3 C 13 MARCH 31, 1855.] EXCHEQUER. a covenant to pay calls, and the Act of Parliament requires such a covenant to be given; there is an express declaration that assignees shall not be parties to the deed, and they have a right, by lodging the proceedings in a certain way, to dispose of the shares of the bankrupt; that time has now gone by for the assignees to do so: (Ex parte Broadbent, 1 M. & Ayr. 638.) The defendant is liable to pay these calls although a Cur. adv. vult. certificated bankrupt. sum JUDGMENT. Feb. 13.-PARKE, B.-The declaration states that the defendant is the holder of 200 shares in a certain company called "Wylam's Steam Fuel Company," and he was indebted to the said company in a large of money for certain instalments of capital not paid. Then there is a third plea which states a clause that makes the defendant liable to calls-it states-"That it shall be lawful for the boards of directors, as and when the circumstances of the company shall appear to them to require the same from time to time, but nevertheless as to the second and third calls within the period hereinafter specified until the full sum of 201. shall have been paid in respect of each of the shares in the capital of the said company, to call upon the holders of such shares (other than the deceased or bankrupt or insolvent shareholders) their executors or administrators or assigns respectively,' and then mentioned certain qualifications with respect to those shares, to which it is immaterial at present 1 to advert. And the defendant further says, that after the defendant became the holder of the said shares, the defendant then being a trader within the meaning of the Act of Parliament, became indebted to the Governor and Company of the Bank of England in 50%, and then he pleads that he obtained a certificate under the bankruptcy. Then there is a replication which sets out all the material clauses of the deed of incorporation or copartnership, and it states that the defendant executed this deed as a subscriber for 200 shares, and it recites that the parties hereto of the first and second parts respectively had agreed with the company to form a company in order sum of to raise a capital not exceeding the 100,000l. in 5000 shares, and it goes on and contains a covenant by each of the parties of the first and second parts, with the person therein named as a trustee appointed in pursuance of the provisions of the said recited Act, that they, the said shareholders, respectively, or their respective executors, administrators or assigns, would pay up in manner thereinafter directed the amount of all instalments or calls required to be paid as thereafter provided in the shares taken by such shareholders respectively. And it goes on to provide in what way the concern was to be carried on; that the capital was to consist of 100,0002. in different shares; then that there should be a declaration of dividends according to the profit made and divided amongst the shareholders, and there should be a register-book containing the names of the shareholders and transfers to be made according to the Act of Parliament, and every person who became a shareholder should pay the instalments due from such shareholder; that the executors, administrators and next of kin of the deceased shareholder should produce a title for themselves not to be partners, and also "that no assignees of bankrupt or insolvent shareholders shall be entitled to become shareholders in respect of the shares held by such bankrupt or insolvent shareholders in the capital of the company; but that such assignees shall be entitled to sell the same upon leaving or causing to be left with the secretary, at the office of the company, an office-copy of the fiat, declaration, certificates and other documents necessary for establishing the fact of such bankruptcy and insolvency, and the estate of the assignee or assignees." Then it goes on and recites the clause No. 102 which has been pleaded by the defendant, and states the right of the directors to call upon all the holders of shares other than the deceased bankrupt or insolvent shareholders, their executors, administrators or assigns respectively; and then it contains other provisions, as to calls; and then it directs, in case of nonpayment of calls, that the directors shall have power to declare such shares forfeited; and then there is a provision afterwards that the shareholders may, after the directors have declared the shares to be forfeited, pay the sums of money in arrear; and then states the shares to be so forfeited, and upon that there is a demurrer. The question in this case depends entirely upon the construction of the deed, all the material clauses of which are set out in the replication, and those I have adverted to are enough for the present purpose. The question is, whether the bankruptcy of the defendant with or without a certificate is an answer to the claim of the plaintiff for calls; and the material question is whether the bankruptcy discharged him from liability, for if it did not, and he continued a shareholder, the certificate would be no bar, according to the case of The South Staffordshire Railway Company v. Burnside, these being shares in a railway company, 5 Ex. 129. The question then is, whether, according to the terms of this particular deed, the shareholder in becoming a to be a shareholder liable to bankrupt ceased The covenant to We think that he did. call. pay calls is not absolute, but qualified by the subsequent clauses. The shareholders covenant that their LAW TIMES REPORTS. EXCHEQUER. EXCHEQUER. We are after directed the amount of all instalments or calls and complete cargo by itself, of sugar and molasses CUTHBERT v. CUMMING. was a reasonable custom. This was an action upon a charter-party for not H. Hill, Q.C. (J. Henderson with him), in support Cur, adv. vult. The Feb. 8.-ALDERSON, B. delivered judgment.-The con The HEARN V. THE LONDON AND SOUTH-WESTERN RAILWAY COMPANY. Interpretation of the term "lost" in that Act-Delaying in delivering passenger's luggage travelling by railway-Negligence. proCarriers' Act· the 1st section of the Carrier Act is aided in its construction by the recital. It recites that valuable perty and articles consisting of great value and The meaning of the word " loss" in the enacting part of small compass, are liable to depredation, and the reason of the law must be considered as being to protect the carrier not in all cases where the owner of the article suffers or sustains damage from the neglect of the carrier to carry, but cases of a similar nature to those recited, where the chattel is either abstracted or otherwise lost from the personal care from the place EXCHEQUER. where it ought to be, and incapable of being delivered at the time that it ought to be by reason of such loss. Bovill appeared in support of a demurrer to the new assignment. The action was against the defendants as carriers for negligence in not duly delivering his luggage in regular course. It appeared the plaintiff had taken a ticket to go by the defendants' railway from London to Southampton, but when he arrived at Southampton his portmanteau containing deeds and other papers was missing and was not in fact delivered until some time afterwards. Defendants pleaded that the deeds, papers, &c. were contained in one package, and above the value of 102, and was delivered to defendants as common carriers; that they have affixed due notice in the office, notifying that for all packages over 10. value, &c. a certain rate of charge would be required to be paid over and above the ordinary rate as a compensation for the greater risk, &c., and that sum was not paid, &c. New assignment that plaintiff does not go for absolute or temporary loss, but the delay in the delivery. The question turns upon the meaning of the notice given by the defendants pursuant to the 11 Geo. 4, and 1 Will. 4, c. 68, s. 1, protecting them from liability for loss: (Hinton v. Dibbin, 2 Q. B.) Willes for the plaintiff, contended the company was liable upon the pleadings as they stood, and cited Raphael v. Pickford, 6 Sco. N. R. 478. Cur. adv. vult. EXCHEQUERY the said copies of abstracts of title, copies of conveyances and leases, books, diaries and memorandumbooks, within the meaning of the statute made and passed in the first year of the reign of his late Majesty King William the Fourth, intituled, "An Act for the more effectual protection of mail-contractors, stagecoach proprietors, and other common carriers for hire by land, against the loss of or injury to parcels or packages delivered to them for conveyance or custody, the value or contents of which shall not be declared to them by the owners thereof, and upon which statute the said third plea of the defendants is founded, but for that the defendants did not use due and proper care in and about the carriage and conveyance of the said copies of abstracts of title, copies of conveyances and leases, books, diaries and memorandum-books by and upon the said railway from the Waterloo station aforesaid, to the station or terminus at Southampton aforesaid, but neglected so to do, and so negligently conducted themselves in that behalf upon the said occasion, that by and through the carelessness, negligence and default of the defendants in that behalf the said copies of abstracts of title, copies of conveyances and leases, books, diaries and memorandum-books, were not nor were any of them or any part thereof safely and securely carried and conveyed to and delivered by the defendants to the plaintiff at Southampton aforesaid, at the station or terminus at Southampton aforesaid, according to the duty of the defendants in that behalf; Feb. 13.-PARKE, B. delivered judgment. The but on the contrary, by and through the carelessness, declaration is against the defendants as carriers; negligence and default of the defendants, the said it states that there was a railway from the Waterloo copies and so forth were, for a long space of time, to station to Southampton, and that, whilst they were wit, from the said 3rd June to the 22nd Sept. then the owners, the plaintiff, for reward to the defendants, next ensuing, delayed, kept and detained by the became and was a passenger in one of the defendants' defendants, and the plaintiff was deprived of the use, carriages on their railway, to be safely and securely enjoyment and possession of the same for and during carried therein, together with his luggage, from the the time aforesaid, although the same were not lost or Waterloo station to Southampton; that he was re- injured within the meaning of the said statute, but ceived as such passenger as aforesaid, together with his were afterwards and long after a reasonable time for luggage, to wit, a certain portmanteau of the plain- carrying, conveying and delivering the same as aforetiff's, containing divers goods which are mentioned, said had elapsed, and before this suit, delivered by the and amongst others certain papers, namely, twenty defendants to the plaintiff, and by reason of which copies of abstracts of title to certain estates, twenty delay of the defendants so newly assigned, the copies of conveyances and leases of various proper- plaintiff was put to and incurred the said expenses ties, books, diaries, and other matters, to the value of in the said first count of the declaration mentioned." 251. He was received at the Waterloo station, and According to the new assignment it does not appear the plaintiff arrived at the station at Southampton; to me to add anything to the declaration. The yet the defendants, not regarding their duty in that question in this case turns entirely on the meanbehalf, did not use due and proper care in and about ing of the notice given by the defendants pursuant to the carriage and conveyance of the plaintiff's luggage the statute 11 Geo. 4, and 1 Will. 4. c. 68, s. 1, proby and on the said railway, but wholly neglected so tecting them from the liability for loss of writings to do, and so negligently conducted themselves with and title-deeds unless an increased rate of carriage respect to the luggage of the plaintiff on that occa- was paid. If the statute, in such case of nonpayment, sion, that, by and through the carelessness, negli- means to protect the carrier from all liability to pay gence and default of the defendants in the pre- to the owners of the title-deeds, or other enumerated mises, the luggage of the plaintiff was not, nor articles, for any loss of any description whatsoever was any part thereof, safely and securely car- occasioned to him by the nondelivery, or by the ried, conveyed to and delivered by the defen- delay in the delivery of those articles by the neglect dants to the plaintiff at Southampton as afore- of the carriers or their servants, then the defendants said at the station or terminus in Southampton; are exempt, for the third plea is sufficient, and the but, on the contrary, by and through the careless-new assignment discloses no case to which the notice ness, negligence and default of the defendants, a part does not extend. On the other hand, if the term of the luggage, namely the portmanteau and the "loss," in the statute, means loss of a parcel by a goods contained therein, the writing-case aforesaid, carrier, such as by the abstraction of it by a stranger, or were for a long space of time, to wit, from 3rd June by his own servant, not amounting to a felonious act, to 22nd Sept., wholly lost to the plaintiff, and the or by the carrier or his servants losing them from a veplaintiff was deprived of the use, enjoyment and pos- hicle when in the course of carriage, or by mislaying session of the same for and during the time aforesaid. them, so that it was not known where to find them Then there is to that a plea-a third plea as to so much when they ought to be delivered, or other causes, not of the first count as relates to the copies of abstracts very easy to define, falling under the description of of title, and copies of conveyances of leases, books, loss by carriers, then the plaintiff has a right to rediaries and memorandum-books. The defendants say cover, for the plea does not disclose any such case, the same were title deeds and writings contained in and the declaration certainly does not; and the one package or parcel, exceeding in value the sum of plaintiff may have judgment for the badness of 10%, which said package or parcel was delivered by the plea without reference to the question whether the plaintiff to the defendants as common carriers, to the new assignment be good or not. What be carried by them to the place in the declaration then does the statute mean by the word "loss," mentioned, at a certain office or receiving-house of in the enacting part of the first section? The the defendants for the receipt of goods to be carried word "loss" is used in the preamble in a difby them as such common carriers as aforesaid; and ferent sense from both those suggested, where it is the defendants further say that before and at the time said that by the frequent omissions of the senders of when the said goods were delivered at the said office the parcel to intimate the value and nature of the as aforesaid, the defendants had caused to be affixed, contents so as to enable carriers to protect themselves in legible characters, in a public and conspicuous against losses arising from their legal responsibility, part of the said office, a notice whereby they the said they have been exposed to great risk and sustained defendants notified that a certain rate of charge heavy losses, and it is meant they have not been able therein mentioned was required to be paid over to protect themselves and have been subjected to loss and above the ordinary rate of carryiage, as a com- of their own moneys by way of compensation to the pensation for the greater risk and care to be taken owners of goods. The use of the word "loss," therefor the safe conveyance of (amongst other things) fore, in the preamble, throws no light on the question title-deeds and writings; and the defendants further in this case. The statute then proceeds to enact, no say, that at the time of the delivery of the said carrier shall be liable for the loss of or any injury to package or parcel to the defendants as aforesaid the any of the enumerated articles. This does not mean value and nature thereof were not declared by the the loss of the moneys of the carrier, but the loss of plaintiff, being the person delivering the same, and the article itself or injury to it. In ordinary parlance neither the said increased charge nor any engagement this appears to mean the loss by the carrier of articles to pay the same was accepted by the person receiving committed to him, or any injury to them whilst in his the same at the Waterloo station. Then follows a care, not the loss sustained by the owners by nonnew assignment in order to show that the plaintiff delivery of the article in due time or altogether-or does not go for the absolute loss or the temporary the loss of the article by him. By the term "injury loss, but the delay in delivering simply, and the is commonly meant injury to the article itself. plaintiff says "that as to so much of the declaration Then, although the use of the term "loss" in as relates to the said copies of abstracts of title, copies the preamble does not aid in the construction of of conveyances and leases, books, diaries and memo- the enactment, the recital of this clause does. It randum-books, and to which that plea is pleaded, he, recites that valuable property and articles conthe plaintiff, sues not for the supposed causes of action sisting of great value and small compass n that plea admitted, nor for any loss of or injury to liable to depredation; and the reason of the lawl were INSOLVENCY. must be considered as being to protect the carrier, not in all cases where the owner of the article suffers er sustains damage from the neglect of the carrier to carry; but cases of a similar nature to those recited. where the chattel is either abstracted or otherwise lost from the personal care from the place where it ought to be, and incapable of being delivered at the time that it ought to be by reason of such loss. We think that it is the true construction of the clause; the carrier is exempted wholly from being responsible for a loss by him of the particular article named, if there should be such a loss. No question arises in this cas whether it may be temporary or permanent; the plea alleges no such loss: therefore there must be judgment for the plaintiff, not for the goodness of the new assignment, but for the insufficiency of the plea. Judgment for the plaintif. INSOLVENT DEBTORS COURT. (Before Mr. Commissioner HATCHELL) Arrest of insolvent pending a former petition and resting order-New order for hearing. The judge of a County Court discharged the order for hearing and adjourned a case to Dublin, having so jurisdiction to do so, and the insolvent thereby escaped or was permitted to go at large; he was subsequently sued and arrested by a creditor and sent to the ans county prison. The Insolvent Court would not dismiss the petition, lest creditors who had obtained judgments since the vesting order should gain priority; but it granted a new order for hearing. The insolvent came up to be heard before the assistant barrister at Waterford, who adjourned the hearing to Dublin, but on the insolvent coming before the commissioner there, he declared he bad no jurisdiction to deal with it. [See 23 L.T. Rep 348.] On the day that the case was to have been heard in Dublin a creditor named Williams served the insolvent with a writ, and in the month of September following he was arrested under an execution at his suit and again sent to prison in Waterford. Levy now applied for liberty either to have a new order for hearing on the old petition and schedule, or to have the former petition dismissed and a new petition and schedule filed. Power opposed both branches of the applicatior, The case was of an exceedingly peculiar character, and perhaps no direct authority could be found on the subject; and he apprehended it would require an Act of Parliament to deal with it. The insolvent was brought up to be heard before the judge of the Co. C., who, without any authority to do so, adjourned the case to Dublin, having first discharged the order for hearing, and having also extended his protection to the day on which the case was to be heard in Dublin. The commissioner declared he had no jurisdiction to deal with it, and the man having then gone at large, he had virtually, by the act of the court, escaped from all his detainers in Waterford, and the debts of the creditors who had him in execution were satisfel; at least he was discharged from them as effectually as if he had taken the benefit of the Insolvent Act. A new order for hearing would be of no effect, as he could not be heard on the old schedule; and if the petition were dismissed, a creditor who had filed a cause petition since the vesting order, and registered a lis pendens, or obtained a judgment, would come in in priority to all the other creditors, as his (the insolvent's) entire assets consisted of interests in some freehold property. He did not see how the insolvent could escape but by paying Williams, his present detaining creditor. The COMMISSIONER said, although the case was one of considerable difficulty, and he believed without any precedent to guide him, yet he could not permit the man to remain in a kind of legal limbo without any means of escape, and would exercise a discretionary power adapted to the requirements of the case. The chief difficulty he saw was, that if he dismissed the petition, any creditor who obtained a judgment since the vesting order would obtain a priority over the other creditors. Were it not for that, he would dismiss the petition and let the insolvent come before the court upon a new petition and schedule, in which he might or might not return all the creditors who had him in execution at the time of his first hearing, as he might be advised. He thought the best course he could pursue would be to grant a new order for hearing at Waterford, with liberty to amend the former schedule, by stating the peculiar circumstances which occurred since it was filed. New order for hearing granted. Re JAMES MOONE. Making away with property-Deficiency in balance-skeet -Vexatious defence to an action. Where there are transactions exceeding three thousand pounds and a deficiency of about two hundred pounds appears on the balance-sheet, the insolvent will not be remanded for making away with property. The peral clause for vexatiously defending an action does not N APRIL 7, 1855.] INSOLVENCY. apply where it is brought on the foot of a contract for thesale of goods, on the validity of which questions of law may arise. The insolvent was opposed by Creighton, Q. C. and Hearne, for Messrs. Pim and Co., flour merchants, on the ground of vexatious defence to an action and having made away with property. Levy and Sidney supported. The insolvent was a baker in Francis-street, and in the year 1853 he bought large quantities of flour from the Messrs. Pim, on the speculation of a rise, but a fall having taken place at the close of the season, he refused to take the flour, and the Messrs. Pim having sold it for his account, sued him for the loss. To this action he took defence, and, amongst other points, raised a question under the Statute of Frauds, on the ground that there was no note in writing to bind the contract. The case was tried and a verdict had against the insolvent, and upon a motion afterwards on points saved, an application for a new trial was refused, with costs. During the progress of the law proceedings, the insolvent paid almost all his other creditors, and when the case was finally decided against him, he made a sale of his house of business and the remnant of his property to his nephew. On the case originally coming on for hearing, counsel for the insolvent proposed to have his petition dismissed, a new schedule filed, and the property given to the nephew returned on it. This was accordingly done, and the insolvent directed to file a came now before special balance-sheet. the court upon the new schedule and balance-sheet. Creighton contended that there was still a deficiency of upwards of 250%. on the new balance-sheet, which was evidence of concealment or making away, but they relied principally upon the vexatious defence to the action of the Messrs. Pim, who were put to costs amounting to nearly 100%. The case Levy for the insolvent.-The statute did not apply to an action such as was brought by the Messrs. Pim. It was for a breach of contract, as to the validity of which nice questions of law had arisen-it should be an action for a liquidated debt: (Cooke, 215.) Besides the plaintiffs recovered 45%. less than they went for in their bill of particulars, and an opposition for vexatiously defending an action fails if the verdict is for a less sum than that claimed: (Re Stacey, Cox & Mac. 83.) Mr. Commissioner HATCHELL delivered judgment. -He was of opinion, after looking into the cases and considering the nature of the action, and that the man bad lodged a sum of money in court sufficient as he thought to meet the claim, that he believed he had a good defence to the action, and that he could not be said to have vexatiously defended it. The goods had not been delivered to him, and no doubt questions might arise as to the validity of the contract. As to making away, he thought that where there was only a deficiency of about 2007. in transactions covering upwards of 3000%., he ought not to remand him on When the that ground. But then his general conduct was such that he could not be allowed to escape. verdict was decided against him he ought to have used his exertions to settle with Messrs. Pim, instead of breaking up his establishment and divesting himself of all his property. He appeared up to that time to He should be be a solvent man, having a considerable balance to his credit in the Hibernian bank. remanded for six months under the discretionary clause. Re JOHN SMITH. LAW TIMES REPORTS. INSOLVENCY. circumstances was a great favour, and the creditors The COMMISSIONER thought the condition sought Re CONROY. Where a prisoner is committed for a contempt in not The insolvent was opposed by Creighton, Q. C., on WATERFORD COUNTY COURT. (Before Mr. BESSONET.) Re THOMAS MORISSEY. A The insolvent was opposed by Phelan, solicitor on the part of a creditor named Clancy, on the ground of having obtained goods by false pretences; he said he had documents that would prove his case. The court shut Levy, for the insolvent, objected to any evidence Committal of insolvent to a new custody whilst his having been gone into unless the creditor was perStock Bank came into court just when the first opformer petition and schedule are on the file-Applica-sonally present to sustain his case. tion to file a new petition-Condition on which it will out the opposition. The solicitor of Tipperary Jointbe granted. on the ground of making away with property. Levy Where an insolvent is brought up to be heard in the position had been disposed of, and sought to oppose country, and after repeated adjournments fails to appear on his final hearing, and he is then arrested objected to his being heard, as he was not there to case was called on; even where a creditor was absent and placed in a new custody, he will not be permitted have his opposition taken down at the moment the to file a new petition and schedule, unless he has himL. T. Rep. 456.) self removed by habeas corpus to where his creditors by accident he was shut out: (Re Burris, 16 reside. The insolvent in the year 1847 came up to be heard at Nenagh before the Commissioner of the Insolvent Court, and from time to time had his case adjourned to 1850, and ultimately failed to appear on his final hearing. In September 1854 he was arrested and committed to Tullamore prison, at the suit of Hodges and Smith, the law-booksellers, Dublin. The former petition and schedule remained on the file, and several detainers were laid on whilst in the Nenagh prison. Creighton, Q.C., and Phillips now applied to the court to have the former petition dismissed, with liberty to new petition and schedule to be heard at the Co. C. in Tullamore. Wherever a man was arrested there he had a right ex debito to be heard; he could not be heard on the old petition and schedule, because he was in a different custody, and a new one could not be filed till the old one was dismissed. file a Levy opposed the application, except on the condition that the insolvent had himself removed to Dublin by habeas corpus; all his creditors resided there, and if his case was to be heard in the country, he would harass them by bringing them down to oppose and by adjournments as on the former occasion. His being permitted to file a petition at all under the VOL. XXV.-No. 627. His HONOUR said he was exceedingly unwilling to shut out any creditor upon a technical ground; but he believed it was the established practice, both in England and Ireland, that if a creditor were not present at the time the case was called on and the Oppositions entered, he could not afterwards be heard; even though a particular creditor who might perhaps and it was better to uphold an established practice, have good grounds to oppose should be disappointed; upholding the practice would make creditors more watchful of their own interests. Opposition shut out. The insolvent was discharged. Re MICHAEL ARTHUR ANTHONY. Undue preference. INSOLVENCY. insolvent from prison will not be deemed an undue The insolvent came up to be heard upon a renewed He was opposed by Power on the part of several Barren asked if Power had an attorney with him Power said, the attorney of three of his clients Barren said, there was a rule of that bar, which His HONOUR said it was a rule he had always up- Power then proceeded to open the opposition.-On his part he contended that the schedule presented evito a fraudulent preference it was beyond all dispute dence of suppression of property; and with regard that the insolvent executed a bond to his mother. whilst in prison; that on that bond she entered up judgment, had execution issued, and all the insolvent's property sold. On these grounds he called for a long remand. case. Levy, for the insolvent, produced a deed of compowere satisfied with his statement, and that his inability the creditors examined the insolvent's affairs, and sition signed by Williams, in which it was stated that to pay arose from misfortune. With regard to the preference to his mother, he gave the bond when in.. to settle with a creditor who threatened him with a prison, and under pressure, upon an advance of money, criminal prosecution. Giving the bond to his mother His HONOUR said he had a right to remember the liberty. When it was last before him, all the parties was not a voluntary act; he gave it to obtain his concerned entered into a consent to have it brought to Dublin, and led him into an error without reflecting on what he did; the error was, however, set right, and the case was then to be dealt with on its merits. With regard to suppression of property, he thought. the creditor who signed a document that he was satisfied with the man's account of his property, had no right to come there to complain. With regard to the undue preference, it appeared that the insolvent's mother was one of his largest creditors, and that he gave her the bond ander pressure, and for the purpose of obtaining his liberty. The creditor who extorted that settlement from him would be made accountable by an assignee. The insolvent was discharged. Re OLIVER MILLS CRAIG. Creditor's petition by public company-Sealing instead of signing. Where a public company through their public officer files a creditor's petition under the 19th section of the Act (English sect. 36) where they have their debtor in execution; although the Insolvent Act requires such petition to be signed by the petitioner, and the 140th section of the Companies Clauses Act directs that claims of public companies in cases of bankruptcy or insolvency of their debtors shall be deemed as if the demand was on the part of such officer himself, yet sealing the petition will be held to be signing it. The 19th section of the Irish Insolvent Act (sect. 36 prison for a space of twenty-one days, under an Phillips now applied to set the petition aside for irregularity.-The several railway Acts required that certain contracts with a railway company should be INSOLVENCY under seal; but a creditor's petition was no contract with the company; and there was nothing whatever in the whole of the railway Acts to warrant a departure from the insolvent statute. Special powers given by an Act of Parliament were always to be strictly followed; and it was also an invariable rule that the law favours liberty (Dwarris, 670, 674); and if the petition were set aside, the insolvent would, under the present Act, be entitled to his discharge, whilst the creditors' remedies as to the debt would be preserved. Under those circumstances he contended that the sealing of the petition instead of signing it rendered it a nullity; and it ought to be set aside. He relied too on the 140th section of the Companies Clauses Consolidation Act. Crighton, Q.C. and Coffey, for the railway company, opposed the application.-There was a variety of causes to show that sealing was tantamount to signing; and where a corporate company had a common seal, all acts done under it were valid. They admitted that if the public officer had signed the petition instead of sealing it, it would be equally valid, so that whether the petition was signed or sealed, it amounted to the same thing. The 139th section of the Companies Clauses Consolidation Act was an answer to the 140th section relied on by Mr. Phillips. The COMMISSIONER said, he thought there was a good deal in the argument of Mr. Phillips; but still it would, in his opinion, be going too far to say that what a public company was enabled to do by the mere signature of their public officer, they could not do the same thing under their corporate seal. Mr. Phillips, besides the directions given in the 19th section of the Insolvent Act, relied upon the 140th section of the Companies Clauses Consolidation Act, which provides "that if any person against whom the company shall have any claim or demand become bankrupt, or take the benefit of any Act for the relief of insolvent debtors, it shall be lawful for the treasurer or secretary of the company in all proceedings against the estate of such bankrupt or insolvent, or under any fiat sequestratio or act of insolvency, against such bankrupt or insolvent to represent the company and act in their behalf in all respects as if such claim or demand had been the claim or demand of such secretary or treasurer and not of the company." There was no doubt that if the officer of the company was a petitioner on his own behalf he should sign the petition, but it was evident that the 140th section, as well as the 139th, which did not require summonses or notices to be under the common seal of the company, were introduced as a matter of convenience; but it did not follow that affixing the seal to any such document rendered it a nullity. Under these circumstances, he felt bound to refuse the application to set the petition aside. At the same time he thought there was a good deal in the argument of the counsel for the insolvent, and that, as a general rule, where a statute gave special directions they ought to be literally followed. Application refused. Re DAVIS TATE. Vexatious defence to an action. Where an insolvent is opposed for rexatiously defending an action, the opposition will fail if the bill of particulars contains charges that the plaintiff ought to know could not be recovered, even though the claim is offered to be abated before a verdict or consent for judgment is obtained. The insolvent was opposed by Sidney for a Mrs. Bunter, who kept a ladies' boarding-school in the neighbourhood of Londonderry, on the ground of a vexatious defence taken to an action brought against him to recover a claim made for the board and education of her daughter who had been at the school of the plaintiff. The action was brought for 381., and after the case had gone to trial he gave a consent for judgment for 15.; that consent was offered to be taken previously, but it would not be given, and the plaintiff's costs of the nisi prius trial at Derby amounted to upwards of 407. It was clearly a case of very vexatious defence to an action that there was no real defence to, and he ought to be remanded. The plaintiff not only lost her debt, but 40s. costs. Levy for the insolvent.-Opposition for vexatiously defending an action fails if the verdict is for less than the sum claimed: (Re Stacey, Cox & Mac. 83.) As to an offer to take a consent for judgment for 15. that was not made till the case was at trial. The COMMISSIONER, upon examining the bill of particulars, said it contained items of a most exorbitant character, such as a sum of 201. for medical attendance on the little girl whilst in school; and where a bill of particulars contained items that a plaintiff must know cannot be sustained, he thought, on the debtor becoming insolvent, after defending such an action, even though part of the claim was afterwards abated, he ought not to be remanded for a vexatious defence. The insolvent was discharged. Re RICHARD PLUNKET. Appointment of assignee in room of assignee deceased. Although a party show by the assignment of a judgment affecting an insolvent's property, and an affidarit to support his claim, that he is the only person entitled to the proceeds of it, he will not get a refe COURT OF APPEAL. COURT OF APPEAL. to construct a sewer discharging itself into the Ave in which they were interested both in respect of their fishery and of their watering places, without their written consent. The board, however, proceeded with their works, and the present bill having been filed on the 29th June 1854, the plaintiffs moved, on the 2th July before the M. R., for an injunction in the terms of the prayer of their bill. His Honour made an order, restraining the defendants from constructing through or under the lands of the plaintiffs any sewer having an outlet into the river between certain points mentioned in the order, or otherwise injuring or interfering with any part of the ner Avon in which the plaintiffs were interested. The present appeal was brought against this order. Upen the appeal coming on before the Lords Justices in August, it was ordered to stand over till after Michaelmas term, for the assistance of two concise law judges. On the 18th Dec, and the 12th Feb. was accordingly argued before the Lords Justices and Creswell and Williams, JJ. rence to appoint an assignee unless, he takes out admi- The COMMISSIONER said, upon looking into the Equity Courts. COURT OF APPEAL IN Reported by C. H. KEENE, Esq. of Lincoln's-inn, Aug. 2, 3, Dec. 18, Feb. 12 and 27. c. 63. injunction-Local board of health-Stat. 11 g 12 Vict. Held, that the construction of such a sewer was an whatever, but so as not to create a nuisance." By the 145th section it is enacted "that nothing in this Act shall be construed to authorise the local board of health to use, injure, or interfere with any watercourse, stream, river, dock, basin, wharf, quay, œ towing-path, in which the owner or occupier of ay lands, mills, mines, or machinery, or the proprietors or undertakers of any canal or navigation, should ar might be interested, without consent in writing first had and obtained." Palmer, Q.C. and Martindale, for the defendants.-We rely on the powers contained in the 45th and 45th sections. The 145th section cannot be literally con strued. If it be so, any user or interference-for example, pouring pure water into a stream-would be subject to a veto by the proprietor of a right in the stream. It must, therefore, be an injurious user, and this is not such an user. Again, the interests in the water mentioned in this section must be interests connected with the property in the lands en the banks, and not such an interest as a several fishery. The construction contended for would nullify the Act in the most important towns in the kingdom. It is inconceivable that a perso having an interest of the value of 10s. a-year in a stream, is entitled to put an absolute veto upon inOld-portant public works. [KNIGHT BRUCE, LJ.-1 think this court, in interfering with bodies entrusted with parliamentary powers, has not held its hand of account of the smallness of the interest interfered with. I know of no cases to show that it has done so Quare, whether their several fishery was such an interest The bill in this cause was filed by Elizabeth The persons through whom the plaintiffs claimed They cited Wood v. Sutcliffe, 2 Sim. N. S. 167; Linhirst v. Spencer, 2. Mac. & Gor. 45. Roupell, Q.C., Hingeston and Gray, for the plaintiffs. -The Act is a strong Act, derogating from the rights of the subject, and therefore must be strictly construed. The Legislature in limiting the rights of the board to interfere with streams, may have intended the sewage to be collected and secured for agricultural purposes. A several fishery comes under the denomination "land" as construed by the interpretation clause. They referred to Aldred's case, 9 Rep. 47 Wood v. Waud, 3 Exch. 748; Frewin v. Lewis, 4 Myl & Cr. 249; East Lancashire Railway Company v. Hattersley, 8 Hare, 88; Dickenson v. The Grand Junction Canal Company, 15 Beav. 260: Davenport v. Davenport, 7 Hare, 217; Mason v. Hill, 5 B. & Ad. 1. Feb. 27.-Lord Justice KNIGHT BRUCE.-In this case Creswell and V. Williams, J.J., have favoured us with their opinion thus expressed :-" In this case it appears that the respondents are the owners of certain fields abutting on the river Avon, and also of a several fishery in the same river; and that the local board of health for the district of Stratford-uponAvon, which includes the fields in question, have given notice of their intention to conduct a sewer, and te carry an outlet through those fields, by which the APRIL 7, 1855.3 COURT OF APPEAL. LAW TIMES REPORTS. ROLLS COURT. Friday, March 23. Re THE DEVONPORT EDUCATION FUND. An order may be made by a V. C. under the 28th J. Pearson, at the request of Wood, V.C., mentioned trustees. Lord Justice TURNER, after reading through the sewer would be discharged into the river. We have been asked to give an opinion, whether the local board of health is authorised by the Act of Parliament of the 11 & 12 Viet. c. 63, to make such a sewer and outlet without the consent in writing of the respondents. After listening to and considering a very able argument, we have arrived at the conclusion, that they are not so authorised. The appellants relied in argument upon the 45th and 46th sections of the Act. [Their Lordships cited those sections, which are given above.] It was contended on the part of the board that they are empowered by the 45th section to make sewers under any lands whatever, and consequently under those of the respondents; and, by the 45th section, to 'cause such sewers to communicate with and be emptied into such places as may be fit and necessary;' and that the river Avon such a fit and necessary place. It is unnecessary to inquire whether the word 'place' includes a river circumstanced as the Avon is at the spot in question; for we are of opinion that the effect of these enactments is limited by the 146th section. [This section is given above.] The first question arising upon this section is, whether the river Avon is a river Now it in which the respondents are interested. appears that they are owners of land upon the banks, and have a right to certain watering places sufficient for the use of the cattle pastured upon their fields. We think, therefore, that they are interested in respect of their lands in the river; and we wish not to be understood to express any opinion that they are not so interested in respect of their fishery. By the interpretation clause in the Act, the word 'lands' includes hereditaments, and therefore a several fishery. The next question is, whether the use, injure and interfere appellants are about to with' the river Avon. They are certainly about to use it as a receptacle for the sewage of the town; whether what they are doing will injure it is a question to be decided upon the evidence, and upon that we are not called upon to determine. In our opinion the board of health cannot justify, without the consent of the respondents, the using or interfering with the river. But if the respondents require compensation for the invasion of their rights, they are left for this purpose to the common course of law; and not being owners of the soil of the river, or of the water, but only of certain rights therein, they could not succeed in an action unless they could show themselves to have been actually injured." The conclusion of the learned judges in favour of the plaintiffs appears to me to be correct, though I do not say how I should have dealt with the case if the plaintiffs' only interest had been in the fishery. I am of opinion that the injunction ought to be supported, if on no other ground, at least in respect of the plaintiffs' right to the watering-Held, looking at the general scope of the will, that real places for cattle. In this respect, and for this purpose, the evidence convinces me that the plaintiffs are interested in the river as owners of the adjoining land, though not of the soil of the river; and that the defendants' works would so much, so materially, and so permanently affect the water as to render it less wholesome for ordinary use in watering cattle. The injunction must therefore stand. Lord Justice TURNER.-The learned judges have given us their opinion that the plaintiffs having, as owners of the adjoining land, a right to wateringplaces on the river, are consequently interested in the river; that the works of the defendants are an interference with the river; and that the defendants not having the consent of the plaintiffs, cannot justify such interference under the Act of Parliament. They have left the question open whether the works referred to would injure the river, and have expressed their opinion that, not being owners of soil or of the water, the plaintiffs could not maintain an action without proving injury. If it were necessary to determine the question of injury, I should have no difficulty in deciding that the plaintiffs would be injured in their rights by the works of the defendants, since it is not to be supposed possible that the water would remain as pure and wholesome after the sewage of the town has been infused into it as it is now. It is not, however, necessary to decide this question, since I concur with the opinion of the learned judges upon the other points; and if the defendants cannot justify their interference with the river, I do not see how they can be justified in carrying their sewers through the plaintiffs' land with a view to such ultimate interference. I agree in thinking that the injunction must stand; and I agree the more readily, as this is a case of a public body intending to exceed their legal powers; and I hold the opinion, that the power of this court cannot be more usefully employed than in repressing such acts. In that respect I am ready to adopt the language used by Lord Cottenham in Frewin v. Lewis, 4 Myl. & Cr. 249. The learned judges have given their opinion, that in the construction of the Act of Parliament the interpretation clause being taken into consideration, the word "land" includes a several fishery. Without dissenting, I do not mean to express any opinion upon this point. While it is difficult to ascribe to the Legislature the intention of protecting an interest in land, which might be of small value, and not a fishery which might possibly be much more valuable, still there is so much ambiguity in the Act, that this point remains open to considerable doubt. The motion must be refused, with costs. ROLLS COURT. ROLLS COURT. consistent. They cited Hopewell v. Ackland, 1 Com. Roupell, Q.C. and Doner, for defendants in the same The MASTER of the ROLLS.-I am of opinion that real estate does not pass under residuary devise court is naturally disposed to do, to arrive at a concontained in this will, although I have striven, as the the words taken alone are quite sufficient to include clusion which would prevent an intestacy as to any real estate. No words can be larger than those used part of the property. There can be no question that have not the slightest doubt by the testator; and therefore the burden of proof is thrown upon the that they are sufficient to include real estate, and But, throwing these words to personal estate. heir-at-law to show that, according to some settled that burden upon the heir-at-law, I think that rule of construction, I must limit and cut down the rest of the will does justify the conclusion that which refers specially and exclusively to real estate, personal estate alone passes. I look to the general scope of the will, and I do not find a single expression though there are one or two ambiguous expressions which might apply either to realty or personalty. The words "heirs," "devise," "rent," are nowhere to be found in this will. The ground of my opinion is very much the same as that upon which the court Reported by GEORGE WHITELEY, Esq., of the Middle Temple acted in Doe v. Buckner, that all the subsequent limi Barrister-at-law. March 3 and 5. COARD V. HOLDERNESS. soever and wheresoever," which he was or might be estate did not pass under these general words. common. tations are applicable to personal estate and personal estate only. I shall presently make a few observations upon some of the cases which have been cited, but I testator, after describing the property in the words to shall first refer to the language of the will. The to trustees, their executors and administrators, not which I have referred, gives the property so described using words of inheritance properly applicable to real estate, although they would undoubtedly be sufficient to pass real estate if specially mentioned. Then the trustees are directed to stand possessed thereof, and of the proceeds thereof upon trust, to divide the same parts, to pay "the income thereof" to his eldest son for life, and as to the principal" upon trust for all into five equal parts or shares, and as to one of such With respect to the second share, word principal having reference to personal and not his children to be equally divided between them, the he gives the "balance" to another son upon trusts to real estate. therein declared. As to the third share and a certain after directing that 1000l. stock should be deducted, sum of 1007., the "income" is to be applied to partiand then follow trusts as to the "princular purposes; or legacies." The same terms "income," "interest," cipal" of the said legacies; and throughout the whole will the testator speaks of the "original parts or shares and "principal" are used in like manner in speaking of the fourth share; and with respect to the remaining share, that of a son W. E. Holderness," who had been absent for many years, he directs it to be accumulated. The direction to accumulate begins, "I will and direct for my son.W. G. Holderness, thus using the same that the said fifth part of my estate and effect and property' intended, subject to the condition aforesaid, words as in the original gift of his residuary estate. there is no such words as heirs' employed; but in So in the direction for the appointment of new trustees then the last acting trustee, or his executors or adcase any of them die during the execution of the trusts, ministrators, shall appoint a new trustee in whom the only. Again, in the early part of the will, the property shall become vested;" clearly contemplating that they would have to deal with personal estate testator gives four legacies; and there he says, "subject to the said four legacies, I give, bequeath and dispose," &c., using the words I have already This referred to. It would be difficult to say that these So with legacies would be a charge upon the real estate. is confirmatory of the view I have taken. is a small observation of itself; but as far as it goes it event "the 5001. stock, or the value thereof, is to fall regard to another legacy, he directs that in a certain into the residue of my estate;" words as general as possible, but still applicable only to personal estate. The word "proceeds" is the only word which could be is applicable to personal estate, or is not confined to held to apply to real estate; but properly that word realty. As to the authorities, Woollam v. Kenworthy, a general Mundy does not appear to me to militate against this clearly establishes the principles that the court is to construction. In that look to the general scope of the will. Church v. may please God to bless me withal, or I may leave, or and I may be entitled to at the time of my decease, devise of "all such worldly estates and effects as it Lloyd, Q.C. and Prendergast, for the plaintiff, con- were case there was |