Ludgater v. Channell.

Mr. Rolt and Mr. Goodeve, for the sureties. It is settled on principle and authority, that though a party may have a summary mode of proceeding against an officer of the court, yet that he cannot exercise it against the representative of that officer; and if no order can be made against the personal representative of the receiver, à fortiori no order can be made against the sureties. There is no power in this court to decide such a question upon petition; for proceedings against a personal representative must originate in the issuing of the process of subpoena. It is clear also that if the personal representative had any evidence to adduce for the purpose of rebutting the case made by the petitioners, it would not be competent for him to compel the production of an unwilling witness. In cases like the present, where the bond is given to the court, it is not the duty of the surety to see that the receiver's accounts are duly passed; in fact he is not even permitted to attend before the master, and the whole duty of looking after the receiver devolves upon the plaintiff in the suit, Daniell's Ch. Pr. vol. iii. p. 450; and until the receiver has been put into contempt, there can be no process against the surety. There is nothing to shew but that in the present instance the plaintiff may have had dealings with the receiver which would have released the surety.

[The Lord Chancellor. Your argument is, that there may have been collusion between the plaintiff and the receiver, but that is the very fraud which the court will see that the surety is made responsible for, and it is always within the discretion of the court whether it will allow a recognizance to be put in force or not.]

Mr. Willcock, for the surviving trustee and executor of the testator in the cause.

Mr. Malins, in reply. It is not disputed by the representatives of the receiver that he has not fully accounted, but it is said that a bill must be filed. The proper forum, however, for taking the account is the office of the master, before whom the cause is, and before whom the recognizance was taken.

The LORD CHANCELLOR. It is of the utmost importance that the functions of receivers who are the officers of this court, should be duly discharged. The respondents in the present case are the sureties and the representatives of the receiver; and the recognizance in question was entered into in pursuance of a general order of the court.

Now the obligation of a receiver is to account once a year, and to pay his balances into court; but here this duty was entirely omitted, thus involving a forfeiture of the recognizance, and consequently constituting a debt due by the receiver. Upon the death of the receiver, the parties interested in the fund come to the court and state that redress may be had in one of two ways, either against the representative of the receiver, or against his sureties: they present their claim in a double aspect, and call on the court to grant them relief as against one or other of the respondents to the petition; and it is obvious that

In re Were.

if either of the respondents had been omitted, the other would have objected, and with some reason, to his absence. But the administratrix says she is not accountable in this form of proceeding; and the sureties, on their part, allege that there is a positive rule of practice, that the surety cannot be made to account until the receiver has been called upon, and further, that the mode of proceeding in such a case is by bill against the personal representative. I can, however, find no authority for the rule which it is thus sought to establish. The case of Jenkins v. Briant, 7 Sim. 171, does not apply; for the order there prayed was very different from that sought by the present petition. Something was asked which could not be granted, namely, that an executor should account under circumstances which did not give the court jurisdiction to compet him to do so; and although something was asked at the same time which might have been granted, yet the application failed from one entire order being prayed.

Referring then to the cases which have been cited, none can be found inconsistent with the prayer of the present petition. I have not had the advantage of seeing what was the question put by the ViceChancellor to the registrar; but it is to be observed that the certificate does not meet the case of where the receiver is dead, but only where he has absconded. Now, when a receiver absconds, it becomes impracticable, or at least very difficult, to ascertain what is due from him, and the certificate gives that case as an example only, and there may be other cases which fall within the same description; but it does not appear to me that the registrar's attention was called to all the circumstances of the case now before me. The question then is, have the petitioners the means of ascertaining or enforcing their claim. The books of practice shew that where there are not the means of pursuing the ordinary course against the receiver, the surety may be had recourse to; and the first part of the prayer of the petition is for leave to sue the sureties.

Not therefore now deciding whether the surety shall pay, or whether the administratrix may or may not be called on to account in this form of proceeding, I think that the first part of the prayer of the petition must be granted; and it is unnecessary for me to advert further to the alternative relief sought.

In the Matter of WERE, an alleged Lunatic.1

January 24, 1851.

Lunatic Transfer of Funds in his name.

The Lord Chancellor declined to order the transfer of funds standing in the joint names of the lunatic and another to the party claiming such transfer, without a previous reference to the master.

13 Mac. & Gor. 233.

In re Elias.

THIS was a petition under the 5th section of the Trustee Act, 1850, (13 & 14 Vict. c. 60,) praying for the transfer of a sum of 4000%. 13s. 4d. reduced annuities, standing in the names of John Askew and the lunatic as trustees of a settlement.

The petitioner, who claimed to be entitled to the transfer under the settlement and a subsequent deed of appointment, asked that the order might be made without a reference to the master.

Mr. Sandys appeared in support of the petition, and referred to the 40th and 43rd sections of the act.

The LORD CHANCELLOR, however, observed that it had been found. inconvenient and to be attended with difficulty for the court itself to investigate matters of this kind with the requisite care, and accordingly directed a reference to the master to inquire whether the trustee was of unsound mind and incompetent to the management of his affairs, and whether he was possessed of the trust fund, and for whom within the meaning of the act.

In the Matter of ELIAS, a Lunatic.1

January 24, 1851.

Lunatic-Resident abroad-Transfer of Funds.

Order made on the application of the curator of a lunatic resident in Holland for the transfer to him of the corpus of funds in England to which the lunatic was entitled.

THE lunatic in this case was resident in Holland, and was possessed of considerable sums of bank and East India stock in this country. The curator, appointed according to the law of Holland, now presented a petition for payment out to him of the corpus of these sums under the following circumstances.

The late Lord Chancellor (Lord Cottenham) made an order authorizing the present petitioner, while provisional curator, to receive the dividends of the stocks, and referring it to the master to ascertain whether the petitioner was, according to the law of the kingdom of the Netherlands, entitled to have the funds transferred to him. No inquiry was directed as to whether the petitioner had given any security, and it did not appear whether the lunatic was a native of Holland.

The master made a report finding that the lunatic had been duly declared such according to the law of the kingdom of the Netherlands, and that the petitioner was according to such law duly appointed curator and as such entitled to have the funds transferred to him.

13 Mac. & Gor. 234.

Vincent v. Watts.

Mr. Cotton, in support of the petition, submitted that the present case was distinguishable from that of In re Stark, 2 Mac. & Gor. 174.

The LORD CHANCELLOR, after some hesitation, made the order in the terms of the prayer of the petition, observing that he assumed that no security had been given by the curator, and that none was required by the laws of Holland. His Lordship intimated that he should have had no difficulty in making the order, if it had been shewn that the lunatic was a Dutch subject.

VINCENT V. WATTS.1

March 26, 1851.

Service Amended Bill.

A defendant served with a copy of a bill under the 23d order of the 26th August, 1841, must be reserved if the bill is amended,

THIS was an ex parte application on behalf of the plaintiff, for an order that the clerk of records and writs might be directed to give his certificate that the cause was ready for hearing. The certificate had been refused under the following circumstances.

The bill was filed against several defendants, and against four of these no direct relief was prayed. The plaintiff had served three of these four with a copy of the bill under the 23d order of the 26th August, 1841, but having failed to discover the fourth so as to serve him, the bill had been amended by striking him out as a formal party and making him a substantive party to the record: no other amendment was made. The cause then proceeded regularly; but a copy of the amended bill was not served upon the three defendants who had been served with a copy of the original bill. The plaintiff considering that the cause was ready to be set down, applied for the usual certificate to enable him to set it down, but the clerk of records and writs refused to give that certificate until a copy of the amended bill had been served upon the three defendants.

Mr. G. L. Russell, for the plaintiff, referred to Powell v. Cockerell, 4 Hare, 565; s. c. 10 Jur. 243; and stated that the present application had been originally made to the Vice-Chancellor, Lord Cranworth, but that his Lordship declined to make any order, desiring that the case might be mentioned to the Lord Chancellor.

The LORD CHANCELLOR. There is no real difficulty in the present case. By the 23d order, which is the basis of the two following

13 Mac. & Gor. 248.

In re Pigott.

orders, a plaintiff is empowered to serve a party under certain circumstances, "with a copy of the bill, whether the same be an original or amended or supplemental bill." It therefore must be assumed, that the object of the order was, that the party on whom it was intended to serve a copy of the bill was to be served with the copy, whether it was the original amended or supplemental bill, in order that he might exercise his discretion as to appearance, after having been so served; and the order supposes that the copy served has provided the defendant with the whole of the case made by the plaintiff. The decision in Powell v. Cockerell, 4 Hare, 565; s. c. 10 Jur. 243; which has been referred to, would only be applicable in the present instance to the case of the fourth defendant who has been made a substantive defendant by amendment, and not to that of the three other defendants who have been served with a copy of the bill. I should not be warranted in assuming that the amendment made could not in any manner affect these three defendants, and unless I did so it would become necessary, in this and every similar case, to consider how far a defendant not served might be affected.

It seems to me that the 23d order was made to provide for the case of a defendant who had full notice of all the proceedings in the cause, and that a correct view has been taken of the orders in requiring the three defendants to be re-served.

In the Matter of PIGOTT, a Lunatic.1

April 16, 1851.

Lunatic- Next of Kin-Stop-order.

Order in the nature of a stop-order granted on the application of the assignees of the interest of the sole next of kin of a lunatic, but dispensing with notice to the assignees of any applications in the matter except those respecting payments to the next of kin.

In this case Anne De Bolleville, the sole next of kin of the lunatic, had, by deed, assigned her expectant interest in funds in a cause to which the lunatic was absolutely entitled, and also in funds standing in the name of the accountant-general in the lunacy, and all other the personal estate of the lunatic to which she might become entitled, to her sons; and she now joined them in petitioning that no part of such funds or the accumulations or any part of the personal estate of the lunatic might be disposed of without notice to the sons as assignees or the survivor of them or the representatives of such survivor, unless upon the application of the committee for the time being of the lunatic's estate.

13 Mac. & Gor. 268.