BAIL COURT.

April 17, 1851.

(Before Mr. Justice COLERIDGE.)

Rule nisi.

HUNT . THE GREAT NORTHERN RAILWAY COM

PANY.

County Court-Prohibition-Tolls.

Under their act of Parliament, the Great Northern Railway Company were required to convey on their line the coals, &c., of other persons in the carriages of such persons at a certain rate; and they were also required to convey back the empty carriages at so much per mile for each. On a certain number of loaded carriages being presented to the company for conveyance along their line, they not only then demanded payment for the forward carriage, but also a sum for the back carriage; this latter sum being refused, the company declined to convey the goods, whereupon an action was brought in the County Court for damages, resulting from the nonconveyance of the said goods. Upon an objection taken at the trial, that this was a question of a right to toll, and, therefore, under the proviso of sect. 58 of the 9 & 10 Vict. c. 95, not within the jurisdiction of the County Court, the judge held that he had jurisdiction, and decided the cause of action in the plaintiff's favour. Upon a motion subsequently to this court for a prohibition: Held, that as the title to the toll was not denied, but only the time at which it was demandable and payable, which depended upon the construction to be put upon the act of Parliament, the judge of the County Court had jurisdiction, and the writ was refused.

Wordsworth moved for a prohibition to restrain the judge of the County Court, at Barnet, from further proceedings in this cause, under the following circumstances. By their act of Parliament, the company are required to carry the coals, &c., of other parties, in the carriages of such parties, at the rate of d. per ton per mile; and they are also under an obligation to convey back the empty carriages at the rate of 44d. per mile each. The plaintiff being desirous of sending ten trucks of coal by this line from Peterborough to Potter's-bar, applied to the company to convey them. The company, however, not only required payment for the forward carriage, but demanded 27. 10s. as then payable for the back carriage, which they insisted, under their act, 13 & 14 Vict. c. 61, sects. 12 & 13, they were entitled then to have. The plaintiff having refused to pay in advance the amount for the back carriage, the company declined to carry the trucks, whereupon the plaintiff sued them in the County Court, at Barnet, for the amount of loss sustained by him in consequence of such refusal. The cause came on for trial on the 24th of February, when it was objected on the part of the company that the action involved a right to tolls, and therefore the court had no jurisdiction, sect. 58 of the 9 & 10 Vict. c. 95 (the County Courts Act), providing "That the court shall not have cognizance of any action of ejectment, or in which the title to any corporeal or incorporeal hereditaments, or to any toll, fair, market, or franchise, shall be in question," &c. The question having been argued at length, the judge took time to consider his judgment, when, on the 28th of March, he gave it in favour of the plaintiff, assessing the damages at 391. 13s. 6d. On the 9th of April, a copy of the order was served, adjudging the defendant's to pay 537. 10s. 10d., being the total amount of damages and costs. The present rule was moved for on the ground that the action involved a title to toll, and was,

COLERIDGE, J.-There appears to be no dispute about the toll itself, but only when it is payable, which turns upon the construction of the act of Parliament; and I cannot interfere with the construction put upon the act by the County Court judge.

Wordsworth. The plaintiff says that the company are not entitled to demand this toll; the plaintiff tendered all the toll except that for the back carriage; it is, therefore, a bona fide question as to a right to take toll.

COLERIDGE, J.-It is not a question as to a right to toll, but whether it was then payable. Suppose a demand for a turnpike toll is made upon a person who has never passed through the gate; that would not be a question of a right of toll. The question is, whether the company have a right to secure in the first instance the toll for the back carriage.

Wordsworth.-The argument on the other side was that they had no right to charge this toll.

COLERIDGE, J.-I am far from saying that in this case the judge of the County Court has properly construed the Railway Act; of that I form no opinion. The question I have to decide is, whether the title to the toll in this case came in question at all. It seems to me that it did not, but only whether in this particular case the company had a right to demand payment at the time they did. This is really merely a question of the construction of an act of Parliament, and that was clearly a matter for the judge, and with which I cannot interfere. Now it is not disputed that the company had a right to toll in respect of particular carriages, and the question was whether the carriages of the plaintiff were such as were liable to toll at that time. The judge would have had no right to decide whether or not toll was demandable upon carriages, but he had as to whether or not these carriages were such upon which toll could rightly be demanded. I think, therefore, that the judge had jurisdiction, and that there should be no rule. Rule refused.

REG. v. THE JUDGE OF THE COUNTY COURT OF OSWESTRY.

Ex parte HARPER and ANOTHER. County Court-Interpleader claim-Sufficiency of notice -Mandamus to a judge to hear.

Where a judge of a County Court refuses to hear an application upon an erroneous supposition that some preliminary requirement has not been complied with, this Court will interfere by mandamus to compel him to hear.

Judgment having been obtained against a defendant in an action in the County Court, execution issued, and certain property was seized thereunder. Hereupon a claim was made by A, and B. that such goods were theirs, and the form of their grounds of claim was, "that the said two horses, two collars, and two bridles were assigned to us by an indenture, dated the 28th day of May, 1850, and made between," &c. (stating the parties.) Upon an objection taken at the trial, that this statement was not a compliance with Rule 39, the judge held the objection to be good, and refused to hear the claim. Upon an application to this Court for a mandamus to the judge to hear the claim.

Held, that the statement of the ground of claim was sufficient, and the mandamus was ordered to go.

In this case a rule nisi had been obtained, calling upon the judge of the County Court of Oswestry, Shropshire, to show cause why a mandamus should not issue commanding him to hear and adjudicate upon a claim to certain goods made by Harper and Jones. It appeared that a plaint had been entered in the County Court in a cause of Davies v. Holbrook, wherein Davies obtained

judgment, upon which, on the 31st of October, execution issued. A levy was made, and certain goods were seized. On the 6th of November following a claim was made by Harper and Jones to such goods under a deed of assignment from Holbrook, executed in May preceding. The particulars of the claim were as follows:

"To the clerk and high bailiff of the County Court of Shropshire, at Oswestry, and to whom else it may concern. The particulars of the claim made by us, and mentioned in the interpleader summons issued from the above court in the cause of Davies v. Holbrook, dated the 5th day of November, 1850 are as follows:-Two horses, two collars, and two bridles, which were seized in a stable at Bagley, in the parish of Hordley, in the county of Salop, on thirty-first day of October, in the year of our Lord 1850: the ground of our claim to the said two horses, two collars, and two bridles is, that they were assigned to us by an indenture, dated the twenty-eighth day of May, in the year of our Lord 1850, and made between Thomas Holbrook, defendant in the said cause, of the one part, and ourselves of the other part. Dated the eleventh day of November, 1850.

"Geo. Harper,

"R. Parry Jones."

At the hearing, it was contended, on the part of the execution creditor, that the notice was insufficient, and did not comply with the 39th rule, inasmuch as it was not stated what was the consideration for the assignment. The judge, thinking the objection to the claim was well founded, decided upon not hearing the claim.

Peacock, Q.C., now appeared for the judge of the County Court, and contended that the judge was right in his decision, inasmuch as the notice was insufficient: (Ex parte Tanner, 19 L. J. 318, Q.B.)

COLERIDGE, J.-There the claim was merely repeated, but here it is said that the claim is founded upon a deed. Peacock. The statement should have shown that the deed was made for a valuable consideration.

COLERIDGE, J.-Prima facie the deed imports consideration. Your contention is that a claimant should set out a good case. In Ex parte Tanner the claimant merely said the goods were his property, which was not sufficient.

Lush, for the execution creditor, argued, first, that as a competent tribunal had already decided upon the in sufficiency of the notice, this court would not interfere second, that the notice was not sufficient in form for not stating the consideration or purposes of the deed.

;

Jones, for the claimant, submitted that the notice was sufficient, and that as the judge had declined to adjudicate upon the claim, the mandamus ought to go.

COLERIDGE, J.-It is a well-known distinction with reference to inferior courts, that if they abstain from adjudicating upon a question upon any erroneous view of a preliminary point, this court will interfere to compel them to proceed and adjudicate, but that it is otherwise where they enter into the question and decide it, though their decision is unsatisfactory. The question is, whether there has been an adjudication upon the merits; or whether the court abstained on account of the preliminary point. Now, I must take it that the claimant has been refused a hearing on account of not having given a sufficient notice; but as to that, it really seems to me that the notice was quite sufficient. The notice need not set out a good ground of claim; it will still be a good claim if it describes in what way the party claims. The judge will decide upon the validity of the claim when he has heard the case. This is not the case of Ex parte Tanner. Here the claimants show how they claim. It is said that the claim is not sufficient, as the deed may have been a voluntary one, and void as against creditors. So it may be; still they say this is our claim, and it is for the judge to adjudicate upon it. The rule must be

absolute.

Rule absolute.

BANKRUPTCY.

COURT OF BANKRUPTCY LONDON.

February 6, 1851.

(Before Mr. Commissioner FANE.)
Re FOWLER.

Builder-Meaning of the term in the statute. A person who exercised the profession of an architect, and purchased several pieces of ground in different places, and pulled down the buildings erected thereon, and built new houses with materials which he bought for that purpose, and did not employ a builder to carry on the works; but did himself pay the several persons employed thereon, with the intention of selling or otherwise disposing of the ground and the buildings so erected thereon, is a builder within the meaning of the bankrupt laws. The facts are set out in the judgment.

JUDGMENT.

Now

The question in this case was whether Mr. Fowler was a builder within the bankrupt law. It appears that he was an architect, but that not being satisfied with the revenue derived from that source, he took a piece of ground in Grosvenor-square, on which a house stood, and having pulled down the house and erected one in its place, offered the new-built house for sale or other disposition. He then took the ground on which the late Mr. Hope's house stood, in Duchess-street, and proceeded to erect on it thirteen new houses, and these also he built for sale or other disposition. Since then he has taken the ground on which a large house stood in Harley-street, and has pulled down the house and built two other houses on the site. These also he built for sale or other disposition. He did all these works as a builder, not employing a builder, but buying materials, and employing masons, bricklayers, carpenters, joiners, and other persons to do the work, sometimes paying by contract, and sometimes paying day wages. It appears that he employed a foreman and timekeeper. I admit that by the old law, and before the word builder was inserted in the Bankrupt Act, a person so acting would not have been liable to the bankrupt laws. He would not have been liable, because traders only were liable, and none were deemed traders except those who bought and sold personal chattels. Buying a real chattel, converting it into a personal chattel, and selling it when so converted, was not a trading; and hence he who took a coal-mine, severed the coals, and sold them, was not a trader: he did not buy a personal chattel, he bought a real chattel. And so he who bought personal chattels, converted them into a real chattel, and sold them so converted, was not a trader: and hence a person, who took land for a time, built on it, and sold the buildings, was not a trader: he did not sell a personal chattel, he sold an interest in land. These niceties occasioned inconvenience. It was evident that persons who took leases of land to build on and sell, or let the houses when built, were substantially traders, and ought to be subjected to the incidents, and have the benefit of the law of bankruptcy; and the word builder was inserted in the bankrupt law as a description of a new class of persons, thenceforth to be comprised in the provisions of bankrupt law. But, it may be said, what is a gentleman who builds on his own estate a number of houses to improve his property,—is he a builder liable to the bankrupt law? Perhaps not: first, because he confines his transactions to his own estate, and therefore there is not any thing like a general trading; and, secondly, because there is no ground for presuming that he will extend his operations beyond his own estate. But that argument does not apply to the case of a person who takes ground expressly for the purpose of building houses

on speculation, first in one place, then in a second, then in a third, and so on, and does it evidently to make a livelihood, such a person is, in my opinion, emphatically a builder within the Bankrupt Law. He is the very person to whom the Legislature intended to give the protection, and on whom it intended to fasten the responsibilities of the Bankrupt Law. It was urged before me that Mr. Fowler never built for any person but himself; that he would not have built like a common builder on the order of any customer; but to this the answer is, that such a person would have been subject to the Law of Bankruptcy under the old law; and therefore, if we were to confine the lately introduced word "builder" to such persons only, we should really strike the word "builder" out of the act, for it would mean nothing. I was then referred to the case of Stuart v. Sloper (3 Ex. Rep. 700), and it was said that there the alleged bankrupt had done exactly what Mr. Fowler had done in this case, yet he was held to be no trader. To that case my answer is, that it lays down no principle of law but this, that where a conclusion of fact is in the province of a jury, and the direction to the jury has been right, the court will not disturb their finding. Now, in that case the question left to the jury was, whether Mr. Stuart's proceedings were isolated transactions or not, and they found they were; and the judges considered their finding conclusive, and declined to disturb it. Of that case I will only say, that I should have come to a different conclusion had I been one of the jury. But their conclusion is not binding on me. A commissioner of this court is jury as well as judge, and, in my capacity of juryman, I say that I have not the least doubt that Mr. Fowler's were not isolated transactions, but that he meant to go on with them as long as he could make a profit to satisfy him, and therefore I think he was a builder within the act, and I must decline to reverse the adjudication.

COURT OF BANKRUPTCY, DUBLIN.

(Before Mr. Commissioner BALDWIN.)
Re WALSH.

Rehearing of insolvent-Dismissal of petition—
Bankruptcy.

A trader, who has been discharged under the Insolvent Debtors' Act, 3 & Vict. c. 107 (English analogous, 1&2 Vict. c. 110), may be declared bankrupt upon a debt returned in his schedule; but his estate is not thereby divested from the provisional assignee, and it can only vest in the assignee under the bankruptcy upon the dismissal of his petition; and such dismissal can take place only on a rehearing.

Creighton applied to the court for a rehearing of this case, with a view to have the insolvent's petition dismissed. He proved upon the affidavit of Lyndsay, a creditor, which stated that the insolvent had been discharged in Cork some six months previously; that the debt due to Lyndsay was returned in insolvent's schedule; that upon that same debt he had recently issued a commission of bankruptcy, to which the bankrupt had surrendered; that upon his examination on surrender it appeared that he had concealed property to a considerable amount, and having, therefore, obtained his discharge by false representations, any creditor was entitled to ask for a rehearing. [COMMISSIONER. -Then if I rehear the case, I must adjudicate on it, and punish him for the fraud. You seem to wish to have the petition dismissed.] That was undoubtedly the object of the application. The case had been brought into the Bankrupt Court, but the property discovered could not be administered there until the petition was dismissed, and the dismissal could take place only upon

a rehearing. [The COMMISSIONER.-The creditors in the bankruptcy have got hold of the property, and they want to withdraw the case from this court; but have not I a duty to perform in punishing the fraud?] No doubt that was the object; but as the discovery was made through the agency of the Bankrupt Court, the creditors wished to have the estate administered there. They did not seek to have the bankrupt punished, inasmuch as he made a full and true disclosure when examined before the commissioners, and thus made every atonement in his power for what he had previously done. [The COMMISSIONER.-I am not satisfied to let a case of this kind escape because creditors have now got hold of property which cannot be administered in the Bankrupt Court without withdrawing the insolvent from the jurisdiction of this court.] It would embarrass the case very much if it were to be retained in the Insolvent Court, and the insolvent subjected to a long remand for fraudulent concealment of property.

The COMMISSIONER consented to dismiss the petition, the case not to be taken as a precedent for the future.

A

Re WALSH.

Insolvent debtor-Petitioning creditor's debt. debt from which an insolvent is discharged by the Insolvent Debtors' Court will be a good petitioning creditor's debt; but the Bankrupt Court cannot administer his estate until his petition in the Insolvent Court is dismissed.

The bankrupt in this case had been discharged as an insolvent debtor in Cork, and the petitioning creditor was retured in his schedule for the same debt, upon which the present commission had been sued out. The Commissioner, on the case coming before him, was somewhat apprehensive that there would be a difficulty in the way, for although, on the authority of the case of Jollie v. Mountfourd (4 B. & A. 256), a debt returned in an insolvent's schedule, under which he had taken his discharge, will be a good petitioning creditor's debt, yet, inasmuch as more than two months elapsed since the filing of the schedule, the Bankrupt Court could not administer the estate until the insolvent's petition was dismissed, and the property divested from the provisional assignee in the Insolvent Court.

doubt that the creditor's debt was not discharged by the Creighton, for the petitioning creditor.-There was no operation of the Insolvent Debtors' Act, so as to prevent doubt, existed, and it was the intention of the petitionhim suing out a commission. The other difficulty, no ing creditor to apply to the Insolvent Debtors' Conrt to have the petition dismissed.

Levy, for the bankrupt.-His client would co-operate in having his petition dismissed, and his estate brought into the Bankrupt Court.

INSOLVENT COURT, DUBLIN.

March, 1851.

(Before Mr. Commissioner BALDWIN.)
Re ALLEN.

Acommodation bill-Contracting a debt without probable means of payment-Evidence of fraudulent intent. Accepting an accommodation bill at a time when the acceptor is unable to pay his debts contracted for valuable consideration, is contracting a debt without probable expectation of paying the same; and allowing the principal who received money for the bill to sell his chattels and leave the country without informing the parties who discounted the bill will be deemed evidence of an original fraudulent intention.

The insolvent was supported by Creighton, and opposed

by Phillips and Levy, for the Royal Bank, under the following circumstances:-It appeared that he resided with his brother in the county Meath, who was a farmer and grazier, which business the insolvent also followed. A bill for 700l. was drawn by his brother, and accepted by him, for which the Royal Bank gave cash. This bill was renewed once or twice, and on each occasion accepted by the insolvent, his brother being the drawer, and, whilst the last renewal was running due, the brother sold all his farming stock and chattels by auction, and absconded to America, without the insolvent ever having informed the bank of what he was doing. The insolvent himself was then arrested on a fiat or judge's order, as it was apprehended that he intended to follow his brother to America; and he now came before the court to seek his discharge.

The opposing counsel contended, first, that accepting an accommodation bill that the party was not prepared to pay, or at a time when he was unable to pay his other debts, was contracting a debt under the 68th section of the Act (English analagous, 1 & 2 Vict. c. 110, s. 78), without probable expectation of payment; and, secondly, that omitting to inform the bank of his brother selling his chattels, and going to America, was evidence of an original intention to obtain the money fraudulently.

Creighton, for the insolvent, contended that the renewals of the bill ought to have led the bank to watch more closely, and inquire more particularly into the solvency of the parties. If they had not renewed the bill, they might have sued the brother, and recovered the amount before he left the country. The loss arose from their own laches: they were unable to trace a shilling of the proceeds of the bill into the possession of the insolvent, and his schedule had not been falsified, although there was a reference to the chief clerk for that purpose.

The COMMISSIONER was clearly of opinion, that all the facts of the case fully sustained the points of opposition that had been raised. The interests of trade and the protection of bankers required that an example should be made, and he would remand the insolvent for sixteen months from the date of the vesting order.

INSOLVENCY.

Reported by DAVID CATO MACRAE, Esq., of the Middle Temple, Barrister-at-Law.

February 3, 1851.

(Before Mr. Commissioner Law.)
Re BRODIE.

Interest is not payable on debts after the date of the petition, upon dividing assets passing under the petition. This was an application to the commissioner, by way of appeal from the decision of the officer of the court, who had refused, on taking proof of debts, with a view to dividend, to allow interest to a judgment creditor after the date of vesting order. It was submitted, on behalf of the judgment creditor, that by sect. 17 of 1 & 2 Vict. c. 110, all judgments carry interest at 4 per cent. per annum, from the time of signing such judgments, or the commencement of the act, until the same shall be satisfied. The case of Re Best, L. T. 2 C. C. C. 229, 253, was referred to There the court decided (Mr. Commissioner Law dissentiente) that the judgment signed upon the warrant of attorney executed by the insolvent at the time of adjudication, was peculiar and unlike other judgments in its character and incidents, being "sui generis," a creature of this court and part of its machinery, and did not, like other judgments, carry interest. It was therefore contended that the decision in that case was an authority in favour of the claim to

interest by an ordinary judgment creditor; also that the discharge of the debtor under the act did not operate as satisfaction of the judgment that discharge might destroy the remedy, but the debt would remain-and as the Legislature had not limited the creditors of insolvents to the amounts inserted in the schedule, nor the proof of debts to the amounts due at the date of vesting order, as it had in bankruptcy to the date of fiat, judg. ment creditors were entitled to interest out of the estate up to the time of making or paying dividend. But the commissioner decided that no interest accruing after the date of vesting order could be included in proof of debt.

February 20, 1851.

(Before Mr. Commissioner PHILLIPS.) Re WILLIAM BELLINGHAM, the younger. Practice-Opposition.

Where a debt is entered in the schedule as disputed, and the creditor appears to oppose, the insolvent has a right to call upon him to prove his debt.

Where the debt is entered in the schedule as admitted, the insolvent, at the hearing, has no right to call upon the opposing creditor to prove his debt.

Where the debt is entered in the schedule as admitted as to liability, the opposing creditor, if called upon to prove his debt, is entitled to an adjournment if he requires it for that purpose.

This insolvent came up for his hearing, and was opposed by Duncan for a creditor, whose debt was entered in the schedule, "admitted as to liability."

Sargood called upon the opposing creditor to prove his debt.

Duncan contended that if the debt was admitted as to liability, it was the same thing as if admitted de facto upon a judgment.

Mr. Commissioner PHILLIPS inquired of the registrar (Mr. Simpson) as to the practice of the court.

Simpson said the practice was this, if the debt was entered in the schedule as admitted, the creditor could not be called upon to prove his debt. If upon the other hand it was entered as disputed, the creditor was bound to prove his debt if called upon. There was, however, another mode of entry as in this case "disputed as to liability," and then if the opposing creditor was called upon to prove his debt, he was entitled to an adjournment for that purpose.

Mr. Commissioner PHILLIPS directed that the case should stand adjourned to give the opposing creditor an opportunity to prove his debt.

Sargood would withdraw his objection rather than have an adjournment.

The case then proceeded.

March 6, 1851.

(Before Mr. Commissioner PHILLIPS.)

Re RUBENS P. BRAINE.
Opposition-Adjourned hearing.

A creditor receiving due notice of the hearing of an inso!vent, and not appearing to oppose until an adjourne hearing, is not entitled to oppose.

This was an adjourned hearing. Several of the creditors opposed, and amongst the rest one named Cooper, who had not appeared upon the first hearing.

Cooke, for the insolvent, objected to his opposition. Mr. Cooper said, that being unwell at the original hearing, and being informed that there could not be a final adjudication, as there were imperfect services, he had reserved his opposition for to-day.

Mr. Commissioner PHILLIPS disallowed the opposition.