1843.-Meggison v. Foster.

THE VICE-CHANCELLOR said, that at that time the right of appeal as to matter of fact was not limited by the *Bankrupt Law. That, and other circumstances, distin- [*341] guished the present case from the case which had been referred to. His Honor, therefore, was of opinion that the plaintiffs were entitled to their costs.

DUPUY V. TRUMAN.

1843: June 2nd.

The cashier of a banking-house, upon his examination as a witness, stated that he had ascertained from the clearing book, kept by him, and in his own hand-writing, that a certain sum of money was paid in notes of a particular description. The statement was founded solely on the witness's knowledge of the book and of his own hand-writing, and not from any recollection of the fact deposed to; and the book was not produced:-Held, that, under these circumstances, the statement could not be received as evidence of the fact deposed to, though it might serve as a ground for further inquiry.

THE plaintiff, Mrs. Dupuy, being advised by her friends to purchase terminable annuities, directed her stockbrokers, with that view, to sell certain stock which she had in the new 37. 10s. per cents. This they accordingly did, and paid the money produced by the sale of Mrs. Dupuy's account, at Messrs. Hoares bank.

The bill alleged, that Mrs. Dupuy having great confidence in the defendant, Dr. Truman, and intending to make him sole trustee of the terminable annuities for her use, gave him a cheque for £3000 on Hoare's, which he invested in terminable annuities, pursuant to her request; but that he afterwards sold those annuities, and applied them to his own use.

In order to trace the stock through the hands of the defendant, and for that purpose to prove that the money paid by Messrs. Hoares to the defendant was paid in particular bank-notes (those notes being afterwards handed to his stock-broker,) the plaintiff's counsel proposed to read the evidence of Mr. Palmer, a cashier

1843-Dupuy v. Truman.

at Hoare's bauk. This witness after identifying a cheque for £3000, signed in the plaintiff's name, as one which he had himself cancelled, from which circumstance he inferred that he had paid it, proceeded to give his evidence as follows:-"I have ascertained by reference to the clearing-book, kept by me, as one of

the cashiers of the banking-house, for the purpose of enter [*342] ing the particulars in which cheques or orders for *money are paid or cashed by me, on behalf of the said house, that the sum of £3000 was paid in the following Bank of England notes: viz. two for £1000, each numbered respectively, &c. &c. The memorandum in the said clearing-book as to the particulars of the said notes is in my hand-writing, and was made by me in the usual course of business, at the time of the said payment of the £3000 being made."

It did not appear that the clearing-book had been produced at the examination of the witness; and it was admitted by the plaintiff's counsel that the witness's belief of the fact deposed to arose only from his reference to that book.[1]

THE VICE-CHANCELLOR, after adverting to the distinction in cases of this nature stated in Phillipps on Evidence,(a) said that in his opinion a sufficient foundation had been laid for an inquiry before the Master, if the plaintiff desired it; but as the case then stood, there was no evidence to show that the cheque was paid in any particular notes.

Mr. Russell, Mr. Roupell, and Mr. Romilly, for the plaintiff.

(a) Vol. 2, p. 412, 9th ed. See Doe d. Church v. Perkins, 2 T. R. 749; Rez v. St. Martin's, Leicester, 2 Ad. & Ell. 210; Burton v. Plummer, id. 341.

[1] Where a witness recollects having seen a writing before, and though he has now no independent recollection of the facts mentioned in it, yet he remembers, that at the time he saw it, he knew the contents to be correct. In this case, the writing itself must be produced in Court, in order that the other party may cross examine; not that such writing is thereby made evidence of itself, but that the other party may have the benefit of the witness's refreshing his memory by every fact. See Sinclair v. Stevenson, 1 C. & P. 582; Lloyd v. Freshfield, 2 C. & P. 325; Greenleaf on Evidence, Vol. I, § 437; see also Cowen & Hill's Notes to Phil. on Evidence, note 528.

1843.-Dupuy v. Truman.

Mr. Simpkinson, Mr. Moore, and Mr. Campbell, for the defendant.

1843: June 9th.

*BATTEN V. PARFITT.

[*343]

Under an act of Parliament the real estates of a testator were vested in trustees upon trust to sell, and after applying the purchase-mouies received for the respective estates in discharge of the incumbrances affecting them respectively, to pay the surplus monies into the Court of Chancery, there to be applied in payment of the testator's debts in a due course of administration. The various classes, and also the individual names of creditors were specified in schedules to the act. On a bill filed by the assignee of a specialty creditor on behalf of himself and all other the cred tors of the testator, to have the trusts of the act carried into execution:Held, that it was not necessary that all the scheduled creditors should be made parties to the suit.

IN 1825, Rogers and Rocke purchased of Ham, Granger, and Seaton, for four years, the right of working a patent for making vinegar. This purchase was carried into effect by means of a deed, dated the 18th of July, 1825; the consideration for the purchase being the sum of £2600, payable by half-yearly instalments of £325 each secured by the covenant of Rogers and Rocke. The benefit of this purchase soon afterwards became, by an arrangement, vested in Ham only.

In July, 1826, the partnership between Rogers and Rocke was dissolved; Rocke taking the stock and credits, and undertaking to pay the debts of the firm.

In April, 1827, Rocke died, leaving a widow and three infant children, namely, two daughters and a son, and having, by his will, devised certain specified parts of his real estates to his widow and daughters, and the residue to his son.

At Rocke's death several instalments of the before-mentioned sum of £2600 were due.

In September, 1827, a commission of bankrupt issued against Rogers, under which he was declared a bankrupt.

On the 27th June, 1828, an act of Parliament passed, whereVOL. II.

41

1843.-Batten v. Parfitt.

by, after reciting the will of Rocke, his death, the state of his family, that at the time of his death he was a trader within the meaning of the bankrupt laws, and was indebted in sundry large sums secured by mortgage, in sums secured by bonds and other specialties, and in sums by simple contract, the dates and particulars of which debts appeared in the schedules to that act, numbered 2, 3, 4, and 5, respectively, and also reciting that the testator's personal estate was insufficient for payment of his debts &c., it was enacted that the several real estates specified [*344] in the first schedule to the act should be vested in *Peter Lewis Parfitt and Samuel Pratt, their heirs &c., in trust to sell, and, after applying a sufficient part of the purchase-monies in discharge of the several mortgages and incumbrances affecting the estates respectively, to pay the surplus monies into the Court of Chancery, to be applied, on the petition of any party interested, first, in discharge of the expenses of the act, then in satisfaction of the residue (if any) of the mortgage debts, then in payment of the other debts of the testator in a due course of administration, and ultimately for the benefit of the parties entitled under the will.

The act contained a general clause saving the rights of all parties except the devisees, and persons claiming under them.

Schedules 2, 3, 4, and 5 of the act comprehended the respective classes of creditors. In each class the names of the individual creditors, about fifty in number, were mentioned. Schedule 3, which related to the specialty creditors, comprised the debt under the indenture of the 18th July, 1825. It was described as a debt for five instalments due in respect of a sum of £2600, secured by covenant from the testator to Ham, Granger, and Seaton.

By indentures dated respectively in July, 1825, August, 1835, and December 1838, the due debt to Ham became vested in the plaintiff.

In July, 1837, a report was made in the matter of the act, whereby it was found that a large sum of money was still due from the testator's estate, and that the plaintiff's debt, including arrears of interest, amounted to about £2058.

In 1841, the plaintiff filed the present bill alleging that he had

1843.-Batten v. Parfitt.

received but a small dividend in respect of what was so due to him, charging that the trusts of the act of Parliament had been only partially performed, several of the estates remaining unsold, and praying that they might be fully carried into execution.

*The bill was filed by the plaintiff on behalf of him- [*345] self and all other the creditors of the testator against the trustees under the act of Parliament, the devisees under the testator's will, the assignee under the bankruptcy of Rogers, and Ham, Granger, and Seaton.

The cause now coming on for hearing,

Mr. Rasch, for the defendant Pratt, one of the trustees, submitted that all the scheduled creditors ought to have been made parties to the suit. Calverly v. Phelp,(a) Newton v. Earl of Egmont.(b)

Mr. Wigram, for the plaintiff, referred to Walwyn v. Coutts, (c) and Garrard v. Lord Lauderdale.(d)

Mr. Piggott appeared for other parties.

THE VICE-CHANCELLOR Overruled the objection.

1843: June 10th.

SMITH V. Lyne.

A person transfers a sum of stock into the names of trustees, and by an indenture under his hand and seal, declares that the stock shall be held by the trustees upon certain trusts for the benefit of A. and her children by the settlor. The settlor afterwards obtains from the trustees a re-transfer of the stock to himself and razes the seals from the deed. By his will, not referring to the deed, he gives A. an annuity and other benefits, and the residue of his estate to the children: A. is entitled to the provision made for her both by the deed and the will.

In the year 1827, and for some time previously, the plaintiff, a single woman, cohabited with Philip Lyne, by whom she had

(a) 6 Madd. 229. (b) 4 Sim. 574. (c) 3 Mer. 707; 3 Sim. 14. (d) 3 Sim. 1.