Page images

the business or in any sales or purchases; from the father, or by, with or out of the but the plaintiff, who resided with the profits made in carrying on the business bankrupt, devoted her whole time and under the circumstances before mentioned. labour in assisting him in the management The question for the opinion of the of their joint business, and although Court was, whether on the facts stated the known to the plaintiff's relatives and friends plaintiff was entitled to one half of the proand to some of the tradesmen of Swindon, ceeds of the sale; and in order to determine it was not generally known in business that the point the Court were to be at liberty to the plaintiff was a partner. The plaintiff draw all such conclusions of fact as a jury and the bankrupt were, however, in the might properly draw if the facts stated had habit of drawing equally on account of been proved before them. their share of the profits, and the moneys If the Court should be of opinion in the so drawn by them were entered in the affirmative, judgment was to be entered for partnership book of account, headed or the plaintiff for 2001. and costs. If the entitled as the “ Marsh Farm Accounts,” Court should be of opinion in the negative, as also the rent paid to the landlord, and judgment was to be entered for the defenall payments for rates and taxes of every dants, with costs. description, and all sums of money or bills Macnamara, for the plaintiff. — The paid by the plaintiff and the bankrupt to plaintiff's interest in the partnership stock the different tradesmen for goods supplied and effects was not, at the time of the to them, the amounts or respective moieties bankruptcy, in the reputed ownership of of each of them, the plaintiff and the bank- the bankrupt. The Court have to apply the rupt respectively, in discharge of such bills words of the Bankrupt Law Consolidation being set out separately in the book of Act, 12 & 13 Vict. c. 106. s. 125. (3). The account.

effect of recent decisions has been to limit On the 16th of November, 1864, the rather than to extend the operation of this bankrupt being embarrassed on account of section. The nature of the possession is bills accepted by him, absconded, and then now looked to, and where it cannot be committed an act of bankruptcy, of which shewn that the bankrupt has obtained the plaintiff then had notice. The plaintiff false credit, and nothing like fraud or negremained in the farm-house and continued ligence on the part of the real owner is to sell the milk and other produce of the proved, the statute ought not to apply. farm until the seizure hereafter mentioned. Here the bankrupt was the true owner of

On the 9th of December, 1864, T. H. one undivided half of the stock. The Reynolds was adjudicated bankrupt upon earlier cases which will be cited on behalf this act of bankruptcy, and the defendants of the defendants must be read by the light were appointed creditors' assignees. The of more recent decisions. In Bell v. Hamilmessenger of the Court of Bankruptcy, ton (4), where a clockmaker was held not to under the usual warrant, seized and took possession, on the 9th, of the stock upon

(3) By 12 & 13 Vict. c. 106. s. 125, “If any the farm on behalf of the assignees under

bankrupt at the time he becomes bankrupt shall,

by the consent and permission of the true owner the bankruptcy.

thereof, have in his possession, order or disposition On the 10th, notice was given to the any goods or chattels whereof he was reputed assignees that the plaintiff claimed an owner, or whereof he had taken upon him the sale, interest in the stock.

alteration or disposition as owner, the Court shall

have power to order the same to be sold and disIn January, 1865, the defendants, under

posed of for the benefit of the creditors under the order of the Court of Bankruptcy, sold bankruptcy, provided that nothing herein conthe whole of the stock, and this action is tained shall invalidate or affect any transfer or brought to recover a moiety of the proceeds assignment of any ship or vessel, or any share of the same.

thereof, made as a security for any debt or debts,

either by way of mortgage or assignment, duly The stock so seized and sold was registered according to the provisions of an act, either stock which had been purchased 8 & 9 Vict. c. 89, intituled An Act for the regisfrom the father of the bankrupt, or which

tering of British Vessels,' or any of the acts

therein mentioned." had been purchased with money arising

(4) 24 Law J. Rep. (n.s.) Exch. 45; 8. c. 10 Exch. from the sale of the stock so purchased Rep. 545.

be the reputed owner of clocks left with him ner, for she lived with her brother, the by the buyer to be cleaned, it is said, by bankrupt, and was in possession of the Alderson, B., and his words are adopted stock. by the Court, that a decision which is [COCKBURN, C.J.-Her position must unquestionable in one century might not be have appeared to the world as that of a applicable to a case under apparently the servant or housekeeper.] same set of circumstances in another cen- In Smith v. Watson (2), another case tury, owing to the change which has taken on which the defendants will rely, there place in the dealings of mankind; that was not the joint interest which appears in olden times gentlemen did not job their to have existed here. The preamble of carriages, but now they not only do so, the old act (21 Jac. 1. c. 19.) shews that but have their own arms on the coach. the object of the legislature was to preThe first leading case on this subject, vent actual fraud. But at the present Coldwell v. Gregory (5), is in the plaintiff's day a man obtains credit from his personal favour. There the bankrupt carried on character and reputation, and not through business as a brickmaker in his own name, the possession of furniture. Furthermore, though the defendant was in partnership it is submitted that the statute ought not with him. Four days before the act of to apply to a case of joint ownership, and bankruptcy the partnership was dissolved, that the bankrupt held his sister's moiety and the bricks shared, though they were of the stock as a factor or trustee for her, allowed to remain on the premises. It was in which case the statute would not apply held that the defendant's interest in them - Whitfield v. Brand (7). In Doria and was not in the reputed ownership of the Macrae's Bankruptcy Practice, 411, it is bankrupt under the then Bankrupt Act said that there is no reputed ownership (21 Jac. 1. c. 19. s. 11). It will be said in the case of a dormant partner.

In that this case is overruled by Er parte Ex parte Wood (8) a partnership was Enderby (1). But that case may be dis- dissolved by agreement, the stock-in-trade tinguished, because there the partnership to belong to the continuing partner. Each had been brought to an end by effluxion of of them separately became bankrupt, and it time; and in Ex parte Chuck (6) this distinc- was held that the stock-in-trade was not in tion is pointed out. It is true that the the reputed ownership of the firm at the Court in that case decided in favour of the date of the bankruptcy of the continuing assignees; but its facts are different from partner. those of the present case. There S. and S. Henry James, for the defendants.-Two were in partnership as brewers, and W. made questions arise in this case: First, does them an advance, at the same time execut- section 125. apply to the interest of a ing a deed which made all three partners. dormant partner! Secondly, were the goods W.'s name never appeared to the world as in question in the order and disposition of a partner, and on the bankruptcy of S. & the bankrupt with the consent of the true S. his interest in the partnership was held owner? The first point is concluded by to be in their reputed ownership. There authority. Coldwell v. Gregory (5) is, no the apparent firm became bankrupt ; but doubt, in favour of the plaintiff; but it here there was no apparent partnership, and has been overruled. In Ex parte Dyster (9) only a separate bankruptcy.

Coldwell v. Gregory (5) was cited, when (MELLOR, J.-It is not easy to see how Lord Eldon said that he thought he should the plaintiff could have resumed possession have no difficulty in persuading the Barons before the act of bankruptcy.)

that their decision was at least unsatisThe hardship upon her will be great if factory. And in Smith v.

Watson (2) she be deprived of property which ought Bayley, J., when Coldwell v. Gregory to go in liquidation of the joint debts for (5) was referred to, said, " That case was which she is still liable. Her position was different from that of a mere secret part- (7) 16 Mee. & W.282; 8. c. 16 Law J. Rep. (N.s.)

Exch. 103. (5) 1 Price, 119.

(8) 1 De Gex, 134. (6) 8 Bing. 469.

(9) 2 Rose, 256.

considered by this Court in Ex parte Belcher V. Bellamy (11). In Ex parte Gilpin (i.e. Ex parte Enderby) (1), and Enderby (1) the retiring partner was we certified that a secret partner was wrong in allowing the bankrupt to within the statute." Best, J. adds, that retain undivided possession of the stock; . in his opinion the decision in Coldwell and in Smith v. Watson (2) stress is v. Gregory (5) cannot be supported. In laid upon the secrecy of the partnership. Ex parte Enderdy (1), A., and B. were The bankrupt may be considered either as partners, the whole business being carried a factor, when the goods would be proon in the name of A. The partners ship tected - Jace v. Cartell (12), or as a truswas dissolved, and A. was left in pos- tee for his sister, in which case also the session of the joint effects. It was held, statute would not apply-The Earl of that he must be taken to be the reputed Shaftesbury v. Russell (13).-He also cited owner of these effects.

Load v. Green (14) per Parke, B., and Whit(MELLOR, J.—That was the case of a field v. Brand (7). mere stranger in possession. Here the case is different.)

COCKBURN, C.J.-I think that in this So far as the book-debts are concerned, case, having regard to the state of the the distinction cannot be upheld. In Ex authorities, our judgment must be in favour parte Chuck (6), where this circumstance of the defendants. I feel that this is really in Ex parte Enderby (1) was referred to, a case of difficulty ; that there is much to the Court held that it was of no import- be urged, not only in the way of argument ance. In the case of trustees, the statute but also in the way of authority, on either does not apply, because they are the only side. On the one hand, it may fairly be legal owners. The dicta in Hamilton v. said, that it is a case of great hardship that Bell (4) are relied on by the plaintiff, where the goods of a dormant partner, which may an extract from the judgment of Lord be required for the discharge of partRedesdale in Joy v. Campbell (10) is ap- nership debts, should be available to proved of, his Lordship saying that to the creditors of the ostensible partner, in the bring a case within the statute, the bank- event of his separate bankruptcy. On the rupt must, unconscientiously, be allowed to other hand, it may be forcibly contended, retain possession of the goods. But this that the intention of the statute was to expression does not refer to the intentions

prevent a man from acquiring false credit of the real owner; if the bankrupt has been by the apparent and ostensible possession suffered to hold himself out as the sole of property which in point of fact, either possessor of goods, the act declares that wholly or partially, is not his. Whether this this is unconscientious, and the intention possession arises from a contract between with which the possession was suffered the ostensible and the dormant partner, ought not to be left to the jury. Here or from circumstances unconnected with the there was a complete ostensible possession, partnership, it comes, I apprehend, equally and only a domestic arrangement between within the mischief against which the the bankrupt and his sister unknown to statute was intended to be directed. There the rest of the world.

is much to be said on either side, and the Macnamara, in reply.-In cases under question is one with respect to which, if it this statute the real owner should be dis- were not for the authorities by which I tinct from the reputed owner, and should think we are bound, I for one should rebe able to take entire possession of his quire time to consider the judgment which property. Here the plaintiff has done all

we ought to give. The first case on which in her power to retain possession before a question like the present one arose is the act of bankruptcy. She could not have that of Coldwell v. Gregory (5), a case in brought an action to recover possession of her share, but was in the same position as (11) 2 Exch. Rep. 303; s.c. 17 Law J. Rep. (N.s.) the assignee of a debt who has taken every Exch. 219. possible step to obtain his property

(12) Cowp. 232.
(13) 1 B. & C. 666.

(14) 1 Mee. & W.216;s. c. 15 Law J. Rep. (n.s.) (10) 1 Sch. & Lef. 328.

Exch. 113.

which the Court of Exchequer held that, not the law ; in other words, that property under circumstances precisely similar to left by the secret partner in the possession those before us, goods left in the pos- of the ostensible partner is property within session of an ostensible partner, in which the statute, that is, property in the possesthe dormant partner was jointly interested, sion of the bankrupt as reputed owner with were not in the possession of the bankrupt the consent of the true owner. Without, as reputed owner, with the consent of the therefore, saying what would have been my true owner, so as to be within the provi- own opinion, if the matter had not been sions of the Bankrupt Act. That decision, res judicata, I think we are bound by the however, did not find favour in the eyes of decision of this Court on precisely the same the great authority in these matters, Lord point, and that the authority is conclusive. Eldon, who evidently entertained serious I sincerely hope that, considering the imdoubts as to its propriety, and the result of portance of the question, it will be taken those doubts is found, not in the particular to a Court of Error, which I think is the case in which he expresses them-Ex parte only tribunal that can satisfactorily deal Dyster (9), but in another, where the same with it. question arose, a case which was sent to MELLOR, J.-I also feel that we are bound this Court for its opinion, in the shape of by the decision to which my Lord has rea report, as to what was the law with refer- ferred, in this Court; although I confess ence to these same facts. It was pointed that I think the tendency of modern deciout by the learned counsel who on that sions has been rather in the other direction, occasion argued for the plaintiff, afterwards when I consider that the judgment and Mr. Baron Parke and Lord Wensleydale, opinion of Lord Redesdale in Joy v. Campthat the case in the Exchequer was directly bell (10) is cited on several occasions with in point, and that the Court could not entire approbation by Mr. Baron Parke, and report in the defendant's favour without in one of the cases referred to-Hamilton overruling it. Nevertheless, this Court, after v. Bell (4)—by Lord Chief Baron Pollock an elaborate argument, did report that the and Mr. Baron Alderson, each in turn property was in the possession of the bank- stating their opinion that the true rule is rupt as reputed owner, with the consent of there expressed If I had found that there the true owner, so as to be within the had been any subsequent decisions upon Bankrupt Act. And in a case which is to this particular state of circumstances, I, be found in the same volume of Barnewall of course, should have felt at liberty to & Cresswell's Reports-Smith v. Watson (2), have followed them, thinking that they -the attention of the Court being directed had shaken the decisions in this Court. But to the previous case of Ex parte Enderby in the absence of such decisions, we are (1), or, as it was called, Ex parte Gilpin; bound to adopt the rule laid down in the Mr. Justice Bayley says, “ That case

and to hold that the property was considered by this Court in Ex parte of a secret partner is in the order and disGilpin, and we certified that a secret part- position of the ostensible partner, if bankner was within the statute.” Mr. Justice rupt, by consent of the true owner. I Best follows, and says, “I could not have should be inclined to adopt the suggestion signed the certificate sent in that case, made by Mr. Macnamara in his argument, unless I had satisfied myself that the deci- that where the possession is not voluntary, sion in Coldwell v. Gregory (5) cannot be that is to say, where the consent of the supported." I therefore think it is quite person called the true owner is not volunclear from those two cases that this tary, but where the possession is a possesCourt, by the report which it made in sion which the apparent owner has a right Ex parte Enderby (1), intentionally over- to have, because of his own interest in the ruled the decision in Coldwell v. Gre- goods in question, that such a possession gory (5); and that in the subsequent was not intended to be brought within the case of Smith v. Watson (2), they abide provisions of this penal clause. For the by the opinion which they had previ- clause is penal in this sense, that it applies ously expressed. That being so, we must to a person who improperly and uncontake it that Coldwell v. Gregory (5) is scientiously, in the sense in which the

earlier cases,


latter expression is used by Lord Redesdale, so long a time. On that ground I have and approved by Mr. Baron Parke, that is, come to the same conclusion with the rest without any special reason but his own of the Court. voluntary act, leaves goods in the posses

Judgment for defendants. sion of a trader ; but it must be a voluntary act on the part of the owner, or alleged

Attorneys–James Crowdy, agent for Townsend & owner, by which the goods are left in the

Ormond, Swindon, for plaintiff; Few & Co., possession of the bankrupt. That cannot

agents for Bradford & Foote, Swindon, for be said to have been the case here, be- defendants. cause the plaintiff was a partner.

The purchase was made jointly, and entirely for the purpose of carrying on the partnership business, and was entirely consistent 1866.

Nov. 21. with the provisions of the partnership.

THE QUEEN V. BACKHOUSE. I think that I am bound to give my

Local Board of Health - Election of judgment, with the other members of the Court, in favour of the defendants.

Member without Personal Attendance of

Chairman. SHEE, J.-I have little to add to what has fallen from my Lord and my Brother An election of members of a local board Mellor ; but I will briefly call attention to of health, under the Public Health Act, 1848 this fact, that the law which we hold to be (11 & 12 Vict. c. 63), ss. 21, 27, conducted established by the decisions in Ex parte by the statutory assistants of the chairman Enderby (1) and Smith v. Watson (2) has during his absence, and which is certified by for some time been considered settled law him solely upon their report, is null and in Bankruptcy ; for I find in the third void. edition of Shelford on Bankruptcy, p. 267, under the head of 'Reputed Ownership’ Quo warranto calling upon the defen(citing for authority these two cases), this dant to shew by what authority he exercised passage—“It appears to be settled that in the office of member of the Local Board of the case of a secret partnership, all the Health for the district of Darlington, in property and effects, as well as the debts the county of Durham. due to the concern, must be deemed to be Plea—That since the passing of the Darin the order and disposition of the osten- lington Local Board Act, 1854, one-third sible partner, and pass to his assignees.” of the members of the local board of health

LUSH, J.-I have come to the same con- go out of office annually on the 26th of clusion, though I must acknowledge that September, and the day of election to supply it has been under pressure from the later the vacancies of the members of the local authorities in this Court. If I had now board of health annually going out of office to put a construction upon this clause for had been and was the 26th of September the first time, I should have thought that in each year, and that on that day six one of the necessary conditions, in order to members, being one-third of the members bring a case within it would be, that there of the local board of health, went out of should be a true owner of the goods, as dis- office, and an election of six members in tinguished from the apparent owner; and the place of the six so going out of office such an owner as had the power to object was there held on the 26th of September, to the possession of the apparent owner, and the chairman of the local board, to and to resume the possession of the goods wit, one Joseph Pease, then and there, as the himself; and, that it could not apply to the returning officer, according to the provisions case of a person who held the goods in his of the Public Health Act, 1848 (1), held own right, and who could not be deprived

(1) By the Public Health Act, 1848 (11 & 12 Vict. of the possession by the other apparent c. 63), section 21, “At every election by owners of owner. The cases, however, have given a property and rate-payers under this act the chairmuch wider interpretation to this clause, and

man of the local board of health, or, in case of the sitting here, I do not think that we can

first election, such person as shall be appointed by

order of Her Majesty in Council, or by Provisional overrule authorities which have stood for

Order of the General Board of Health (as the case

« PreviousContinue »