1839.-Bennett v. Hayter. following charities, viz. 10007. three and a half per cents to the Jews' poor, Mile End; secondly, 1000l. ditto to the Society for Relief of Prisoners for Small Debts; thirdly, 10007. ditto to the Missionary," and after making fifteen other charitable gifts, he proceeded :-" ninteenth, 1000l. to Methodist [*82] preachers; twentieth, twenty-first, twenty-second, to the preachers *in the Presbyterian, Baptist and Independent persuasion, 1000l. to each; twenty-third, 10007. to the Roman Catholic persuasion; twenty-fourth, 10007. to Quakers' preachers." By decree, made in May, 1836, it was referred to the Master to inquire what charities were meant by the testator by the descriptions of "the Jews' poor Mile End," "the preachers in the Presbyterian, Baptist and Independent persuasion" and "Quakers' preachers." The legacy to the Jews' poor, Mile End, was claimed both by the treasurer and wardens of an hospital called "Beth Holim," in Mile End Old Town, founded in the year 1747 by the members of the congregation of Spanish and Portuguese Jews, for the sustenance and relief of the poor and destitute Jews of that congregation; it was also claimed by the trustees of another hospital called the Jews' Hospital, Mile End, for the support of aged poor and for the education and employment of youth, which had been established in 1795, for the relief of the class called German Jews and for the education of the youth of the same persuasion. These claims were supported by affidavits. The Master found, that no sufficient evidence had been produced before him as to what charity was meant by the testator, by the description of " the Jews' poor, Mile End." Both these charities filed exceptions to the Master's report. Mr. Richards and Mr. Stinton claimed the legacy for the former charity ; and, [*83] *Mr. Spence and Mr. F. H. Goldsmid, for the latter charity. Mr. Wray, for the Attorney General. Powell v. The Attorney General (a) Waller v. Childs,(b) Moggeridge v. Thackwell, (c) Attorney General v. Clark,(d) Simon v. Barber,(e) were cited. THE MASTER OF THE ROLLS overruled both sets of exceptions. The case, however, coming on for further directions, THE MASTER OF THE ROLLS decreed to the effect following:-"There being no charity answering the description of " The Jews' poor, Mile End," his Lordship doth declare that the charitable legacy of 1000l. three and a half per cents, given by the testator's will to" the Jews' poor, Mile End," ought to be applied to charitable purposes, having regard, as near as may be, to the objects intended by the said testator by the said bequest in the said will "to the (b) 2 Amb. 524. (c) 7 Ves. 36 (a) 3 Mer. 48. (d) Amb. 422. (e) 5 Russ. 112. 1839.-Ward v. Painter. Jews' poor, Mile End ;" and it appearing to the court that there are at Mile End, in the county of Middlesex, two charitable institutions only, for the relief of poor persons of the Jewish persuasion, namely, an hospital called "Beth Holim," stituate in Mile End, Old Town, founded in the year 1747 by the members of the congregations of Spanish and "Portuguese Jews, [84] for the sustenance and relief of poor and destitute Jews of that congregation, and 'an hospital called "The Jews' Hospital," situate at Mile End aforesaid, for the relief of the Jewish poor of the class denominated German Jews, and that S. L. B., &c., are the treasurers and wardens of the said hospital called "Beth Holim," and that M. S., &c., are the trustees of the said charitable institution called "The Jews' Hospital, Mile End," his Lordship doth order a moiety of the fund to be paid to the treasurer and wardens of the hospital called "Beth Holim," to be applied by them for the general purposes of the said hospital, and the other moiety to be paid to the trustees of the "Jews' Hospital Mile End," to be applied by them for the general purposes of that institution (a) [1] [*85] In May, 1819, a party took the benefit of the insolvent act then in force; he subsequently acquired property, and died leaving more than sufficient to pay his debts contracted after his insolvency. The scheduled creditors remaining unpaid: Held, that a bill might be maintained by one of such creditors against the personal representatives of the insolvent, without the previous sanction of the Insolvent Debtors' Court, for payment, out of the surplus assets, of the scheduled debts.. THIS case came before the court on general demurrer. The effect of the statements of the bill was as follows:-On the 12th of May, 1819, Richard W. Painter was discharged under the insolvent debtors' acts then in force, having previously duly complied with all the provisions of the said acts, and having assigned his estate to the provisional assignee, and having signed a schedule in the usual manner. The insolvent was at the time indebted to the plaintiff in the sum of 251., for which amount his name was inserted in the schedule. The insolvent had no estate or effects at the time of his discharge, but he afterwards carried on trade and acquired considerable property. He died in (a) His Lordship acted similarly with respect to some of the other charities; and on further directions, the legacy to "the preachers in the Baptist persuasion," was given in the following proportions, namely, one-fourth to "the general Baptist fund," and the remaining three-fourths to "the particular Baptist fund," as being the proportions corresponding with the relative number of preachers or ministers in each of such denominations of Baptists; and the legacy to the "Quakers' preachers" was given to the "meeting for sufferings" of the Quakers. [1] Vide Hayter v. Trego, 5 Russ 113, 115 n. 1. Attorney General v. The Ironmongers Company, post 313. 1839.-Ward v. Painter. February, 1837, having bequeathed the whole of his property to his widow, who took out administration, paid all his debts except those due at the time of the insolvency, and retained the surplus, which amounted to 30007. The debts due at the time of the insolvency, and amongst them the debt due to the plaintiff still remained unpaid. On the 31st of May, 1839, the plaintiff filed this bill," on behalf of himself and all other the unsatisfied creditors of Richard W. Painter," against the administratrix, for payment out of the assets, first, of the debts (if any) contracted subsequent to the insolvency, and afterwards of the debts owing at the time of his discharge under the insolvent act. [*86] *No application was stated to have been made to the Insolvent Debtors' Court to authorize this suit. The defendant put in a general demurrer, for want of equity. The act in force at the time at which the insolvent was discharged. (12th May, 1819,) was the 53 G. 3, c. 102, as amended by the 54 G. 3, c. 23, and continued by the 59 G. 3, c. 129, the principal provisions of which, so far as they bear upon the case, are stated hereunder.(a) (a) The tenth section of the 53 G. 3, c. 102, after enacting, that in case the prisoner should be adjudged to be entitled to the benefit of the act, and directing the court to appoint assignees of his estate, proceeds," and shall order proper conveyances and assignments of such estate and effects to be made by such prisoner according to this act, together with an engagement, to be executed by such prisoner, to pay so much of the just debts and demands of the several persons against whom such prisoner shall by such court be adjudged entitled to the benefit of this act, as shall not be paid out of the estate and effects to be conveyed and assigned by such prisoner for such purpose, in case he or she shall at any time thereafter be enabled to pay such debts and demands, or to pay such part or parts thereof as he or she shall be able at any time to pay ;" and after ordering the prisoner's books, &c., to be delivered up, and the prisoner's discharge, it proceeds as follows:-"and judgment shall thereupon be entered in such court against such prisoner in pursuance of such engagements as aforesaid, which judgment shall and may, if the said court shall so order, be executed against the future estate and effects of such prisoner, real and personal, as the said court shall direct, and shall bind the assets of such prisoner, real and personal, in the hands of his heirs, executors and administrators, for the full amount of the debts and demands aforesaid which shall remain unsatisfied, or so much of such debts and demands as the said court shall be of opinion ought to be satisfied, and execution shall be had upon such judgment in such and the same manner as execution may be had upon a judgment of the Court of King's Bench, nevertheless according to the orders of the court to be established by virtue of this act, and in conformity to the provisions in this act contained." The fourteenth section of the same act provides as follows:-"That in case any prisoner who shall have been discharged by virtue of this act shall become able to pay all or any part of the debts due from him or her, and against which he or she shall have obtained such discharge, after a reasonable allowance for the maintenance of such debtor and his or her family, and payment of his or her debts contracted after such discharge, or to which such discharge did not extend, it shall and may be lawful for any creditor or creditors against whom he or she shall have obtained such dis charge, to apply to the court for liberty to proceed against such debtor notwithstanding such discharge; and in case it shall appear to the satisfaction of such court that such debtor is of ability to pay such demand or any part thereof, it shall be lawful for such court to revoke such discharge, either wholly or upon payment of such sum or sums of money for the benefit of the persons against whom such discharge shall have been obtained, either in gross or by several payments, as to such court shall appear reasonable, or to permit execution to be taken out on the judgment entered up 1839.-Ward v. Painter. *Mr. Tinney and Mr. Teed, in support of the demurrer :- [*87] In arguin; this demurrer it is necessary to impugn the decision of Sir John Leach in Barton v. Tattersall; *but a single decision on the construction of an act of Parliament which has never been [*88] ¡n such court on the engagement of such prisoner, for such sum of money as the said court shall think fit, to be distributed rateably amongst the creditors entitled under such engagement; and such proceedings shall and may be had, according to the discretion of the said court, from time to time until the whole of the debts due to the several persons against whom such discharge shall have been obtained shall be fully paid and satisfied, together with such costs as such court shall think fit to award." By the seventeenth section it is enacted, "That in case any prisoner who shall have been discharged by virtue of this act shall die leaving assets, real or personal, after payment of all his or her debts, exclusive of the debts from which such prisoner shall have obtained such discharge, it shall be lawful for the person or persons entitled to so much of such debt or debts, from which such discharge shall have been obtained as shall remain unpaid, to apply to the said court for liberty to proceed on the judgment entered in the said court, on the engagement of such prisoner, in order to obtain payment of so much of such debt or debts as shall then remain due as aforesaid, and such court shall make such order thereupon as shall be just; and the heirs, executors or administrators of such deceased prisoner shall apply the assets in his, her or their hands according to such order, but without prejudice to the demand of any other creditor or creditors of such deceased prisoner, all of which shall be first paid or satisfied: provided always, that in case it shall at any time be made appear to such court that the estate or effects of such prisoner conveyed or assigned under the authority of this act would have been sufficient, if carefully and properly managed, to have satisfied all the debts from which such prisoner has been discharged, or to have satisfied a larger proportion of such debts than shall have actually been paid therewith, then and in any such case such court shall not authorize any further proceedings against such prisoner, or his or her assets, except for so much of the debts of such prisoner as could. not have been satisfied out of the estate and effects so conveyed and assigned, in case the same had been carefully and properly managed, and rendered productive for the discharge of such debts: provided also, that in no case interest shall be allowed on any such debt from the time of such discharge, until the said court shall order that interest shall again run upon debts bearing interest, which shall be wholly in the discretion of the said court as hereinafter provided. By the thirty-second section, if any action or suit be brought against an insolvent upon any cause of action from which he has obtained his discharge, except under the order of the Insolvent Court, he may plead his discharge under the act. This act was amended by 54 G. 3, c. 23, s. 14, by which it is enacted, "That so much of the said act as requires any such prisoner to execute an engagement for payment of the debts or demands of the persons against whom such prisoner shall be adjudged by the said court to be entitled to the benefit of the said act, and as directs any proceeding on such engagement, shall be and the same is hereby repealed, and instead thereof the said court shall require such prisoner to enter into a recognizance to the King's Majesty for the full amount of such debts; and it shall be lawful for any creditor or creditors of such prisoner from time to time to apply to the said court to have such recognizance put in suit, and the same shall be put in suit in pursuance of the order of the said court for that purpose, if the said court shall see fit, hut all proceedings thereon shall be subject to the order of the said court; and any money which shall be recovered on any such recognizance shall be paid and applied under the order of the said court, in the same manner as any money which might have been recovered under such engagement as aforesaid, and the judgment directed by the said act to be entered thereupon might have been paid or applied under the authority of the said act ; and the said court shall in all cases proceed upon such recognizance as the said court might have done under the authority of the said act, upon the engagement and judgment thereupon by the said act required to be executed and entered as aforesaid." 1839.-Ward v. Painter. affirmed by a superior court is not conclusive, and the point is still open [*89] to *discussion; besides which, the argument in that case turned principally on the application of the statute of limitations; no objection was there taken to the jurisdiction, and the executor was not personally interested in the discussion. This bill is demurrable on the ground that it does not appear that the sanction of the Insolvent Court, authorizing these proceedings, has been obtained. It is clear that the policy of the act in question was to discharge the person of the insolvent, and, subject to one qualification, to release his future estate from the demands of the creditors included in his schedule; the object of the legislature was, that upon an insolvent transferring the whole of his property to his creditors, he might, unfettered by prior debts, have an opportunity, by future industry and exertion, of maintaining himself and family, and of retrieving his ruined fortune; and if he should succeed, then the Insolvent Court was to have the power of ordering a portion of his future acquired property to be applied in liquidation of the unpaid scheduled debts; it is plain, however, that no proceeding could be taken, except under the sanction [*90] of the Insolvent Court, for he could plead his discharge in bar. A discretionary power was thus vested in the Insolvent Court, not only as to whether any proceedings ought to be taken, but also to limit their extent, and to determine whether interest ought or not to be allowed on the debts. In the exercise of this discretion the Insolvent Court was to take into consideration the past conduct of the insolvent, the extent of his property, the wants of his family, and under the seventeenth section, whether his assets had been carefully and properly managed by the assignees. The defendant is entitled to the exercise of the discretion of that court, whose decision is final, and from which there is no appeal to this court. Until that court has exercised this discretion, the plaintiff has no locus standi in this court, for the Insolvent Debtors' Court might, upon an application being made, refuse their sanction to these very proceedings. The right of the plaintiff is founded not on any equity, but on the legal title which he is supposed to possess, and upon that legal right he applies to this court for the administration of the insolvent's assets. If his legal title fails, this suit cannot be supported. Now suppose that the plaintiff had brought an action at law, without the sanction of the Insolvent Debtors' Court, to recover his debt of 251., the defendant might plead the insolvent's discharge in 1819, which would be a complete bar to the action. The plaintiff, therefore, having no legal demand, cannot support this suit, and the demurrer ought consequently to be allowed.(a) Mr. Pemberton and Mr. Grubb, contra :-The decision of Sir John [91] Leach in Barton v. Tattersall must govern *the present case and determine the demurrer. That case was decided after full argument (a) The objection as to the statute of limitations was not raised in the argument; but as to this point, see Browning v. Paris, 5 Meeson & W. 117. |