Navulshaw v. Brownrigg.

That being so, the only question is whether there is a case for an account. What was argued was that there was a case for an account, independent of this transaction; for that Messrs. Brownrigg & Co., either alone or with Messrs. Collet & Co. were agents for the plaintiff; and that this court gives relief at the suit of a principal against his agent. If there had been any thing of fraud in the transaction, that would have been so, though it was only a single transaction; but, in a case in which there is no fraud, not only all the authorities but all the text-books show that this court will not decree an agent to account to his principal, unless the case is one which is not capable of being conveniently inquired into in a court of law. But this is, really, only one, single transaction. Mr. Navulshaw sent two boxes of pearls to Messrs. Brownrigg & Co., to sell them. They have sold them. There is nothing in the evidence to show that they have not sold them properly. They were to sell them either by public auction or by private sale, as they thought best. They put them up to public auction, and, having sold only a small portion, they afterwards did their best with the rest, and realized all that was possible to realize. Therefore, the money produced by the sales, is money had and received to the use of Mr. Navulshaw, and may be recovered in an action at law; and the consequence is that, on that ground also, the bill fails; and I must dismiss it, as against both sets of defendants, with costs.

Mr. Bethell. With reference to the costs of the suit, I ought to state to your Lordship that there are four members of the firm of Brownrigg & Co., and that every one of them has put in a separate

answer.

Mr. C. Hall. It was necessary for them to answer separately; because they were in different parts of the country; one in London, one in Devonshire, one in Liverpool, and the other in Scotland.

The VICE-CHANCELLOR. The putting in of separate answers by the members of a firm, unless there is something to justify it, is, certainly, causing unnecessary expense; and, therefore, I shall direct the taxing master to inquire whether it was necessary for them to put in more than one answer, and to deal with the costs of the answers according to the result of that inquiry.

10*

In re Vavasour, a Lunatic.

In re VAVASOUR, a Lunatic.1

May 2, 1851.

Lunatic Tenant in Tail- Advowson- Sale of next Presentation.

A lunatic, who, previously to his lunacy, professed the Roman Catholic religion, was tenant in tail of an advowson. The court refused to make an order for the sale of the next presentation to the living, monev not being wanted for the purposes specified in the 28th section of the 1 Will. 4, c. 65.

THIS was the petition of the committees of the estate of the lunatic, praying the confirmation of the master's report, and that the right of the lunatic to the next presentation to the rectory of Draycott-onthe-Moors might be sold.

It appeared by the report that the lunatic, who, before his lunacy, professed the Roman Catholic faith, was tenant in tail of certain estates, including the advowson in question; that on the avoidance of the living, in the lifetime of the father of the lunatic, who also professed the Roman Catholic faith, the right of presentation had devolved upon the University of Oxford, who presented the present incumbent, now aged fifty-seven years; and it was apprehended that in case of a vacancy occurring in the lifetime of the lunatic, the right of presentation would again devolve on the University of Oxford, and be lost to the estate of the lunatic. The master was of opinion that the next presentation, in the event of an avoidance in the lifetime of the lunatic, ought to be sold.

Mr. Bacon and Mr. Shee, for the petition, referred to 1 Will. 4, c. 65, ss. 9, 28.

Mr. K. Parker and Mr. Winstanley appeared for the next of kin, and consented.

May 2. LORD CHANCELLOR. I am of opinion that I ought not to make the order asked for by this petition. I have only power to deal with the lunatic's real estate for the purposes mentioned in that particular section of the act. The right of presentation to the next turn is an incident to the estate tail, and does not become a mere personal right until it is severed; and I do not see what authority I have to make the severance. It is not clear to me that the University would have a right to present to a vacancy occurring in the lifetime of the lunatic, whether he is now to be considered of the Roman Catholic faith or not. Upon the whole, I think I ought not to make the order asked for.

1 20 Law J. Rep. (N. s.) Chanc. 619. 3 Mac. & Gor. 275

Ex parte Woods; re Woods.

Ex parte WOODS; re Woods.1

Bankruptcy - Adjourning

May 2, 1851.

Meeting for Granting Certificate-12 & 13 Vict. c. 106, s. 198.

Under the 198th section of the 12 & 13 Vict. c. 106, the Commissioner has a discretion to adjourn generally the sitting held for the purpose of granting the bankrupt's certificate, at the instance of the only creditor desirous of opposing who had omitted to give the three days' notice required by the statute.

THIS was an appeal from the decision of Knight Bruce, V. C., sitting in Bankruptcy, dismissing the petition of appeal from the judg ment of the commissioner. The bankrupt had passed his last examination, and a public sitting, appointed in pursuance of the 198th section of the 12 & 13 Vict. c. 106,2 was held on the 21st of December, 1850, for the allowance of the certificate. The assignees, on that occasion, appeared and offered no opposition; but a creditor of the bankrupt, who had omitted to give the three days' notice required by the statute, appeared and opposed the granting of the certificate, alleging that his failure to give the notice arose from accident. Upon this, the commissioner adjourned the meeting, and appointed a public sitting for the allowance of the certificate, to be held on the 31st of January, 1851, due notice of which sitting was to be given in the London Gazette; and directed that the opposing creditor should pay the costs of the adjournment.

In March 1851, the bankrupt presented a petition to the ViceChancellor Knight Bruce, praying that the order of the commissioner might be rescinded, and that his certificate might be granted by the Vice-Chancellor; but the Vice-Chancellor being of opinion that the commissioner had a discretion to adjourn the sitting, dismissed the petition, with costs.

The case was now brought before the Lord Chancellor, on special case, by way of appeal.

Mr. James Russell and Mr. Willes, for the bankrupt, contended that if the commissioner had power to adjourn the sitting, in order to

1 20 Law J. Rep. (N. s.) Chanc. 619. 3 Mac. & Gor. 269.

2 The 198th section was as follows:- "That forthwith after the bankrupt shall have passed his last examination, the court shall appoint a public sitting for the allowance of his certificate (whereof and of the purport whereof twenty-one days' notice shall be given in the London Gazette and to the solicitor of the assignees,) and at such sitting the assignees or any of the creditors of such bankrupt who shall have given to the Registrar of the court three clear days' notice in writing of his intention to oppose, may be heard against the allowance of such certificate; and the court, having regard to the conformity of the bankrupt to the law of bankruptcy, and to his conduct as a trader before as well as after his bankruptcy, and whether the allowance of such certificate be opposed by any creditor or not, shall judge of any objection against allowing such certificate, and either find the bankrupt entitled thereto, and allow the same, or refuse or suspend the allowance thereof, or annex such conditions thereto as the justice of the case may require."

Ex parte Woods; re Woods.

The

let in the opposing creditor, it was virtually a power to annul the requisitions of the statute; but the order was extra vires. Calvert v. Gandy, 1 Phil. 518; s. c. 14 Law J. Rep. (N. s.) Chanc. 141. provision as to requiring notice was introduced into the latter act for the purpose of preventing the bankrupt being harassed by his creditors. The words directing the commissioner to appoint a sitting "forthwith," excluded the power of adjournment. Re Woods and Thomas, 1 Fonbl. Bank. Rep. 72.

Mr. Swanston, contrà, for the opposing creditor. The commissioner has power at the sitting either to refuse or suspend the certificate. With this discretion, could he, consistently with his duty, grant the certificate, if he was aware of something that ought to prevent him from so doing? No inconvenience has accrued to the bankrupt from the course that has been pursued.

Mr. Fonblanque appeared for the assignees.

Mr. J. Russell in reply. The bankrupt is not bound by the prayer of his petition. If another day is appointed, the court has the power of ordering that the proceedings may be conducted in the same way as if it had taken place on the 31st of January, and that no party but the assignees may oppose; the order then will be made nunc pro

tunc.

The LORD CHANCELLOR. My duty is to give such a construction to this 198th section as, looking to the whole act, will best carry into effect the intention of the legislature. It appears to me that the objections urged against the proceedings of the commissioner cannot be sustained. There was a great public object contemplated by this part of the statute, as is obvious from the form of the certificate given in the schedule; this form differs from the old certificate, which was to the effect simply, that the bankrupt had only conformed to law from the date of the bankruptcy, and previous conduct was not held a sufficient ground for impeaching his claim to the certificate; but, under the present act, a much more extensive duty falls to be performed by the commissioner, for, in granting the certificate, he is fur ther required to govern his judgment by the conduct of the bankrupt, as a trader, both before and after the bankruptcy; having a due regard to the circumstances under which he has become bankrupt, in order to determine to which class of certificate he may be entitled. This general object of public interest must not be lost sight of in construing the statute.

The word "forthwith," in the 198th section, I take to mean within a convenient and reasonable time, which may or may not depend upon circumstances. It may be that the creditors reside at a distance in the country, or the evidence may require a longer time to collect, or various other circumstances may regulate the commissioner's discretion. As I understand the section, there is no limitation of a particular time upon the commissioner, but the whole effect of it is, that

Foley v. Smith.

the certificate shall not be granted except at a public meeting twentyone days after advertisement; but there is nothing to restrain the commissioner, if he has already appointed the day, and then finds himself not in a satisfactory condition for the discharge of his duty, from appointing an adjourned meeting for that purpose. Who is so proper as the commissioner, who knows all the circumstances of the case, to exercise this discretion? In this case it is not unimportant to observe that the statute does not require notice to be given to the bankrupt, but only to the registrar of the court. I am of opinion that the commissioner in this case exercised a sound discretion, and that the Vice-Chancellor was right in declining to interfere.

Appeal dismissed against the bankrupt, with costs. The assignees to have their costs out of the estate.

FOLEY V. SMITH.1

July 18, 19, 21, 1851.

Costs-Special Agreement Solicitor and Client - Taxation.

Messrs. S. solicitors, promised, by letter, to conduct the professional business in which F. might be concerned "personally or otherwise," upon the terms of receiving agency charges. F. was a solicitor, but he had omitted to take out his certificate; at that time he was interested in a suit which he had procured to be instituted against himself, for the purpose of administering the estate of a testatrix, whose executor he was, and in whose estate he was beneficially interested. Upon the completion of this business, Messrs. S. obtained the whole of the money belonging to F. out of court; they repudiated the letter, and insisted upon their right to costs as between solicitor and client; they also refused all accounts, and never delivered any bills of costs. Upon a bill by F:Held, that the letter was a valid agreement; that Messrs. S. were not entitled to higher charges because F. was uncertificated; that his being uncertificated was immaterial, as such an agreement was legal if made with any client; that the transaction was such that it could not be taxed under the common order; and that it was necessary to file a bill and abandon the common order which had been obtained for taxation; and a reference was directed to the taxing master to tax the bill of costs as between principal and agent. F. had also mortgaged his interest to Messrs. S. to secure a sum of 150l., which they were to pay for F.; but though they omitted to make the payment, and retained that with other money in their hands, the court treated it as an ordinary sum of money in hand, and declined to direct the taxing master to allow the plaintiff interest upon those sums, though the mortgage, which was to include them, was bearing interest.

THIS bill was filed by a client against his solicitors, to obtain the taxation of their bills of costs, upon the footing of an agreement to require agency charges only for professional services, instead of the ordinary charges between solicitor and client. The bill stated that the plaintiff, William Foley, was admitted as a solicitor in Trinity term, 1837, and took out his certificate for that year. Subsequently he and another person, who declined to act, were appointed executors

120 Law J. Rep. (N. s.) Chanc. 621.