L. C. and L. J. M. 1873 Ex parte EDWARDS. It appears to me quite clear that that notice is to be given simply that the party accused may be able, when he comes before the commissioners, properly to make his defence. Of course he ought to have that sufficient notice before the commissioners meet, and it is quite right that he should have notice of who the person is who brings the accusation against him. That knowledge may be very material matter for him in framing his defence. I entirely agree with the Lord Chancellor, that there really is not the least ground for this application. Solicitors: Messrs. Brooks, Tanner, & Jenkins. RIDGWAY v. EDWARDS. [1873 R. 121.] Practice-Forma Pauperis-Property -Injunction. A farming tenant who has valuable crops on his farm, but no other property, will not be admitted to defend in formá pauperis, although he has in the suit been restrained from selling or removing the crops. Order of Jessel, M.R., affirmed. THE Defendant in this case was tenant of a farm belonging to the Plaintiff, to whom rent was due, and who had obtained an injunction to restrain the Defendant from selling or removing the crops on the farm-the crops being of considerable value. The Defendant committed a breach of the injunction, and was for so doing committed to prison, but obtained an order for his discharge on payment of the costs of his contempt. He then, on the usual affidavit, obtained an order to be admitted to defend in formâ pauperis. He then moved before the Master of the Rolls to be discharged from prison as being unable to pay the costs; and the Plaintiff moved at the same time to discharge the order admitting the Defendant to sue in formâ pauperis. The Master of the Rolls discharged the order upon the ground that the Defendant had property. Both motions were now brought before the Lords Justices by way of appeal. Mr. Roberts, for the Defendant : The only property which the Defendant has is that upon the farm, and that he cannot touch. He is, therefore, unable to procure means to defend himself with. Moreover, these crops are the subject-matter of the suit, and he has nothing else. Spencer v. Bryant (1) was not at all similar. Mr. F. A. Lewin, for the Plaintiff, was not called upon. THEIR LORDSHIPS thought that the crops were not the subject-matter of the suit. The Defendant had the crops, and the (1) 11 Ves. 49. L. JJ. 1874 Jan. 20. L. JJ. 1874 RIDGWAY v. EDWARDS. injunction was not a sufficient reason for holding him a pauper, and he must be dispaupered. Solicitors for the Plaintiff: Messrs. Lewin & Co. L. JJ. 1874 Jan. 21. In re HAWES. Ex parte JEFFERY. Costs of Liquidation-Subsequent Bankruptcy-Bankruptcy Rules, 1870, r. 292. A liquidation by arrangement was rejected by the creditors, but a receiver appointed under the liquidation remained in office when the debtor was adjudged a bankrupt : : Held, that the proceedings in liquidation were pending so as to enable the Court, under rule 292 of the Bankruptcy Rules, 1870, to direct the trustee of the bankruptcy to pay the costs of the liquidation. Order of Bacon, C.J., affirmed. H. M. HAWES, the debtor in this case, had presented a petition for liquidation by arrangement, under which petition a receiver had been appointed, and the receiver had taken possession of part of the debtor's estate. The first meeting of creditors was held, at which the creditors refused to pass any resolution for liquidation. The debtor was on the following day adjudged a bankrupt. The Chief Judge ordered the costs of the petition for liquidation to be paid by the trustee under the bankruptcy, as reported (1). The trustee appealed. It was stated that the costs of the petition were £97, and would absorb nearly all the assets available for dividend. Mr. De Gex, Q.C., and Mr. Winslow, for the Appellant : The question depends upon rule 292 of the Bankruptcy Rules, 1870, which directs the costs of a previous petition by liquidation to be paid by the trustee in bankruptcy, where the bankruptcy occurs pending liquidation. We say that the liquidation was at an end when the resolution was rejected, and that it could not be revived: Ex parte Cobb (2). The case does not come within (1) Law Rep. 17 Eq. 61. (2) Law Rep. 8 Ch. 727. the words, and as to the objects of the rule, why should not the solicitor obtain payment in advance or get security for his costs? Mr. Little, Q.C., and Mr. Finlay Knight, for the Respondent. Mr. De Gex, in reply. SIR G. MELLISH, L.J.: The sole question in this case is, whether the solicitor who presented the petition for liquidation is, under rule 292 of the Bankruptcy Rules, 1870, entitled to the costs of that petition. A meeting was held on the 28th of February, 1872, at which a majority of the creditors refused to pass any resolution in favour of liquidation. On the following day the debtor signed a declaration of insolvency, and on the same day he was adjudged a bankrupt. A receiver had been appointed under the liquidation, who took actual possession of the property of the debtor which at the time of the bankruptcy remained in his possession. What the Court has now to decide is, whether in the present case proceedings for or towards liquidation were pending on the 1st of March, when the adjudication was made. I am of opinion that they were. The object of the rule is plain enough. If there was no such provision, the consequence would be that no solicitor would ever act on behalf of a debtor who desired to present a liquidation petition, or would ever recommend him to adopt such a proceeding, unless the solicitor received beforehand payment for the costs he was likely to incur. This would be very inconvenient and might prevent the petition from being presented. The object of the rule was, that solicitors might know that if they acted properly they would get their costs of a liquidation petition, notwithstanding bankruptcy might ensue, and as far as the words will allow us we must fairly carry into effect the object of the rule. Now, in my opinion, it is not necessary to put such a strict construction on the words as to hold that, whenever anything has taken place which renders it impossible to carry on the liquidation, the proceedings under the petition are no longer pending. So long as the liquidation is carried on by the existence of a VOL. IX. P 1 L. JJ. 1874 In re HAWES. Ex parte JEFFERY. L. JJ. 1874 In re HAWES. Ex parte JEFFERY. receiver, and so long as the Court could make an order in the matter, as, for instance, for the discharge of the receiver, or the passing of his accounts, and the creditors under the subsequent bankruptcy could derive a benefit from the liquidation proceedings, they might be said to be still pending. The receiver is an officer of the Court, and until he is discharged he holds possession of the property for the benefit of the creditors generally; and the person who was entitled to the property, on the assumption that the proceedings were put an end to, must come to the Court and ask for the discharge of the receiver. This has not yet been done, and the creditors have had the benefit of the appointment of the receiver as much as if he had been appointed under the bankruptcy. In this particular case there may be another ground for our decision, on which it is not necessary to express any opinion. The resolution of the meeting could not be said to be finally passed until after the expiration of the three days allowed by the rules for registration, since if a sufficient number of creditors signed within that time a resolution in favour of liquidation, the liquidation by arrangement might go on. I wish, however, to rest my decision upon the larger ground, that as a receiver had, under the liquidation, been appointed and had not been discharged, the proceedings in liquidation were still pending. SIR W. M. JAMES, L.J.: I am of the same opinion. The appeal must be dismissed with costs. Solicitors: Messrs. Phelps & Sidgwick, agents for Mr. Jeffery, Oxford; Mr. C. Mallam, agent for Messrs. Mallam, Oxford. |