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the whole of the plaintiff's claim, could not have done so who had been elected for Newport, and had been pewithout being himself guilty of a misdemeanor.
titioned against on the ground that he was a clerk in holy orders, was declared to have been duly elected. In this
conflict of authorities the House refused to declare Mr. IN THE CASE of Ex parte Lynch, In re Lynch (24 HORNE TOOKE to be ineligible, and the 41 Geo. 3, c. 63, W. R. 375, L. R. 2 Ch. D. 227), the Chief Judge held was then introduced and carried by Mr. ADDINGTON. that, notwithstanding the provisions of the Infants' Roman Catholic clergymen are excluded from the Relief Act, 1874 (37 & 38 Vict. c. 62), an infant debtor House of Commons by section 9 of the Emancipation who trades may, after attaining his majority, be adjudi. | Act of 1829; but ministers of all other denominations are cated a bankrupt in respect of a trade-debt contracted, eligible. It will, of course, be remembered that, under and upon an acc of bankruptcy committed, during his the Clerical Disabilities Act, 1870 (33 & 34 Vict. c. 91), infancy. The ground of his decision was that the ss. 3, 4, any minister of the Church of England may, by Infants' Relief Act had made no difference as re executing a deed of relinquishment, and inrolling the gards the rule that an adjudication of bankruptcy against same in Chancery, and delivering a copy of it to the an infant who has held himself out as sui juris, and bishop of the diocese, be discharged from “ all disabilitraded as such, would not be annulled. Of course, if ties, disqualifications, restraints, and prohibitions" to the ground of this decision was correct, the fact that the which he would be subject as a minister of the Church of infant in Ex parte Lynch had attained his majority England. We believe that more than one member of before he was adjudicated bankrupt was immaterial, and the present House of Commons has availed himself of in a case of Ex parte Jones, Re Jones, decided by the this Act. Chief Judge on Monday last, he held that, although the infant who has traded remains an infant at the date of the adjudication, the adjudication will not be annulled. But is the interpretation of the Infants' Relief
LIABILITY OF CORPORATIONS Act adopted by the learned judge correct ? As to this FOR TORTS INVOLVING we confess we entertain considerable doubt. “The object of the Infants' Relief Act," said the learned judge,
MALICE. in E. parte Lynch, “was to protect young persons, not In the recent case of Edwards v. Midland Railway from the consequences of trading, but from extravagant Company (L. R. 6 ,Q. B. D. 287), it was decided debts incurred for unnecessary articles, such as by Mr. Justice Fry, on further consideration, that an jewellery. It has no application to a case like the pre-action for malicious prosecution will lie against a corsent.” But in R. v. Wilson (L. R. 5 Q. B. D. 28) it was poration aggregate, such as a railway company. It held by the Court for Crown Cases Reserved (including seems strange that this identical point should never COCKBURN, C.J., and LINDLEY, J.) that the Infants' have been decided before. The learned judge went Relief Act protected an infant who had traded, and had through the authorities, and showed that other actions been adjudicated bankrupt in respect of a trade debt, involving malice have been held to lie against companies against a conviction under section 12 of the Debtor's or corporations, and so far his decision has the support Act, 1869, for quitting England with property with of authority; but, with regard to this particular form of intent to defraud his creditors. The ground of that action, there seems to have been no actual decision. In decision (in which, however, Exc parte Lynch was not Stevens v. Midland Counties Railway Company (10 cited) must have been that by reason of his infancy the Ex. 352), Baron Alderson held that in order to support proceedings in bankruptcy were void, and that he had such an action it must be shown that the defendant was not any creditors within section 12 of the Debtor's Act, actuated by a motive in his mind, whereas a corpora1869, amongst whom the property ought by law to have tion has no mind. The other two judges who were been divided.
parties to the judgment decided in the company's favour on other grounds.
Mr. Justice Fry did not go very much into the SIR GABRIEL GOLDNEY'S MEASURE for the admission reason of the thing apart from authority ; but it of clergymen to Parliament took the shape of a Bill for seems to us that there is little doubt that his decision the repeal of 41 Geo. 3, c. 63 (generally known as “HORNE follows the current of recent authority, and is correct Tooke's Act"), section 1 of which declared that “no in principle, independently of precedent. The same person having been ordained to the office of priest or difficulty has been raised in many cases in which it is deacon, or being a minister of the Church of Scotland, now well established that an action will lie against & is capable of being elected to serve in Parliament as a company. It is a proverbial saying, sometimes put in member of the House of Commons;" while by section 2 terms more forcible than elegant, that a corrpany is not any such person sitting or voting as a member of the amenable to moral or physical arguments, having neither House was subjected to a penalty of £500 for every soul nor body. But the courts have increasingly tended day on which he should do so, to be recovered by any to the conclusion that, inasmuch as a company has a person who should sue for the same. It is, however, purse, which for the practical purposes of litigation is very doubtful whether the repeal of this Act would be the important matter, it may be treated as constructively sufficient to open the House of Commons to a clergyman, having a soul or mind. Thus it seems now to be clear since the parliamentary precedents on the subject, up that an action will lie against & company for a frauduto the year 1801, were most inconclusive. In 1553, the lent representation made by its agent within the scopeRev. Dr. NOWELL, who had been elected a burgess for of his authority. The same difficulty arises here as in Luo, was declared by a Committee of the House to be the case of an action for malicious prosecution, because unable to sit, “ being a prebendary of Westminster, and moral fraud is essential to this form of action, and thereby having a voice in the Convocation House." In | however fraudulent directors may sometimes be, fraud 1620, a clerk returned for Morpeth was similarly ex. cannot be predicated of the corporation itself. Similarly, cluded by the Committee of Elections “ because he had, in Whitfield v. South-Eastern Railway Company or might have, a voice in the Convocation;" and in 1661 | (E. B. & E. 122), Lord Campbell said that the ground Sir JOSEPH CRADDOCK was declared by the same com on which it was contended that an action for a libel mittee to be disabled from sitting in the House because could not possibly be maintained against a corporation he was in holy orders, there being in this case no refer- aggregate failed, and also that there might be great ence to the contingency of his sitting in Convocation. | difficulty in saying that under certain circumstances On the other hand, it appears that Sir Thomas Haxey, | express malice might not be imputed to, and proved clerk, sat in the House of Commons during the reign of | against, a corporation. Certainly it seems to us that Richard II. ; while in 1785, EDWARD RUSHWORTH, clerk, there is far greater difficulty with regard to libel that
malicious prosecution. Chief Justice Erle said in Green incorporation, both of which questions were, we think, v. Lond513 General Omnibus Company (7 C. B. N. S. for the reasons we have given, easily answerable in 290, 301), that the doctrine that a corporation, having no the affirmative. But it seems to us that there are soul, cannot be actuated by a malicious intention, is other questions which might possibly be involved ; for more quaint than substantial. It seems, therefore, instance, whether the malice which actually existed that the view of Baron Alderson has not been in the mind of the servant or agent was malice received by other judges.
purely personal to himself and arising out of his With regard to the principle of the thing, the difficulty personal relations, or was malice which, 80 to is more formal than substantial. It may at first sight speak, arose out of, and was connected with, his represeem anomalous that in cases where a mental intontion sentative capacity. We do not know whether this might or motive is essential to the cause of action, the action or might not be material. But suppose a railway should lie where the actual defendant had not, and could detective took advantage of his position to bring a not have, any mental intention at all. But, in truth, it! groundless charge against, and prosecute, a man from is clear that the question is not peculiar to corporations some motive of malice purely personal to himself-as, when the essence of it is apprehended. The difficulty for instance, because the party charged had beeu his arises from a fallacious mode of stating the question. | successful rival in a love affair-would his malice in Assuming that a mental intention is necessary to some such a case be rightly held to be constructively the causes of action, the question really is whether that company's malice? We suggest this by way of illustra. mental intention must be the defendant's. We appre- tion, and as opening up various nice questions, without hend that it need not. The true question involves the professing to indicate a decided opinion on the question principles of the law of agency, or of master and which arises. The malice here is clearly not the malice servant, and has nothing to do with the law of corpora- | of the man quá company's servant, but his own private tions as distinguished from other persons. The same and personal malice. Posaibly such nice points would question in reality always arises where it is sought to | not often arise in actual practice, or else it would be make a principal or master responsible in this class of difficult often for a jury to say where the company's action for the acts of his agent or servant. The corpo servant ended and the individual began. To judge ration is really only in the same position as the princi- from our experience of juries in similar matters, they pal who had not the particular intention in question. It would generally take care in all doubtful cases to premay be said that the individual could have had the inten- vent nice points of law arising by finding all questions tion, but the corporation could not, not having a mind. of fact against the company. The distinction appears to us, for civil purposes, to be im. material. It is clear, ex hypothesi, if the individual prin. cipal, or master is liable, it is not on the ground of his moral delinquency, for he has been guilty of none. If he THE IRISH LAND BILL. is responsible, it is because his agent or servant, acting within the scope of his authority, has been guilty of moral
III, delinquency. Why should not the same reasoning apply to We have traced the history of the occupation of Irish a company? We know of no reason. All cousiderations land from a period anterior to the English invasion down of convenience and justice seem to point to a company's to the latter part of the eighteenth century, and have being as much responsible in such a case as an individual. seen that, notwithstanding great changes in his legal The true solution of the question, whether in such cases position, and several successive forfeitures of the owner. a corporation ought to be made liable, seems to dependship, the continuous occupation of the peasant remained, on the applicability, or otherwise, of the reasons for over a great part of the country, practically unaffected. the liability of the principal for the acts of his agent, The natural operation of economical causes would doubt. or the master for those of his servant. The liability less, however, have tended there, as elsewhere, as society of the principal for the acts of his agent in actions ex became at once more settled and more complex, to recontractu seems to depend on very obvious grounds. duce the relative positions of owner and occupier It depends on the existence of actual authority, or on to the simple commercial relation of letting and hiring, circumstances which estop the principal from deny. had they not been neutralized by the effect of two ing the authority. The ground for the liability of a events of importance. principal for the torts of his agent, or a master for those The first of these was the interference by the of his servant, is not quite so distinct or so easily ex- English Parliament, and in the interest of English pressed. But it seems to be just that he should manufacturers only, with the Irish export trade, the be liable on grounds of this sort-viz., that effect of which was to render agriculture the only if a person delegates, or procures the performance available resource of the great bulk of the populaof, an act or series of acts for his own advantage, tion, and thus to produce what would in these days be he should be responsible in respect of the conduct of described as “inflation" in the possessory value of the person performing the act or series of acts in land. The other was the Declaration of Legislative obedience to his direction, so far as the action of such | Independence, whereby the Irish Parliament, in 1782, person is incidental to the employment. As to the disclaimed the condition of vassalage adopted, for their limits of this rule, of course, great niceties arise. It is own purposes, by the Parliament of the Pale in 1491, Very difficult to say what is within the scope of the em. | under which the Irish House of Commons had been, for ployment, as many cases in the books testify, but, putting nearly 300 years, little more than an office for registeraside the difficulty of application, if the rule be the true ing the edicts of the English Privy Council. One of one, why should it not apply to a corporation or company the first acts of the emancipated Parliament was to as much as to a private individual ?
emancipate, in its turn, the constituencies, by extending With regard to the case of actions which involve the franchise (but not the right of being elected) to malice, the difficulty must usually lie in showing Roman Catholics, with an immediate, though altogether that the action of the servaut or agent came within unintended, effect upon the tenure of the soil. For the the scope of his employment. The question as raised county franchise was then--and thenceforward down to in Edwards v. Midland Railway Company did not | 1828-strictly limited to freeholders to the value of forty present the difficulty that it conceivably might, for shillings and upwards, and, as we have seen, but a very the jury found malice generally, and the questions small proportion of the population had any tenure whatof law reserved were only whether an action for mali. ever beyond a mere right of occupation : but the possescious prosecution would lie against a corporation, and sion of a county seat became now, for the first time, whether the employment of the detective who pro- an object of real ambition to the landed gentry of the Secuted was an act within the scope of the company's kingdom, who speedily discovered that they could get
what was to them a more valuable return out of their the balance to the outgoing tenant. The decision of estates by covering them with a dependent and sub- the court against the legal validity of the custom left missive tenantry, the certainty of whose votes more than the incoming tenant wholly at the mercy of the land. compensated for the precariousness of their rents, than lord, who might evict him at any time without permitfrom the system of extensive grazing farms which had ting a sale of the good will, but, nevertheless, so firmly been introduced in the earlier part of the century. Ard rooted was the custom, and so undoubting the trust of the old plan of giving leases for lives, which had been the people in the honour of the landowners, that we have gradually dying out, afforded a means of effecting frequently known the good will of a tenancy from year to readily the double object, of making the tenant a free | year, comprising no legal right to anything beyond ocholder in law, and keeping his actual right of occupancy cupation at a full rant till the then next 1st of November, as precarious as before. The result, acting on the sold for a larger price than could have been got for the natural bias of the people already pointed out, was to fee-simple of the farm. cover the country, particularly in its poorer districts, When, by the operation of the Incumbered Estates with a teeming population, nominally owners of freeholds Court (established by Lord John Russell's Government (i.e., leases pur autre vie) of values kept as near the after, and in consequence of, the famine of 1846—7), magic forty shillings as the power of sub-division could a new race of owners was introduced, who knew nothing attain to, who were, under the most prosperous circum. of the history of their estates, and had enjoyed none of stances, barely able to maintain life on the lowest scale the benefits, pecuniary or otherwise, which this system compatible with any settled existence at all, and who were, had secured to their predecessors in title, it was not on the occurrence of the slightest misfortune (the acci. long before some of them were found ready to insist dental death of a cow, or the failure of an oat crop), upon the legal rights for which they had paid their reduced to & condition of absolute pauperism, and money, and disinclined to listen to any counter-claims dependent, not merely for continued occupation, but founded on considerations to which they were utter for the very means of subsistence, on the forbearance or strangers. The action of these men, and notably of liberality of the landlord. He, in his turn, considered one, who had purchased in 1848 a considerable properly bimself repaid for rents in arrear, often remitted in the most flourishing part of Ulster, near to the great altogether, nay, even for occasional substantial assist- estates of the Hills and Stewarts, where the customary anee in food or money, by the unswerving fidelity with rights of the tenants had always been looked upon as which he was served at the polls. Tho Union with sacred-though not only perfectly legal, but the natural Great Britain, which swept away two-thirds of the result of the conditions under which they had acquired members of the Irish House of Commons, left the their property-inevitably caused great dissatisfaction, sixty-four county members intact, and thus rather in- not only to the tenants immediately affected, but to ali creased than alleviated the state of things described. who felt that the insecure nature of their own tenure There were, we believe, many parts of the country where was, if not aggravated, at least exposed. It was a comthe average holding did not in the year 1820 exceed five mon saying at the time," a single bad case takes away acres (at an average rent of ten to fifteen shillings an the confidence of a whole country side." Oat of this acre), and we can speak from personal knowledge of a feeling grew the “tenant-right agitation," organized by district in which the sub-division was carried further the late Mr. Sharman Crawford, which was indeed yet, and a whole country side was cut up into plots not itself confined to Ulster, but which may be said really larger than good-sized potato-gardens. In this to have been the nucleus of all the subsequent movecase, however, agriculture was only a part of the tenant's
, agriculture was only a part of the tenant's ment. The result of this movement, after several occupation, and the livelihood they could not have abortive attempts at settlement, was the Land Act made as farmers they eked out as weavers.
of 1870, which though looked upon at the time as The first sbock to this system was given by the cele. a daring invasion of the rights of property, it is now brated “Clare Election," when the tenantry of Mr. the fashion to call, from the tenants' point of view, a Vesey Fitzgerald and his friends, for the first time in the failure. So far, however, as Ulster is concerned, that history of the island, voted against a deservedly-popular Act, so far from being a failure, has been as successful landlord, and in favour of a comparative stranger, on as any measure, upon its lines, could possibly have been. the ground of “public politics." The Emancipation
nancipation By legalizing the Ulster customs, wherever they existed, Act of 1829, wbich immediately followed, disfranchised
ediately followed, disfranchised and in all their varied forms, it secured to the the forty-shillings freeholders, and substituted a £50 tenantry absolately, not only all they were entitled to, ocoupation franchise (which has since been lowered to l but all they ever wished to claim : and if the Act had £12), and thenceforth the efforts of the landowners have stopped short at the end of the first section, it would been mainly directed to getting rid of the evil have done for Ulster all that law could do in that direceffeets of the excessive sub-division which they had, tion. It did not, however, take long to show, first, until then, encouraged.
that this legal recognition of the tenant's position In the meantime, the “ Customs of Ulster"--S0 entailed, even in Ulster, disadvantages which he had much talked about, so little understood outside
not foreseen; and, secondly, that in the rest of the the limits of the province-had been growing up. The island these disadvantages were produced in an population of that province were mainly the de- intensified form, and without the countervailing scendants of the settlers under James the First's | benefit derived in the north from the legalization of “ Plantation," and, although comparatively few of them the custom. retained their original holdings, they had never ceased
al nolamgs, they had never ceased Upon a due appreciation of these disadvantages will to feel themselves entitled to a more permanent in- depend the success or the contrary of any attempt to terest in the soil than was recognized by the law. There l amend the shortcomings of the existing Act. But the was no way in which the landowners could more readily subject runs too much into details to be entered upon ingratiate themselves with the tenantry—and this was, at the fag end of an article. as we have seen, an object of importance with themthan by permitting the transfer of this interest, which by-and-bye came to be generally recognized under the name of " goodwill.” Moreover, it was soon perceived that this “goodwill ” might be so used as to constitute a Mr. E. E. Harrison, of 46, St. Martin's-lane, writes : valuable additional security for the payment of rent, and “ It will interest your readers to learn that the sculpture it very soon became the practice on a very large number gallery of the Royal Academy contains a very excellent of estates to require all sales of the good will to be made portrait bust of Mr. John Iliffe, of 2, Bedford-row, by “ in the office," the money being paid to the agent, who T. Eral Harrison, wrongly described in the catalogue deducted therefrom the arrears of rent before handing (No. 1,569) as Mr. John Stiffe."
funds should not be transferred out of court to the
1, Great College-street, Westminster, May 11.
BANKRUPTCY - EXAMINATION AS TO PROPERTY OF The theory of the English law is that the prisoner's
BANKRUPT-PRODUCTION OF DOCUMENTS-BANKRUPTCY ACT,
1869, s. 96.-In a case of E.c parte Tatton, before the Court testimony concerning himself is not worthy of credit. At a trial, therefore, for a misdemeanor or felony, his
of Appeal on the 5th inst., a.question arose as to the right to
com pel production of documents by a person examined under ·mouth is shut and the prosecution witnesses can say what section 96 of the Bankruptcy Act, 1869, respecting the they please without danger of being contradicted by property and dealings of a bankrupt. Section 96 provides him. Well ! owing to the promptness of a jury to believe that “the court may, on the application of the trustee, a plausible story in the affirmative, while the negative summon before it any person known or suspected to have in (especially in the absence of knowledge before the trial his possession any of the estate or effects belonging to the -as to what facts will be alleged) is so hard to establish, bankrupt, or supposed to be indebted to the bankrupt, we will suppose a man unjustly convicted. An appeal or any person whom the court may deem capable is made to the Home Secretary to review the sentence,
of giving information respecting the bankrupt, his trade and release a man from the horrors of perhaps undeserved
dealings or property, and the court may require any such slavery in penal servitude.
person to produce any documents in his custody or power
relating to the bankrupt, his dealinys, or property." The What does the Home Secretary do? He cannot direct
wife of a bankrupt was, before her marriage, possessed of a a new trial, and he declines to take on himself the
policy of insurance on her own life, and had assigned it by reversal of the sentence in the conflict of evidence, but
way of mortgage. After the marriage the mortgage debt he offers, if the principal witnesses for the prosecution was paid off, and the mortgagee, by a deed to which both are convicted of perjury, to advise the Crown to grant a busband and wife were parties, assigned the policy to free pardon.
trustees on trust for the wife as part of her separate property. Another criminal trial is the result; but this time the There had been no ante-nuptial agreement for a settlement. situation of the parties is reversed. The convicted | After the adjudication of bankruptcy, but before the bank. defendant of the last trial and his witnesses get up their
rupt had obtained his discharge, the wife died. She had not case, they work up corroborative evidence, rake up every
made any disposition of the policy. The trustee in the thing that tells in their favour, and the principal
bankruptcy summoped for examination, under section 96, & witness--perhaps the prosecutor in the last trial-takes
solicitor who had formerly acted for the wife. From his his seat in turn in the dock, and in turn finds out the
examination it appeared that the policy was in bis possession ;
that after the assignment to the trustees the husband and wife difficulty on the spur of the moment in rebutting, by bad joined in a deed by which it was mortgaged to another evidence, positive or negative, the plausible case made
person ; that by a subsequent deed this mortgage was trangby the prisoner who is now prosecuting him. The jury ferred to the solicitor ; and that by a third deed the wife had perhaps see that there is, to say the least, a great likeli assigned the equity of redemption to him. The second and hood that justice has miscarried, and that the previous third deeds were executed after the bankruptcy. The prisoner is suffering an unjust sentence. Their feelings trustee's counsel asked for production of these three deeds ; are worked on by the prisoner's counsel, and after an inci. the solicitor objected to produce them. The registrar held sive summing up by the judge they convict the prosecutor
that they must be produced. Oa the appeal it was objected or principal witness of perjury. He is sent off to serve
that the deeds related to the separate estate of the wife. The his sentence, the former defendant is released. But the
court (JAMES, BAGGALLAY, and Lush, L.JJ.) affirmed the issue of the whole depends on this fact, that the former
decision of the registrar. JAMES, L.J., said that on the
marriage the policy became the husband's property, subject prisoner may have been unfairly convicted, while the
to the wife's equity to a settlement ; primâ facie, therefore, it witness against him may not have committed perjury
was his property. It was attempted to make it the wife's at all. His story may have been true, or he may be bon â
separate property by a post-nuptial deed. If it were the fide mistaken. These proceedings are a scandal to our wife's separate property, it would pass to the husband as
J. R. HALL survivor, and would vest in his trustee. The trustee had, Broughton-in-Furness, May 9.
therefore, a right to see all the three deeds.-SOLICITORS, W. Tatton ; Lumley & Lumley.
DORMANT FUNDS IN CHANCERY.
PROOF IN BANKRUPTCY_INTEREST SUBSEQUENT TO DATE [To the Editor of the Solicitors' Journal.]
OF ADJUDICATION-PROOF ON SEPARATE ESTATES OF TWO Sir,-A notice given by Mr. Findlater, H.P., for a
PARTNERS.-In a case of Ex parte Findlay, before the Court
å of Appeal on the 5th inst., a question arose as to the right of return respecting unclaimed funds in the Court of Chan-la creditor proving a debt in bankruptcy to interest on the - cery (Ireland), embodies suggestions from time to time debt subsequently to the date of the adjudication. A creditor, made by me for the improvement in form of the English to whom two partners in trade owed a debt which they had list of dormant funds in chancery. It therefore seems a contracted fraudulently, elected to prove against the separate convenient opportunity to draw attention to the great | eetate of each partner. One of the separate estates paid delay in the issuing of the lists. By the rules under the dividends to the amount of fourteen shillings and threepence Chancery Funds Act, 1872, it is provided that as soon as in the pound; the other paid dividends to the amount of conveniently may be after the 1st of October, 1873, and
twelve shillings and eleven pence in the pound. The creditor after the same day in every succeeding third year, a list
received ten shillings in the pound from each estate. The of fuuds undealt with for fifteen years or upwards shall
joint estate had paid only one shilling and sixpence in the be published in the London Gazette." As a matter of
pound. The creditor claimed to retain the benefit of his fact one list only bas been issued since the passing of
proofs against the separate estates until he had received
interest on his debt up to the time of payment. It was conthe Act of 1872-namely, on the 1st of March, 1877-80
tended on his behalf that each prooi was a distinct security, that triennial publication is out of the question. If the and that the principle of the decisions of Lord Justice lists were issued promptly in an improved form, and Giffard in the cases of the Warrant Finance Company (18 published in newspapers likely to be seen by the parties W. R. 102, 154, L. R. 5 Ch. 86, 88) applied. The creditor, dinterested, there is no reason why the great bulk of these it was contended, was entitled to the benefit of cach proof,
independently of the other, and might apply it as be pleased “ attached.” But the words occurred in the Bankruptcy until his debt was fully paid with interest. The court Act, 6 Geo. 4, c. 16, s. 81, and he thought the Legislature
JAMES, BAGGALLAY, and Lush, L.JJ.) refused to admit the had then in view the process of equitable execution in the claim. "JAMES, L.J., said that the role in bankruptcy was Court of Chancery, whereby goods sequestrated for nonclear. There was only one administration of joint and payment of money, ordered by a decree to be paid, separate estate, though for convenience of administration the could ultimately be sold and the proceeds of sale apa creditors were divided into two classes. When a creditor was plied in payment of the money. There was, therefore competing with other creditors be could not prove for when the words were first used in a Bankiuptcy Act, interest accrued due after the adjudication. Of course, if he something in the nature of an attachment on goods to held a security his right was different. Otherwise be could which they could be applied, and this was sufficient to not bave interest after the adjudication until all the other / satisfy the words. But, if the words applied to the present creditors, joint and separate, had been satisfied the principal case, the only equivalent to a sale of goods would be a of their debts.-SOLICITORS, Murray, Hutchins, f Stirling; realization of the attachment by actual payment of the Travers, Smith, J Braithwaite.
attached debt to the garnishor. So long as it remained in fieri, so long as the debt was unrealized, an attachment
could not be put higher than a mere seizure of goods by the BANKRUPTCY - PROTECTED TRANSACTION – SECURED sheriff, without any sale. BAGGALLAY, L.J., said that it CREDITOR-GARNISHEE ORDER-BANKRUPTCY ACT, 1869, was immaterial whether the debt was or was not to be con. 8. 94 (SUB-SECTION 3), 8. 95 (SUB-SECTION 3).-In a case of sidered as part of the goods of the bankrupt. If it was, the Ex parte Pillers, before the Court of Appeal on the 5th attachment in order to be protected must have been executed inst., the question arose whether an attachment of a debt by seizure and sale ; if it was not, it was not within the by a garnisbee order is within the protection of either section protection at all. But he agreed with James, L.J., that the 94 (sub-section 3) or section 95 (sub-section 3) of the Bank- debt was not “goods" of the bankrupt. At the time when the ruptcy Act, 1869. Section 94 provides that nothing in the words were first used in a Bankruptcy Act there was no such Act shall render invalid (inter alia) (3) " any contract or thing in existence as an attachment of a debt by a garnishee dealing with any bankrupt, made in good faith and for order in existence. Lush, L.J., agreed that it was unnecesvaluable consideration, before the date of the order of ad. sary to decide whether sub-section 3 of seotion 95 did or did judication, by a person not having, at the time of making not apply to an attachment under a garnishee order. But he such contract or dealing, notice of any act of bankruptcy could not help thinking that, whatever might bave been the committed by the bankrupt, and available against him for meaning of the words in former Bankruptcy Acts, they must, adjudication. And section 95 provides that “the follow in the present Act, be taken to include an attachment by a ing transactions by and in relation to the property of a garnishee order, a process which bad been created by the bankrupt shall be valid, notwithstanding any prior act of Common Law Procedure Act and was well known at the time. bankruptcy" (inter alia):-(3) “Any execution or attach Sub-section 2 of section 95 dealt with attachments against ment against the goods of any bankrupt, executed in good land of a bankrupt, and then sub-section 3 dealt with faith by seizure and sale before the date of the order of attachments against his " goods," not goods and chattels." adjudication, if the person on whose account such execution He thought it was intended to deal with all kinds of property or attachment was issued had not at the time of the same which would pass to the trustee. The word “goods" might being executed by seizure and sale notice of any act of bank include debts, and he thought it must be taken as including ruptcy committed by the bankrupt and available against him them. Assuming that it did, the object of the provision was for adjudication.” The question arose in this way: on the to protect creditors who, after the commission of a secret act 14th of August one Curtoys committed an act of bankruptcy. of bankruptcy, had pursued their remedies against their On the 30th of August å judgment was recovered against debtor, but they were to be proteoted upon certain conditions. bim for £167. On the 1st of September the judgment Goods, in the ordinary sense of the word, must have been, creditor issued a garnishes order nisi against one King, not only seized, but sold before the adjudication, and this attaching all moneys due from him to Curtoys, to showed that the intention was that, so long as the execution answer the judgment debt, and this order was served on remained only a security, it should not be protected. There King on the 2nd of September. The order was made must bave been an actual conversion of it into money. absolute on the 15th of September. The judgment creditor What was the equivalent in the case of an attachment by a had no notice of any act of bankruptcy committed by garnishee order? The security must have been realized Curtoys. On the 25th of September Curtoys was adjudi. before there could be any protection, and the attachment cated a bankrupt upon the act of bankruptcy of the 14th of could only be realized by obtaining payment of the debtAugust. The trustee in the bankruptcy alleged that the from the garnisbee, either voluntarily or by means of an attachment was invalid as against bim. The judge of execution upon his goods. Till that had been done there the county court held that the obtaining the garnishee was to be no protection. The words " seizure and sale" order was a “dealing with the bankrupt” within the bad no application to such an attachment, but they showed meaning of sub-section 3 of section 94, and was protected what was the meaning of the Legislature clearly enough to by it, as the garnishor had had no notice of the act of bank- / enable the court to apply the principle. There must have ruptcy. The Chief Judge held that the order was an attach. been an actual receipt of the attached debt by the ment against the "goods" of the bankrupt within sub- 1 garnishor, and till then the garnishee order was only & section 3 of section 95, and that, as the attached debts were security, and there was no protection. JAMES, L.J., said not capable of being sold, and the judgment creditor had done that, if the case should ever arise of an actual receipt of all that he could to obtain possession of them, the attach the attached debt by the garnisbor before the adjudication, ment was within the protection and was valid as against the it was entirely unprejudiced by the present decision. trustee. upon the appeal reliance was placed upon E. | to appeal to the House of Lords was asked for, but was reparte Joselyne (26 W. R. 645, L. R. 8 Ch. D. 327), in which fused.-SOLICITORS, Whitakers & Woolbert; B. H. Van James, L.J., said : “ The property in the debt was trans
Tromp. ferred, and there was a complete and perfect security the moment the order of attachment was served." The court (JAMES, BAGGALLAY, and LusH, LJJ.) held that the attach PRACTICE-Costs-THIRD-PARTY NOTICE - ORD. 116, ment was not protected, and that it was invalid as against BR. 17, 21.-In a case of Witham v. Vane, before the Court the trustee. JAMES, L.J., said that he could not agree of Appeal on the 9th inst., a question arose as to the payeither with the county court judge or with the Chief ment of the costy of some third and fourth parties. The Judge. In order that the transaction might be pro original defendants had served a third-party notice, in purtected it must be within the words or the reasonable suance of an order giving them liberty so to do, upon some meaning of sub-section 3 of section 95. The sub-section persons from whom they claimed an indemnity in case of said that the attachment must bave been perfected by relief being given to the plaintiffs, and the third parties in seizure and sale before the adjudication. A debt attached the same way served a notice on some fourth parties against under a garnishee order was not capable of being sold, and whom they claimed a similar indemnity. At the trial Fry, therefore such an attachment was not within the words. J., held that the plaintiffs were entitled to only a small part Without giving a final opinion, his lordship's strong im. of tbe relief which they claimed, and he ordered them to pression was that the word “goods” meant “goods and pay the costs of the third and fourth parties (24 SOLICITORS cbattels” capable of being sold. At first he doubted | JOURNAL, 612). The Court of Appeal (JAMES, BAGGALLAY, whether there was anything of that kind capable of being 1 and Lush, L.JJ.) beld that the plaintiffs were not entitled