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Insolvency - From: 1849 To: 1899

This page lists 143 cases, and was prepared on 08 August 2015.

 
Beckham -v- Drake [1849] EngR 843; (1849) 2 HLC 579; (1849) 2 HL Cas 579; (1849) 9 ER 1213
11 Jul 1849
HL
Lord Mansfield, Erle CJ
Contract, Insolvency
An action was brought on a contract for hiring and service, where the plaintiff was to serve for seven years, and the defendant to pay weekly wages during that time; and the breach was a dismissal during the seven years. The plaintiff, after this breach, and before the commencement of the action, became bankrupt; and the question was, whether this cause of action passed from the plaintiff to his assignees. Held: Lord Mansfield said: "The general principle is, that all rights of the bankrupt which can be exercised beneficially for the creditors do so pass, and the right to recover damages may pass though they are unliquidated . . This principle is subject to exception. The right of action does not pass where the damages are to be estimated by immediate reference to pain felt by the bankrupt in respect of his body, mind or character, and without immediate reference to his rights of property. Thus it has been laid down that the assignees cannot sue for breach of promise of marriage, for criminal conversation, seduction, defamation, battery, injury to the person by negligence, as by not carrying safely, not curing, not saving from imprisonment by process of law …"
1 Cites

1 Citers

[ Commonlii ]
 
Ex Parte Rowland Evans And Others In The Matter Of John Foster, A Bankrupt [1850] EngR 494; (1850) 3 De G & Sm 561; (1850) 64 ER 606
1 May 1850


Insolvency

[ Commonlii ]
 
In The Matter Of The Great Eastern And Western Railway Company And In The Matter Of The Joint Stock Companies Winding-Up Acts, 1848 And 1849 [1850] EngR 513 (A); (1850) 3 De G & Sm 218
6 May 1850


Insolvency

[ Commonlii ]
 
In The Matter Of The North Of England Joint Stock Banking Company And In The Matter Of The Joint Stock Companies-Winding-Up Acts, 1848 And 1849 Gouthwaite's Case [1850] EngR 753; (1850) 3 De G & Sm 258; (1850) 64 ER 469
17 Jul 1850


Insolvency, Banking

[ Commonlii ]
 
Munday -v- Stubbs [1850] EngR 856; (1850) 10 CB 432; (1850) 138 ER 173
16 Nov 1850


Insolvency

[ Commonlii ]
 
Ex Parte Georgy Johnstone In The Matter Of George Johnstone, Against Whom A Petition Of Adjudication In Bankruptcy Has Been Filed [1851] EngR 155; (1851) 4 De G & Sm 204; (1851) 64 ER 799
21 Jan 1851


Insolvency

[ Commonlii ]
 
Ex Parte William Bird, The Official Assignee, And Samuel Smith, The Creditor's Assignee In The Matter Of Timothy Bourne Bourne, A Bankrupt [1851] EngR 278 (B); (1851) 4 De G & Sm 273
3 Mar 1851


Insolvency

[ Commonlii ]
 
Acraman And Another, Assignees Of Garrett, A Bankrupt -v- Herniman [1851] EngR 429; (1851) 16 QB 998; (1851) 117 ER 1164
6 May 1851


Insolvency, Agency

[ Commonlii ]
 
Henry Smith Bright -v- James Hutton And James Hutton -v- Henry Smith Bright [1851] EngR 657; (1851-52) 3 HLC 341; (1851) 10 ER 133
26 Jun 1851


Insolvency

[ Commonlii ]
 
Clarke -v- Tipping [1852] EngR 434 (A); (1852) 16 Beav 12
15 Apr 1852


Insolvency

1 Cites

[ Commonlii ]
 
In The Matter Of The Winding-Up Acts, 1848 And 1849, And Of The Wolverhampton, Chester And Birkenhead Junction Railway Company Ex Parte Roberts [1852] EngR 772; (1852) 1 Drew 204; (1852) 61 ER 429
25 Jun 1852


Insolvency

[ Commonlii ]
 
Ex Parte Job Broadhurst In The Matter Of Job Broadhurst (1832) 22 LJ Bank 21; [1852] EngR 1101; (1852) 2 De G M & G 953; (1852) 42 ER 1145
7 Dec 1852

Maule J
Insolvency
A covenant given by the father of two existing partners to an incoming partner to pay any shortfall in the debts due to the firm below a stated sum and to bear the debts of the existing partners in excess of a stated sum was treated not as a contractual liability to pay a stated or liquidated sum but as a liability for unliquidated damages. The court an appeal against the refusal of the Commissioner to set aside the adjudication of bankruptcy.
Maule J said: "The question now before the Court is, whether the debt or alleged debt or demand asserted to be due is one which will be sufficient, as a petitioning creditor's debt, to support an adjudication in bankruptcy. I am of opinion that it is not. It is clear from the recitals in the deed of partnership which contains the covenant in question, that the engagement entered into was one entered into for the benefit of Mr Walker. The covenant was with Mr Walker for the benefit of Mr Walker, and was not a covenant with Mr Walker for the benefit and on behalf of Walker, Perry & Broadhurst. They had, in fact, no interest in it, but Mr Walker was alone interested; it was a covenant to pay the difference between the debts due from the old firm stated in the schedule and any further debts; it was to pay the excess of one set of debts–over the amount of debts due to the firm. That being so, it seems to me impossible to turn the covenant into a covenant to pay a liquidated sum, or any sum, to Walker. The covenant could not be performed by doing that; the object of the parties was to put the firm in the same position in which they would be if the debts, active and passive, were to the amount stated in the covenant, and there is no specific sum engaged to be paid to Walker. It cannot be treated at law as a specific sum of money to be received, for the right to receive would be co-extensive only with the demand sustained; and this cannot be so made the subject of computation as to be a fit ground for a petitioning creditor's debt. No action could be framed upon it. I do not mean to say that a covenant to pay to A. for the benefit of A, B. and C. may not make a good petitioning creditor's debt. In the present case there might not be a sufficient damage to constitute the debt; or, even suppose that damage to the amount of 100l, was shewn, still it does not follow that the money could have been recovered, as anything to be recovered must be in the shape of damage, and such damage is not of a character to amount to a petitioning creditor's debt."
1 Citers

[ Commonlii ]
 
Morgan -v- Marquis (1853) 9 Exch 144
1853

Pollock CB, Parke B
Insolvency
The defendants had possession of some flour for sale under instructions from Perrin. The jury found that the sale was to be for the account of Perrin and one Shute and not Perrin alone, and that Perrin and Shute were joint tenants. Perrin committed an act of bankruptcy. The defendants afterwards sold the flour. Perrin was petitioned in and adjudicated bankrupt. The assignees in bankruptcy brought an action to recover the proceeds of the sale. Held: The action could not succeed: "The defendants sold the goods in question after the bankruptcy by the direction of Shute; and I am of opinion that they were justified in so doing, since they had the authority of the solvent partner, who had a right to deal with the property as his own." (Parke) "Shute, the solvent partner, directed the defendants to sell the flour. Now it is clear that one tenant in common may dispose of the common property; and therefore, when the flour was sold by the defendants, it was properly sold so far as Shute was concerned. Then the effect of the bankruptcy was to render the assignees tenants in common of the goods with Shute. But it is well established that one tenant in common cannot maintain an action against his companion, unless there has been a destruction of the particular chattel or something equivalent to it. That being so, the defendants are not wrong doers, for they have acted under lawful authority. The case of Fox v. Hanbury (Cowp. 445), which was followed by Smith v Stokes (1 East, 363), Smith v. Oriell (1 East. 368), Harvey v. Crickett (5 M. & Selw. 336), and Woodbridge v. Swann (4 B. & Ad. 633) decided that, after an act of bankruptcy committed by one of two partners, the solvent partner is capable of disposing of the partnership property."
1 Cites

1 Citers


 
Patrick -v- Shedden [1853] EngR 496; (1853) 2 El & Bl 14; (1853) 118 ER 674
29 Apr 1853


Scotland, Insolvency
S raised an action against P before the Lords of Session in Scotland, who dismissed the action, and found P entitled to his expenses. S appealed to the House of Lords. Pending the appeal, P petitioned the Lords of Session for decree arid interim execution, under stat, 48 G 3, c 151, s. 17, for the expences. The Lords of Session allowed the decree, pronouncing an interlocutor and interim decree for payment upon security to repay ("caution to repeat”}in the event of a reversal of the original judgment in the House of Lords, with warrant, in failure of payment after a time named, to poind S’s goods. - Security having been given, and the time havirig expired, P now sued for the amount of the expences. Held: The action was not maintainable, the decree for payment not being in the nature of a final judgment.
[ Commonlii ]
 
Ex Parte Thomas Sprague In The Matter Of Edward Brewster, A Bankrupt, And In The Matter Of Edward Brewster And Edward West, Bankrupts [1853] EngR 758; (1853) 4 De G M & G 866; (1853) 43 ER 746
24 Jun 1853


Insolvency

[ Commonlii ]
 
Edwards -v- Regina (1854) 9 Ex.628
1854
CExc
Coleridge J
Insolvency, Litigation Practice
The process of execution in respect of a Crown debt prevailed over the transfer of the personal estate of a bankrupt to an official assignee which took place earlier on the same day. Significantly, the Court's judgment added that even if the transfer to the assignee, by virtue of his appointment, was also a judicial act, and should therefore be taken, equally with the execution, to date from the beginning of the day so that the two acts were concurrent, nevertheless "it has never been disputed . . but that the Crown in such case has priority over the subject."
1 Citers


 
Owen -v- Routh And Ogle (1854) LJCP 105; [1854] EngR 177; (1854) 14 CB 327; (1854) 139 ER 134
27 Jan 1854
CCP

Insolvency
The plaintiff alleged the breach of an undertaking to deliver share certificates on a particular day. The defendants said that bankruptcy discharged them from the obligation. The bankruptcy applied to the defendants' "debts and sums of money due or claimed to be due" on the date of the vesting order. The plaintiff argued that only debts were provable and that a claim in damages was not therefore barred by the vesting order. Whilst accepted this, counsel for the defendant argued that an undertaking to deliver shares on a specified day created a provable debt because the shares would be treated as money's worth in the amount of their value at the date for delivery. Held: The analysis was rejected. The claim was one in damages in a sum to be measured by reference to the price of the shares at trial. They were therefore unliquidated.
1 Citers

[ Commonlii ]

 
 Robert Hull Terrell -v- James Button; 16-Mar-1854 - [1854] EngR 361; (1854) 4 HLC 1091; (1854) 10 ER 790

 
 The German Mining Company The Case Of Samuel Ball, William Haigh, Francis Ramsbotham, William Rothert; 23-Jun-1854 - [1854] EngR 664; (1854) 4 De G M & G 19; (1854) 43 ER 415
 
Ex Parte Samuel Wilkes In The Matter Of Samuel Wilkes, A Trader Within The Meaning Of The Laws In Force Concerning Bankrupts, And Of The Deed Of Arrangement Between Him And His Creditors [1855] EngR 112; (1855) 5 De G M & G 418; (1855) 43 ER 932
23 Jan 1855


Insolvency
A deed of inspectorship, containing a covenant by a debtor for payment of his debts in full by instalments, and a covenant on the part of the creditors executing the deed not to sue in the meantime, but not providing, except in certain events, for the assignment of all the debtor's estate : Held, not to be a deed of arrangement within the provisoins of the Bankrupt Law Consolidation Act respecting arrangements by deed. Before certifying that a deed has been executed by the majority required by those provisions, the Commissioners ought to be satisfied that the deed is one within the scope of them.
[ Commonlii ]
 
French -v- French [1855] EngR 899; (1855) 6 De G M & G 95; (1855) 43 ER 1166
8 Dec 1855


Insolvency
A trader, being insolvent, agreed to sell his business and stock in consideration of a money payment, and that the purchaser should, during the joint lives of the trader and his wife, pay the former an annuity equal to one-fourth of the profits, and a contingent anuity to the wife if she survived her husband equal to one-sixth of the profits. The trader having died, and a creditor’s suit having been instituted for the administration of his assets ; Held, that the annuity to the wife was void as against creditors under the Aot 13 Eliz. c. 5, and that it was quite competent for the creditor to impeach the annuity without seeking to set aside the whole transaction of which it was a part and there ’was a provision in the decree that it was to be without prejudice to any claim of the widow upn the estate of her husband if there should ultimately he a surplus after payment of creditors.
[ Commonlii ]
 
Fraser -v- Kershaw (1856) 2 K & J 496
1856

Page Wood V-C
Insolvency
It was settled law that the bankruptcy of one of two partners puts an end at once to the partnership and that the one partner being bankrupt, his assignee, the trustee, became tenant in common with the other.
1 Cites

1 Citers


 
John Maples -v- William Pepper [1856] EngR 420; (1856) 18 CB 177; (1856) 139 ER 1334
22 Apr 1856


Landlord and Tenant, Insolvency
Ten years ago, A let to B, as tenant from year to year, premises adjoining other premises occupied by B. About seven years ago, A. permitted B. to make a communication through the party-wall, and to make other alterations, upon condition that B. should, at the termination of his tenancy, restore the premises to their original state. In April, 1855, B. became bankrupt; and, on the 17th of May, B. gave notice to A. that he would deliver up possession of the premises, under the 12 & 13 Vict. c. 106, section 145, the assignees having declined to take them: Held, that the "damages resulting from the non-compliance with the condition upon which the permission to alter was given," did not constitute "a liability to pay money upon a contingency within the 178th section of the 12 & 13 Vict. c. 106 ; and that the condition or agreement above specified, to restore the premises to their previous state, was not a condition or agreement within s. 145.
[ Commonlii ]
 
Ex Parte Henry Skelton And John Hill In The Matter Of Henry Skelton, John Hill And Rudolph Steinmann, Bankrupts [1858] EngR 534 (A); (1858) 3 De G & J 47
16 Apr 1858


Insolvency

[ Commonlii ]
 
Ex Parte The Unity Joint Stock Mutual Banking Association In The Matter Of Octavius King, A Bankrupt, And Ex Parte In The Same Matter [1858] EngR 898; (1858) 3 De G & J 63; (1858) 44 ER 1192
26 Jun 1858


Insolvency

[ Commonlii ]
 
Ex Parte William Tompkinson Riley In The Matter Of William Riley And William Tompkinson Riley, Bankrupts [1858] EngR 1272; (1858) 3 De G & J 469; (1858) 44 ER 1349
22 Dec 1858


Insolvency

[ Commonlii ]
 
In Re William Corbett, An Insolvent Debtor [1859] EngR 601; (1859) 4 H & N 452; (1859) 157 ER 916
12 May 1859


Insolvency

[ Commonlii ]
 
Re Gordon [1860] EngR 317; (1860) 28 Beav 5; (1860) 54 ER 267
14 Jan 1860


Insolvency

[ Commonlii ]
 
In The Matter Of George James Gordon, Deceased [1860] EngR 380; 14 Vict c 35; (1860) 45 ER 407
26 Jan 1860


Insolvency

[ Commonlii ]

 
 Whitmore -v- Turquand; 21-Dec-1860 - [1860] EngR 1304; (1860) 1 J & H 444; (1860) 70 ER 821
 
Re The Winding-Up Acts Re The Hereford And Merthyr Tydvil Junction Railway Company Mailtland's Case [1861] EngR 385; (1861) 3 Giff 28; (1861) 66 ER 309
8 Mar 1861


Company, Insolvency

[ Commonlii ]
 
Whitmore -v- Mason [1861] EngR 960; (1861) 2 J & H 204; (1861) 70 ER 1031
18 Nov 1861

Sir William Page Wood V-C
Insolvency
The exclusion of the lease on bankruptcy of the partner was void. Sir William Page Wood V-C said: "the law is too clearly settled to admit of a shadow of doubt that no person possessed of property can reserve that property to himself until he shall become bankrupt, and then provide that, in the event of his becoming bankrupt, it shall pass to another and not to his creditors."
1 Citers

[ Commonlii ]
 
Ex Parte Henry Miller In The Matter Of Henry Miller, A Bankrupt [1862] EngR 1181; (1862) 3 De G J & S 395; (1862) B)
19 Dec 1862


Insolvency

[ Commonlii ]
 
Ex Parte John Wensley [1862] EngR 1182; (1862) 1 De G J & S 273; (1862) 46 ER 110
19 Dec 1862


Insolvency

[ Commonlii ]
 
Ernest -v- Weiss [1862] EngR 1185; (1862) 2 Dr & Sm 561; (1862) 62 ER 733
20 Dec 1862


Insolvency

[ Commonlii ]
 
In Re Harrison [1863] EngR 278; (1863) 1 H & C 819; (1863) 158 ER 1114
14 Feb 1863


Insolvency

[ Commonlii ]
 
In re Exhall Coal Mining Co Ltd (1864) 4 De G J & S 377
1864
CA
Turner LJ
Company, Insolvency
Section 163 provided "any . . distress or execution put in force against the estate or effects of the company after the commencement of the winding up shall be void to all intents." After the presentation of a petition, the commencement of a compulsory winding up, but before the winding up order, the lessor of land of which the company was the beneficial tenant levied a distress upon the company's goods for arrears of rent. The liquidator claimed that the distress was void under the statute. Held: It had a discretionary power to validate the distress. It derived this power from section 87, which provided that after a winding up order, no "suit action or other proceeding" should be proceeded with or commenced against the company without the leave of the court. Turner LJ: "I also concur in the decision of the Master of the Rolls. I think the 163rd section of the Act must be construed as only avoiding attachments, sequestrations, distresses or executions when leave to put them in force has not been given under the 87th section."
Companies Act 1862 87 163
1 Citers


 
Wishart and Another -v- Fowler [1864] EngR 107; (1864) 4 B & S 674; (1864) 122 ER 613
12 Jan 1864


Insolvency

[ Commonlii ]
 
Ann Marchman -v- Henry Brookes, Sarah His Wife, And John Hughes [1864] EngR 179; (1864) 2 H & C 908; (1864) 159 ER 376
27 Jan 1864


Insolvency

[ Commonlii ]
 
Elsey -v- Adams [1864] EngR 326; (1864) 2 De G J & S 147; (1864) 46 ER 331
18 Mar 1864


Insolvency

[ Commonlii ]
 
Ex Parte Archibald Cockburn, Henry Smithes And John Black; In The Matter Of John Benjamin Smith And Thomas Laxton, Bankrupts [1864] EngR 344; (1864) 3 De G J & S 175; (1864) 46 ER 604
13 Apr 1864


Insolvency

[ Commonlii ]

 
 William Dean And Archibald Stewart -v- James Byrnes, Robert Cook, Clark Irving, Thomas Walker, And Thomas Buchanan; PC 29-Jun-1864 - [1864] EngR 623; (1864) 3 Moo PC NS 92; (1864) 16 ER 35
 
In re Moseley-Green Coal and Coke Co Ltd, Ex parte Barrett (1865) 12 LT (NS) 193
1865

Lord Westbury LC
Insolvency, Company
Mr Barrett owed the company money on his partly-paid shares for which calls were made after it went into insolvent liquidation. He had also guaranteed the company's liability for the purchase price of a coal mine, for which the vendor held security in the form of a mortgage and the company's promissory note. After the winding up Mr Barrett's sister paid off the vendor and took over the mortgage and promissory note. Mr Barrett then entered into an arrangement which was treated as a payment of the company's debt and he took over the promissory note. Held: He was entitled to set off the debt on the promissory note against his liability to pay calls on his shares.
1 Citers



 
 Bows -v- Hope Life Insurance and Guarantee Co; HL 1865 - [1865] 11 HL Cas 389
 
Gregory -v- Baillon [1865] EngR 20; (1865) 4 F & F 1069; (1865) B)
1865


Insolvency

[ Commonlii ]
 
Re the Brighton Club (1865) 35 Beav 204
1865
QBD
Sir John Romilly M.R
Insolvency
A petitioner served a statutory demand for more than £4,000 on the company but the company bona fide disputed the amount due. Held: The petition would be dismissed even though more than £50 (the statutory minimum) was due from the company. However, "Far from being insolvent, this company is carrying on a thriving business, which I am asked to stop, merely because there is a quarrel between the company and the contractor as to what is due to him."
1 Citers


 
Freeman -v- Bowen [1865] EngR 765; (1865) 35 Beav 17; (1865) 55 ER 800
7 Dec 1865


Trusts, Insolvency

[ Commonlii ]
 
In Re The Commercial Union Wine Company [1865] EngR 782; (1865) 35 Beav 35; (1865) A)
15 Dec 1865


Insolvency

[ Commonlii ]
 
Lake -v- Peisley [1865] EngR 786; (1865) 35 Beav 125; (1865) B)
16 Dec 1865


Insolvency

[ Commonlii ]
 
Taylor -v- Clark [1866] EngR 44; (1866) 4 F & F 1032; (1866) A)
1866


Insolvency

[ Commonlii ]
 
Young -v- Fletcher [1866] EngR 50; (1866) 4 F & F 1081; (1866) 176 ER 916
1866


Insolvency

[ Commonlii ]
 
Gugen And Another -v- Sampson [1866] EngR 7; (1866) 4 F & F 974; (1866) 176 ER 872
1866


Contract, Insolvency

[ Commonlii ]
 
In re Overend Gurney & Co (Grissell's case) (1866) LR 1 Ch App 528
1866

Lord Chelmsford LC
Company, Insolvency
On the insolvency of a company, no cross claim may be set off against the company member's liability for unpaid capital, for debt. Lord Cheldmsford LC said: "If the amount of an unpaid call cannot be satisfied by a set-off of an equivalent portion of a debt due to the member of a company upon whom it is made, it necessarily follows in the last place, that the amount of such call must be paid before there can be any right to receive a dividend with the other creditors. The amount of the call being paid, the member of the company stands exactly on the footing of the other creditors with respect to a dividend upon the debt due to him from the company. The dividend will be of course upon the whole debt, and the member of the company will from time to time, when dividends are declared, receive them in like manner when either no call has been made, or having been made, when he has paid the amount of it."
1 Citers


 
Re The General Rolling Stock Company (Limited) [1866] EngR 57; (1866) 35 Beav 207; (1866) 55 ER 874
16 Jan 1866


Insolvency

[ Commonlii ]
 
Re Blithman [1866] EngR 58; (1865-1866) 35 Beav 219; (1866) 55 ER 879
17 Jan 1866


Insolvency

[ Commonlii ]
 
George Rolfe And Edward Bailey, And The Bank Of Australasia -v- Flower, Salting And Company [1866] EngR 75; (1866) 3 Moo PC NS 365; (1866) 16 ER 139
1 Feb 1866
PC

Company, Insolvency

[ Commonlii ]
 
Smith -v- Dresser [1866] EngR 117; (1866) 35 Beav 378; (1866) 55 ER 942
2 Mar 1866


Insolvency

[ Commonlii ]
 
Brett -v- Carmichael [1866] EngR 121 (A); (1866) 35 Beav 340
10 Mar 1866


Insolvency

[ Commonlii ]
 
Re The Humber Iron Works Company [1866] EngR 125; (1866) 35 Beav 346; (1866) B)
12 Mar 1866


Insolvency, Costs

[ Commonlii ]
 
Re The Constantinople And Alexandra Hotel Company [1866] EngR 124; (1866) 35 Beav 349; (1866) 55 ER 930
12 Mar 1866


Insolvency, Company

[ Commonlii ]
 
In Re London, Hamburg, and Co Bank Emmerson's Case Toombs' Case [1866] EngR 146; (1866) 35 Beav 518; (1866) 55 ER 997
2 May 1866


Company, Insolvency

[ Commonlii ]
 
Alston -v- Trollope [1866] EngR 151 (B); (1866) 35 Beav 466
7 May 1866


Insolvency

[ Commonlii ]
 
In Re Moss [1866] EngR 160 (B); (1866) 35 Beav 526
2 Jun 1866


Legal Professions, Insolvency

[ Commonlii ]

 
 Sreemanchunder Dey -v- Gopaulchunder Chuckerbutty, Doorgapersaud Dey, Russickloll Dey, And Prosonomoye Dossee; 14-Nov-1866 - [1866] EngR 190; (1866) 11 Moo Ind App 28; (1866) 20 ER 11
 
Gardner -v- London Chatham and Dover Railway Co (No 1) (1867) LR 2 Ch App 201
1867

Cairns LJ
Administrative, Insolvency
When Parliament expressly confers powers and imposes duties and responsibilities of an important kind upon a particular body, it is, as he put it, improper for the court by the appointment of a manager . . . itself to assume those powers and duties. Cairns LJ: "When the court appoints a manager of a business or undertaking, it in effect assumes the management into its own hands; for the manager is the servant or officer of the court, and upon any question arising as to the character and details of the management, it is the court which must direct and decide."
1 Citers


 
Marseilles Extension Rly and Land Co (1867) LR 4 Eq 692
1867

Malins V-C
Insolvency
The court considered the circumstances when a liquidator could be removed. The words 'due cause' did not require anything amounting to misconduct or personal unfitness. It was sufficient if it could be shown that it was on the whole desirable that a liquidator should be removed. It was a serious and valid objection to the liquidator's efficiency that a considerable number of the creditors were opposed to his continuance in office: "I am of opinion that under the 141st section of the Act I have a discretionary power to remove the liquidators appointed by the company. The question is, what is meant by the words "On due cause shewn"? On one side it is contended that "due cause" must be something amounting to misconduct or personal unfitness; on the other side it is contended, and I think that the contention is borne out by the case of Ex parte Pullbrook, that the Court may take all the circumstances into consideration and if it finds that it is, upon the whole, desirable that a liquidator should be removed, it may remove him."
Companies Act 1862 141
1 Citers


 
Haly -v- Barry (1868) 3 Ch App 452
1868
CA
Page Wood LJ
Insolvency, Litigation Practice
A judgment creditor had obtained a charging order nisi but before it was made absolute a decree was made for the administration of the debtor's estate. An injunction was sought in order to restrain further proceedings by the judgment creditor, but that was refused on the basis that the charging order nisi having been made, it could only be defeated by something prior to it. The Master held that the charging order nisi was not to be regarded as something different from the charging order absolute. Held: A charging order absolute takes effect from the date of the charging order nisi. Page Wood LJ said "I do not think that such a case can be treated as one in which the creditor's title is incomplete." Selwyn LJ: "The language of the [Common Law Procedure Act 1852] appears to me quite opposed to this view, it speaks of one order which is at first an order nisi and is afterwards made absolute."
1 Citers



 
 Massey -v- Sladen; 1868 - (1868) LR 4 EXD 13

 
 In re Trent & Humber Shipbuilding Co; Bailey & Leetham's Case; 1869 - (1869) LR 8 Eq 94

 
 Tod's Trusteess -v- Wilson; 1869 - (1869 ) 7 M 1100

 
 In re Humber Ironworks and Shipbuilding Co; 1869 - (1869) LR 4 Ch App 643

 
 In Re European Life Assurance Society; 1869 - (1869) LR 9 Eq 122
 
Midland Banking Co -v- Chambers (1869) LR 4 Ch App 398
1869


Insolvency

1 Citers



 
 In re Richards & Co; 1869 - [1869] 11 Ch D 676

 
 Re County Marine Insurance Co (Rance's Case); 1870 - (1870) LR 6 Ch App 104; (1870) 40 LJ Fh 277; (1870) LT 828; (1870) WR 291 LJ
 
In re Progress Assurance Co Ex parte Liverpool Exchange Co (1870) LR 9 Eq 370
1870

Lord Romilly MR
Company, Insolvency, Landlord and Tenant
The lessors of a company in liquidation levied a distress for unpaid rent upon its office furniture three months after the winding up order. A distress after the winding up order would be allowed to proceed only where the company "has retained not merely formal but actual possession of the property for the purpose of carrying on the business of the liquidation . ."
1 Citers



 
 In re Lundy Granite Co; Ex parte Heavan; CA 1871 - (1871) LR 6 Ch App 462

 
 Johnson -v- Emerson; 1871 - (1871) Law Rep 6 Ex 329; (1871) LR 6 Ex 329
 
In re Oriental Commercial Bank (1871) LR 7 Ch App 99
1871

Mellish LJ
Equity, Insolvency
The court considered the rule against double proof. Mellish LJ said: "This rule against double proof applies in the Court of Chancery as well as in the Court of Bankruptcy, and therefore would apply equally where companies are being wound up."
After referring to the extent to which the principle should be carried, he continued: "But the principle itself – that an insolvent estate, whether wound up in Chancery or in Bankruptcy, ought not to pay two dividends in respect of the same debt – appears to me to be a perfectly sound principle. If it were not so, a creditor could always manage, by getting his debtor to enter into several distinct contracts with different people for the same debt, to obtain higher dividends than the other creditors, and perhaps get his debt paid in full. I apprehend that is what the law does not allow; the true principle is, that there is only to be one dividend in respect of what is in substance the same debt, although there may be two separate contracts."
1 Citers



 
 Ex parte Llynvi Coal and Iron Co; In re Hide; 1871 - (1871) LR 7 Ch App 28
 
Albert Birmingham Miller, Official Assignee Of The Court For The Relief Of Insolvent Debtors At Calcutta -v- Thomas Barlow [1871] EngR 34; (1871) 8 Moo PC NS 127; (1871) 17 ER 260
12 Jul 1871
PC

Insolvency
A Firm, though insolvent, may part with or put an end to a current speculation, the result of which is still uncertain, on the best terms procurable, without any imputation of fraud ; so also, the abandonment of a speculation whilst the result is. uncertain may be both honest and politic, as it entirely differs from undue preference of one Creditor to others after a debt has been incurred.
[ Commonlii ]
 
Albert Birmingham Miller, Official Assignee Of The Court For The Relief Of Insolvent Debtors At Calcutta -v- Thomas Barlow [1871] EngR 35; (1871) 14 Moo Ind App 209; (1871) 20 ER 765
13 Jul 1871


Insolvency
A firm, though insolvent, may part with or put an end to a current speculation, the result of which is still uncertain, on the best terms procurable, without any imputation of fraud ; so also, the abandonment of a speculation whilst the result is. uncertain may be both honest and politic, as it entirely differs from undue preference of one Creditor to others after a debt has been incurred.
[ Commonlii ]
 
Booth -v- Hutchinson (1872) LR 15 Eq 30
1872

Malins V-C
Insolvency
The additional words in the new Act relating to set-off "were intended to give a more extended right of set-off than previously existed"
Bankruptcy Act 1869
1 Citers


 
In re General Rolling Stock Co: Joint Stock Discount Company's Claim (1872) LR 7 Ch App 646
1872
CA
James LJ, Mellish LJ
Insolvency, Limitation
Upon a winding up:- "A duty and a trust are thus imposed upon the Court, to take care that the assets of the company shall be applied in discharge of its liabilities. What liabilities? All the liabilities of the company existing at the time when the winding up order was made." For limitation purposes, time ceased to run whilst a company was in voluntary liquidation.
1 Citers


 
In Re Dummelow (1872-2) LR 8 Ch App 997
1872
CA
Mellish LJ
Insolvency
The parties disputed whether a particular creditor was entitled to vote at the first meeting. The section excluded a right to vote in the case of creditors in respect of "any unliquidated or contingent debt, or any debt the value of which is not ascertained". Held: He did not habve the right to vote. A claim for untaxed costs was either unliquidated or ascertained.
Mellish LJ said: "The question really is, what is meant by an "unliquidated debt" in the 3rd sub-section. The fair construction of the clause seems to me this: "a contingent debt" refers to a case where there is a doubt if there will be any debt at all; "a debt, the value of which is not ascertained," means a debt the amount of which cannot be estimated until the happening of some future event; and "an unliquidated debt" includes not only all cases of damages to be ascertained by a jury, but beyond that, extends to any debt where the creditor fairly admits that he cannot state the amount. In that case there must be some further inquiry before he can vote."
Bankrutcy Act 1869 16(3)
1 Citers


 
Re Davidson's Settlement Trusts (1873) LR 15 Eq 383
1873


Insolvency
English moveables may vest automatically in a foreign trustee or assignee where the bankrupt submitted to this jurisdiction.
1 Citers


 
Ex parte Mackay; Ex parte Brown; In re Jeavons (1873) LR 8 Ch App 643
1873

James, Mellish LJJ
Insolvency, Contract
Mr Jeavons sold a patent regarding the manufacture of armour plates to a Brown & Co and Cammell & Co in consideration of the companies paying royalties. There was also a loan from the company to Mr Jeavons secured on the royalties. The parties agreed that (1) the companies would keep half the royalties towards satisfying the debt, and (2) in the event of Mr Jeavons' bankruptcy, they could also keep the other half of the royalties until the debt had been fully paid. Held: The first provision was valid, but the second was invalid.
James LJ said that provision (1) represented "a good charge upon one moiety of the royalties, because they are part of the property and effects of the bankrupt", but provision (2) "is a clear attempt to evade the operation of the bankruptcy laws" as it "provide[d] for a different distribution of his effects in the event of bankruptcy from that which the law provides".
Mellish LJ said that the case fell within the principle that: "a person cannot make it a part of his contract that, in the event of bankruptcy, he is then to get some additional advantage which prevents the property being distributed under the bankruptcy laws"
1 Cites

1 Citers



 
 In re Condon, Ex parte James; 1874 - (1874) LR 9 Ch App 609; (1874) LR 9 Ch App 609; [1874-80] All ER 388

 
 In Re Oriental Inland Steam Company ex parte Scinde Railway Company; CA 1874 - (1874) LR 9 Ch App 557

 
 Heather & Son -v- Webb; 1876 - (1876) 2 CPD 1
 
Oppenheimer -v- British and Foreign Exchange and Investment Bank (1877) 6 Ch D 744
1877


Insolvency
A court can give a liquidator leave to distribute, thus protecting him from any risk of personal liability, but only if he retained a sum sufficient when invested at compound interest to fund future liabilities.
1 Citers


 
In re David Lloyd & Co (1877) 6 Ch D 339
1877

James LJ
Company, Insolvency
The secured claims of debenture holders are pursued, not in the winding up, but by enforcement of the debenture holders' proprietary rights as chargees of the assets in question. A creditor is a person who "is to be considered as entirely outside the company, who is merely seeking to enforce a claim, not against the company, but to his own property"
1 Citers


 
Talbot -v- Frere (1878) 9 ChD 568
1878
CA
Sir George Jessel MR
Insolvency
Sir George Jessel MR said: "there could not be a set-off until action brought and set-off pleaded."
Insolvent Debtors Relief Act 1729 13
1 Citers


 
Re Sir John Moore Gold Mining Co (1879) 12 Ch D 325
1879
CA
Jessel MR
Insolvency
The court considered an appeal against an order removing the liquidator: 'I should say that, as a general rule, [the words 'on cause shown'] point to some unfitness of the person – it may be from personal character, or from his connection with other parties, or from circumstances in which he is mixed up – some unfitness in a wide sense of the term' but this was not necessary to the decision.
1 Citers


 
Re Rica Gold Washing Co [1879] 11 ChD 36
1879


Insolvency, Company
A contributory, when petitioning for the winding up of a company, must plead in his petition and prove by evidence that, if a winding up order is made, there is a contingent surplus of assets in the winding up which will be available for distribution to him.
1 Citers


 
Re Bonham ex parte the Postmaster-General (1879) 10 ChD 595
1879

Sir George Jessel MR
Insolvency
A bankrupt presented his own petition. It was contended that the relation back of the title of the assignees in bankruptcy to the anterior act of bankruptcy did not affect the rights of the Crown was altered by the 1869 Act Held: The Act made no change. There was no divesting of the debtor's property until the trustee was appointed, when the trustee's title would relate back, but that "...the potentiality of something happening afterwards to devest the property is not a parting with his property by the debtor so as to prevent the extent of the Crown affecting that property". The section did not bind the Crown. In the absence of any statutory provision for relation back, the Crown could only take the property of the debtor at the time of the issue of the writ; if he had previously assigned or transferred his property the Crown could not take it. Accordingly, the question was whether the act of bankruptcy was in fact, and not merely in contemplation of law in consequence of the section, an assignment of the debtor's property.
Bankrup[tcy Act 1869 11
1 Citers


 
Ex parte Blain; In re Sawers (1879) 12 Ch D 522
1879
CA
James LJ
Jurisdiction, Insolvency
Where legislation regulates the conduct of an individual, it may be so construed as to limit it to conduct by United Kingdom citizens anywhere. James LJ referred to "broad, general, universal principle that English legislation, unless the contrary is expressly enacted or so plainly implied as to make it the duty of an English court to give effect to an English statute, is applicable only to English subjects or to foreigners who by coming into this country, whether for a long or short time, have made themselves during that time subject to English jurisdiction."
1 Citers


 
Ex parte Jay, in re Harrison (1880) 14 ChD 19
1880

Cotton, James LJJ
Insolvency, Contract
A builder agreed with the owner of the land on which he was to build houses that upon his bankruptcy all the building materials on the land should become absolutely forfeited to the owner. The builder than charged the materials, but this was not registered as a bill of sale. The builder was then made bankrupt, and his trustee and the landowner disputed the right to the materials. Held: The agreement was void, as it violated or was "in fraud of" the bankruptcy laws. Upon bankruptcy, the bankrupt's property was really no longer his own, and becomes the property of his trustee in bankruptcy.
Cotton LJ said: "though the contract is good as between the parties to it, it is on principle void in the event of the builder's bankruptcy" and "there cannot be a valid contract that a man's property shall remain his until his bankruptcy, and on the happening of that event shall go over to someone else, and be taken away from his creditors."
James LJ said: "a simple stipulation that, upon a man's becoming bankrupt, that which was his property up to the date of the bankruptcy should go over to some one else and be taken away from his creditors, is void as being a violation of the policy of the bankrupt law."
1 Citers



 
 Banco de Portugal -v- Waddell; HL 1880 - (1880) 5 App Cas 161
 
Ex parte Sidebotham; In re Sidebotham (1880) 14 Ch D 458; [1874-80] All ER 588
1880
CA
James LJ
Insolvency
James LJ said: "but the words "person aggrieved" do not really mean a man who is disappointed of a benefit which he might have received if some other order had been made. A "person aggrieved" must be a person who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something, or wrongfully refused him something, or wrongfully affected his title to something."
Bankruptcy Act 1869 71
1 Citers


 
Seear -v- Lawson [1880] 15 ChD 426
1880
CA
Sir George Jessel MR
Insolvency, Litigation Practice
"If the trustee gets a right of action, why is he not to realise it? The proper office of the trustee is to realise the property for the sake of distributing the proceeds among the creditors. Why should we hold as a matter of policy that it is necessary for him to sue in his own name? He may have no funds, or he may be disinclined to run the risk of having to pay costs, or he may consider it undesirable to delay the winding up of the bankruptcy until the end of the litigation."
1 Citers



 
 Peat -v- Jones & Co; 1881 - (1881) 8 QBD 147

 
 Couldery -v- Bartrum; 1881 - (1881) 19 Ch D 394
 
Re Garrud, Ex parte Newitt (1881) 16 Ch D 52
1881
CA
Brett, James LJJ
Insolvency, Contract
A building contract provided for forfeiture on the tenant's breach and not on bankruptcy. The bankrupt builder had broken the terms of his agreement with the landowner and it was provided in the agreement that the chattels would be forfeited to the landowner "as and for liquidated damages". Held: The provision was valid. Where an owner continued to make advances after the failure of a building contractor to complete on a particular day, that amounted to a waiver of his contractual right of forfeiture.
James LJ said: "Another point taken before us, which does not appear to have been really argued before the judge of the county court, was this - that the seizure was not made in sufficient time, that it was not made before the filing of the liquidation petition. To my mind it is immaterial at what particular moment the seizure was made. The broad general principle is that the trustee in a bankruptcy takes all the bankrupt's property, but takes it subject to all the liabilities which affected it in the bankrupt's hands, unless the property which he takes as the legal personal representative of the bankrupt is added to by some express provision of the bankrupt law. There is no such provision applicable to the present case. The building agreement provides, in effect, that in a certain event certain property of the builder may be taken by the landowner in full satisfaction of the agreement. It appears to me analogous to a sale of property with a power of repurchase in a certain event."
1 Citers



 
 Fraser -v- Robertson; 1881 - (1881) 8 R 347
 
Ex parte Ward (1882) 22 Ch D 132
1882
CA
Cotton LJ
Insolvency, Financial Services
The court was asked whether a creditor might petition for bankruptcy on a liability as a broker who had failed to settle sums due on purchasing shares on the London Stock Exchange. He was declared a defaulter under the Exchange rules as to £5,623. The petition was met with a plea that their claim was not for a liquidated sum due at law or in equity as required by s.6 of the 1869 Act but was a claim for unliquidated damages. Held: The claim was for a debt in a liquidated sum. The Stock Exchange rules were incorporated into the contract and the contract itself provided the means of ascertaining the amount due.
Cotton LJ said: "Rule 170 in the case of a defaulter really alters the original contract, and provides a new contract as between the defaulter and his creditor, and then the amount of the liability is fixed and ascertained in accordance with that altered contract."
Bankruptcy Act 1869 6
1 Citers



 
 Titterton -v- Cooper; CA 1882 - (1882) 9 QBD 476

 
 In re Oak Pits Colliery Co; CA 1882 - (1882) 21 Ch D 322
 
In re Watson, Kipling & Co (1883) 23 Ch D 500
1883
ChD
Kay J
Insolvency, Rating
An assessment for rates had been made after the liquidation of the company upon property occupied by the company. The court rejected the submission of counsel for the rating authority that- "where a liability is incurred during the winding-up, that liability ought to be paid in full, and therefore these rates ought to be paid in full because they were made during the winding-up." It was not enough that the company was in rateable occupation. It must have retained occupation for the benefit of the estate.
1 Cites

1 Citers



 
 Quartz Hill Consolidated Gold Mining Co -v- Eyre; CA 1883 - (1883) 11 QBD 674
 
Re Lewis ex parte Helder (1883) 24 ChD 339
1883
CA
Sir Baliol Brett MR
Insolvency, Agency
An agent, in obedience to a previous instruction of his principal, paid away money of the principal which was in his hands knowing, before he made the payment, that when completed it would constitute an act of bankruptcy on the part of his principal. The principal was afterwards adjudicated bankrupt. Held: The agent was not liable to account to the trustee for the money paid away. The Court did not rely upon the fact that the money was paid away before adjudication which would have been sufficient, but on the fact that the money did not become the trustee's money until the completion of the act of bankruptcy to which his title would relate back, ie. until after the money had left the agent's hands: "It appears to me that on this ground - that the money did not become the trustee's money until the payment had been completed- Mr. Roberts is not liable to the trustee"
1 Citers



 
 Re Chapman ex parte Edwards; CA 1884 - (1884) 13 QBD 747
 
Re Matheson Brothers Ltd (1884) 27 Ch D 225
1884

Kay J
Insolvency
The court appointed a provisional liquidator to protect the English assets of a New Zealand company which was being wound up in New Zealand. Kay J said: "[What] is the effect of the winding up order which it is said has been made in New Zealand? This court upon principles of international comity, would no doubt have great regard to that winding up order and would be influenced thereby [but there was nevertheless jurisdiction to make a winding up order, and therefore to appoint a provisional liquidator, to protect the English assets] . . I consider that I am justified in taking steps to secure the English assets until I see that proceedings are taken in the New Zealand liquidation to make the English assets available for the English creditors pari passu with the creditors in New Zealand."
1 Citers


 
In Re Friedlander ex parte Oastler [1884] 13 QB 471
1884
CA
Lindley LJ
Insolvency
Lindley LJ said of the section: "The first question is, what is the meaning of the debtors 'giving notice' that he has suspended, or is about to suspend, payment of his debts? I think it does not mean mere casual talk; it must be something formal and deliberate, something done by the debtor with a consciousness that he is 'giving notice,' and intended to be understood in that sense. An act of bankruptcy is a serious matter. I am of opinion that what was done in the present case did not amount to a 'giving notice' within the Act."
Bankruptcy Act 1883 4(1)(h)
1 Citers


 
Ex parte Barter, Ex parte Black. In re Walker (1884) 26 Ch D 510
1884


Insolvency
A prospective buyer of a ship had the right to take possession of the ship and use the shipbuilder's premises and chattels to complete the building work, in the event of the builder not proceeding with the shipbuilding or going bankrupt.
1 Citers



 
 In re International Marine Hydropathic Co; CA 1884 - (1884) 28 Ch D 470
 
In re Asphaltic Wood Pavement Co Ltd (1885) 30 Ch D 216
1885


Insolvency

1 Citers



 
 In re National Arms and Ammunition Co; CA 1885 - (1885) 28 Ch D 474

 
 In re Smith ex parte Edwards; 1886 - (1886) 3 Morrell 179

 
 Re Adam Eyton Ltd; CA 1887 - (1887) 36 Ch D 299

 
 In re Bluck, Ex parte Bluck; 1887 - (1887) 57 LT 419
 
Guy -v- Churchill (1888) 40 ChD 481
1888

Chitty J
Insolvency
There could be no objection to an assignment by the trustee in bankruptyc of a cause of action in return for a share of the proceeds, which "apart from the bankruptcy law . . is plainly void for champerty."
1 Citers


 
Tailby -v- Official Receiver (1888) 13 App Cas 523
1888
HL
Lord MacNaghten
Insolvency, Equity
A creditor can create for good consideration an equitable charge over book debts which will attach to them as soon as they come into existence. Lord Macnaghten: "It was admitted by the learned counsel for the respondent, that a trader may assign his future book debts in a specified business. Why should the line be drawn there? Between men of full age and competent understanding ought there to be any limit to the freedom of contract but that imposed by positive law or dictated by considerations of morality or public policy? The limit proposed is purely arbitrary, and I think meaningless and unreasonable." Future property, possibilities, and expectancies are all assignable in equity for value.
1 Citers



 
 Hardy -v- Fothergill; 1888 - (1888) 13 App Cas 351
 
In re Detmold, Detmold -v- Detmold (1889) 40 Ch D 585
1889


Insolvency, Contract
A provision stated that the property in a marriage settlement (originating from the husband) should pass to the wife for life in the event of an alienation by, or the bankruptcy of, the husband. Held: It was valid against the husband's trustee in bankruptcy, on the ground that it had been triggered, prior to the commencement of the bankruptcy, by the alienation effected as the result of the appointment of a receiver of the property in the settlement.
1 Citers



 
 Re North Australian Territory Co; 1890 - (1890) 45 Ch D 87
 
Re Alabama, New Orleans, Texas and Pacific Junction Railway Company [1891] 1 Ch 213
1891
CA
Fry LJ, Bowen LJ
Company, Insolvency
The question is whether a scheme of arrangement: "was at least so far fair and reasonable, as that an intelligent and honest man, who is a member of that class [to whom the scheme is put], and acting alone in respect of his interest as such a member, might approve of it."
Bowen LJ: "It is in my judgment desirable to call attention to this section, and to the extreme care which ought to be brought to bear upon the holding of meetings under it. It enables a compromise to be forced upon the outside creditors by a majority of the body, or upon a class of the outside creditors by a majority of that class. It would be most unjust to bind creditors or classes of creditors by the decision of three-fourths in value of those who attend a particular meeting, unless you have secured that the meeting shall adequately represent the entire body. But the section makes no provision for that, except by enacting that the meeting is to be held in the manner in which the Court shall direct."
1 Citers


 
Callender, Sykes & Co -v- Colonial Secretary of Lagos [1891] AC 460
1891
PC

Commonwealth, Insolvency
Nigeria had no bankruptcy law of its own. Held: The general vesting provisions of the Bankruptcy Act 1869 of the United Kingdom (and not merely provisions about reciprocal enforcement) applied in Nigeria.
1 Citers


 
Knowles -v- Scott [1891] 1 Ch 717; [1891] 60 LJ Ch 284; [1891] 64 LT 135; [1891] WR 523; [1891] 7 TLR 306
1891

Romer J
Insolvency, Professional Negligence, Company
A company's voluntary liquidator is the company's agent and no action lies against for delay him save in the case of misfeasance or wilful misconduct. He is not a trustee for the creditors or contributories of a company in liquidation. Nor does he have liability as a trustee dealing with his cestui que trust. Without proof of misfeasance or wilful misconduct no action will lie against him for a delay in distributing the assets of the company. Romer J said: "In my view a voluntary liquidator is more rightly described as the agent of the company – an agent who has no doubt cast upon him by statute or otherwise special duties . . If this be the true position of a liquidator, and I think at any rate agency more nearly defines his true position than trusteeship, it is clear that he could not as agent be sued by a third party for negligence apart from misfeasance or personal misconduct."
1 Citers



 
 Heritable Reversionary Company Ltd -v- Millar; HL 9-Aug-1892 - (1892) 19 R (HL) 43; [1892] AC 598; [1892] UKHL 2
 
In Re Daintrey, Ex Parte Holt [1893] 2 QB 116
1893
QBD
Vaughan Williams J
Litigation Practice, Insolvency
The court was asked whether a letter could be admitted in evidence and relied upon as an act of bankruptcy. The letter was sent by the debtor to the creditor at a time when there was no dispute, headed "without prejudice". It contained an offer of composition but threatening that payment would be suspended unless the offer was accepted. Held: The court will not permit the phrase 'without prejudice' to be used to exclude an act of bankruptcy. The letter was admissible. There was no dispute and no offer of compromise, so the sender could not destroy the admissibility of the letter as evidence simply by heading the letter "without prejudice", the protection afforded by that phrase being limited to negotiations for compromise.
Vaughan Williams J said: "Moreover, we think that the rule has no application to a document which, in its nature, may prejudice the person to whom it is addressed. It may be that the words 'without prejudice' are intended to mean without prejudice to the writer if the offer is rejected; but, in our opinion, the writer is not entitled to make this reservation in respect of a document which, from its character, may prejudice the person to whom it is addressed if he should reject the offer, and for this reason also we think the judge is entitled to look at the document to determine its character."
He stated the conditions for the application of the "without prejudice" rule as follows: "In our opinion the rule which excludes documents marked 'without prejudice' has no application unless some person is in dispute or negotiation with another, and terms are offered for the settlement of the dispute or negotiation, and it seems to us that the judge must necessarily be entitled to look at the document in order to determine whether the conditions, under which alone the rule applies, exist. The rule is a rule adopted to enable disputants without prejudice to engage in discussion for the purpose of arriving at terms of peace, and unless there is a dispute or negotiations and an offer the rule has no application. It seems to us that the judge must be entitled to look at the document to determine whether the document does contain an offer of terms. Moreover we think that the rule has no application to a document which, in its nature, may prejudice the person to whom it is addressed. It may be that the words "without prejudice" are intended to mean without prejudice to the writer if the offer is rejected; but, in our opinion, the writer is not entitled to make this reservation in respect of a document which, from its character, may prejudice the person to whom it is addressed if he should reject the offer, and for this reason also we think the judge is entitled to look at the document to determine its character."
1 Citers


 
In re English, Scottish and Australian Chartered Bank [1893] 3 Ch 385
1893

Vaughan Williams J
Company, Insolvency, International
Vaughan Williams J said: "One knows that where there is a liquidation of one concern the general principle is - ascertain what is the domicile of the company in liquidation; let the court of the country of domicile act as the principal court to govern the liquidation; and let the other courts act as ancillary, as far as they can, to the principal liquidation. But although that is so, it has always been held that the desire to assist in the main liquidation - the desire to act as ancillary to the court where the main liquidation is going on - will not ever make the court give up the forensic rules which govern the conduct of its own liquidation."(
1 Citers



 
 Re Pollitt; CA 1893 - [1893] 1 QB 455
 
Re Badham ex parte Palmer [1893] 10 Mor 252
1893

Vaughan Williams J
Insolvency
The debtor made payments to creditors after the bankruptcy petition had been presented, and after the act of bankruptcy. After the debtor had been adjudicated bankrupt the trustee in bankruptcy sought to recover the payments as fraudulent preferences. The application could not succeed on this ground, since the payments were made after presentation of the petition; but it succeeded on the ground that, because of the doctrine of relation back, the debtor had paid the creditors out of money belonging to the trustee. The question then arose whether the transactions were covered by the section which protected persons who dealt bona fide and for value with the bankrupt during the period of relation back. In relation to the effect of the relation back, it was. Held: "What state of things does that leave? The title of the trustee relates back to the petition (sic). The payments were made after the petition. Prima facie, therefore, the payments were made by the bankrupt out of moneys which belonged to the trustee . . What has happened is that there has been a disposal of moneys which prima facie did not belong to the bankrupt at all, but belonged to his trustee . . I hold that the money was the property of the trustee at the time when the bankrupt paid it away and the case does not come within the protecting section."
Bankruptcy Act 1883 49
1 Citers



 
 In re Blazer Fire Lighter Ltd; 1895 - [1895] 1 Ch 402

 
 Re Panther Lead Company; 1896 - [1896] 1 Ch 978
 
Ex Parte Caucasian Trading Corporation: Bankruptcy Petition [1896] 1 QB 368
1896
CA

Limitation, Insolvency
A proceeding in bankruptcy was based upon an order to enforce an ordinary civil arbitration award. Under the 1889 Act it was possible to obtain an order in the High Court of England for the enforcement of such an order and all that was held was that that was a civil proceeding in the High Court. For the enforcement of the order it was necessary to issue an originating summons in the High Court based upon the award and to obtain an order. Held. It was a proceeding in the High Court.
Arbitration Act 1889 12
1 Citers


 
In re Binns [1896] 2 Ch 584
1896


Insolvency
Two sons were made bankrupt after the death of their father who was surety under a loan.
1 Citers


 
Re Roundwood Colliery Co [1897] 1 Ch 371
1897


Landlord and Tenant, Insolvency
The court discussed the interplay of a distress by the landlord and the later insolvency of the tenant.
1 Citers



 
 In re Stephenson; Ex parte Brown; 1897 - [1897] 1 QB 638
 
In re Auriferous Properties Ltd (No 2) [1898] 2 Ch 428
1898

Wright J
Equity, Insolvency
A claim was made in the liquidations by creditor, but the creditor also held shares in the company which were not fully paid up. Held: The creditor claimant could recover nothing as a creditor until all his liability as a contributory had been properly discharged.
Wright J said: "There is no contract for a set-off, nor do the articles of association of either company appear to contain any provision for it, nor do the general statutes of set-off apply. Nor, as it seems, is the doctrine of set-off in bankruptcy . . applicable to this case . . But in my opinion this case is governed by the principle established in Grissell's case [In re Overend, Gurney & Co (1866) LR 1 Ch App 528] and is within the express terms of the Lord Chancellor's judgment in that case. If the creditor-contributory were allowed to take the dividend without paying the call, he would be receiving payment of part of the debt which the company owes to him without making his contribution to the fund out of which that debt, with the other debts of the company, was to be paid. 'If', Lord Chelmsford says, 'the amount of an unpaid call cannot be satisfied by a set-off of an equivalent portion of a debt due to the member of a company upon whom it is made, it necessarily follows in the last place, that the amount of such call must be paid before there can be any right to receive a dividend with the other creditors. The amount of the call being paid, the member of the company stands exactly on the footing of the other creditors with respect to a dividend upon the debt due to him from the company. The dividend will be of course upon the whole debt, and the member of the company will from time to time, when dividends are declared, receive them in like manner when either no call has been made, or having been made, when he has paid the amount of it.'"
1 Citers



 
 In re British Gold Fields of West Africa; 1899 - [1899] 2 Ch 7
 
Re Hirth [1899] 1 QB 612
1899
CA
Sir Nathaniel Lindley MR
Insolvency
The debtor, already in financial difficulties, transferred his business to a limited company which he had formed for the purpose. Within three months he committed an act of bankruptcy by failing to comply with a bankruptcy notice. He was adjudicated bankrupt and the trustee elected to impeach the transfer of the business as a fraudulent conveyance, and an act of bankruptcy. A question of priorities then arose between the trustee in bankruptcy and the creditors of the company who had dealt with it in good faith and without notice of the act of bankruptcy. Held: In rejecting the creditors' claim to priority "That would be all very well if the title of the trustee could be treated as accruing when he gave notice to impeach the transaction; it would be all very well as against everybody except the trustee in bankruptcy, whose title relates back. That doctrine is peculiar to bankruptcy; and it is because the trustee says, "This property, the moment I elect to avoid, and do avoid, is mine from an anterior date under the special provisions of Section 43 of the 1883 Act, "that he overrides all the transactions and dealings which have been relied on as an answer to his claim"
Bankruptcy Act 1883 43
1 Citers


 
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