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plaintiffs, as an answer, that the defendant had held out to some of his creditors that, in consideration of their respectively executing the deed, certain pecuniary and valuable benefits and preferences would be given or secured to them over the rest of the creditors, and that he thereby induced them to execute the deed, and that such execution was obtained without the consent or knowledge of the plaintiffs, and in fraud of them. The defendant does not answer, by way of rejoinder to that objection, that the plaintiffs were parties to such a corrupt agreement; we must therefore take it that they were not such parties, and that they executed the deed in utter ignorance of it. I decide this case upon the broad principle, that in order to make such a deed binding upon the creditors, there must be the most perfect good faith between the creditors and the debtor, and everything must be done bona fide. It is very true that it does not appear from the replication that it was any part of the corrupt bargain that the "benefits and preferences" were to be paid out of the assets arising from the estate of the debtor. I agree with Mr. Quain in that matter; but I think that he puts the case upon the wrong ground when he says that all that the creditors look to is the equal distribution of the estate of the debtor. There are many cases in which a man may be wholly incapable of judging for himself whether it would be better to execute such a deed or not, and in which he would rather trust to the opinion of the great body of creditors. than to his own opinion solely; he will look to what he believes to be the honest opinion of the body of creditors, and he has a right to insist that the signatures of such a number of the creditors, as shall be necessary, shall be obtained by the most honest and legitimate means; and if some of them are obtained by means of a promise from the debtor that the creditors thus affixing their signatures shall receive something more than the rest, the deed, as between the debtor and such creditors, is bad, and, if so, it is also bad as between the debtor and the plaintiffs, none of whom would have signed it if they had not supposed that the others had signed it bona fide. I think therefore

that the deed is not binding, and that the replication is good.

MELLOR, J.—I am of the same opinion. This is the case of a deed, of which the effect is said to be, to release the defendant from liability in respect of actions, for debts due from him. I certainly think that, upon the ground put by my Lord, in which I most entirely agree, this deed is not binding. These deeds are executed upon the agreement between the debtor and his creditors that he is dealing upon equal terms with each and all. If this is not so, it is a fraud upon those who sign upon that understanding; and I should also think, if it were necessary to decide that question, that the replication clearly avers that the majority of the creditors were induced to sign by means of the fraudulent agreement. I think that the plaintiffs are entitled to succeed.

LUSH, J.-I am of the same opinion. It must be taken that every creditor signing a deed of this kind stipulates for good faith. between the debtor and the body of creditors, and that, when the creditors stipulate that "if and when these presents shall have been executed by four-fifths in number and value," they would release and discharge the debtor from all actions, it is intended that the execution should be bona fide; but an execution obtained from some of the creditors by bribery is not such an execution as was contemplated by the plaintiff. Further, the pleadings do not shew whether more than four-fifths of the creditors ever executed the deed; it may be that the fraudulent agreement was between the defendant and some of the remaining fifth; but if that were so, it lies upon the defendant to make it clear that the requisite number did bona fide execute the deed, and not to have any doubt upon the point.

Judgment for the plaintiffs.

Attorneys-G. S. & H. Brandon, for plaintiffs; Elsdale & Byrne, for defendant.

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Master and Servant - Negligence of Fellow Servant-Foreman-Fall of Tramway.

The plaintiff was a workman in the employment of the defendant, a maker of locomotive engines. He was ordered by the defendant's foreman to get upon a travelling crane moving upon a tramway, and used in hoisting engines, and he obeyed. It was the first occasion of using the crane, and the first time that the plaintiff was employed upon it. The piers supporting the tramway gave way; it fell, and the plaintiff was injured. There was no evidence that there was any defect in the crane, that there was any negligence in the mode in which it was used, that the engine was of unreasonable or improper weight, that the defendant had employed unskilful or improper persons in building the piers, or that he knew of their insufficiency; neither did it appear that he had personally interfered at the time of the accident:-Held, setting aside a verdict for the plaintiff, first, that the foreman was not a deputy or representative of the defendant, but a fellow servant of the plaintiff; secondly, that there was no evidence for the jury of personal negligence on the part of the defendant.

Rule to set aside a verdict for the plaintiff, and to enter a nonsuit, on the ground that there was no evidence to go to the jury.

Daly shewed cause, and Montagu Chambers and Hance were heard in support of the rule.

The facts and arguments are sufficiently disclosed by the judgment.

Cur. adv. vult.

MELLOR, J. (Nov. 24) delivered the judgment of the Court (1).-This case stood over on the suggestion that another case was pending for argument before us which involved the same points. The case referred to, on the hearing a few days ago, was found

(1) Cockburn, C.J., Mellor, J. and Shee, J.

not to involve any question applicable to the present. We therefore give our judgment upon the facts which appeared on the trial of this case.

The defendant was a maker of locomo

tive engines, employing a great number of men. In the course of the work a travelling crane was used to hoist the engines and convey them to tenders for their carriages. The crane moved on a tramway resting on beams of timber, and supported by piers of brickwork. The piers had been recently partly repaired and partly rebuilt, and the brickwork was fresh. It appears that at the time of the accident the piers first gave way, and then the beams broke from the strain thus cast upon them. The accident occurred on the first occasion of using the crane, and it was the first time that the plaintiff had been employed upon it. There was no evidence that there was any defect in the crane, or negligence in the mode in which it was used, or that the engine was of unreasonable or improper weight. There was no evidence of any personal privity or interference by the defendant, but his foreman or manager was present, and gave the directions to hoist the engine.

The traveller was worked by six men, three at one end, and three at the other. As the crane moved along it oscillated, and the foreman, thinking that the men were not working it properly, directed them to stop, which they did for a minute or so. He then ordered them to move on again, which they did. Just before that he had ordered the plaintiff to get on the engine and clean it. The plaintiff did so, and was on it whilst in motion for the purpose, and whilst so engaged some mortar fell, the piers gave way, the engine fell, and the plaintiff's arm broken. Upon objection by the defendant's counsel, that there was no case to go to the jury to fix the defendant with liability, either personally, or for the act of his manager or foreman, the Lord Chief Justice reserved the question for the Court, and the case went to the jury, who found for the plaintiff, with 2007. damages. On the argument before us, it was contended that the defendant was liable on two grounds: first, it was urged, that the foreman or manager was an alter ego of the master,

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and not a fellow servant of the plaintiff, and that he was guilty of negligence in not ascertaining the sufficiency of the piers before he ordered the plaintiff to get upon the engine to clean it as it travelled along; secondly, it was urged that there was evidence to fix the defendant personally with negligence in permitting the engine to be removed by means of the piers when he might and ought to have known that the piers were not sufficient for the purpose. We are of opinion that the plaintiff is not entitled to succeed on either ground. We think that the foreman or manager was not in the sense contended for the representative of the master. The master still retained the control of the establishment, and there was nothing to shew that the manager or foreman was other than a fellow servant of the plaintiff, although he was a servant having greater authority. As was said by Mr. Justice Willes in Gallagher v. Piper (2), "A foreman is a servant as much as the other servants whose work he superintends." There was nothing in the present case to shew that he was an incompetent or improper person to be employed as foreman or manager. We are unable to distinguish the case on this point from those of Wigmore v. Jay (3), Gallagher v. Piper (2) and Skip v. the Eastern Counties Railway Company (4). We think that this case itself with a great number of cases, ranges by which it must be considered as conclusively settled that one fellow servant cannot recover for injuries sustained in their common employment by the negligence of a fellow servant, unless such fellow servant is shewn to be either an unfit or improper person to have been employed for the purpose-Morgan v. the Vale of Neath Railway Company (5). And this rule is not altered by the fact that the servant to whom the negligence was imputed was a servant of superior authority, whose lawful directions the plaintiff was bound to obey. It

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is difficult in the present case to discover any evidence that the foreman was guilty of any negligence; but it is not necessary to determine that, inasmuch as the conclusion at which we have arrived renders it unnecessary to do so. With regard to the second ground relied upon on the part of the plaintiff, we can find no evidence of personal negligence to fix the master. There was nothing to shew that he had employed unskilful or incompetent persons to build the piers, or that he did know or ought to have known that they were insufficient for the use to which they were to be applied. He was a master of engines, and therefore in that sense an engineer, but not in the sense that he possessed special knowledge as to the strength or sufficiency of brickwork. We cannot, in the absence of such evidence, say there was any case fit to be submitted to the jury as to this ground of liability, and we therefore think that the rule to enter a nonsuit ought to be absolute.

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Interrogatories-Common Law Procedure Act, 1854, s. 51.-" Officers of a Body Corporate"-Company wound up compulsorily under 25 & 26 Vict. c. 89.—Directors— Attachment.

Under the provisions of the Companies' Act, 1862, a company was in process of being wound up compulsorily, and an official liquidator was appointed under the supervision of the Court of Chancery. The liqui dator having brought an action in the name of the company, in which the defendant obtained leave to deliver interrogatories to the directors, under section 51. of the Common Law Procedure Act, 1854,-Held, that those who were directors when the order for winding up was made continued to be "officers of a body corporate" within the meaning of that section, and, as such, might be required to answer the interrogatories,

and liable to an attachment for not answering them.

Held, also, that the attachment might be granted upon the application of the liqui dator, though he was neither a party to the action nor the person delivering the interrogatories; since he was not an officious volunteer, but interested in the result.

The affidavits disclosed the following facts. The Madrid Bank (Limited) was incorporated in 1863, under the Companies' Act, 1862. Under the same act, the Master of the Rolls, on the 18th of March, 1865, made an order to wind up the company, under the supervision of the Court of Chancery; on the 25th of April an order appointing an official liquidator; and on the 25th of January, 1866, an order authorizing the official liquidator to sue, in the name of the Madrid Bank (Limited), the defendant and others for arrears of allotment money and calls due in respect of shares held by them in the bank, the calls having been made prior to the petition for winding up.

This action was accordingly begun on the 20th of February, 1866, in respect of the above claims.

On the 26th of June, 1866, an order was made, by Shee, J., that the defendant should be at liberty to deliver to the plaintiffs' directors or their attorneys interrogatories in writing, to be answered in writing by affidavit within ten days. Certain of the directors having refused to answer them, the official liquidator applied for a Judge's order to rescind the above order, but was refused; and on the 5th of July, 1866, upon the defendant's application, and against the opposition of the official liquidator, Blackburn, J. made an order to stay all further proceedings in the action until after the plaintiffs had filed the answers of the plaintiffs' directors to the interrogatories.

The official liquidator made an affidavit that he had no power or control over any of the said directors, nor any means of compelling them to answer, and that, except in one or two instances, he was unable to answer them himself.

Three of the directors, named below, made an affidavit that they were original directors of the bank, and continued to act

as such up to the day when the Master of the Rolls made the order for winding up the company; since which time, they said,

"We have ceased to be directors of the said Madrid Bank (Limited), and have not in any way interfered with or taken any part in the conduct or management of the business or affairs of the said bank, but the same have been wholly carried on by the official liquidator;" that they never authorized or sanctioned in any way the bringing of this action, and were in no way parties to it, except so far as might appear from the use, by the official liquidator, of the name of the Madrid Bank (Limited), and that when the order for the interrogatories was made, no one was present on their behalf.

The official liquidator applied to this Court for a rule nisi to rescind the order to deliver the interrogatories and the order staying the proceedings, but was refused; and

J. J. Powell then, on his behalf, obtained a rule nisi calling upon three of the directors, Ingram Chapman, Albert Pelly, James M. Venning, and a fourth, to shew cause why a writ of attachment should not issue against them for contempt in not answering the interrogatories upon affidavits of due personal service upon the first three.

C. Milward and C. A. Russell now shewed cause.-The question is, are persons who are once directors of a company directors for all time to come? We say these gentlemen ceased to be directors as soon as the winding-up order was made. The provisions, sections 74.-169. of the Companies' Act, 1862, 25 & 26 Vict. c. 89, shew this decisively. There are two modes of winding up under this act: the one voluntary, the other compulsory under the supervision of the Court, as this was. On a compulsory winding-up the Court usurps absolute control over the company, and deprives the directors of all power. time of commencement is at the presentation of the petition-section 84; and this action was not begun till after the order was made. All the property of the company is entirely in the custody of the official liquidator-section 94. By section 95. he is to bring and defend all actions, &c., in the name of the company, and to do every single act that could be done by

The

the directors. There is nothing whatever left for them to do, and they have no further power, authority, influence or control. They are not parties to this suit; they cannot bring an action, nor abandon it, nor influence it at all. They have not the same attorneys as the liquidator. How could they shew cause against the order to answer interrogatories? They would have no locus standi. How could they get their costs?

[BLACKBURN, J.-Without committing ourselves to any decisive opinion, we should probably hear any objection on the part of the directors on the ground that particular interrogatories were vexatious or unreasonable, &c. But why should they not answer questions relating to what passed within their own knowledge before the winding up? Admitting that they have no power whatever, the simple question is, have they ceased to be "officers of a body corporate' within the meaning of section 51. of the Common Law Procedure Act, 1854?]

They cannot be "officers" if they have no power. "Officers of a body corporate" must mean some one in the employ of and under the control of the body corporate. The liquidator is to do all the acts formerly done by them, and to affix the company's seal, &c. The case is exactly the same as if they had retired from the board, and other directors had been appointed. In such a case they certainly would not be "officers" within the Common Law Procedure Act. So here, the liquidator is in the place of new directors. Even upon a voluntary winding-up all the power of the directors is to cease, except within certain restrictions-section 133; a fortiori under a compulsory winding-up. This also appears from sections 87. and 153.

[BLACKBURN, J.-We are quite satisfied as to that; but the only question is, are they "officers"? The Companies' Act, 1862, seems to me to put the directors in the same position as a person who has assigned a chose in action. An action upon that must necessarily be brought in his name.]

If they are liable now, they may be liable for any number of years. Secondly, the Court ought not to grant the attachment except upon the application of the NEW SERIES, 36.-Q.B.

person who obtained the order for the interrogatories, namely, the defendant. The liquidator asks for the attachment, but he is not intrusted with the carriage of the interrogatories, and is not a party to this matter at all.

[BLACKBURN, J.-He is not an officious volunteer, but is much interested. He has a right to say, either let the directors purge their contempt, or let me continue my action.]

J. J. Powell and Laxton appeared to support the rule, but

BLACKBURN, J. said: We do not think there is any need to hear Mr. Powell on the other side. The foundation for the rule is the 51st section of the Common Law Procedure Act of 1854, by which it is enacted that a party to a cause may deliver interrogatories to the opposite party, and require such party, or in the case of a body corporate, "any of the officers of such body corporate," to answer the interrogatories. The essence of our jurisdiction in this case, where the plaintiffs are a body corporate, is, that the directors should be within that section "officers of the body corporate." Without that we have no jurisdiction at all. Besides that, many questions might

arise which would be addressed to the discretion of the Court, such as, whether the directors would be likely to know the matters inquired about, and whether they were fit matters for inquiry, and so on. The question, however, here is only, are these directors officers of the company? The action was brought in the name of the company after the order for winding up was made under the act. All the beneficial interest in the company belongs to the official liquidator, in trust for the creditors, and the liquidator is to all intents and purposes the plaintiff, and the plaintiff named on the record is no more than a bare trustee. Now, the Common Law Procedure Act makes no difference in such an action as to the right to administer interrogatories. If the facts inquired about happened in the time of the director, that officer should answer what he knows, and what the liquidator does not. It would of course be a matter for our discretionary consideration whether the questions were vexatious or unreasonable. I assume that in that

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