South Devon Railway Company, in re, 139 (Railway Company-Investment of Money paid into Court in Land.) (Agreement-Condition Precedent.) Sturgis v. Lord Curzon, (Staying Proceedings-Action-Reference to Arbitration — Insolvency.) (Companies Clauses Consolidation Act.-7 & 8 Vict. c. 16, ss. 71, 138– Notice of Meeting, Validity of -Advertisement in Newspaper- Call, (Partnership Pleading-Bill against Testator's Executors and his Co- (Evidence of Co-Defendant — Cross-Examination- Waiver of Incompe- Wadsworth v. The Queen of Spain, . (Prohibition-Foreign Sovereign-Immunity from Suit-Lord Mayor's Court of London - Foreign Attachment-Time at which Defendant or Garnishee may apply for Prohibition - Necessity of Plea to Jurisdiction Williams v. The Commissioners for executing the Office of (Practice-Service of Writ-Corporation - Persons sued in a Collective CASES ARGUED AND DETERMINED IN THE COURTS OF CHANCERY, DURING THE YEAR 1851. LUDGATER V. CHANNELL.1 January 10, 1851. Receiver-Balance due from- Liability of Real and Personal Representatives. Where in the lifetime of a receiver an unascertained balance was found by the master's report to be due from him, and he died without payment of such balance, the Court ordered, upon petition, that his recognizance should be put in suit against his real and personal representatives and against his sureties. THIS was an appeal petition of some of the parties in an administration suit from the decision of the late Vice-Chancellor of England, dismissing their petition with costs, and a report of which will be found in the 15th volume of Mr. Simons's Reports, page 479. The petition alleged that the receiver, who had been appointed to collect the testator's outstanding estate, had died, and that, at his death, a balance was due from him to the estate; and it prayed that the recognizance which he had entered into, might be put in suit against his real and personal representatives and his sureties, or that his personal representative might forthwith pass the accounts of his receipts and payments in respect of the estate. The petition was founded on a report as to the receiver's accounts by the master, who, among other things, stated that, it being represented to him that other sums of money since the date of a previous report had been collected and got in by the receiver in respect of the personal estate, and that a balance exceeding 6000l. (but not stating the precise amount of such balance) then remained due on account thereof, he had appointed the receiver to pay the sum of 60007. into the bank within seven days from the date of the report. It appeared that the 60007. had been duly paid in within the specified time. Ludgater v. Channell. The Vice-Chancellor, on the 10th February, 1847, dismissed the petition on two grounds; first, that a court of equity would not allow a receiver's recognizance to be put in suit on a report shewing merely that something is due from the receiver, and that the precise amount of what is due must be stated; and, secondly, that the court had no jurisdiction to order the personal representative of a receiver to account for the receiver's receipts without a bill being filed. Mr. Malins and Mr. Shebbeare, in support of the appeal petition. IF a receiver does not bring in his accounts, his recognizance becomes forfeited, or at least becomes liable to be put in suit. It is quite settled and admitted that, in the case of an absconding receiver, the recognizance may be put in force against the surety though the accounts have not passed; and there can be no difference in principle between an absconding receiver and one who has died. As a general rule the surety is liable for every thing for which the receiver is liable; Dawson v. Raynes, 2 Russ. 466; Greenside v. Benson, 3 Atk. 248; Creighton v. Rankin, 7 Cl. & Fin. 325; and on this ground (the recognizance being identical) the surety of the committee of a lunatic. has been held liable, not only for the balance reported due from the committee on his accounts, but also for the costs of proceedings subsequently taken against the committee for enforcing payment of the balance, though the surety had no notice of the default of the committee until after the proceedings had been taken, In re Lockey, 1 Phil. 509. The case of Littleboy v. Spooner, Seton on Decrees, p. 331, where the order for passing the accounts of a deceased receiver was made on his administratrix, is an express authority in favor of the petitioners. (They referred also to Griffith v. Griffith, 2 Ves. 400.) Mr. C. P. Cooper, for the administratrix of the receiver. In this case the proper steps to bring the receiver to an account were not taken in his lifetime, when the court, if applied to, would have granted an order of course against him. The administratrix is no party to this suit, and the order therefore which the petition prays, so far as regards the personal representative of the receiver, cannot be made to bind her. This question must be decided according to the practice, as certified by the registrar to the Vice-Chancellor. (He referred to Mead v. Lord Orrery, 3 Atk. 235; Jenkins v. Briant, 7 Sim. 171.) The following statement was sent to the Vice-Chancellor by Mr. Wood, one of the registrars of the court, in answer to an inqiury made by his Honor in reference to the practice of the court. "With regard to the question, whether it has been the practice of the court to order a receiver's recognizance to be put in suit where it does not appear from the master's report that a definite sum is due, the registrars know of no case, nor can they find one, in which the recognizance has been put in suit against the sureties in default of the receiver paying what may be due from him, without the amount being first ascertained, except where the receiver has absconded; and they conceive that a breach of the recognizance by non-payment of a balance reported due from a receiver ought to be shewn as a ground for granting an application for liberty to put the recognizance in suit, which opinion also prevails in the petty-bag office where these proceedings are instituted, as no case is found to the contrary, and such is also the practice in lunacy." |