Grange v. Trickett.

the court below must be reversed, and judgment given for the plaintiff for 50%. Plaintiff to have the costs of appeal.1

Judgment accordingly,

GRANGE V. TRICKETT.2

November 14, 1851.

Con

Insolvent Act, 1 & 2 Vict. c. 110— Discharge out of Custody sent of Detaining Creditor- Operation of vesting Order- Title of Assignee Revesting of Property in Insolvent- Pleading.

Declaration against the defendant as maker of a promissory note, payable to F. J., and by him indorsed to the plaintiff. Plea, that after the making of the note, and before the indorsement to the plaintiff, the said F. J., then being a prisoner for debt in Lancaster Castle Gaol, duly petitioned the Court for the Relief of Insolvent Debtors, under the 1 and 2 Vict. c. 110, for his discharge from custody, and that thereupon an order was made by the said court pursuant to the said statute for the vesting of F. J.'s estate and effects in the provisional assignee, by virtue of which order and the said statute the said promissory note and all right of action in respect thereof became vested in the said provisional assignee, &c. Replication, that before the indorsement, the said F. J. was discharged from custody by the detaining creditor in the plea mentioned, and with his consent, and without any adjudication by the said Court for the Relief of Insolvent Debtors having been made in that behalf :

Held, upon demurrer, that under the 1 and 2 Vict. c. 110, the discharge out of custody of an insolvent with the consent of his detaining creditor, without any adjudication in that behalf, had the effect of putting a stop to the operation of the vesting order, and of divesting the insolvent's estate out of the assignee, and revesting it in the insolvent himself, and, therefore, that the replication was good.

THIS was an action against the defendant, as the maker of a promissory note for 61l. 17s. 7d., payable to F. Johnson, and by him indorsed to the plaintiff.

Plea-that after the making the said note by the defendant, and before the indorsement to the plaintiff, and before the commencement of this suit, to wit, &c., the said Frederick Johnson then being a person in actual custody within the Lancaster Castle Gaol, upon process for or by reason of a certain debt and costs at the suit of J. B. did, within fourteen days next after the commencement of the actual custody of the said F. Johnson, to wit, &c., duly and according to the directions and provisions of the statute made and passed in the session of parliament holden in the first and second years of the reign of our Lady the now Queen, intituled "An Act for abolishing arrest on mesne process in civil actions, except in certain cases for extending the remedies of creditors against the property of debtors, and for amending the laws for the relief of insolvent debtors in England," apply by petition in a summary way to the Court for the Relief of Insolvent Debtors in the said Act mentioned, for his discharge from

1 In a subsequent case in the Exchequer, it was said by Parke, B., that "all the Barons of the Exchequer and several other judges were agreed," that in cases of appeal from the County Court, the cost should, for the future, follow the result.

2 21 Law J. Rep. (N. s.) Q. B. 26.

Grange v. Trickett.

such custody according to the provisions of the said act, in which petition was stated the time and place of the first arrest of the said F. Johnson in the cause wherein he was there detained, and the time of his commitment to the prison wherein he was then confined, and also the name of the person at whose suit he, at the time of presenting the said petition, was detained in custody, and the amount of the debt and costs for which he was so detained, and in which petition the said F. Johnson also stated that he had given notice to the keeper of the said gaol in which he was confined, of his intention to present the said petition, which notice the said F. Johnson did give in writing to the keeper of the said gaol, and in which petition the said F. Johnson also stated that he was willing that all his real and personal estate and effects should be vested in the provisional assignee for the time being of the estates and effects of insolvent debtors in England, according to the provisions of the said act, and prayed to be discharged from custody, and to have future liberty of his person against the demands for which he, the said F. Johnson, was then in custody and against the demands of all other persons who should be or claim to be his creditors at the time of presenting the said petition, and which said petition was duly subscribed by the said F. Johnson, and was forthwith, to wit, &c., filed in the said court pursuant to the directions in the said act contained. And the defendant further saith that upon the said filing of the said petition and before the commencement of this suit, and before the said indorsement of the said note to the plaintiff, to wit, &c., the said court, in pursuance and according to the said statute, ordered that all the real and personal estate and effects of the said F. Johnson both within this realm and abroad, except the wearing apparel, bedding, and other such necessaries of the said F. Johnson and his family, and the working tools and implements of such prisoner, not exceeding in the whole the value of 201 and all his future estate, right, title, interest, and trust, in or to any real or personal estate and effects within this realm, or abroad, which he might purchase or which might revert, descend, or be devised or bequeathed, or come to him before he should become entitled to his final discharge in pursuance of the said act, and according to the adjudication made in that behalf, or in case the said F. Johnson should obtain his full discharge from custody without any adjudication being made by the said court, then before he, the said F. Johnson, should be fully discharged from custody, and all debts due or growing due to him, or to be due to him before such discharge as aforesaid, should be vested in the provisional assignee for the time being of the estates and effects of insolvent debtors in England, which said order was then duly entered of record in the court and published according to the directions of the said court, by virtue of which said order and the said statute the said promissory note, and all right of action in respect thereof, became and were vested in the said provisional assignee as aforesaid. The plea then alleged, that after the making of the said vesting order, and before the indorsement to the plaintiff, J. Grange was duly appointed assignee of F. Johnson's estate and effects, and accepted the said office, and that by virtue thereof the said promis

Grange v. Trickett.

sory note and all rights and causes of action in respect of the same became and were vested in the said J. Grange as such assignee. And further, that the said note was not indorsed to the plaintiff until after J. Grange had accepted the appointment of assignee. Verification.

Replication, that after the appointment of the said assignee, and the acceptance by him of such appointment, and before the indorsement to the plaintiff, to wit, &c., the said F. Johnson was discharged from custody by his said detaining creditor in the said plea mentioned, and with his consent, without any adjudication by the said Court for the Relief of Insolvent Debtors having been made in that behalf. Verification.

Demurrer and joinder in demurrer. The defendant's material point was, that as the petition filed in the Insolvent Court had not been dismissed, the vesting order was still in force, and that the replication was bad for not stating that the note was restored to the said F. Johnson by order of the Insolvent Court. The plaintiff's material point was, that the replication was a good answer to the plea, by showing that before the indorsement of the note the title of the assignee was determined by the discharge of the insolvent Johnson from custody without any adjudication having been made, and that upon such discharge the property in the note revested in the insolvent under sections 38 and 44 of I and 2 Vict. c. 110,

Crompton, for the defendant. It is no answer to the plea that Johnson was discharged by the consent of the detaining creditor. It should have been further shown that the property became revested in him afterwards. Under the 37th section of 1 and 2 Vict. c. 110, the property became completely vested in the assignee under the vesting order, and it was not necessary to show that Johnson's imprisonment continued during the whole proceedings. When it is meant to divest the property out of the provisional assignee, the legislature says so expressly, as in the 39th section. The 44th section is the only one which at all bears in favor of this application, and the terms of that section are certainly doubtful; but, looking at the 92d section, it would appear that when once the property becomes vested, proceedings are necessary in order to revest it in the insolvent. If the other side be right, no revesting order of any kind is necessary. In Drury v. Houndsfield, 11 Ad. & E. 101, the decision seems to have proceeded on the ground that the property could not otherwise be divested out of the provisional assignee. The validity of the vesting order is not affected by the debtor being out of prison for a short time. But the replication admits an imprisonment until the vesting order.

Milward, for the plaintiff. The replication is a good answer to the plea. Under the 37th section of 1 and 2 Vict. c. 110, until the discharge of the prisoner, all his property vests in the provisional assignee, whether that discharge be according to an adjudication in that behalf, or without any adjudication having been made. From that section, considered with the 38th section, it appears that on the

Grange v. Trickett.

discharge of the insolvent the jurisdiction of the court to proceed was at an end, and his property being out of the assignee, revested in him immediately on his discharge; or it may be said that the vesting order failed ab initio.

[COLERIDGE, J. The 38th section seems to assume that proceedings are to go on though the insolvent be not in prison.]

Not when read in connection with the 44th section. The 92d section can have no material bearing on the present question; it applies to quite a different state of facts. The decision in Drury v. Houndsfields will be found to be an authority for the plaintiff in this case. He referred also to sections 61, 69, 71, and 92 of the 1 & 2 Vict. c. 110.

LORD CAMPBELL, C. J. I am of opinion that the replication is good. It is true that the 37th section contains no express enactment that the property shall revest in the insolvent, upon his discharge by the detaining creditor, but it seems clearly to have been intended that such should be the result of a discharge from prison by consent of the detaining creditor, for the 44th section provides, that in case of such discharge, without any adjudication being made in that behalf by the court, all the acts done before such discharge by the provisional assignee shall be good and valid, and no action or suit shall be commenced against the provisional assignee, "except to recover any property, estate, money, or effects of such prisoner detained after an order made by the said court for the delivery thereof and demand made thereupon." So that the party discharged may get possession of all his property remaining in the hands of the assignee, and it must necessarily, therefore, be taken that the title has revested in him. The 44th section seems to assume that no further proceedings are to be taken, and there is no machinery provided by which the assignee can, after the discharge, still proceed for the benefit of the other creditors. It seems to me, therefore, that Johnson had the right to indorse so as to give a right of action to the plaintiff, and that the replication is good.

PATTESON, J. But for the 44th section great doubt would exist. That section, however, seems to say that in case of a discharge with consent of the detaining creditor, and without any adjudication in that behalf, then, not that the vesting order shall be void, but that the assignee shall not be liable to any action except to recover the property of the prisoner, detained after an order made for the delivery thereof, and demand made thereupon. It seems, therefore, that the court ought to make an order for the delivery up of the property vested in the assignee by the vesting order, and if there is to be an order for the delivery up of such property as the assignee has in his hands, such as he had not in his hands would seem to be at the immediate disposal of the insolvent himself, and the replication, therefore, is good.

COLERIDGE, J. It is true that there are no express words in the act;

Regina v. The Inhabitants of Kentmere.

but I think, looking to the policy of the act and the words used in the 44th section, there is a strong inference that by the discharge the property became revested in the insolvent. The 44th section contemplates a case of this kind, and protects all acts done before the discharge, and further provides, not that an action shall not be brought against any person, but against the provisional assignee, and that only until an order of the court for delivery up of the property, and a demand thereupon shall have been made. That seems to show that the person in whose favor the order for delivery is made is considered as having the right of property in him, but not the right of possession. The whole rests on the assumption that the right of property has already revested in the insolvent.

WIGHTMAN, J. The effect of the discharge under the 44th section is to cause the operation of the vesting order to cease, except for the purpose of protecting the assignee from liability in respect of any thing done before the discharge. After the discharge, therefore, the assignee could have no claim to the promissory note in question, the right to which remained in the debtor.

Judgment for the plaintiff.

REGINA V. THE INHABITANTS OF KENTMERE.1

November 13, 1851.

Poor Rate Commissioners under Local Act- Public PurposesReservoir- Quantum of Rate.

Commissioners had constructed a reservoir in the township of K. across an existing stream upon land purchased by them under a local act, for the purpose of affording a more regular supply of water to the mills upon the stream, and of cleansing the stream, and promoting the health of the persons residing on its banks. The water flowed from the reservoir along the ancient bed of the stream, and the result obtained was an increased regularity in the motive power of the mills, whereby they were enabled to continue working at times when they would otherwise be stopped. None of the mills benefited by the supply of water were situate in K. but in other townships lower down the stream. The commissioners were empowered to levy rates upon the mills, to be applied in paying interest upon the money borrowed for constructing the reservoir, and the necessary charges of its maintenance, and the forming a reserve fund to meet any extraordinary contingency, or for paying off the principal borrowed. The commissioners were rated to the relief of the poor of K. in respect of the reservoir, at a sum which was admitted to be a proper assessment on the occupiers of the reservoir, if the works constructed and carried on by the commissioners had been a private undertaking of persons who had increased the available supply of water to the mill-owners as was done by the reservoir, and who at pleasure could allow or refuse the mill-owners the benefit of such increased supply:

Held, first, that the commissioners were liable to be rated in K. for the reservoir; and, secondly, that the amount of the assessment was correct.

ON an appeal, by the Commissioners of the Kendal Reservoirs, against a rate for the relief of the poor of the township of Kentmere, in the county of Westmoreland, the Court of Quarter Sessions for

121 Law J. Rep. (N. s.) M. C. 13.