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the election. The return went on to and to have been duly given, collected or allege specifically a compliance on the part recorded, and did not ascertain the number of the chairman with the provisions of the of such votes for each candidate, but abstatute relating to the election of members, sented himself wholly from the office at and that the defendant and five others were the time aforesaid, and suffered and perduly elected.

mitted other persons to ascertain the valiSixth replication—That after the notice dity of the votes and to cast them up and of the election was published by Joseph ascertain the number for each candidate, Pease, and before the alleged election was and he certified the candidates who had held, as in the plea mentioned, he absented obtained the greatest number of votes merely himself from and left the district and went on the faith of the report sent to him by to Ireland, and remained there till long the said persons and not otherwise, and after the alleged election, and there signed signed the certificate on the faith of such the certificate in the plea mentioned, in the report, and that no other person was manner hereinafter mentioned, and as such appointed by the local board of health returning officer and chairman did not on (the election not being the first election) to the day immediately following the day of exercise or perform any of the powers and the election, or on any other day imme- duties vested in or imposed upon the chairdiately succeeding the last-mentioned day, man of the local board in relation to the attend at the office of the local board of election, nor did the local board before or health, and did not ascertain the validity during the election appoint a competent of the votes by an inspection of the rate- number of or any person or persons to books and such other books and documents assist and attend upon the chairman in as he might think necessary, and by ex- conducting and completing the election. amining such persons as he might see fit, Rejoinder— That the local board before or in any other manner; and did not cast the election appointed a competent number up such of the votes as he found to be valid of persons, to wit two persons, that is to

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may require), shall have the powers and perform the duties vested in or imposed upon the chairman by this act in relation to any such election, and shall perform all other duties which it may be requisite for him to perform in conducting and completing elections under this act; and in case the office of chairman shall be vacant at the time when any such power or duty must be executed or performed, or in case the chairman or person appointed as last aforesaid, from illness or other sufficient cause, shall be unable to exercise or dis. charge such powers or duties, or shall be absent, or shall refuse to act, some other person who shall be appointed (in case of the first election) by such Order in Council or provisional order, or (in any other case) by the local board of health, shall exercise or perform such of the said powers and duties as then remain to be exercised or performed; and the local board, or (in case of the first election) the person appointed by such Order in Council or provisional order, shall, before or during the election, appoint a competent number of persons to assist and attend upon the chairman or the person so appointed (as the case may require) in conducting and completing the same.'

By section 26, “The chairman shall cause the voting papers to be collected on the day of election by the persons appointed or employed for the purpose in such manner as he shall direct."

By section 27, “The chairman shall, on the day immediately following the day of the election, and on as many days immediately succeeding as may be necessary, attend at the office of the local board

of health, and ascertain the validity of the votes, by an examination of the rate-books and such other books and documents as he may think necessary, and by examining such persons as he may see fit; and he shall cast up such of the votes as he shall find to be valid, and to have been duly given, collected or received, and ascertain the number of such votes for each candidate; and the candidates to the number to be elected who, being duly qualified, shall have obtained the greatest number of votes, shall be deemed to be elected, and shall be certified as such by the chairman under his hand; and to each person so elected the chairman shall send or deliver notice of such election; and the chairman shall also cause to be made a list containing the names of the candidates, together with (in case of a contest) the number of votes given for each, and the names of the persons elected, and shall sign and certify the same, and shall deliver such list, together with the nomination and voting. paper which he shall have received, to the local board of health at their first or next meeting (as the case may be), who shall cause the same to be deposited in their office, and the same shall during office hours thereat be kept open to public inspection, together with all other documents relating to the election, for six months after the election shall have taken place, without fee or reward, and the chairman shall cause such list to be printed and copies thereof to be affixed at the usual places for affixing notices of parochial business, within the parts for which the election shall have been made."

say, one Hugh Dunn and one William any person other than them to ascertain the Hildreth the younger, to assist and attend validity of the votes, or to cast them up, or upon the chairman in conducting and com- ascertain the number for each candidate, nor pleting the election, and the chairman, who did he notify the candidates who had obtained by reason of defect in his eyesight, was the greatest number on the faith of any. unable by personal examination of the thing other than as aforesaid; and that the rate-books or other books or documents defendant had not at the time of the electo ascertain the validity of the votes, or per- tion, nor until after he made declaration of sonally to cast them up, conducted the his qualification and acted as a member election by the said Hugh Dunn and Wil- of the local board, any notice or knowledge liam Hildreth the younger, and with their of the absence of the chairman from the assistance, and did by them, at the time place of election, or of any irregularity in and place in the plea alleged, attend at the the election. office of the local board of health, and did Surrejoinder by way of demurrer. then and there, by them and by their ex- Pickering (Quain with him), in support amination, conducted according to and in of the demurrer.—The election of the depursuance of the directions of the said

fendant was void. The absence of the chairJoseph Pease, and communicated to him

man was fatal to its validity, and it could before he signed the certificate of election, not legally have been conducted by the ascertain the validity of the votes, and statutory assistants of the chairman. By nothing occurred about or in or during or the Public Health Act, 1848, s. 21, in case connected with the examination, which had the chairman is absent during the time not been provided for by the directions of when his powers in conducting an election the said Joseph Pease by him before given under section 27. should be exercised, to his assistants, or which in any way re- some other person, to be appointed as the quired the judgment, personal interference case may require, by Order in Council or or presence of the said Joseph Pease. And by the local board, is to exercise these the said Joseph Pease did by them the powers and perform the duties relating to said Hugh Dunn and William Hildreth the election. Here the chairman was absent, the younger cast up such of the votes as and it is admitted by the pleadings that on such examination were found to be no such deputy was appointed. The chairvalid and to have been duly given, collected man's duties at an election, as prescribed or received, and did by them and with by section 27, are eminently personal. He their assistance ascertain the number of is to attend at the office on the day after votes for each candidate, and after he had the election to ascertain the validity of the so ascertained the same, did himself sign votes by reference to the rate-books, to cast the certificate in the plea and sixth repli- up the votes and to ascertain which cancation mentioned; and during all the time didate has obtained the greatest number. It of the election the said Hugh Dunn and was never intended to allow such duties to be William Hildreth the younger had the delegated to the assistants, who were always means of immediate communication with meant to act under the direct surveillance the said Joseph Pease, and were directed of the chairman. This case came before by him to communicate with him if any- Mr. Justice Crompton in the Bail Court thing occurred requiring his judgment, (2), when that learned Judge expressed his personal interference or presence, and no decided opinion that the election was void, such thing did occur during the election ; and that the duties of the chairman could and the said Joseph Pease during the elec- not be delegated to the assistants, saying tion held himself in readiness to come to that it was just as if a barrister to whom and attend personally at the place of elec- a cause had been referred were to leave it tion on receiving any such communication. to Be decided by his clerk; or as if a Judge And that the persons so appointed to assist in chambers were to intrust his powers and the chairman did in all things appertaining duties to the Master. It is submitted that to the election follow the instructions and this view is perfectly correct. directions of the chairman in respect of the election, and he did not suffer or permit

(2) 12 Law Times, 579. VEW SERIES, 36.-Q.B.


Manisty, in support of the rejoinder.— The that the defendant agreed with certain of election is valid. The personal absence of the the creditors, other than the plaintiffs, in returning officer, when the votes were cast consideration of their respectively executing up and the majorities ascertained, did not the deed, to give them certain pecuniary and in itself render the election void, particu- valuable benefits and preferences over the larly with regard to candidates who had other creditors; that thereby he induced the no notice of any such irregularity. It ap- said creditors to execute the deed, which pears from the pleadings that nothing execution was procured without the knowoccurred on the occasion in question which ledge or consent of the plaintiff's, and in called for the personal interference of the fraud of the deed and of the plaintiffs :chairman. It is quite clear that under sec- Held, upon demurrer to this replication, tion 26, the collection of the voting papers, that it was an answer to the plea, inasmuch an important task, need not be conducted as a composition deed cannot be binding, if in person by the chairman.

it is not executed in good faith between the LUSH, J.--The language of that section debtor and his creditors. is very different from that of section 27.] The assistants appointed in pursuance

Declaration upon the common money of section 27. may reasonably perform such counts. ordinary duties as the casting up of votes, The third plea stated, that after the subject always to the supervision of the accruing of the causes of action in the dechairman.

claration mentioned, by a deed made between

the defendant, therein described as of MelPer Curiam (3).--The chairman being bourne, in the colony of Victoria, Australia, absent and no deputy having been ap- of the first part, the plaintiff H. W. Daugpointed, it cannot be said that the election lish, of the same place, and J. M. Joshua, was conducted by either one or the other; of the same place, in the deed designated and it is therefore void.

“the said trustees,” of the second part, Judgment for the relator. and the several persons and parties whose

names and seals were subscribed and affixed

in the schedule thereunder written, being Attorneys- Rogerson & Ford, Agents for H. J.

creditors either in their own right, or as Marshall, Durbam, for the relator; Lever & Son,

agents or attorneys for persons absent Agents for H. Dunn, Darlington, for defendant.

from the colony, of the defendant, of the third part, it was agreed that the defen

dant should convey and assign all his 1866. 2

real and personal estate, &c. to the said Nov. 20.

trustees, &c., upon trust, for the bene

fit of all the creditors, &c., under the Composition Deed - Excecution by Cre- provisions of an act of the Governor and ditors-Fraudulent Preference.

Legislative Council of the Colony of New

South Wales, made and passed in the fifth To a declaration containing the common year of the reign of Her Majesty Queen money counts, the defendant pleaded that Victoria, No. 9, intituled · An Act for the by a composition deed entered into by him- further amendment of the law and for the self and four-fifths in number and value of better advancement of justice,' &c. The plea his creditors, under the provisions of an then, after setting out certain provisions of act of the Legislative Council of New the deed, alleged that “the several persons, South Wales, he was released from all parties thereto of the second and third actions, &c., and that the deed had been parts, did thereby, for themselves respecexecuted by one of the plaintiffs in respect tively and for their respective partner or of the cause of action in the declaration partners, heirs, executors, administrators mentioned. A replication upon equitable and assigns respectively, if and when the grounds, after setting out the deed, alleged said deed should have been executed by

four-fifths in number and value of the cre(3) Cockburn, C.J., Mellor, J. and Lush, J.

ditors of the said defendant, pursuant to




the said act of council, remise, release and tively executing the said deed, certain pecufor ever discharge the said defendant of niary and valuable benefits and preferences and from all actions," &c. It then alleged over the other of the said creditors of him, that the deed had been, before this suit, the defendant, and thereby induced such executed by four-fifths in number and preferred creditors to execute the said value of the creditors, and, amongst others, deed, which said agreement was so made, by the plaintiff H. W. Dauglish, in respect and which execution by such preferred creof the cause of action in the declaration ditors was so procured in manner aforesaid, mentioned; that at the time of the execu- without the knowledge, consent or authority tion of the deed the defendant was resident of the plaintiffs or any of them, or of the and domiciled in the colony; and that the creditors of the defendant mentioned in cause of action accrued there. The plea the said plea, other than the said preferred also contained a general averment of the creditors, and contrary to and in fraud of performance of conditions precedent. the said deed and the plaintiffs, and the

The second replication on equitable said other unpreferred creditors, and the grounds set out the deed, which was in the laws of the said colony; and the defendant usual terms, and the part which was mate- procured the said deed to be executed by rial for the point now reported was as such majority as in the said plea menticned, follows: " And this indenture further by and through the said fraudulent agreewitnesseth that, in consideration of the ment and premises in this replication aforepremises, the said several persons parties said, whereby the said deed, by and accordhereto of the second and third parts do ing to the laws of the said colony, dever hereby for themselves respectively, and for released or discharged the defendant from their respective partner and partners, his the claim sued for in this action. heirs, executors, administrators and assigns Demurrer and joinder in demurrer. respectively, if and when these presents Quain, in support of the demurrer.shall have been executed by four-fifths in This is an ordinary composition deed exnumber and value of the creditors of the ecuted by one of the plaintiffs. The plea said William Middleton Tennent, pursuant sets up the deed as a defence to the action, to the said act of council, remise, release and the replication is no answer to it. It may and for ever discharge the said William be, as was held in Wilson v. Ray (1), that Middleton Tennent of and from all actions, if the money is paid to a creditor by the suits, causes of action and suits, debts, debtor for the purpose of inducing him to covenants, bonds, claims and demands sign the deed, the money cannot be rewhatsoever, which the said parties hereto covered back; but the contention of the of the second and third parts respectively plaintiff here is, that because some of the now have, or but for these presents might creditors were induced by promise of benehave, upon or against the said William fits and preferences, the whole deed is bad Middleton Tennent, upon any account altogether. No creditor who has been prewhatsoever. In witness thereof,” &c. The ferred could dispute this deed : and how replication then went on to allege that cer- can it be said that others who are no parties tain schedules were subjoined to the said to the alleged fraud can do so? But, further, deed as therein referred to, which it is not the replication is bad for not shewing that material to set out at length; and that the the plaintiffs are put in a worse position plaintiff H. W. Dauglish executed the said by what has taken place. All the assets deed on the faith of the several provisions are to be distributed, and there is no alletherein contained, but the said deed was gation that the amount of the assets has never executed by any of the other plaintiffs, · been at all diminished. It is consistent with and the defendant agreed with certain of everything alleged, that the benefits and the creditors of the defendant referred to preferences mentioned may have been in the third plea respectively, being other payments to be made by relations or than the plaintiffs or any of them, to pay or give, or secure to such creditors respec- (1) 10 Ad. & E. 82; 8. c. 8 Law J. Rep. (N.s.) tively, in consideration of their respec- Q.B. 224.


friends of the defendant, so that the benefit of his composition.” If it was shewn whole estate would still remain to be distri- that the estate would not be fairly dis buted.

tributed among all the creditors, the repli[MELLOR, J.—But is it not one of the cation might be good ; but that is not ingredients of these compositions, that all shewn. the creditors should be placed upon an Sir George Honyman (Murphy with equality ?]

him), contra. — The plea shews that there If that be so, the plaintiff is only entitled

was to be

release to the defendant if fourto his fair share with the others of the fifths in number and value executed the amount of the assets, and it is not shewn deed, and the plaintiffs, in their replication, by the replication that he would get less answer that the execution of some of the than that full share. Again, the replication creditors had been obtained by fraud, and does not shew that the plaintiffs executed therefore that the event upon which the the deed on the faith that the rest of the release was to take place had not occurred. creditors would execute on the same terms The foundation of all such deeds is this : as himself.

a debtor says to his creditors, “I [LUSH, J.—It is consistent with this unable to pay you in full, but I can pay so replication that four-fifths might have ex- much in the pound, and if you will release ecuted the deed honestly.]

me, I will put you all upon an equality.” Yes, that is so; the creditors with whom Each creditor gives up part of his right on the agreement was made may have been the assumption that all the others are doing the remaining one-fifth. In Mallalieu v. the same, and that all will be paid equally. Hodgson (2) the plaintiff had been induced But if a bargain is made with some of the to sign a composition deed upon the faith creditors only that they are to receive some of the defendants

' promising to pay him special advantage, it is a fraud upon the dividends at a greater rate than the other others, and they are not bound. The cases creditors were to receive; and the defen- which have occurred as to creditors being dants stated to him that no other creditors induced to sign a bankrupt's certificate are would have the same preference. Having in point-Robson v. Calze (3), Holland v. brought an action against the defendants, he Palmer (4) and Phillips v. Dicas (5). The endeavoured to set up this statement of last case was Hemming v. Pugh (6), where the defendants as an answer to their plea the Court held that the signatures of credithat they were released by the deed, but tors who received more than the others it was held by Mr. Justice Coleridge and could not be taken into account. There can Mr. Justice Erle, a majority of the Court, be no release unless the requisite number that he could not so allege a deception on are got to execute the deed bona fide. The himself by the defendants in the execution fraudulent creditors are not bound, for a of a fraud by himself and them upon the man may set up as a defence his own fraud other creditors. At p. 711, Mr. Justice with the fraud of the other party-Higgins Erle is stated to have said, in his judg- v. Pitt (7). The maxim potior est conditio ment, “Each creditor consents to lose part defendentis applies. of his debt in consideration that the others Quain replied. do the same; and each creditor may be considered to stipulate with the others for COCKBURN, C.J.-I am of opinion that a release from them to the defendants in our judgment ought to be for the plaintiffs. consideration of the release by him. When The defendant takes his stand upon the any creditor in fraud of the agreement to composition deed; and it is objected by the accept the composition stipulates for a preference to himself, his stipulation is alto- (3) 1 Dougl. 228. gether void ; not only can he take no ad. (4) 1 Bos. & P. 95. vantage from it, but he is also to lose the

(5) 15 East, 248.

(6) 1 New Rep. 239. (2) 16 Q.B. Rep. 689; s. c. 20 Law J. Rep. (8.5.) (7) 4 Exch. Rep. 312; 6. c. 18 Law J. Rep. (N.s.) Q.B. 339.

Exch. 488.

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