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how many occasions, and for what length of time did he attend you? State the amount of his charges, and whether you have paid such charges. Were you attended by more than one medical man, and if you were, the length of time they attended you, and the amount of

their charges?

4. Did you receive other personal attendance on yourself? If yea, state the nature of such attendance, and the amount of the charges, and state whether you have paid such charges.

5. Did you in consequence of your illness have any extra help in the house, other than someone to attend on yourself personally? If yea, for how long, and what amount had you to pay for such extra help?

6. How long were you confined to the house by such illness? During the time (if any) in which you were confined to the house were you confined to your bed, and for how long? When was the occasion on which you first went out of the house after such illness ?

7. Have you since such illness been away from home for any length of time? What was the longest time you have been away from home since such illness? Where did you go, and for what purpose did you leave home?

8. What were your receipts per week for the six months preceding the accident, and for the six months following the accident? In what way and to what extent do you calculate your business has suffered? State an account, showing in what way and to what extent it has suffered, and explain how you arrive at such account. 9. Common interrogatory as to documents.

Toynbee and Varley, attorneys for the defendants.

Pitman and Lane, attorneys for the plaintiff.

Equity Courts.

COURT OF APPEAL IN CHANCERY. Reported by E. STEWART ROCHE and H. PEAT, Esqrs., Barristers-at-Law.

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Saturday, Feb. 13.

(Before the LORDS JUSTICES.) Ex parte WALTON; Re DANDO. Bankruptcy Bankruptcy and liquidation proceedings pending together-Adjudication-Stay of proceedings-Discretion of court--Bankruptcy Act 1869 (32 & 33 Vict. c. 71), s. 80, subs. 10— Bankruptcy Rules 1870, Rule 266.

When a debtor against whom a bankruptcy petition has been presented files a liquidation petition before the hearing of the bankruptcy petition, the court has a discretion either to postpone the adjudication till after the meeting of the creditors under the liquidation petition, or to make an adjudication and suspend the proceedings under it till after the meeting of the creditors, or to make a simple adjudication.

The last course ought to be adopted where it appears
that the liquidation petition is not a bona fide one.
THIS was an appeal from a decision of Mr. Registrar
Pepys, sitting as Chief Judge in Bankruptcy.
The facts of the case were as follows:

On the 4th Jan. 1875, a bankruptcy petition was presented by John Fitzpatrick against W. E. Dando, in the London Court of Bankruptcy.

On the 27th Jan., the day before that appointed for the hearing of the bankruptcy petition, Dando filed a petition in the same court for the liquidation of his affairs by arrangement, and the first meeting of the creditors was appointed to be held on the 18th Feb.

The debtor's statement of assets showed that Vol. XXXII. N. S., 808.

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he would be able to pay only a very trifling dividend.

On the 28th Jan. the registrar made an order adjudicating Dando a bankrupt.

The bankrupt asked that the advertisement of the adjudication might be stayed till after the meeting of his creditors under the liquidation petition. This application was supported by creditors to a large amount, but was refused by the registrar.

On the 4th Feb. this application was renewed by the bankrupt and S. Walton, one of his creditors, who was desirous of proceeding under the liquidation petition. The application was again refused, but a stay of proceedings was granted to admit of an appeal being presented.

The bankrupt and S. Walton now appealed from the registrar's order.

Caldecott, for the appellants. It is for the majority of the creditors to decide whether the estate should be wound-up in bankruptcy or in liquidation, and we have the requisite statutory majority in favour of our view. The 266th of the Bankruptcy Rules, 1870, provides that "where proceedings have been instituted for liquidation or composition the court may adjudicate the debtor bankrupt, if, in the opinion of the court, the property of the debtor cannot be sufficiently protected by the exercise of the power hereinbefore given to restrain suits and actions, and the appointment of a receiver or manager; but in any such case all proceedings under such order of adjudication shall be stayed immediately upon the making thereof, and until the creditors shall have passed some special or extraordinary resolution in reference to the liquidation or composition, and in the event of any such resolution being duly passed, the adjudication shall be forthwith annulled." Therefore, the court has no option but to stay the proceedings under the adjudication till the result of the meeting of the creditors is known. The discretion which the court would otherwise have had under sect. 80, sub-sect. 10, of the Bankruptcy Act 1869 (a), is clearly removed by the express terms of the 266th Rule. It is true that in Ex parte Sir W. Foster (32 L. T. Rep. N. S. 4; L. Rep. 10 Ch. 59) your Lordships made some observations to the effect that the court has a discretion whether to stay the proceedings under the adjudication or not, but those observations were not necessary for the decision of that case, and we submit that the 266th Rule makes it compulsory to stay the proceedings. But even if that is not so, they ought to be stayed when, as in this case, the majority of the creditors prefer to have the estate wound-up by liquidation rather than in bankruptcy.

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J. S. Colquhoun, for the respondent. The decision of Lord Justice James in Ex parte Dimond; re Williams (23 L. T. Rep. N.S. 292; L. Rep. 5 Ch. 743), shows that the adjudication is a matter of right. The 266th Rule does not deprive the

(a) Sect. 80, sub-sect. 10, provides that" The court may at any time, on proof to its satisfaction that proceedings in bankruptcy ought to be stayed by reason that negotiations are pending for the liquidation of the affairs of the bankrupt by arrangement, or for the acceptance of a composition by the creditors in pursuance of the pro

visions hereinafter contained, or on proof to its satisfacof any other sufficient reason for staying the same, make an order staying the same either altogether or for a limited time, on such terms and subject to such conditions as the court may think just."

CHAN.]

Re THE WEAR ENGINE WORKS COMPANY (LIMITED).

court of the discretion conferred upon it by sect. 80, sub-sect. 10, of the Act. The 28th section of the Act enables the creditors to make terms with the bankrupt, not withstanding the adjudication.

Caldecott, having been heard in reply,

Lord Justice MELLISH said.-This is an appeal from an order of Mr. Registrar Pepys refusing to stay proceedings under an adjudication of bankruptcy till after the first meeting of the creditors under a liquidation petition, which was filed by the bankrupt on the day before the order of adjudication was made. It has been argued on behalf of the appellants that the Registrar had no discretion in the matter, but that if he made the order of adjudication he was bound by the 266th rule to stay all proceedings under it till after the first meeting of the creditors had been held under the liquidation petition, and had decided whether the estate should be wound up by liquidation or in bankruptcy. In Ex parte Sir William Foster (ubi sup.) we had to consider fully the effect of sect. 80, sub.-sect. 10 of the Bankruptcy Act 1869, and of the 266th Rule. I then expressed an opinion that where proceedings in bankruptcy and liquidation are pending at the same time the Registrar has three courses open to him. He may, under sect. 80, sub-sect. 10, postpone proceedings under the bankruptcy petition altogether till after the first meeting of the creditors under the liquidation petition; or he may, under the 266th Rule, make an order of adjudication against the debtor, and stay proceedings under it till after the first meeting of the creditors, or he may simply make an adjudication. It was not strictly necessary to our decision in Ex parte Sir William Foster to lay down that the Registrar had this third alternative, and therefore it was quite open to Mr. Caldecott to contend that it was compulsory upon the Registrar when he made the order of adjudication to stay the proceedings under it. But I still adhere to the same opinion, and I think that the filing of the liquidation petition did not preclude the Registrar from simply making an order of adjudication, without more. If we look at the Act alone, it appears plain that sect. 80, sub-sect. 10, gives the court a discretion to stay proceedings under the adjudication or not; under that provision, and if the case rested there, there could be no doubt that the court might say that in its opinion the proceedings ought not to be stayed. Then comes the 226th Rule, but I think that it cannot have been intended by that rule to take away from the court any power given it by the Act. It would be most inconvenient if it did so. It often happens that a considerable time elapses between the filing of a liquidation petition and the passing of resolutions by the creditors, and if the debtor could postpone filing his petition till the very morning of the day on which the bankruptcy petition was to be heard, and could then say that the proceedings under the bankruptcy petition must be stayed till after the meeting of the creditors, it might cause the greatest inconvenience. I cannot, therefore, think that the 266th Rule was intended to take away from the court the discretion given it by the Act. The 266th Rule provides that "where proceedings have been instituted for liquidation or composition, the court may adjudicate the debtor bankrupt, if, in the opinion of the court, the property of the debtor cannot be sufficiently protected by the exercise of the power herein before given to restrain suits

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and actions, and the appointment of a receiver or manager; but in any such case all proceedings under such order of adjudication shall be stayed immediately upon the making thereof, and until the creditors shall have passed some special or extraordinary resolution in reference to the liquidation or composition, and in the event of any such resolution being duly passed, the adjudica tion shall be forthwith annulled." It is clearly not compulsory on the court to make the order of adjudication; it has an option. The order of adjudication is to be made if, in the opinion of the court, the property of the debtor cannot otherwise be sufficiently protected; and the rule says that "in any such case"-that is, when the order of adjudication is made solely because the property of the debtor cannot otherwise be sufficiently protected-all proceedings under the order of adjudication are to be immediately stayed. I do not think that the rule applies where the court makes an order of adjudication not on that ground, but because it is not satisfied that the liquidation petition is a bona fide one. The other question on this appeal is whether the registrar has exercised his discretion properly in refusing to stay the proceedings in this case. We ought not to interfere with the exercise of his discretion unless we can see very clearly that he was wrong upon the facts. The mere circumstance that the liquidation petition was not filed till the very day before that appointed for the hearing of the bankruptcy petition is strong primâ facie evidence that it was filed merely for the purpose of delay. The delay on the part of the debtor in itself furnishes a strong ground for the course taken by the registrar. It has been urged that the majority of the creditors are in favour of a liquidation, and, if the debtor could prove that, it might be a good reason for staying the proceedings; but the consequence of his delay in filing his liquidation petition was that there was no opportunity of ascertaining the views of the creditors before the hearing of the bankruptcy petition. Another reason for not staying the proceedings under the adjudication is that there are hardly any assets to distribute. I cannot, therefore, hold that the registrar has exercised his discretion improperly. We have only to consider whether his decision was right at the time it was pronounced. I think it was, and the appeal must, therefore, be dismissed with costs.

Lord Justice JAMES.-I am entirely of the same opinion on both points. Whatever doubt I may have entertained at first as to the meaning of the 266th Rule, I am now satisfied that the construction is that which the Lord Justice has put upon it.

Appeal accordingly dismissed with costs. Solicitor for the appellants: S. Mayhew. Solicitors for the respondent: Watkins and Clift.

Saturday, Jan. 16.

(Before the LORDS JUSTICES.)

Re THE WEAR ENGINE WORKS COMPANY (LIMITED). Company-Winding-up-Petition-Necessary allegations-Companies Act 1862 (25 & 26 Vid. c. 89), 8. 79.

4 petition for the winding-up of a company must state on its face a sufficient case for winding-up

CHAN.]

Re THE WEAR ENGINE WORKS COMPANY (LIMITED).

otherwise the petition will be dismissed, although the petitioner is able to prove a case which would justify the making of a winding-up order, for he cannot be allowed to prove a case which he has not alleged on his petition.

THIS was an appeal from an order of Bacon, V.C., for the compulsory winding up of the above named

company.

The company was registered under the Companies' Act 1862, on the 6th Sept. 1872 without articles. The liability of the members was limited, and the capital was 30007., divided into thirty shares of 100l. each, the whole of which had been subscribed and paid up.

The winding-up petition was presented by James Davidson, the manager of the company, who was the holder of seven fully paid up shares. The petition stated the above facts, and also that the objects of the company were the purchasing the business of one John Morgan, an engineer, and carrying on the business of an engineer, millwright, smith, and boiler smith; that the operations of the company were carried on from the time of registration till Jan. 1873 by John Morgan, one of the signatories of the memorandum of association, as manager; that on the 17th Jan. 1873 a meeting was held, at which were present Morgan, the petitioner, and three others, and at which a report from the auditors was read, showing an estimated loss from the 31st Oct. 1872 of 57%, but that, as the stock had only been approximately taken, on account of pressure of work, it was resolved to adjourn the meeting till the end of the financial year in April, when the stock would be properly taken; that in March 1874 the petitioner was appointed manager of the company; that on the 15th June 1874, a general stock taking was held, and it appeared that there was a loss of 7501. upon the working of the company's business; that on the 19th June 1874 a meeting of shareholders was held, and the entry in the minute book of its proceedings stated that the balance sheet and statements were presented to the meeting, when it was proposed and seconded that the whole of the books and statements, together with receipts and accounts, be submitted to Mr. H. Graham for analysation prior to March last, and a separate statement since that date to the present, in accordance with the requirements of the Act, and that that entry was signed by W. H. Crookes, chairman; that it was not stated in those minutes, nor was it the fact, that the said resolution was carried, and that nothing had been done with a view of carrying the said resolution into effect. The petition then proceeded to make the following allegations: "Since the holding of the said last mentioned meeting differences have arisen between the directors and shareholders, and the said W. H. Crookes, who professes to act as chairman of the company, has placed a bailiff in possession of the company's premises, and the works of the company are now closed. The persons who profess to act as chairman and directors of the company were not duly constituted as required by the provisions of table A. in the Companies' Act 1862. The said company has since its formation carried on its business at a loss, which now amounts to upwards of one third of the capital. No dividend has ever been declared by the said company. No returns have ever been made to the Registrar of Joint Stock Companies of the capital, and particularly of

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the business of the company, as required by the Companies' Act 1862 and 1867. The company is indebted to your petitioner in the sum of 251. for salary due to him, and is also indebted to sundry other creditors. Except by the sale of the assets and effects of the said company, the said company is unable to pay its debts. It is just and equitable that the said company should be wound-up by this honourable court;" and the petitioner accordingly prayed for a winding-up order.

The Vice-Chancellor having made the usual winding-up order, the company appealed.

Higgins, Q.C. and Locock Webb, for the appelants.-The petition is clearly demurrable. It does not allege any of the circumstances under which a company may be wound-up by the court under the 79th section of the Companies' Act 1862. It does not state a debt of sufficient amount, nor does it allege that the petitioner demanded payment, in the mode required by the 80th section. There is no sufficient ailegation that the company is unable to pay its debts; nor is there any allegation that the company has suspended its business for the space of a whole year. It contains no allegation to lead the court to be of opinion that it is just and equitable that the company should be wound-up. That being so, the winding-up order should not have been made, even if the petitioner had been able, which he is not, to prove a sufficient case not alleged in his petition. They cited:

Re The London Suburban Bank, L. Rep. 6 Ch. 641;
Re The London Wharfing and Warehousing Com-
pany, 35 Beav. 37;

Re The Catholic Publishing Company, 2 De G.
J. & S.116.

Kay, Q.C. and Warmington for the petitioner.A demurrer cannot be put in to a petition. It has never been the practice to require the same certainty of allegation and strictness of pleading in a petition as in a bill. It is enough for the petitioner to prove at the hearing a sufficient case to justify the court in making a winding-up order. Here the company is shown to be in such a hopeless condition that it is clearly just and equitable to order it to be wound-up.

Without calling for a reply,

Lord Justice JAMES said.-I am of opinion that this petition, when carefully examined, is a demurrable petition. A winding-up petition, like any other pleading, must allege facts sufficient to justify the court in granting the relief sought. The object of this rule of pleading is that there may be definite issues between the parties. No doubt, if there is any accidental omission, the court may allow an amendment, so that the real point may be tried. But, subject to this power of amendment, the case with which the court is to deal must be alleged in the petition itself, that the order may be secundum allegata et probata, and it is not enough for a sufficient case to be proved at the hearing. In this petition no sufficient case is alleged. The petitioner alleges only a debt of 251, and does not allege that he has served any demand for payment upon the company; he therefore has no locus standi as a creditor. Then as regards his case as a shareholder, all his shares are fully paid up, and the policy of the Act is to let the shareholders manage their own affairs, and not to interfere except under the special circumstances mentioned in the 79th section, none of which are alleged here. Then it is said that the case comes within the general words at the end of

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the section: "Whenever the court is of opinion that it is just and equitable that the company should be wound-up." The court has often had to consider those words, and has held that they refer to something ejusdem generis as the circumstances mentioned in the previous sub-divisions of the 79th section, and, at all events, the opinion of the court must be founded upon facts alleged in the petition and proved. The opinion that it is just and equitable that a company should be wound-up is a conclusion of law to be derived from the facts. No fact is alleged in the present case justifying us in coming to such a conclusion. The order of the Vice-Chancellor must, therefore, be discharged, and the petition must be dismissed with costs.

Lord Justice MELLISH.I am of the same opinion.

Order of Bacon, V.C., accordingly discharged. Solicitors for the appellants, Miller and Miller, agents for Graham and Graham, Sunderland. Solicitors for the respondent, Oliver and Botterell, agents for James Tilly, Sunderland.

Thursday, March 4. (Before the LORDS JUSTICES.) Ex parte HANKEN; Re BUCHAN. Bankruptcy-Protected transaction-Notice of act of bankruptcy - Non-compliance with debtor's summons--Bankruptcy Act 1869 (32 & 33 Vict. c. 71), s. 6, sub-sect. 6; 8. 95, sub-sect. 1. The act of bankruptcy defined in the 6th sub-section of the 6th section of the Bankruptcy Act 1869, is complete upon the debtor's failure to comply with the summons during the time limited by the subsection, and notice of such an act of bankruptcy is sufficient to take a payment out of the protection of s. 95, sub-sect. 1 of the Act.

THIS was an appeal from a decision of Mr. Registrar Pepys, sitting as Chief Judge in Bankruptcy.

The facts of the case were as follows:

On the 23rd July, 1874. Messrs. Hanken and Sleeman issued a debtor's summons for a sum of over 50l. against J. Buchan, who carried on business as a wine merchant.

On the 25th July, one Rumpff also issued a debtor's summons for a sum of more than 501. against the same debtor.

On the 15th Aug. Rumpff gave notice to Hanken and Sleeman that he had served a debtor's summons upon Buchan on the 25th July, and that the latter had neglected to pay the sum claimed, or to secure or compound for it.

On the 1st Sept. Hanken and Sleeman received from Buchan a cheque for 1021. 8s. 2d., the amount of their debt and costs, and on the 3rd Sept., a bankruptcy petition which they had presented against Buchan was dismissed by consent.

On the 28th Sept. Rumpff filed a bankruptcy petition againt Buchan, based upon the latter's neglect to comply with the debtor's summons, and under this petition Buchan was adjudicated a bankrupt on the 26th Oct., and a trustee was appointed.

The trustee in bankruptcy subsequently applied to the court for an order that Hanken and Sleeman should repay the 1021. 88. 2d. which they had received after notice of an act of bankruptcy committed by Buchan.

The registrar made the order asked for.

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From this order Hanken and Sleeman appealed.

De Gex. Q.C. and Finlay Knight, for the appellants. The payment to us is protected by the 1st subs-ection of the 95th section of the Bankruptcy Act 1869, as we had not at the time we received it "notice of any act of bankruptcy committed by the bankrupt, and available against him for adjudication," for the alleged act of bankruptcy arising from the bankrupt's failure to comply with Rumpff's debtor's summons was not completed at the time he gave notice of it. The act of bankruptcy defined in sect. 6. sub-sect. 6, is not complete until the creditor who issued the debtor's summons, and who alone can take advantage of it, has presented a bankruptcy petition. The words of the 6th sub-section are "that the creditor presenting the petition has served in the prescribed manner on the debtor a debtor's summons," &c. Therefore the act of bankruptcy is not complete till the petition has been presented. [Lord Justice MELLISH.-If that were so, it would do away with the limit of six months imposed by the latter part of the 6th section, which says: "But no person shall be adjudged a bankrupt on any of the above grounds unless the act of bankruptcy on which the adjudication is grounded has occurred within six months before the presentation of the petition for adjudication." If the presentation of the petition was itself the completion of the act of bankruptcy defined in the 6th sub-section, there would be nothing to prevent its being presented at any distance of time after the neglect to comply with the summons.] Unless the presentation of a petition for adjudication were necessary to complete the act of bankruptcy, it would be open to any creditor by serving his debtor with a summons and deferring the presentation of his pe tition, to prevent any other creditor from taking proceedings for six months. At all events the act of bankruptcy of which we had notice was not "available for adjudication" within the meaning of sect. 95, sub.-sect. 1, as it was only the creditor who issued the summons who could obtain an adjudication upon it. They also referred to :

Bankruptcy Act, 1869, sect. 11, and sect. 80, sub-
sect. 4;

Ex parte Jay; Re Powis, 29 L. T. Rep. N.S. 854;
L. Rep. 9 Ch. 133;

Without calling upon

Roxburgh, Q.C. and Doria, who appeared for the trustee,

Lord Justice JAMES said: I am of opinion that the Registrar's decision is quite right. A great number of consequences which may result from the Legislature having by sect. 6, sub-sect. 6, of the Act created this particular act of bankruptcy have been pointed out. It is said that a creditor by serving a debtor's summons and delaying the presentation of his petition for adjudication, may prevent other creditors from taking proceedings. If that is so, the only answer is that the Legislature has given that right to a creditor, and if any injurious consequences result from it, the Legislature must be applied to to remedy them. Here there was a complete act of bankruptcy under sect. 6, sub-sect. 6. It is impossible to hold that it was not complete till the petition for adjudication was presented, for the act of bankruptcy is the foundation for the petition. A subsequent section protects certain transactions with the bankrupt,

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notwithstanding a prior act of bankruptcy, if they are made by a person not having notice at the time of any act of bankruptcy committed by the bankrupt and available against him for adjudication. In the present case, it is clear that the act of bankruptcy of which the appellants had notice was available against the bankrupt for adjudication.

Lord Justice MELLISH.-I am of the same opinion. The 11th section of the Act says that "the bankruptcy of a debtor shall be deemed to have relation back to and to commence at the time of the act of bankruptcy being completed, on which the order is made adjudging him to be bankrupt." It appears to me that in the case of a debtor's summons that must be the expiration of the time limited after the service of the summons; the Legislature cannot have meant that the act of bankruptcy must be completed by presentation of a petition for adjudication. The only question then is, what is the meaning of the provision in the 95th section, protecting any payment in good faith and for valuable consideration made before the date of the order of adjudication to a person not having notice of any act of bankruptcy committed by the bankrupt, and available against him for adjudication? The present appellants had notice of such an act of bankruptcy. The Act makes no distinction in this respect between the act of bankruptcy defined by the 6th sub-section and other acts of bankruptcy, and that being so we cannot make any such distinction. The Registrar's decision is therefore quite right, and the appeal must be dismissed with costs.

Appeal accordingly dismissed with costs. Solicitor for the appellants, H. J. Coburn. Solicitors for the respondent, Chauntler, Crouch and Spencer.

Thursday, March 11.

(Before the LORDS JUSTICES.) Ex parte HARPER; Re BREMNER. Bankruptcy Execution creditor - Injunction Damages-Action by creditor against sheriffRes judicata.

A creditor sued out execution against his debtor for a debt exceeding 50l., and the sheriff took possession of the debtor's goods. Before sale of the goods, the debtor filed a liquidation petition, under which a receiver was appointed who obtained an injunction staying the execution on giving an undertaking for damages. The debtor was subsequently adjudicated bankrupt, and the sheriff gave up the goods to the trustee in the bankruptcy. In an action by the execution creditor against the sheriff it was held that the bankrupt was a trader, and that consequently the trustee was entitled to the goods. The execution creditor then applied to the Court of Bankruptcy for an inquiry as to damages under the undertaking given by the receiver:

Held, that the matter was res judicata by the action at law, and that the Court of Bankruptcy could not entertain the application.

THIS was an appeal from a decision of Mr. Registrar
Murray, sitting as Chief Judge in Bankruptcy.
The facts of the case were shortly as follows:
On the 29th Nov. 1873, Messrs. J. E. Harper
and Company sued out execution against G. W.

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Bremner for a judgment debt of 4051. and costs, and the sheriff took possession of his goods on the 1st. Dec.

Proceedings under the execution were delayed by reason of a claim to the goods made by a third party, which was afterwards withdrawn.

On the 15th Dec. Bremner filed a petition for liquidation of his affairs by arrangement, and a receiver was appointed, who obtained an injunction staying the execution on giving an undertaking as to damages.

At a meeting of the creditors held on the 6th Feb. 1874, the creditors refused to pass a resolution in favour of liquidation, and immediately afterwards a bankruptcy petition was presented against Bremner, who was adjudicated a bankrupt on the 27th Feb.

The sheriff thereupon gave up possession of the goods to the trustee in the bankruptcy, who sold them.

Messrs. Harper then brought an action against the sheriff for damages sustained by them in consequence of the sheriff having given up the goods to the trustee. The question to be decided in the action was whether Bremner was a trader or not. If he were a trader the goods would belong to the trustee under the 87th section of the Bankruptcy Act 1869; but if he were not a trader they would belong to the execution creditors under sect. 95, sub-sect. 3. In the action a reference was directed as to whether Bremner was a trader or not, and, the arbitrator having decided that he was a trader, a verdict was taken for the sheriff.

Messrs. Harper subsequently applied to the Court of Bankruptcy for an inquiry as to damages under the undertaking given by the receiver; but the registrar held that as the bankrupt was a trader, Messrs Harper were not entitled to the goods taken in execution, and refused the applica

tion.

From this decision Messrs. Harper appealed.

De Gex, Q.C. and Robson, for the appellants, contended that the bankrupt was not a trader, and that they were therefore entitled to the goods. They cited

Ex parte James, re Condon, 30 L. T. Rep. N. S. 773;
L. Rep. 9 Ch. 609;

Ex parte Villars, re Rogers, 30 L. T. Rep. N. S. 349;
L. Rep. 9 Ch. 432;

Ex parte Rayner, re Johnson, 26 L. T. Rep. N. S.
306; L. Rep. 7 Ch. 325;
Pott v. Turner, 6 Bing. 702.

Little, Q.C. and Finlay Knight, for the trustee, contended that the question of trading was res judicata and could not now be opened again.

case.

De Gex, Q.C., having been heard in reply, Lord Justice JAMES said that the objection raised on behalf of the trustee was fatal to the appellant's The very question whether the bankrupt was a trader or not had been decided in the action at law against the sheriff. The only reason for the Court of Bankruptcy interfering in such cases was to save expense, which could be done when the parties submitted their rights to this court instead of trying them in an action at law against the sheriff. But as in this case the execution creditor had elected to take his remedy at law and had been defeated, he could not now try the question over again in this court. The objection to the appeal was fatal, and it must be dismissed with costs. Lord Justice MELLISH was of the same opinion. Appeal accordingly dismissed with costs.

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