been there, still all the allowances for which it provides would have had to be made. It is absurd to suppose that you could put down the true annual value of a house without estimating the repairs and the other necessary charges upon it, in the shape of tithes and other matters that must be paid. However, whether it is necessary or not, all that it extends to is an allowance for "all necessary outgoings." Now, what is the meaning of that? Mr. Bovill argues that it means all outgoings which the owner cannot help. I do not think that is the true meaning. It means, not all such outgoings as the predecessor may have thought fit to put on the property, and which, therefore, in that sense, are necessary, but all such as are intrinsically necessary-such outgoings as it was not in the option of the predecessor to put on or not as he pleased. That seems to me to be the meaning of it, and that is a meaning in conformity with the reasoning of my Brother Watson in the judgment in In re Elwes (1). Therefore, to my mind, this is not a necessary outgoing; and, on that short consideration, it seems to me that the case ought to be decided. It has been ingeniously argued that the charge must be on Lord Cowley's beneficial interest in the property; but there is nothing in the act to shew that. In sections 21. and 22. you do not find the words "beneficial interest"; you find "annual value of the property," to ascertain which you are to make the abatement of necessary outgoings. Therefore, upon the reason of the thing, it seems to me manifest that the case ought to be decided in favour of the Crown. Then, it it is said that this is a hard case, because if the property, instead of being left to trustees, had been left to Lord Cowley directly, it would have been in his option to say whether he would incur the expense of receivers and agents or not, or whether he would pay them as much as the trustees have done. Possibly it is, to a certain extent, somewhat a hardship upon him—not in reality, because I have no doubt that the trustees will not lay out more than Lord Cowley would have felt himself bound to do; but if this is an argument at all (which, in reality, it is not), it is met by the counterargument, referred to by my Brother Martin, that if we were to allow this, it would lead to every testator's saying, "I am going to leave a large estate. I know my devisee cannot manage it himself. In order that he may get the benefit of a deduction from the duty, I will have a formal trustee to do this or that thing;" and, by the mere contrivance of words, the successor would be subject to a less succession duty than he ought to be. However, it is not necessary to go into that. My judgment is based on the authority of In re Elwes (1), and on the consideration that the tax is to be assessed on the "annual value of the property," making allowance for necessary outgoings, which means outgoings intrinsically necessary, and not necessary because of the arrangements which the testator thought fit to make. CHANNELL, B.-I am of the same opinion. The foundation of our judgment is the petition presented on the part of Lord Cowley, which I consider raises the question only. of the quantum of assessment, that is, whether Lord Cowley is entitled to have, under the 22nd section of the act of parliament, an allowance in respect of the deductions which he claims. In that point of view, it seems to me very immaterial to consider, at least at any length, the question on whom the rate should properly be made. It appears to me that the rate may be made on any person who succeeds to the property, or, according to the 44th section, the trustees, or persons having the management of the property. I think that the rate is properly made in point of form; and I cannot help coming to the opinion, that whether the rate be made on the trustees or on the person who, according to the clauses in the act of parliament, may be treated as the successor, the quantum must be the same. Then, we have to consider the construction to be placed on the 22nd section. The preceding section directs the assessment to be made according to the value "of an annuity, equal to the annual value of such property, after making such allowances as are hereinafter directed." In section 22. we find the words again repeated, "in estimating the annual value of the lands," and then provision is made for certain deductions. Thus we have two things to ascertain: first, what is the annual value; secondly, what deductions are to be made for certain matters specially provided for in the act? It appears to me that neither the 22nd section, nor the one or two other sections which have been more slightly alluded to in the course of the argument, provide for the deductions that are now claimed. Even therefore if there was no authority on the point, I should come to this conclusion; but I conceive that though there is a difference in point of fact between the present case and the case of In re Elwes (1), that case, in principle, is a decision in support of and warranting the judgment which the Court now pronounces. I am therefore of opinion that the Crown is entitled to our judgment. Judgment for the Crown. Attornies-Coverdale & Co., for petitioner; the Solicitor of Inland Revenue, for the Crown. 1866. } June 12. f HODGSON v. SIDNEY. Bankruptcy-Vesting of Cause of Action in Assignee-Special Damage resulting from False Representation-Personal and Pecuniary Loss-Parties. To a declaration charging that the defendant, by a false and fraudulent representation respecting the solvency of a third person, induced the plaintiff to advance to that person the sum of 2,000l., and that "by reason of the said false and fraudulent representation the plaintiff sustained great loss, and became and was adjudicated a bankrupt, and suffered personal annoyance, and was put to great trouble and inconvenience, and was greatly injured in character and credit," the defendant pleaded, except as to the claim in respect of the plaintiff's becoming and being adjudicated a bankrupt, and the personal annoyance, trouble, inconvenience and injury to character and credit, that the loss alleged in the declaration was a pecuniary loss, and that the cause of action in respect thereof vested in his official assignee:-Held, on demurrer, that this was a good plea to the whole declaration, the exception in the plea being idle, and the only damage recoverable under the declaration being for pecu niary loss. Quære-Whether in the case of injury to a bankrupt's estate, with special damage to himself, resulting from the act of a wrongdoer, the cause of action can be split between the bankrupt and his assignee, so as to enable the former to sue for the personal damage and the latter for the damage to the estate. Declaration For that the plaintiff, having been requested by one J. C. Piper to advance, lay out and expend a large sum of money, to wit, 2,000l., for the purpose of producing and to be employed in the manufacture of certain wine, which said wine, as the plaintiff was informed by the said J. C. Piper, had been ordered by one William Sidney for exportation to Australia and California, under conditions of certain cash payments to be made therefore by the said William Sidney, to the extent of 2,000, applied to the defendant to inform him, the plaintiff, whether the said William Sidney might be depended upon for cash payments to the said extent, and whether the said order had been so given as aforesaid; and that thereupon the defendant, well knowing the aforesaid premises, and intending that the plaintiff should act upon the representation made by him as hereinafter mentioned, falsely and fraudulently represented to the plaintiff that the said William Sidney was able to carry out the arrangement for purchasing the said wine, which, as the defendant represented, he, the said William Sidney, had entered into with the said J. C. Piper, to wit, the said order, whereas, in truth and in fact, the said William Sidney was not able to carry out the said arrangement or order, or to pay for the said wine, and that the defendant, by so representing as aforesaid, induced the plaintiff to make certain large advances and payments of money on account of the said manufacture, and in respect of the said arrangement or order, whereby, and by reason of the said false and fraudulent representation, the plaintiff has sustained great loss, and became and was adjudicated a bankrupt, and suffered great personal annoyance, and was put to great trouble and inconvenience, and was greatly injured in character and credit. Second plea-except as to the claim in respect of the plaintiff becoming and being adjudicated a bankrupt, and suffering the alleged personal annoyance, and being put to the alleged trouble and inconvenience, and being injured in character and creditthat the said loss which the plaintiff sustained, as in the declaration alleged, was a pecuniary loss, to wit, the loss of the monies which he so advanced and paid, as in the declaration mentioned; and that after the accruing of the supposed cause of action, and before suit, the plaintiff, being liable to become and to be adjudicated a bankrupt as thereinafter mentioned, became bankrupt; and upon a petition for adjudication in bankruptcy, duly filed against him by himself, in a Court having jurisdiction to receive the same and to adjudicate thereon, was by the said Court duly adjudicated to be a bankrupt, according to the statutes in force concerning bankrupts; and thereupon an official assignee of the estate and effects of the plaintiff as such bankrupt was, according to the said statutes, duly appointed before this suit; and all things were done and happened, and all times elapsed, according to the said statutes, to give validity to the said adjudication and appointment, and to cause the estate of the plaintiff, including the cause of action in the declaration mentioned, and therein pleaded to, to vest, and the same did vest in the said official assignee before this suit, and had not re-vested in the plaintiff. Demurrer. Lumley Smith (Streeten with him), in support of the demurrer.-The cause of action mentioned in the declaration did not vest in the assignee, but remained in the bankrupt. The action is in tort, not in contract; and it alleges special damage to the bankrupt, in respect of which the assignee, if he sued, could recover no compensation. - [BRAMWELL, B. But the substantial part of the damage is the loss of the 2,0007.: the residue, such as the becoming bankrupt, being surely too remote.] In Howard v. Crowther (1) Mr. Baron Alderson says, "Assignees can maintain no action for libel, although the injury occa (1) 8 Mee. & W. 601; s. c. 10 Law J. Rep. .s. Exch. 355. sioned thereby to the man's reputation may have been the sole cause of his bankruptcy." His opinion would appear to be that the bankrupt had a right to recover for such damage. The proper test to be applied is stated in Brewer v. Dew (2), which was an action of trespass for seizing goods, under an unfounded claim of debt, with special damage that the plaintiff was annoyed and injured in credit. It was contended there, as here, that on the plaintiff's subsequent bankruptcy the right of action vested in the assignee; but it was held, that as the jury had power to give vindictive damages beyond the value of the goods, the bankrupt was entitled to sue. Here, although the loss to the bankrupt's estate might be only 2,000l., the jury might give him more. Wetherell v. Julius (3) is also an authority in the plaintiff's favour. Field, in support of the plea.-The correct mode of ascertaining whether a cause of action remains in the bankrupt or vests in the assignee is to consider whether the cause of action affects substantially and primarily the person or the estate of the bankrupt― Drake v. Beckham (4) and Wetherell v. Julius (3). Here the alleged wrong com mitted by the defendant affected primarily the plaintiff's estate. [MARTIN, B.-But by pleading this defence to a portion of the declaration only, the defendant admits that some cause of action did remain in the bankrupt. Can a cause of action be split so that the assignees may sue for the damages to the estate and the bankrupt for damages for personal injury?] In the case already cited of Brewer v. Dew (2), Lord Abinger seemed to think that a plea, similar to this, limited to the value of the goods, would have been good; and in Rogers v. Spence (5), where such a plea was held bad, because it was pleaded to the whole declaration, which included some causes of action for which the assignees could not have sued, it was apparently assumed that it would have been good if properly limited to a portion of the declaration. Lumley Smith, in reply.-No decision has been produced that a cause of action can be split between the bankrupt and his assignees. In Rogers v. Spence (5) Lord Campbell said, "The difficulty is where there is a mixed case of injury to the person and injury to the property. There has been no case as yet which has decided what, under such circumstances, is to happen." So in Beckham v. Drake (4), Parke, B., after putting the case of a contract to cure the bankrupt of a disease and give him a sum of money, with a breach of both parts, says, "It is exceed ingly difficult to say in whom the right of action would be. Either the right of action must be divided and each sue, or the right of action altogether must remain in the bankrupt, or altogether be transferred to the assignees, or both must join, the contract being entire to sue for damages;" but he expressly refrains from stating that a cause of action can be split. Then, if the declaration contains causes of action for which the assignees could not sue, the bankrupt must be able to sue himself, otherwise there would be no remedy for the injury sustained, though, possibly, as to the 2,000l., he would be a trustee of the damages for his assignee. Cur. adv. vult. MARTIN, B. This is an action for a fraudulent representation, and the plaintiff alleges that, by reason of the misrepresentation, he sustained great loss, and became and was adjudicated a bankrupt, and suffered great personal annoyance, and was put to great trouble and inconvenience, and was greatly injured in his character and credit. The plea alleges, except as to the claim in respect of the plaintiff being adjudicated a bankrupt, subjected to the alleged personal annoyance, and put to trouble and inconvenience and injured in character and credit, that the plaintiff had become bankrupt, and the right of action had passed to his assignees. We are of opinion that the plea is a good plea, on the ground that this exception is null and idle, and that the matters excepted afford no cause of action, and that, in point of fact, the case is the same as if the plea had been pleaded to the entire declaration, and that it covers the whole cause of action. We think that the damage is a pecuniary damage, the right to sue for which goes to the assignee and does not remain in the bankrupt; therefore there will be judgment for the defendant. BRAMWELL, B.-I am of the same opinion. It seems to me that in this case the special damage alleged is not special damage, and that the only thing recoverable upon the declaration is the direct and natural damage of a pecuniary character, resulting from the fraudulent representation, the right to sue for which would pass to the assignees. But, further, it seems to me, that, supposing there were special damage in respect of which the bankrupt could have recovered had he not become bankrupt, a cause of action cannot,-I will not say be split, but-remain partially in him, for the purpose of recovering special damage, and go partially to the assignee for the purpose of recovering the natural damage. If there were a contract with two breaches in it, or if there were a tort of two different characters, as, for example, a trespass to a man's person and to his goods, even to his clothes, or some articles which he might have about him, I do not see at all why the assignee might not recover in respect of the latter, and the bankrupt in respect of the former. But where there is only one cause of action, it seems to me, as at present advised, that if the right to sue for pecuniary damage passes to the assignee, the bankrupt cannot say that enough of the cause of action remains in him to enable him to sue in respect of the special damage. On the two grounds, therefore, that no special damage is shewn, and that the breach in respect of which it is claimed was a cause of action which passed to the assignees, the plea seems to be good. Judgment for the defendant. Attornies-W. Timbrell Elliot, for plaintiff; A. Sidney, for defendant. The examination of a prisoner in gaol by the Registrar in Bankruptcy under the 101st section of the Bankruptcy Act, 1861, is a public judicial proceeding; and therefore a fair and correct report without comment of the examination is privileged, even though it may contain statements irrelevant to the inquiry, which injuriously affect the character of a third person. Declaration on a libel published in the Sheffield and Rotherham Independent. Plea-not guilty. The libel complained of was contained in a report (without comment) of "Proceedings in Bankruptcy, at York Castle, on Saturday, December 16, before P. A. Welch, Esq., Registrar" (1), wherein it was (1) The 101st section of the Bankruptcy Act, 1861, enacts, that the Commissioner in Bankruptcy or county court Judge shall make an order that a registrar shall attend at the prison (after notice has been given to all the prisoner's creditors) and examine every prisoner included in the gaoler's return who shall have been in prison, being a trader for fourteen days, or not being a trader for two calendar months, touching his estate and effects, debts, dealings and transactions: that the registrar shall have power to make an order of adjudication in bankruptcy against every such prisoner, and to grant him protection, and to make an order for his release from prison, and shall also direct in what court such adjudication shall be prosecuted, &c. The 102nd section enacts, that if the prisoner shall refuse to appear or to be sworn, or to answer all lawful questions of such registrar or of the execution or detaining creditor, or of any other creditor who shall be present, respecting his debts, liabilities, dealings and transactions, or to make a full discovery of his estate and effects, and of all his books of account, or to produce the same, or to sign his examination when taken, the registrar shall report the same to the Court, and the Court may, by warrant under the hand and seal of the Judge or Commissioner, commit him to the common gaol of the county, and the Court may at the same time adjudge such prisoner bankrupt. NEW SERIES, 35.-EXCHEQ. stated that Frederick George Gray, a prisoner confined in York Castle, had, when examined by the Registrar, said that he had been "in partnership with the plaintiff, who had compounded with his creditors." The action was tried at the West Riding Spring Assizes, 1866, before Keating, J., who told the jury that a fair report of the proceedings in a public court of justice is privileged, and that this occasion was a privileged one; but that if they thought the report not fair, or that it was maliciously published, then the plaintiff would be entitled to a verdict. The libel was proved to be false in fact. The jury found a verdict for the defendants. Manisty obtained a rule to set this verdict aside, on the ground of misdirection. Overend and Cave now shewed cause.The proceedings before the registrar, under the 101st section, are judicial proceedings in the strictest sense. The powers given to the registrars by the act support this view. The 52nd section empowers them to make adjudications of bankruptcy, and to grant protection; the 54th imposes penalties on parties or witnesses not attending before the registrar when summoned; the 58th empowers the Courts to direct the Registrar to hold meetings of creditors; the 101st enacts that the Commissioner shall order the registrar to examine the prisoners in the gaol, and gives the registrar power to make an order of adjudication in bankruptcy, and to grant protection; and the 102nd provides for the punishment of prisoners refusing to conform. When such extensive powers are given to the Registrar, it is for the interest of the public that the investigations should be conducted foribus apertis, and that it should be generally known on what grounds the debtor has been committed to prison. In The King v. Wright (2), Laurence, J. said, that, "though the publication of such proceedings may be to the disadvantage of the particular individual concerned, yet it is of vast importance to the public that the proceedings of Courts of justice should be universally known." The notice which the creditors are entitled to under the 101st section makes the proceedings before the registrar sufficiently "public" for the (2) 8 Term Rep. 293, 298. 2 B |