of the dividend payable under the Order of the 2nd June 1842, or otherwise, on account of the bankrupt's estate, and which account Mackey undertook to render within three weeks. No sitting, however, nor any adjourned sitting, had since been held under the fiat. The petition alleged, that all the petitioners had severally demanded from both the assignees the dividend payable on their several debts, but had not been paid the same, or any part thereof. The prayer was, that the assignees might be ordered to pay to the several petitioners the amount of their respective dividend of 1s. 1d. in the pound on their several debts, together with interest thereon at the rate of 51. per cent. per annum, from the 2nd June 1842 to the time of payment, and also the costs of the application. In answer to the petition, the assignee Harding made an affidavit, in which he stated that the bankrupt had carried on business at Southampton, in which neighbourhood all the persons indebted to the bankrupt also resided, as well as Mackey, the other assignee. That, with the exception of the sum of 30l. 19s. received by Harding, who resided in London, the whole of the bankrupt's estate was realized by Mackey. That the deponent, being unable to attend the meeting at Southampton on the 2nd June 1842, when the final dividend was declared, made an affidavit in the usual form, stating the whole amount of the monies of the bankrupt's estate which had come to his hands, and that he claimed to deduct from the above sum of 301. 19s., the sum of 21. 5s. for the expenses incurred by him in attending the first dividend meeting, which would leave a balance in his hands of 281. 14s.; which affidavit was duly handed 1843. Ex parte RIDLEY and others. 1843. Ex parte RIDLEY and others. to the Commissioners, and filed with the proceedings. That the final dividend then declared was payable out of the above mentioned sum of 4091. 3s., found to be in the hands of Mackey, and the sum of 287. 14s. in the hands of the deponent; from which last mentioned sum, however, the deponent claimed to deduct the amount of the dividend due on his own debt. That, some delay having taken place in the remittance by Mackey of the final dividend to the London creditors, the deponent caused his solicitors to write to Mackey on the subject; and that, a further delay having occurred, the deponent repeatedly wrote himself to Mackey, and caused numerous other letters to be written also by his solicitors complaining of the delay; to which applications Mackey returned excuses, but always alleged that he was forthwith going to remit the required amount; and, in a letter in reply to a further and peremptory application, he desired that the creditors might be referred to him at Southampton, and that, on their application, he would at once pay them their dividends. In pursuance of this last mentioned letter, the deponent instructed his solicitors to write the circular letter of the 12th October 1842, as stated in the petition, informing the creditors that the money for the payment of their dividends was in the hands of Mackey, and that they might receive their dividends on application to him. The deponent, having received further applications from several creditors complaining still of the non-payment of the dividend, repeatedly and urgently required Mackey, but without success, to satisfy the creditors; and he then submitted, that, having thus used his best endeavours to obtain the money from Mackey, the non-payment of the dividend had not arisen from any neglect or default of his own. At the audit meeting before the Commissioner on the 28th April 1843, the deponent paid over the above sum of 301. 19s., after deducting the sum of 21. 5s., and also the amount of the final dividend due to the deponent in respect of his own debt, into the hands of the official assignee. Mr. Swanston, and Mr. Barber, in support of the petition. The defence, which it is understood is to be made to this petition on the part of the assignee Harding, is, that the fund came to the hands of Mackey, the other assignee, and that he has a right to deduct from the fund which came to his own hands, a certain sum for expences incurred by him, and for his own dividend. But Harding was well aware that the principal fund for the payment of the dividend was in the hands of Mackey, and is liable for such dividend to the creditors, in his character of co-assignee. Mr. Bacon appeared for the respondent Harding. Although an assignee is liable to the creditors for the payment of a dividend, he is merely so liable, in the character of a trustee, and is not chargeable more than any other trustee, nor liable for more than actually comes to his hands. This doctrine is clearly laid down by Lord Hardwicke in Primrose v. Bromley (a), where he says, that" assignees are to be considered in this Court as mere trustees, and each separately answerable only for what they receive, and it would be of dangerous consequence to hold them otherwise." Harding therefore, having obeyed the order of the Commissioner at the meeting of the 28th April 1843, and having paid over the balance in his hands to the official assignee, cannot now be charged with the payment (a) 1 Atk. 89. 1843. Ex parte RIDLEY and others. 1843. Ex parte RIDLEY and others. of dividends which were payable by Mackey, and for the non-payment of which Mackey is only to blame. The chargeability of the assignees in the present case is controlled by the order of the Commissioner, which directed one of the assignees, who had the smaller sum in his hands, to pay it over to the official assignee, and gave time to Mackey, the other assignee, to render an account of the monies in his hands, which formed the principal fund for the payment of the dividend. [The Chief Judge. Would that have been an answer to an action at law against the assignees, before the passing of the act of parliament, which took away the creditor's right of action for a dividend?] Perhaps not; but it would have been ground for an application to a Court of Equity to stay the action. In the present case, it is submitted that the order for the payment of the dividend should be made separately against Mackey. [The Chief Judge. Suppose even the case of ordinary trustees, where the receipt of one would not bind the other, yet, if the other, with knowledge of that receipt, permits an unreasonable time to elapse before he takes any proceeding against his co-trustee, what then would be his liability?] Here we submit, that no unreasonable time had elapsed, before Harding used every exertion to induce Mackey to pay the dividend; and on the 28th April last, even further time is given to him by the Commissioner for this purpose. A second audit was then taken of the accounts of the assignees, and a fresh order then made as to the money in the hands of each. Mr. Swanston, in reply. The two sums in the hands of both the assignees form together an integral part of a trust fund, for which the assignees are jointly liable. [The Chief Judge. I suppose you do not maintain the simple abstract proposition, that the receipt of one charges both.] I do not contend that Harding was so chargeable on the 1st June 1842. But on the 2nd June, when the meeting of the Commissioners took place for auditing the accounts of the assignees and declaring the dividend, Harding attended the meeting by his solicitor, and on that audit three sums were found by the Commissioners to be in the hands of the two assignees which form an aggregate sum. There were also monies received by persons, who could only be considered as agents of both. If Harding wished to protect himself from his joint liability, he ought on that occasion to have applied to the Commissioners to make a special order, charging Mackey only. But what does he afterwards do? He causes several letters to be written to Mackey, complaining of his delay in not paying the dividend. That course of proceeding shews that he considered himself jointly liable for the payment of it. VICE-CHANCELLOR KNIGHT BRUCE, C. J.-There may possibly be in this case circumstances subsequent depriving Harding of that defence, of which he might originally have availed himself. The proceeding, which took place at the meeting before the Commissioner on the 28th April last, I do not think material to the question now before the Court, except that if Harding has paid over money by the Order of the Commissioner, he is not liable to pay it a second time. I consider, that Harding is liable for the payment of these dividends, by reason of the finding of the Commissioners (at the meeting of the 2nd June 1842) of a sufficient fund being then in the hands of the assignees for that purpose, and by reason of this finding being in 1843. Ex parte RIDLEY and others. |