The Express.
London, England, 1852-07-30 00:00:00

THE EXPRESS, FRIDAY EVENING, JULY 30, 1852.

THE NEW PARLIAMENT.

MEMBERS RETURNED
TO SERVE IN TILE NEW PARLIAMENT.

Liberal.. Derbynen
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Capt. _
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J. Crook

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Lord A. Hersey
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£ Goddua

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-- • -

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_ _ -

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T.
- Du Cm*

-- ---
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il. alile
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8. Christie
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me
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U. ... ...

Wysill
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SirT.H.Maddock
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0 Once
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_
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.._

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J. seitLeoat

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Sir W. Clay
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Walsall
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J. Esmoude

Wells Haynie R. C. Tadway
Wenleek J. It. Goaliell

Hon.Col.Foreiter
Westbury
Westmeath W. H. Mogan
P. Urquhart
Westminster . Bit De L. Evans

RAW intelligence.

EQUITY COURTS.-YESTERDAT.
ISCIFOIIII TRU LORIN. ANITICIPS

EI-TAKT/T—T7II/iNSIOVINV.II7; J. 441C110LAS,
Mt PT, IN to THI MONMOUTHBIIIIIII AND ULAYUIde
OANSIAIIit BANKING COMPANY.
h hatching
e a k
companyru up t
pt in th easet datebedof his h
beena
adjudication upon which took place after the bank had
stopped payment. After the adjudication, but before the
bankrupt obtained his certificete, an order to wind up the
banking company under the provisions of the Joint Stock
Compton,* Winding-up Acts of 1818 and 1819, was ob-
tained. The bankrupt shortly afterwards ebtaioed his cer-
tificate; and by an order made subsequently, in the course
of winding up the affairs of the company, the brukrupt'a
name was included in the list of coutributuries to the debt%
and liabilities of the company, qualeucte.u.bits
however, that he was placed there as a certificated
proof
ur calls
bankrupt, not personably 'dable' but included
in the list for tho purse ae of being representirel
by his felligoecs, for the
th
the manager
tf7 ee a r
peeeubsequently, and on the 10th May,
alls inoftheenmabaltingter
of
1052, the Master directed a cal of 1501. per share to he made
upon the bankrupt, and ordered the official manager to
toucher a proof under the bankruptcy against the bank-
rupt's estate for tlee balance due from the bankrupt to the
company after debiting his account therewith with the call
so made; which balance he certified to Le 3,00411. Upon
this proof being tendered by the official manager before the
Commissioner, the Cummiesiolier .be cline I to adn.it it, but
allowed a claim fir the amount to be entered in rode r to
enable the official manager to establish it as a prove able
debt if he could. The cave now came by way of appeal
before the Lords Justices upon two proceedings, one a peti-
tion of the official manieger in the matter of the bankruptcy
against the decision of the Commissioner refusing to
admit preset of the call, and the other a me-
net,. under the Winding. up Acts by the assign. es
of the bankrupt to dieeliaige the circler to peeve
made by the Master. The question argued was
whether, by the effect of the Wineling•up Acts, the official
manager was enabled to prove fur the amount of the call
in competition with the other separate creditors of the
bankrupt.
Mr. Bounden Palmer and Mr. Kerslake appenre el for the
neeigneee of the bankrupt; and Mr. liethell Uri Mr. W. M.
James for the official manager of the company.
Lord Justice Knight Bruce said that substantially the
only question which had been raised was, whether by the
effect of the acts of parliament called the Winding-up Acta,
the general separate creditors of a bankrupt, who hap-
pened at the date of his bankruptcy to bold shares
au a joint-stock company, which afterwards Tame
under the operation of the aria, were placed in
a different position teem the separate creditors of other
persons engaged in mercantile partnerships. The question
was not whether there ought to be such an alteration, nut
whether there were ground. founded on reason fur making
an alteration ; Lut whether the legislature in the: seta men-
tioned had said it should be au in language not be mistaken.
It was contended on behalf of the official manager that
such was die effect of the acts, and that the call which had
been made in respect of the shares which the bankrupt had
held was to be treated for every purpose us a sepa-
rate debt of the bankrupt in the administration of
his estate. This was a startling proposition certainly
to any person who had not had his attention called
to the details of these acts of parliament. It was clear
that, independently of these acts, according to all the
ordinary law relating to binkruptcy, proof could not be
made in competition with the separate creditors. There-
fore if the general body of separate creditors were to suffer,
it must be on the ground of the particular law created by
these acts. The case as to that turned entirely on the 14th
and 30th sections of the second Winding-up Act, viz.,
that of 1819. By the 14th section it was enacted
that if any contributory or alleged contributory
be a baultrupt or insolvent, he shall be a ntitled to attend by
his usignees, and in all proceedings against his estate under
the acts, shall be sufficiently represented by such assignees.
And the 30th section enacted, that where idly contributory
of the company is a bankrupt or insolvent, it shall be lawful
for the official manager to prove in the matter of such bank-
ruptcy or insolvency ter aily balance °relent'. by the Master
to be proved against the estate of such contributory ; and
to take and receive dividends in re ape eta such bs:ance in
the matter of the bankruptcy or ii solvency as a separate
debt due from such bankrupt or insolvent, and rate-
ably with the other separate creditors. It was diffi-
cult to surmount the words of the last section,
but it had nevertheless been argued that the act
did not apply to a case where the bankruptcy
taues place before the winding•up order. Ile was of
opinion that the words "is a bankrupt" occurring in the
section could not be construed literally, but that they
meant " shall be or may happen to he a bankrupt ;" end
that the bankruptcy did not relieve Mr. Nicholas from his
liabilities. Ile was as liable at the moment of the winding-
up order as ever; and so was his estate. He was liable
personally because he had not obtained his certificate; and
his estate was liable because it was liable before the bank-
ruptcy. The effect was, that the sets had changed the
law of the -• to a particular class of • • -one.
Whs.... ••••
an alteration an.,.... ~e-en made he could
not understand, but it was the duty of the court to construe
the acts as they stood. The result, he regretted to say, was
that the rights of the general separate creditors were
changed, end that the proof fur the call must be admitted
in competition with those creditors against the estate.
Lord Justice Lord Cranworth said he had come to the
same conclusion u his learned brother and with the same
regret. Whatever the date of the bankruptcy with reference
to the winding-up order the result was the same, viz., that
the separate creditors of the bankrupt were Fut upon a
different footing to that on which they would have stood
if the sets had not been passed. It was difficult to believe
that the legislature could have intended to alter the rights
of separate creditors, but it was the duty of the Court to
put a construction upon the language of the acts. That
language could not, he thought, be interpreted in any
other way than in that which had been stated.

Rums ma Yawn or Tux Roza&
Ix RE THE GLAYOROANEHIRE AND RIONYOUTRAHIRII
BANKING COMPANY.—WINDINO•VP AI-T.—CONTRIBU-
TORY.

Mr. Roundell Palmer moved that the order of the Muter
in this case, dated 12th June, 1842, by which he placed
John Ebeneser Davies, as executor of Mr. Capes, on the list
of contributories in respect of 105 shares, and that an order
of the same date for the payment of 601. per
share be varied or discharged. The qutstion arose
on the deed of settlement of the company. The
57th section of the deed said that " every person
who iias purchased auy shares shall take a transfer
or assignment of such share. ' and shall, as to all debts, obli-
gations, claims, and demands, be considered a proprietor of
the company from the time of the shares being so purchased,
or being so conveyed to him, but that u to all profits he is
not to be a proprietor till he has executed the deed." Then
the 60th section stated that " whenever any shares shall be
actually perfected or transferred to a new proprietor,
then, and in every such case, the responsibility
of the previous owner in respect of such shares shall cease
and determine, and such previous owner shall be exonerated
and discharged from all claims and obligations in respect of
such shares." He contended that the liability of the new
shareholder was limited to the contracts made by the com-
pany after the party became shareholder ; and that as there
were no words which had • retrospective effect, Mr. Capes
was not liable to the debts contracted before he became a
shareholder.

Mr. Loyd opposed the motion, contending that the whole
scope and meaning of the deed of settlement was, that the
incoming shareholder was substituted in point of liability
for the outgoing shareholder ; and that it would ho obviously
impracticable to carry on joint-stock companies if the in-
terpretation contended for on the other aide were held good,
as a line would have to he drawn every day on which •
transfer took plan, and a balance of the assets and liabili-
ties of the company arrived at.
His Hoaour said this was a question simply of contract
between the parties. The sith clause appeared to be per-
fectly clear in its meaning. It provided that the purchaser
of shares shall, as to all claims, demands, and obligations,
be considered a proprietor from the time of the shares being
so purchased by or vested in him, but u to all profits he
is not to be considered a proprietor until he shall have
executed the deed. It was far from being possible to con-
sumo the clause to mean that the •ew shareholder should
not be liable to the debts and obligations then existing.
What was the contract as between the parties ? It appeared
there was • reserved fund, which would be clearly liable to
pay the debts. The 64th clause expressly stated that the
transfer should carry with it the profits and share of the
capital and reserved fund, so as to close all the right and
iuterest of the party makiag such transfer, so that the
transferrer lost all benefit in the fund that was liable to pay
the debts. Then the 60th clause appeared to be a strict
exoneration of the proprietor transferring in respect of the
liabilities previously incurred, for it expressly stated that
when the shares shall have been transferred the responsibi-
lity of the previous owner was to cease and determine. He
considered that that exoneration was lute ndedto be as comple to
as it could be made. Considering then that the former pro-
prietor was relieved from obligation, that the new pro-
prietor covenanted to perform every obligation in the same
manner as if he were • party to the original deed, consider-
ing also that he had the benefit of the reserved fund, he
was of opinion that the Master had come to • right decision
in this matter, and he should therefore refuse the motion,
but without costs.