "WM. BELL."

The above assignment was also assented to by Messrs. Wilkinson and Smith.

On the 19th July 1847 Sir George Larpent wrote to the plaintiffs as follows:

"London, 19th July 1847. "Messrs. Glyn, Hallifax and Co., Lombard-street. "Dear Sirs,-Inclosed I hand you my promissory note for 20,000l., payable on the 31st May next, to the order of Messrs. Cockerell, Larpent and Co., and indorsed by them; as collateral security for the due payment of which I inclose two letters (a) from Mr. W. Bell, of the firm of Bell and Co., of Canton, and shall be obliged by your discounting the same as verbally agreed, and placing the proceeds to the account of Messrs. Cockerell, Larpent and Co.

(Signed) GEORGE LARPENT." The plaintiff's having received the above letters and the promissory note, advanced to Sir George Larpent the 20,000, and that sum was placed to the credit of Cockerell, Larpent and Co.

On the 18th Aug. 1847 the plaintiffs wrote to Mr. Bell the following acknowledgment :

"William Bell, Esq.

"Sir,-We beg to acknowledge the receipt of yours

(a) One was the letter of the 14th July above. The other was the order from Mr. Bell to Cockerell and Co., which was not set out in the bill.

The plaintiffs, on the other hand, alleged that there was not, at the time of the assignment, or at any subsequent time, a sum exceeding 5000, or any sum whatever, in the hands of Messrs. Cockerell and Co. on account of the surplus partnership assets of Bell and Co., or otherwise, on account of either of the firms of that name; and that they, the plaintiffs, never had been paid the said sum, and had never acknowledged the receipt of the same.

The present bill was accordingly filed, praying for a declaration that the plaintiffs were entitled to have the full benefit of the letters, particularly those of the 10th July 1847 and the 14th July 1847, as an effectual charge by way of equitable assignment upon all the share and interest of Sir G. Larpent in the capital and effects of the late firm of Bell and Co., for the purpose of securing the sum remaining due and owing to the plaintiffs; also for an account of all sums received, or which might, without their wilful default, have been received by the members of the firm of Bell and Co. in respect to Sir G. Larpent's share, and if necessary for an account, and that the defendants might be charged with interest at the rate of 81. per cent. on the sums that might, but for such wilful default, have been received; also that the defendants, the representatives of William Bell, might admit assets, or be decreed to account for and in respect of his personal estate.

Bacon, Q.C., G. M. Giffard, Q.C., and E. R. Turner appeared for the plaintiffs. They contended that Messrs. Glyn, having the security of alleged assets in the hands of Cockerell and Co., were not guilty of any laches in not obtaining payment of the 5000l. before the insolvency took place.

Malins, Q.C., and W. Knox Wigram argued that in the hands of Cockerell and Co., and then as much what passed to Messrs. Glyn was, first of all, the 5000Z. of the share of Sir G. Larpent as was necessary to

V.C. S.]

LAZARUS v. Mozley.

make up the deficiency. The plaintiffs must suffer the loss which was occasioned by the failure of Cockerell and Co.

[V.C. S. put to an insurmountable difficulty by being compelled to admit that there was not a sum of 5000l. in the hands of Sir G. Larpent at the time of his making this order; and by the failure of Cockerell and Co. taking place within two months of the order. The declaration will be, that the plaintiffs are entitled to against the defendants, without deducting the sum of 5000l., or any other sum in respect of any moneys alleged to be in the hands of Cockerell and Co. on account of the said share. The amount of 53217. being admitted to be due, decree payment of that sum, with interest on 5000l. from July 1847. The representatives of Bell adinitting assets, order them to pay. The plaintiff's to have their costs up to the hearing.

Wednesday, Nov. 9.

LAZARUS v. Mozley.

Practice-Sufficiency of affidavit as to production of
documents-15 & 16 Vict. c. 86.
An order was made on a defendant in the common
form to "make and file a full and sufficient affi-
davit, stating whether he has, or has had, in his posses-
sion or power any, and if any what, documents relating
to the matters in question in the suit, and accounting
for the same." The defendant filed an affidavit,
saying that he had not in his actual custody any docu-
ments relating to the matters in question, "except
such entries as might be contained in account-books
of a firm, which he objected to produce, on the ground
that they were not in his exclusive possession, but
only in his possession jointly with another, who was
not a party to the suit." He did not, however, set
forth the number or particulars of the books.
Motion, that the defendants be ordered to make an
affidavit in conformity with the terms of the order,
setting forth the number and particulars of the docu-
ments which he acknowledged to be in his joint pos-
session, but claimed to be privileged-granted, but
without costs.

The VICE-CHANCELLOR, without calling for a reply, said:-The plaintiffs claim to be equitable assignees of the share of the late Sir George Larpent, as a partner of the firm of Bell and Co. Mr. Bell, one of the part-recover the whole amount of Sir G. Larpent's share as ners, was accountable for the share of Sir George Larpent in the partnership assets, by a letter, the language of which is wholly unambiguous, recognising that liability. In that letter he mentions that, in respect of that share, what is due from the continuing partners, to the extent of 50007, will be paid to Messrs. Glyn and Co. through Cockerell and Co., and he tells Messrs. Glyn and Co., the plaintiffs in this suit, that he has instructed Cockerell and Co. to transfer to them 50007., a sum which represented pro tanto part of what was due in respect of the share of Sir George Larpent. That seems to me to be the fair and clear construction of the letter of the 14th July 1847. I called the attention of the defendant's counsel in the course of the argument to the letter of his own client, and upon reading that letter there seems to me not the slightest doubt of the right of the plaintiffs to the decree they now ask. Mr. Bell says, I acknowledge the receipt of your letter of the 10th inst., covering a copy of a letter from Sir George Larpent to yourselves, authorising me to make payment to you of 50007. on account of his capital with Bell and Co.; and also to make further payment to you of the remaining balance of the capital in that firm." Sir G. Larpent has authorised Mr. Bell to pay the whole share, which he (Sir G. Larpent) was entitled to, as against Mr. Bell and the other partners. How, then, is it possible to recognise Mr. Malins' argument on the part of Mr. Bell's representatives, that the transaction was this-that what was transferred to Glyn and Co. was, first of all, 50007., in the hands of Cockerell and Co., and then Bell and Co. were only liable to pay what should remain due in respect of the share of Larpent? The whole language of the documents contradicts that view. The letters of Sir G. Larpent and of Mr. Bell show that the 5000l., if paid, was to be paid only pro tanto in satisfaction of that right which by the transaction Glyn and Co. had against Bell and Co. and the other partners, to recover the whole share to the extent of the 25,000%. The form of the instruction given by Mr. Bell to Cockerell and Co. to make payment of 50007. is such as to impose no active duty upon Glyn and Co. at all. It was only a mode by which to ensure the payment of Sir G. Larpent's share. It was only a mode by which he states that he has instructed an agent to pay over that Charles Mozley and Sampson Samuel made a joint sum to Glyn and Co. If that unfortunate insolvency of and several affidavit. Charles Mozley, for himself, said Cockerell and Co., who are supposed to have had this that, to the best of his knowledge, &c., "he had not sum in their hands, had not occurred, there was no now in his actual custody or possession any deed, acprivity whatever between Glyn and Co. and Cock-count-book of accounts, &c., or any other document erell and Co. which could have authorised Glyn and Co. to maintain any action against Cockerell and Co. There was no more than an instruction to Cockerell and Co. to pay Glyn and Co., and a statement that that instruction had been given. As to the question of laches, it seems that has not been gone into, and very properly so, for laches there could be none, because there was no duty and no right which could be enforced in the nature of a legal obligation. The defendants' case admits of no doubt, because Glyn and Co. have proved that they are equitable assignees from Bell and Co., through Sir G. Larpent, of what was due by Bell and Co.; they are therefore entitled, Sampson Samuel, for himself, said that, to the best as against the surviving partners, to an account of the of his knowledge, &c., he had not now in his own sole whole share of Sir G. Larpent in the hands of the sur-custody or possession any deed, account-book of acviving partners, and out of that to pay the whole counts, &c., relating to the matters in question in the amount of the promissory note for 20,000l. The fact, suit, or any of them. I understand, to be this, that Sir G. Larpent's share has been accounted for, except as to this sum of 5000l. [Bacon.-Yes.] The defendants have been

In this case an order had been made for the production of documents upon the defendants under the 18th section of the Chancery Amendment Act (15 & 16 Vict. c. 86). The order was in the common formviz.: "That the defendant do, within, &c., make and file a full and sufficient affidavit, stating whether he has, or has had, in his possession or power any, and if any what, documents relating to the matters in question in this suit, and accounting for the same."

The defendants were three in number, and they filed two separate affidavits in reply to the order.

whatsoever, relating to the matters in question, &c., other than and except such entries, if any, as might be contained in account-books of the firm of Israel Barned and Co., Liverpool, bankers, of which firm he was a partner jointly with Lewin Barned Mozley. He objected to produce the last-named books of account. The grounds upon which he made such objection were, that such books of account were privileged from discovery or production to the plaintiff, because the same were not in his exclusive possession, but only in his possession jointly with the said Lewin Barned Mozley, who was not a party to the suit."

Charles Mozley and Sampson Samuel then said that, according to the best of their knowledge, &c., they had not now, and never had, in their own possession, &c.,

V.C. S.]

Ex parte THE COLNE VALLEY AND HALSTEAD RAILWAY BILL.

any deed, account, &c., relating to the matters in question in the suit, other than and except the documents set forth in the first and second schedules.

Israel Lewin Barned, the third defendant, by a separate affidavit said, that to the best of his knowledge, &c., he had not now, and save as set forth in the third paragraph of his answer, he never had in his own actual custody and possession any deed, account-book of account, &c., and the only deeds, books, papers, &c. in his power were such as were in the possession of Mr. Weiss, accountant, and Messrs. Sampson Samuel and Emmanuel, solicitors.

The suit was instituted to enforce certain claims against the estate of Israel Barned, the testator in the cause. For many years previous to 1851 the firm of Barned and Co. consisted of Israel Barned, the testator in the cause, Lewin Mozley, Elias Joseph Mozley, and the defendant Charles Mozley. In that year Elias Joseph Mozley died, and the three above-mentioned surviving partners continued. On the 31st Dec. 1852 Israel Barned, the testator, retired, and the two survivors, Lewin Mozley and the defendant Charles Mozley, continued. On the 26th May Lewin Barned Mozley became a partner, and on the 31st Jan. 1858 Lewin Mozley died. The firm now consisted of Lewin Barned Mozley and the defendant Charles Mozley. On each change of partnership the new firm, by arrangement, took the whole of the debts, credits, books of account, &c. of the old firin.

On the 2nd Nov. last Charles Mozley made another affidavit, whereby he said he objected to produce the partnership books, on the ground that they were not in his exclusive possession, but in the joint possession of himself and Lewin Barned Mozley, who was not a party.

[V.C. W.

that he has no documents except certain documents which are not described as to numbers or other particulars connected with them. Neither the documents nor the entries have been described, nor any particulars of the discovery given. The plaintiff has pursued his own course, and however useless it may be to makethis application, I can only say that the opposition to making a further affidavit seems to me just as useless.. My chief clerk thought the plaintiff should proceed in another way. He thought this application would be a useless one, and I must say I think, if the plaintiff were well advised, he would proceed in another way. But it is my duty simply to say that the defendant has not done what the order requires, and therefore he must make another affidavit, setting forth a list of the documents which the plaintiff requires.

Terrell asked for the costs of the motion.

The VICE-CHANCELLOR said he would make no order as to costs, and gave the defendants one month within which to file the affidavit.

V. C. WOOD'S COURT. Reported by W. H. BENNET, Esq., Barrister-at-Law.

Saturday, Nov. 5.

Ex parte THE COLNE VALLEY AND HALSTEAD
RAILWAY BILL.

Railway Bill deposit-Investment of Old and New
East India Stock.

A sum of money had been paid in under the standing

orders:

The New East India Stock is not such an investment of it as the court will sanction.

A sum of 72007. had been paid in under the standT. H. Terrell now moved that the defendants being orders on the application to Parliament for the ordered to make an affidavit in conformity with the above Bill. terms of the order. Until the defendant set forth a list of the account-books of the firm of Israel Barned and Co., there was nothing upon which the motion for production could be grounded. The plaintiff did not know what to move for: (Atkins v. Wright, 14 Ves. 213.)

Jessel contra.-The case of Atkins v. Wright was one of the insufficiency of an answer. [The VICECHANCELLOR.-Every objection that would lie to the sufficiency of an answer before the change of practice would apply to the affidavits under the new practice.] This application does not relate to discovery; it only extends to possession. Why did not the plaintiff proceed by a writ of subpona duces tecum? The defendants were called upon to set out a list of documents, which by their affidavit they showed to be not in their separate custody, but only in their custody jointly with others. The application for a list of such documents was quite useless and vexations; and would entail upon the defendants great labour and serious expense. He cited Taylor v. Rundell, Cr. & Ph. 104; and Murray v. Walter, Ib. 125. [The VICE-CHANCELLOR referred to Freeman v. Fairlie, 3 Mer. 35; and M'Donald v. Richardson, 32 L. T. Rep. 237.]

The VICE-CHANCELLOR.-The only question is, whether the defendant has obeyed the order which requires him to make and file a full and sufficient aflidavit, stating whether he has or has had in his possession or power any, and if any what, documents relating to the matters in question in the suit. The question is not one of production at all, but of making an affidavit fully disclosing what documents he has in his power or possession. The order for production is entirely a separate matter. The order for production is, that the defendant shall produce such documents as shall appear to be in his possession or power, except such as he may object to produce upon setting forth a sufficient reason for not doing so. In this case I think it is not enough for the defendant to say

A petition was now presented to have this deposit invested, and the petition suggested that it might be made in the New East India Stock.

Mayhew, in support of the petition, contended that it might be so invested. The 32nd section of Lord St. Leonards' Act (22 & 23 Vict. c. 35) allowed this to be done. This section provides "that when a trustee, executor, or administrator shall not, by some instrument creating his trust, be expressly forbidden to invest any trust-fund on real securities in any part of the United Kingdom, or in the stock of the Bank of England or Ireland, or on East Indian Stock, it shall be lawful for such trustee, executor, or administrator, to invest such trust-fund on such securities or stock; and he shall not be liable on that account as for a breach of trust, provided that such investment shall in other respects be reasonable and proper." The Act enabling the Council of India to procure the New East India Loan of 5,000,0007. on security of stock to be created, passed on the same day as the New Trustee Act (Aug. 13, 1859).

The VICE-CHANCELLOR said, he doubted if the East India Stock mentioned in the Trustee Act could have been intended to include the new stock then about to be created; and he therefore could not allow the investment in that stock; but it might be made in the Old East India Stock [6,000,000l. guaranteed by the Act 3 & 4 Will. 4, c. 85.]

Mayhew, in the latter part of the day, stated that he had mentioned the subject to the L. C. sitting with the Lords Justices, who had thought such an investment might be made in the new stock; but

The VICE-CHANCELLOR declined to allow the order to be drawn up until he had had an opportunity of conferring with the L.C. and Lords Justices upon the subject.

SAME CASE.
Wednesday, Nov. 9.

At the sitting of the court the V.C. handed to Mr. Mayhew a paper, of which the following is a copy :