or chattels within the meaning of the 6 Geo. 4. c. 16. I need not again explain the grounds on which I form my conclusion; they still appear to me to be valid and sufficient.

Can then a payment of money, by way of fraudulent preference, come of itself within the words to which I have referred? There can be no doubt but that money is among the things which the word "goods" may with correctness be used to describe or signify. The word, no doubt, may be used under circumstances, or be accompanied by a context rendering an interpretation of a different kind necessary. But without such a context and such circumstances, the word left to its full ordinary operation clearly extends to money. Can it be said, that a man's money is not part of his goods and chattels ? It would be useless to cite dictionaries, treatises, text books, and reports on this point; nor do the limitations that have been supposed to exist upon a sheriff's power of seizure under a writ of fi. fa., appear to me to make any difference. Is there, however, a context, or are there circumstances rendering it necessary or proper to interpret the words "any of his goods or chattels," in the 3rd section, as exclusive of money? There can, I think, be no circumstances independently of the context; for money must surely be as much within the mischief against which the statute was intended to guard, as any other goods or chattels. Can it be reasonable that a man, paying to a creditor in satisfaction of his debt, or giving to a relative 1,000l. in money, should not commit an act of bankruptcy, when, if under the same circumstances he had, instead of money, delivered to the creditor, or given to the relative, plate, jewels, pictures, merchandise, or bills of exchange of the same value, he would commit an act of bankruptcy? I mention bills of exchange particularly, because of the case of Cumming v. Baily (9), for, in effect, I am urged to say, that if in that case Mr. Brown had sent Lady de la Warr 300 sovereigns instead of a bill of exchange for 3001., there would have been no act of bankruptcy, that is to say, that there is for the present purpose a substantial distinction between bills and cash. What is to be said

(9) 6 Bing. 363; s. c. 8 Law J. Rep. C.P. 103.

My

of cheques, bank notes, Exchequer bills, foreign paper money, foreign coins, bullion? What of the cases of boxes or a purse containing, and therefore delivered with British cash. I cannot, without absolute necessity, impute to this country that its mercantile law is in such a condition, that a trader holding in his right hand cash, and in his left bills of exchange, is capable of committing an act of bankruptcy by delivering what he has in one hand, while incapable of committing an act of bankruptcy by delivering what he holds in the other. opinion therefore is, that, independently of the context of the 6 Geo. 4. c. 16, all considerations properly belonging to the subject. are in favour of holding money to be within the words referred to. How then stands the matter of context? a question, in addressing ourselves to which, we must not forget the other considerations that I have mentioned. It is true, that neither the word "pay" nor the word "payment" is in the 3rd section. But, whether the word "transfer" can or cannot be considered as properly applicable to "money," the word "gift" is so, and very commonly applied, and so also is the word "delivery." It is, indeed, observable, that in an earlier part of the section, with reference to an act of bankruptcy of another kind, there are the words goods, money, or chattels," corresponding with the language of the 1 Jac. 1. c. 15. But, upon reflection, I think this is not a circumstance of any weight or account against the other considerations to which I have alluded, nor does it appear to me that anything can turn on the expression "monies or estates" in the 2nd section, or upon the language of the 8th section, which, though comprising the words "pay," "money," and the words "give or deliver," and therefore deserving of attention, does not comprise the words "goods" or "chattels." Nor does the corresponding section of the statute 5 Geo. 2. c. 30. influence my mind as to the section now in question. The 72nd section does not contain the word "money" or the word "debts;" but it certainly extends to the latter, and I can conceive cases in which it might extend to cash in the bankrupt's possession distinguishable from, and identified as not his own. The 73rd section differs importantly from section 5. of the statute 1 Jac. 1. c. 15, upon which

66

Ex parte Shorland (10), and Kensington v. Chantler (11), were decided.

66

It appears to me, that the nature of that enactment precluded the possibility of arriving at any other conclusion in Kensington v. Chantler than the decision of the Court of King's Bench, that, had that case turned upon the stat. 6 Geo. 4, instead of 1 Jac. 1, the decision would probably have been the same; but that the question upon the 3rd section of the statute 6 Geo. 4. is, from the different wording, nature, and object of that section, not affected by any such consideration. I cannot accede to the argument, that the language of the 81st and 82nd sections, by reason of the words, such payment not being a fraudulent preference of such creditor" being in the latter, while there is no similar or analogous expression or provision in the former, shews that a payment of money was not intended to come within the words "gift, transfer, or delivery, &c.," in section 3; inasmuch as, by the manner in which section 81. is worded, and especially in which the words "bona fide" are there placed, the insertion in that section of a provision or exception against acts of fraudulent preference was rendered unnecessary; and it is difficult to imagine how an act" fraudulent" within the meaning of section 3. could be "bona fide" within the meaning of section 81. That section, however, seems to me more plainly worded than section 82. The words "really and bona fide," in section 82. must, in the intention of the framers of the act, have extended to the future, as well as to the past. This, and the circumstance that section 82. provides only for payments by bankrupts to creditors, and payments to bankrupts, while section 81. has, except in point of time, a much larger range, may sufficiently account for the words "such payment not being a fraudulent preference of such creditor" being found in section 82. I believe that this act, in various parts, contains language both superfluous and incorrect; and supposing, therefore, the clause that I have just mentioned to be superfluous or unmeaning, except on the supposition that a payment of money by a bankrupt could not be a gift, delivery, or transfer of any of his goods or chattels within sec(10) 7 Ves. 88.

(11) 2 Mau. & Selw. 36.

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tion 3, that circumstance, with regard to this act, would not weigh with me sufficiently to induce me to construe that section in a manner that I should not otherwise do. Nor do I consider that the 84th section affects the construction of section 3, although containing the words "money" and "payment," as well as the words "goods" and "delivery." Here, indeed, also, the more particular and restricted words " money and "payment" precede and do not follow the more general and larger words "goods" and delivery;" and I suppose that no man will contend that the words "wares" and "merchandises" are not merely superfluous. So I apprehend of the words offices, fees, annuities, leases," in section 73; and the act contains other instances. The 94th section I think also not material to the present question, though, perhaps, the 135th may be. Having, as I believe, mentioned all the sections of 6 Geo. 4. c. 16, upon which any reasonable argument from context can arise, I conceive that there is nothing in the context of the act to limit the construction of the words " goods or chattels" in section 3, so as to prevent money from being comprised under them.

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This is the view I take of the construction of the statute, independently of the case of Bevan v. Nunn. I do not refer to Carr v. Burdiss (12), where the question of country bank notes was raised, but not decided; nor to the cases of Cotton v. James (13), and Abell v. Daniell (14), which are, in my opinion, not relevant to the question now before me. In Bevan v. Nunn, however, an opinion was expressed by the present Lord Chief Justice of the Common Pleas at variance with my view of the 3rd section, and that opinion, as I understand from his Lordship, he retains. This circumstance has caused me to consider the point very anxiously; but my endeavours to bring myself to entertain the same view with his Lordship of the section under consideration have been unsuccessful; and though there may be cases in which it cannot be improper for a Judge to act in contradiction to his own opinion,-a position in which I considered

myself as standing in Lord Clarendon v. Barham and Ex parte Thorold,-yet I have been unable to think the present one of those. Bevan v. Nunn is, so far as the bar have informed me, single upon this point, and the Lord Chief Justice's opinion was not necessary for the decision of that case, which turned upon the meaning and effect of the 81st section. On the whole, though sincerely attributing more weight to a legal opinion of the Lord Chief Justice Tindal, whether extra-judicial or not, than to any judgment of my own, I do not feel myself warranted in saying that either party to this litigation is not entitled to expect me to act on my own views of the point in question; as to which, agreeing with the commissioner, Mr. Fane, I must decide, that an act of bankruptcy was committed by the bankrupt Smith on the 11th of September 1841,-a decision which, I have the satisfaction of knowing, may, as to the point of law, at least, be brought by appeal under the revision of the Lord Chancellor (15).

(15) The sections referred to by his Honour are the following

By the 6 Geo. 4. c. 16. s. 2. it is enacted, "That all scriveners, &c. receiving other men's monies or estates, into their trust or custody, shall be liable to the bankrupt laws."

By the 3rd section, it is enacted, "That if any such trader shall procure his goods, money, or chattels, to be attached, sequestered, or taken in execution; or make, or cause to be made any fraudulent gifts, delivery, or transfer of any of his goods or chattels, he shall be deemed to have committed an act of bankruptcy."

By the 8th section, it is enacted "That if a trader, after docket struck, shall pay to the person who struck the same, money, or give or deliver any satisfaction or security for his debt, such gift, delivery, satisfaction, or security shall be an act of bankruptcy." The 5 Geo. 2. c. 30. s. 24. nearly corresponds with this.

By the 72nd section, it is enacted, "That if a bankrupt shall have in his possession, order or disposition any goods or chattels, with the consent of the true owner," &c.

By the 73rd section, it is enacted, "That, if any bankrupt, being at the time insolvent, shall have conveyed, assigned, or transferred to any person any hereditaments, offices, fees, annuities, leases, goods, or chattels, or have delivered, or made over to such person any bills, bonds, notes, or other

Fiat-Bankrupt, Description of.

The bankrupt was described in the fiat as of T, in the county of Y. T. was situated partly in the county of L. and partly in the county of Y, and the bankrupt lived in that part of T. which was in the county of L. :— Held, that the description of the bankrupt was sufficient.

The bankrupt was described in the fiat as John Woodhead, of Todmorden, in the county of York, shoemaker and clogger.

It appeared, on opening the commission, before the country commissioner at Leeds, that the parish of Todmorden was partly in Lancashire and partly in Yorkshire, and that the bankrupt lived in that part of Todmorden which was in Lancashire.

The commissioner considered that the above description of the bankrupt was erroneous, and declined to proceed with the commission.

Mr. Headlam now applied to the Court that the fiat might be amended, or that the commissioner might be directed to proceed with the commission.

Sir J. L. KNIGHT BRUCE said, he thought the description of the bankrupt sufficient; and that, on the production of an affidavit that there was no other person of the name of John Woodhead in the parish of Todmorden of the same trade, he would direct the commissioner to proceed with the commission.

securities, or have transferred his debts to any other person, the commissioners shall have power to sell the same."

By the 81st section, it is enacted, "That all contracts and other dealings and transactions by and with any bankrupt, bona fide, entered into more than two calendar months before the date of the commission, shall be valid, notwithstanding any prior act of bankruptcy."

By the 82nd section, it is enacted, "That all payments really and bona fide made, or which shall hereafter be made by any bankrupt before the date and issuing of the commission against such bankrupt, to any creditor of such bankrupt (such payment not being a fraudulent preference of such creditor) shall be deemed valid," &c.

Court of Review-Power to commit for Contempt Order of Committal-Injunction.

A party who had been committed by the Court of Review for a contempt, brought an action against the parties through whom the order for committal was obtained. The Court of Review granted an injunction to restrain the plaintiff, his counsel, attornies and agents, from proceeding with the action, except for the purpose of trying three distinct points. Upon an appeal to the Lord Chancellor this order was discharged.

The order of committal stated a printed document, which was held to contain a libel upon the Court, and ordered the party to be committed for his contempt in publishing that document, but did not in express terms adjudicate that it was a libel. The Lord Chancellor declined to decide whether that was a sufficient adjudication of a contempt having been committed, more particularly as the opinion of a court of law might be taken on the point, and there would be a greater facility of appeal from such a court than from the Lord Chancellor.

Whether the Court of Review has authority to grant an injunction of such a description as is before mentioned, quære.

One Judge, sitting as the Court of Review, is empowered to commit for a contempt of the Court.

In this matter a judgment had been pronounced by the Court of Review in December 1843; and on the 8th of January 1844, before the minutes had been settled, Mr. Van Sandau, one of the joint solicitors under the fiat, wrote and published a pamphlet, in which he commented upon the judgment pronounced by the Court, in terms which the Court held to be of a libellous character.

Messrs. Turner & Hensman, the other solicitors under the fiat, presented a petition to the Court, setting out the pamphlet, and praying that Van Sandau might be committed to the Queen's Prison for his con

tempt of the Court. The petition came on before Sir George Rose, who, on the 3rd of February 1844, after hearing the petition, ordered that Mr. Van Sandau should stand committed to the custody of the keeper of the Queen's Prison until the further order NEW SERIES, XIV.-BANKR.

of the Court, for his contempt of the Court, in writing, printing and publishing the said printed paper; and that he should pay the costs, charges, and expenses of the petitioners, incurred in this application.

On the 8th of February, Mr. Van Sandau applied to the Court to have the minutes of the order varied in respect of the costs, charges and expenses ordered to be paid by him. That application was dismissed with costs, but an order was made on the same day, that the order of the 3rd of February should be drawn up, but should not be delivered out by the registrar for ten days from the date of that order.

On the 14th of February, Van Sandau presented a petition to the Court that the order of the 3rd of February, so far as directed his commitment, might be discharged, or not carried into execution. This petition was, on the 17th of February, dismissed, with costs. The order was then drawn up and delivered out by the registrar, and dated the 4th of February.

An order or warrant under the hand and seal of Sir George Rose, as a Judge of the Court of Review, but not purporting to be an order of the Court of Review, dated the 19th of February, was issued for the arrest of Van Sandau.

On the 21st of February, Van Sandau having been arrested, and having by a petition offered an apology to the Court, an order was made that he should be discharged upon depositing 200l. with the registrar of the court for the payment of certain costs, charges and expenses to Turner & Hens

man.

Van Sandau afterwards brought an action of trespass against Messrs. Turner & Hensman, in respect of the order of the 3rd of February, and of the commitment in pursuance thereof; and on the 8th of May an order was made by the Chief Judge of the Court of Review, upon the petition of Turner & Hensman, to restrain both parties, and their counsel, attornies and agents, from further proceedings in the action, except that Mr. Van Sandau was to be at liberty to amend the demurrer, which he had put in to the plea, and which was to be argued on three points only-First, that the Court of Review had not, in February 1844, power to commit for a contempt; secondly, that there was not, on the face of the order, any

C

adjudication of a contempt; and, thirdly, that it appeared on the face of the order, that the committal was for an act which did not constitute a contempt.

Van Sandau presented a petition of appeal to the Lord Chancellor, stating all the above-mentioned facts, and praying that the order, dated the 4th of February, and the other orders mentioned in the petition might be reversed.

An order had been made by Sir George Rose, permitting the petitioner to proceed in that manner without a special case, and an application had been made by the respondents to the Lord Chancellor in June 1844, to discharge that order.

Mr. Swanston and Mr. Simon appeared in support of the application; and

Mr. Bagshawe and Mr. Rolt, contrà.

The LORD CHANCELLOR thought it very desirable that the Court should be informed of the merits of the case; and as the learned Judge had expressed a doubt whether this matter, namely, a committal for contempt, was a proper subject for a special case, he thought the motion ought to stand over, and it could be mentioned when the petition was brought on.

The petition came on to be heard on the 6th of November.

Mr. Bagshawe and Mr. Rolt, for the petitioner. The Court derives its power to commit for a contempt, in such a case as the present, from the consideration that the libellous document is published for the purpose of perverting the course of justice. But in this case the Judge had pronounced his decision; the publication of this document could not affect the judgment of the Court; it was merely a criticism of the grounds of the decision, and did not amount to a contempt.

Lechmere Charlton's case, 2 Myl. &
Cr. 316; s. c. 6 Law J. Rep. (N.S.)
Chanc. 185.

Case of the Printers of the Champion
and the St. James's Evening Post,
(Roach v. Garvan,) 2 Atk. 469.
Ex parte Jones, 13 Ves. 237.
Ex parte Wilton, 1 Dowl. P.C. N.s. 806;

s. c. 13 Law J. Rep. (N.s.) Q.B. 17. Wilmot's Opinions and Judgments, 255.

But even if the act of the petitioner amounted to a contempt, his committal has been irregular. The order of committal does not contain any adjudication that a contempt has been committed. This point was raised before the Court of Queen's Bench, in a late case of Green v. Elgie (1), in which the order of committal was similar to this order; and the Court of Queen's Bench decided it to be irregular.

Bushell's case, Vaugh. 135.

Brass Crosby's case, 3 Wils. 202.

The King v. Harris, 7 Term Rep. 238. In Lechmere Charlton's case, in Long Wellesley's case (2), and in Martin's case (3), there is an express adjudication on this ground.

By the statute 5 & 6 Vict. c. 122, one Judge is authorized to sit as the Court of Review, and he may exercise all the powers which the Court of Review possesses. On the day on which this order of committal was made, the Chief Judge was sitting, and therefore he constituted the Court of Review; but this order was signed only by Sir George Rose, who was not sitting in public as a Judge of that court. It was not, therefore, an order of the Court of Review. The petitioner has been ordered to pay the respondents their costs, charges and expenses; but the Court had no authority to order him to pay more than the costs.

The King v. Faulkner, 2 Mont. & Ayr. 311; s. c. 4 Law J. Rep. (N.S.) Exch. 308.

Fearns v. Young, 10 Ves. 184.

With regard to the injunction, the Court of Review had no authority to grant it. The Court of Chancery alone will prevent other courts from inquiring into the propriety of its proceedings, and in this case the court of common law must decide upon the record as it stands. The Court should have required a bill to be filed, and not have interfered in such a manner upon petition.

Ex parte Glossop, 2 Glyn & Jam. 268.
Ex parte Leigh in re Claughton, Ibid.

332.

Ex parte Davy in re Chambers, 1 Mont. & Ayr. 297; s. c. 3 Law J. Rep. (N.S.) Bankr. 57.

Ex parte Cutts in re Goren, 3 Dea. 243.

(1) 8 Jurist, 187.

(2) 2 Russ. & Myl. 639. (3) Ibid. 674, n.