fiat. The act provided, that, at a meeting of the members, the Company should resolve whether its concerns should be wound up by means of bankruptcy or not, and they had negatived bankruptcy.

Russell. It was voted that the resolution in favour of dissolution should not be taken as an act of bankruptcy, but that did not prevent the fiat from issuing; it only prevented any issuing of such fiat upon the mere production of the resolution. The 28th section of Lord Dalhousie's Act provided as follows: "That, upon the petition of any three of the committee, or of any creditor, a fiat in bankruptcy shall issue against such company, and the company shall thereupon be deemed to be within the provisions of the 7 & 8 Vict. c. 111, in all respects as if a fiat had issued against it under the said act before its dissolution." [The Chief Judge. Your objection is this, that, as the bankrupt here is the Company, there is no party who represents that portion of the bankrupt which dissents from the other portion of the bankrupt. If there is a joint fiat against two bankrupts, one cannot petition to annul without serving the other.]

Bacon submitted that this case was so different from ordinary matters of bankruptcy, being governed by special enactments in reference to trading companies, that the Court would look mainly to those enactments. The petitioners complained that the law had been violated by the issuing of the fiat, and that they were aggrieved thereby. It had been expressly resolved, that a bankruptcy should not take place. The provisions of Lord Dalhousie's Act had, therefore, been complied with, and the fiat was taken out in violation of that act. The resolution was the deliberate act of a body in its quasi corporate capacity. The proceedings under the later act for making a company bankrupt had not been pursued. [The Chief Judge.-Here was a body of directors or a committee, whichever is the correct phrase, consisting of twelve or fourteen, of whom the petitioners are two, and it is sworn that some others of the twelve or fourteen desire that the fiat should proceed.] Those persons who were once directors are no longer so. The directors of the Company, as directors, have ceased to exist. Some of them are abroad.

The CHIEF JUDGE.-This case seems to have some analogy-probably not a very close analogy-to that of Richardson v. Larpent*. There is a schism between the parties.

Glasse suggested that there was an important distinction between the stat. 7 & 8 Vict. c. 111, and Lord Dalhousie's Act, the 9 & 10 Vict. c. 28. The former was directed entirely to proceedings against existing companies, for it spoke of directors as an existing body at the time when the fiat issued. This was not so in the latter statute. By the resolution the Company had been dissolved. It seemed to be unnecessary, if not impracticable, to serve persons who had been members of a committee of management in a company dissolved in September, 1846, and who had been shareholders of such dissolved company.

* In that case, (2 You. & C. C. C. 507)," the directors of a jont-stock company, consisting of upwards of 500 members, maas certain calls, which the majority of the shareholders paid, but with six of them, alleging that the calls were fraudulently made, refused to pay, and filed their bill on behalf of themselves and an other the shareholders except the defendants, against the diretors, trustees, and secretary of the company, praying for an account of the debts and assets of the partnership; for a receiver; injunction to restrain the defendants and all officers and servals of the company from dealing with the partnership property; an account of the debts and liabilities of the company; and to have the property applied towards the payment of its debts and liabilities. The Court

held, that some, at least, of the absent stareholders who had paid up the disputed calls ought to be made parties to the

suit."

The CHIEF JUDGE.-The petitioners are only two out of a number of twelve or fourteen persons, who, at the time when I understand the Company was dissolved, namely, in September last, were its managing or governing body, that is, its directors or its committee of ma nagement, or whatever its designation may have been. That state of things is, as I understand, admitted. I understand it to be further admitted, that not one of the number of twelve or fourteen has been served with this petition, except, of course, (if it is an exception), the petitioners who present it; and that of those who have not been served, some dissent from the view taken by the petitioners, who desire that the fiat should be annulled, and that of those some one at least is within the jurisdiction of the Court. I am of opinion, that, in such a state of things, this petition cannot be heard. It is a different question whether any interim order should be made with regard to the proceedings before the commissioner. I do not suppose that it has entered into the imagination of any one that it could be necessary to serve every shareholder, or that any person has thought of any such thing being required. All the Court requires is, that some substantial person or persons, in pari conditione with the petitioners, but taking a different view of the matter, should be served.

[An order was ultimately made, that the proceedings under the fiat should be stayed, the petitioners to serve three of the directors who were resident in England, and who dissented from the views taken by the petitioners.]

Ex parte PAYNE, in re TAVERNER.—June 30. Assignment of Property for the Benefit of Creditors—Act of Bankruptcy.

Where an alleged Act of Bankruptcy, on which a Fiat had issued, was an Assignment for the Benefit of Creditors, in which the petitioning Creditor concurred, the Court annulled the Fiat.

This was a petition to annul the fiat, which bore date the 7th day of June last. The act of bankruptcy was a deed of assignment for the benefit of creditors, executed on the 29th of May. By that deed the bankrupt assigned all his estate to W. F. Chadwick, as a trustee, and it appeared from the petition and the affidavit filed in support, that Mr. Chadwick acted as the agent for the persons, who afterwards, as petitioning creditors, sued out the fiat; and also that the deed was prepared at their expense.

Hallett, for the petitioner, contended, that there was no act of bankruptcy upon which a fiat could be sued out at the instance of these petitioning creditors.

Swanston and Follett, contra, said, that there was no such thing as a concerted act of bankruptcy, and that a creditor who executed a trust-deed for the benefit of creditors might sue out a fiat. [They cited Bamford v. Barron, (2 T. R. 594); Marshall v. Barkworth, (4 B. & Adol. 508); Doe v. Anderson, (5 M. & S. 161).]

The CHIEF JUDGE said, that he assumed that this was a deed for the benefit of the creditors generally; that these petitioning creditors were some of the persons entitled to the benefit of the deed; and that they concur red in the deed, and accepted such benefit as the deed

the respondents desired to try the question at law. Unless they did, he should annul the fiat.

was intended to confer. He wished to know whether

Hallett then contended, that the respondents were not entitled to a trial at law; and cited Tope v. Hockin, (7 B. & C. 101).

leave to go before the commissioner to establish another The CHIEF JUDGE afterwards gave the respondents act of bankruptcy.

sale, he has a right to be so. The other side say, why is the circumstance of Horsfall's proceeding to a sale to alter the rights of the appellant? I say, that, since he pursues an extraordinary remedy, we must have our extraordinary remedy. A mortgagee files a bill of foreclosure, and says, I choose to make a judgment creditor a party, and the judgment creditor objects. The question arises, has he a right to make him a party? In Rolleston v. Morton, (1 C. & L. 265), which was a case under the late statute, Sir E. Sugden expressly decided, that, independent of the late statute, the mortgagee had a right to have the judgment creditor a party. If then the mortgagee has the right to make him a party, surely à converso a judgment creditor can say, I have a right to be present here, where a sale is asked. I submit, therefore, that I have principle with me, and also authority. Secondly, I contend, that, even if our first appeal be bad, the second appeal is good, for here is an order giving a right to intervene, which has not been discharged; under that order to intervene we have taken exceptions to the report, and the Court below decided upon our exceptions without hearing the merits. Our bill has been dismissed upon collateral points, and we have been shut out from the hearing of the original suit upon further directions. It is against all practice to confirm a report until the exceptions to the report have been disposed of.

Dec. 16, 1846.—THE CHANCELLOR OF THE DUCHY OF CORNWALL now delivered the judgment of their Lordships in the first appeal, as follows:-This case comes before the Court upon two appeals from the Court of Chancery in Jamaica, brought by the same appellant, Miss Gordon: the one against a decree in a cause of Gordon v. Dunstone; the other against an order in a cause of Horsfall v. Dunstone. It is on the first only of these appeals that we are able at present to pronounce an opinion. The case in substance is as follows:-In 1823, William Fairclough was the owner of several estates in Jamaica, with slaves and stock upon them; on the 19th May, 1823, he mortgaged these estates, with the slaves and stock, to Messrs. Horsfall & Hodgson, of whom Mr. Horsfall, the respondent, is the survivor. In the same year Fairclough died, having made a will, by which he appointed Mr. Dunstone and several other persons executors. He devised his real estates to his executors, upon certain trusts not necessary to be stated. Fairclough, at his death, was indebted to Miss Gordon, the appellant, in a considerable sum of money secured by his bond to a trustee for her; and in October, 1824, judgment was recovered in Jamaica upon this bond against the qualified executor of the testator, and a writ of execution issued on the judgment. The judgment was afterwards assigned to the appellant; and it is alleged by the appellant, that, by the local laws of Jamaica, she became entitled to the same rights against the estate of the obligor as if the judgment had been recovered against the obligor in his lifetime by the appellant personally. This has not been disputed by the respondent, and we assume it to be so. In December, 1836, Messrs. Horsfall & Hodgson, the mortgagees, filed their bill in the Court of Chancery of Jamaica against Dunstone, as the only executor and trustee of Fairclough in the island, and against some other persons claiming charges under his will, upon his real estate. The bill prayed an account of what was due upon the plaintiff's mortgage, and that the amount, together with their costs, might be payed by a day to be appointed, or, in default thereof, that the estates, stock, and slaves, or a competent part thereof, might be sold; that, out of the monies, the plaintiffs might be paid their debt and costs; and that the residue of such sale monies, if any, might be applied as the Court should direct; and that all proper and necessary parties might be ordered to join in such sale, and execute to the purchaser or purchasers of the said premises all such deeds,

conveyances, and assurances as should be approved of by the Master, in case the parties should disagree about the same; and for a receiver and manager to be appointed over the said estate. The bill stated that there were judgments against the estate of Fairclough to a large amount, but none of the judgment creditors were made parties. This bill did not pray any general administration of the estate of Fairclough, nor payment of the mortgage debt out of any other assets than the mortgage property. The appellant, not being made a party to this bill, was left at liberty to take such proceedings at law or in equity as her title was sufficient to maintain. Against the mortgaged property she could take no proceedings at law under her judgment; for an equity of redemption was not subject to a writ of execution, but, in equity, she was entitled against the mortgagees to redeem, and as against the executors and trustees to have a general account of assets, and to maintain a suit for these purposes. The appellant, however, conceived herself to be entitled to obtain much more extensive relief than this, against both the mortgagees and the representatives of Fairclough. As to a portion of the property included in the mortgage, viz. the Dumfries estate, with the stock and slaves upon it, she alleged that it had been sold by her to Fairclough, and that the debt secured by her judgment consisted of purchase-money for that property remaining unpaid; and she insisted, that, in respect of that property, she had a vendor's lien, and was entitled in equity to be preferred to the mortgagees. She alleged further, that, by collusion between the mortgagees and executors, the mortgage had been improperly kept on foot, and items fraudulently introduced into the mortgage accounts, partly on the part of the executors, and partly on that of the mortgagees, to increase the apparent amount of the mortgage debt, beyond the sum really due; and she insisted that the executors had, in other respects, committed a devastavit, for which they were personally liable. Under these circumstances, on the 12th April, 1837, she filed her bill in the Court of Chancery in Jamaica, the dismissal of which, as against Mr. Horsfall, the respondent, is the ground of the first appeal. It is necessary to examine with some minuteness the frame of this bill, as far as it affects the respondent. It professes to be filed by the appellant on behalf of herself and all other the creditors of Fairclough. It is filed against Dunstone, the surviving executor of Fairclough, resident in the island, and against Horsfall & Hodgson, and several other parties. It insists on the plaintiff's right to priority over the mortgagees in respect of the Dumfries estate, and that, if the testator's personal estate should, on a fair account thereof taken, prove to be deficient to satisfy her lien, with the interest accrued thereon, such deficiency ought to be made good out of the Dumfries Mountain estate, and the compensation money in respect of the slaves sold therewith, and the rents and profits thereof, and that the same or a sufficient part thereof ought to be sold for that purpose; it disputes the fact of payment of 70007., part of the consideration for the mortgage; it charges collusion between the mortgagees and executors in the management of the mortgaged estates, and alleges the introduction into the mortgage accounts of various improper items, so as fraudulently to increase the amount appearing due on the mortgage; and it charges other acts of misconduct by the executors. It then prays a declaration that the plaintiff has a prior lien on the Dumfries Mountain estate and slaves, an account of what is due to the plaintiff and the other creditors of Fairclough, an account of the personal estate of Fairclough, and an application of it in payment of the plaintiff's judgment debt and debts in equal degree, according to their priorities; and, if the personal estate should be insufficient, then that the appellant's judgment debt might be paid out of the Dumfries Moun

tain and other real estates; that for this purpose the real estates, or a competent part, might be sold, and that all proper parties might be ordered to join in the sale, and that, out of the proceeds of the sale, the plaintiff might, in the first place, be paid her full costs of suit; in the next place, that the money to arise from the Dumfries Mountain estate might be applied, as far as it would extend, in payment of what was due to the plaintiff; and, as to the money to arise by sale of the other real estates of the testator, in paying to Horsfall & Hodgson such sum as might, on taking the account therein prayed to be taken, and should be found to be due and owing to them bonâ fide on their said mortgage security, in case they should consent to join in the sale lastly thereinbefore prayed; and, in the next place in payment of what might be found due to the plaintiffs and the other creditors who should come in and contribute to the expenses of the suit. It then prayed relief against the executors in respect of certain specific acts of misconduct alleged against them, and various accounts and inquiries, for the purpose of ascertaining what was due on the mortgage, and the disallowance of various charges and items alleged to have been fraudulently introduced into the mortgage accounts by collusion between the mortgagees and executors. It prayed also specific relief against the executors in respect of alleged misconduct on their parts, and the appointment of a manager, consignee, and receiver. No judgment creditor was made a defendant to this bill. The bill did not seek to redeem the mortgage, but, on the contrary, as to a portion of the property, disputed the mortgagee's title; it did not seek a sale against the mortgagees, but merely prayed such sale if the mortgagees consented; if not, any sale was to be subject to the mortgage. There could be no right to take the mortgage accounts in the suit, unless, either by redemption or sale, the mortgage debt was to be paid; but, as this bill was framed, no payment could be had by the mortgagee unless they thought fit to join in the sale. On the 18th October, 1837, Mr. Horsfall, who had survived Mr. Hodgson, his partner, filed a general demurrer to this bill for want of equity. The demurrer came on for argument on the 31st January, 1838, and, as appears from the order made on that occasion, the objection "that the plaintiff had not, by her bill, offered to redeem the mortgage to Horsfall in the pleadings stated, or to pay whatever might be due thereon when the amount thereof prayed by her bill was taken, as she ought to have done," was distinctly taken at the bar. Whatever might be the value of that objection in ordinary cases, it was clear that it could not sustain a general demurrer to the bill in this case, for facts were stated entitling the plaintiff to priority over the mortgage as to a portion of the property included in it. The demurrer was, therefore, most properly overruled. The plaintiff, however, had distinct notice of the objection, which the defendant insisted on with respect to the omission of any offer to redeem. The defendant obtained leave to appeal against the order overruling the demurrer, a proceeding, however, which he afterwards abandoned. On the 28th July, 1838, the respondent procured an order for setting down the suit of Horsfall v. Dunstone for hearing. On the 28th August, 1838, the appellant presented her petition in the two causes of Gordon v. Dunstone and Horsfall v. Dunstone, alleging that improper delays were interposed by the defendants to the progress of the suit of Gordon v. Dunstone, and praying, that "either the said two causes of Gordon v. Dunstone and Horsfall v. Dunstone might be heard together, as soon as the appellant should be able to surmount the difficulties and delays thrown in her way by the complainant in the said cause of Horsfall v. Dunstone, or that the appellant might be at liberty to intervene as a party to the said suit of Horsfall v. Dunstone, and to come in

and set up her right therein, and lay before the Master a statement of facts, with such objections to the said Charles Horsefall's accounts as she might be advised." This petition was heard on the 28th and 29th September, 1838, when the following order was made:-"That the said petitioner, the appellant, be permitted to intervene as a party to the said suit of Horsfall v. Dunstone, and to come in and set up her rights therein, and lay before the Master a statement of facts, with such objections to the complainant's accounts as she might be advised." This order has not been appealed from, and it was afterwards embodied in the decree made on the hearing of the cause of Horsfall v. Dunstone on the 30th January, 1839. That decree was as follows:"That it should be referred to the Master to take an account of what was due to the complainant Horsfall under the said indenture of mortgage of the 19th May, 1823, for principal and interest on the mortgage debt thereby secured," &c.; and it was further ordered, that the said Ann Carr Gordon, the appellant, "should be permitted to come in and attend the Master in the taking of the aforesaid account, and lay before him such objections as she might be advised, as directed by the order of the 28th and 29th days of September, 1838, subject to all objections and arguments which may be urged against the same by the said Ann Carr Gordon ;" and the further consideration was reserved. Under these orders the appellant was at liberty to attend the proceedings in the suit of Horsfall v. Dunstone as if she had been made a party. It appears that she did carry in objections to the Master's report of the amount due to Horsfall, which objections were overruled; and on the 5th August, 1840, the Master made his report, finding a very large sum, exceeding 15,000!., to be due to the respondent. To this report the appellant filed sixteen exceptions, on the 21st September, 1840, under leave given by the Court on her petition for that purpose. In the meantime, on the 8th August, 1840, the respondent put in his answer to the appellant's bill. By that answer he disputed the priority claimed by the appellant; he denied the collusion and fraud imputed by the bill, and he stated the proceedings which had taken place in the suit of Horsfall v. Dunstone. On the 2nd and 3rd February, 1841, the appellant's exceptions in Horsfall v. Dunstone were heard, when the following order was made:—“ His excellency the Chancellor declared, that he could not issue any order on the said exceptions until it should be determined at the hearing of the said cause of Gordon v. Dunstone, whether or not the said exceptions in respect of her judgment demand in the pleadings mentioned had a valid claim on the mortgaged premises in the pleadings mentioned; but the Chancellor was pleased further to declare, that if such judgment demand should at such hearing be established as a just claim on the said mortgaged premises, and if there should be no other funds from which the claim could be satisfied, he would then refer back the said report of the Master for further consideration and inquiry, with such directions as should appear proper, and the Chancellor postponed all order on the said exceptions until after the said suit of Gordon v. Dunstone should have been heard, and ordered that the costs of all parties on the argument thereof should abide the further order of the Court." The effect of which we shall have presently to consider. On the 30th November, 1843, the appellant's suit of Gordon v. Dunstone came on for hearing before the Vice-Chancellor of Jamaica. The appellant failed in establishing her claim of priority over Horsfall as to any portion of the property, and she also failed in proving any collusion between the mortgagees and executors, and the bill against all the defendants was dismissed with costs. The only circumstance which could have justified the dismissal of the bill against the representatives of Fairclough, was the