Ex. CH.] HARWOOD v. GREAT NORTHERN RAILWAY COMPANY. [Ex. CH. screwed on to the upper ends of the bolts. The grooved | which is next to the nuts, so as to allow of the nuts iron was carried under each of the scarf joints in the being turned round. Or the fish on this side may be same manner as under the other portions of the beams, made without the groove. The position of the bolts and above and immediately over each scarf joint, ex- and nuts may be reversed, if preferred, so that the t tending for a distance of about eighteen inchies beyond may be prevented from turning round while the bot each end of the joint, and resting immediately upon is screwed into it. The groove renders the fish lighter the longitudinal beam, was a horizontal flat plate of for equal strength, or stronger for an equal weight of iron thirteen feet in length, through which the bolts metal, than a fish which is made of equal thicknes above described also passed at that portion of the bridge. throughout." The bars of iron along the under side of the bridge were so constructed and used with a groove for the double purpose of receiving the square heads of the bolts and preventing them from turning round and of rendering the bars of iron lighter for equal strength, or stronger for equal weight of metal, and the bars, as so constructed, effectually accomplished this double pur pose. In answer to questions put to them by the Lord Chief Justice, the jury found, first, that the channel irons upon the railway bridges, independently of the single instance of the Hackney-bridge, were used before the plts.' patent, for the double purpose of obtaining increased strength and preventing the bolt-heads from turning round, but that they were not used for the purpose of fishing; secondly, that the fastening of the scarf joints of the longitudinal beam of the Hackneybridge was a fishing of that joint, but that the use of the channel-iron as one of the plates of the fish arose from its being already there for the purpose of fastening the beam and the iron together, and was not adopted by Mr. Brunel with reference to or contemplation of the special advantages in fishing contemplated by plt.'s patent. Upon that finding the Lord Chief Justice directed a verdict to be entered for the plts., reserving to the defts, leave to move upon the point stated in the former part of this case. Subsequently a rule nisi was granted, calling on the plts. to show cause why the verdict obtained in this cause should not be set aside, and a verdict entered for the defts. instead thereof, pursuant to the leave reserved at the trial, on the ground of the invention not being the subject of a patent by reason of the previous use of grooved iron in the timber bridges (other than the Hackney-bridge), for the double purpose of obtaining increased strength for the same weight of metal, and of preventing the bolt-heads turning round, or why a new trial should not be had between the parties, on the ground of misdirection by the Lord Chief Justice with respect of the application and use of the grooved iron in the Hackney-bridge. Upon the above rule coming on for argument before the Court below, that Court discharged the same, against which decision the defts. now appealed. By the specification of C. H. Wild, it appeared that he thereby declared "the nature of the said invention for improvements in fishes and fish-joints for connecting the rails of railways" to be as follows:-"In securing the joints of rails, it has been found advantageous to attach pieces of iron to each side of the rail by means of bolts and nuts, and such pieces of iron are commonly called 'fishes.' Chairs have been constructed, on a similar principle, to support one side of the rail, while a fish is applied at the other side, and secured to the chair by bolts and nuts. My invention consists in forming a recess or groove in one or both sides of each fish, so as to reduce the quantity of metal at that part, and to be adapted to receive the square heads of the bolts, which are thus prevented from turning round when the nuts are being screwed on," &c. : The specification described the fishes as follows:"The fishes are made with a groove or recess in their outer surfaces which groove serves to receive the square heads of the bolts and prevent them from turning round when the nuts are being screwed on or off. Washers are placed in the groove of the fish The said C. H. Wild claimed as the invention intended to be secured by the aforesaid letters patent: "First, the constructing fishes for connecting the rails of railways with a groove adapted for receiving the heads of the bolts or rivets employed for securing such fishes, and the application of such fishes connecting the rails of railways in manner hereinbetare described. Secondly, the constructing fish-joints for connecting the rails of railways by means fishes applied to the joints of divided or split ras in manner herein before described. Thirdly, the constructing fish-joints for connecting the rails railways with fishes secured by three or more bolts and nuts or rivets, of which the central bolt er bolts, or rivet or rivets, is or are of greater diamet than the extreme ones as before described. Fourthly the constructing fish-joints for connecting the rails railways with grooved fishes fitted to the sides of the rails, and secured to them by bolts and nuts or rivets, and having projecting wings firmly secured to resting upon the sleepers or bearers, so as support t rails by their sides and upper flanges in manner ber inbefore described. Fifthly, the constructing fishjoints for connecting the rails of railways with rails and fishes, having the touching surfaces of one or both them planed as hereinbefore described." Bovill, Q. C. (C. E. Pollock and H. Lloyd with him), for the app. the deft., below, contended: The the verdict entered for the plts. ought to be set a and a verdict entered for the defts. pursuant to the leave reserved at the trial. That in the timberbridges (other than the Hackney-bridge) referred in the case, grooved or channelled iron was used f the same purposes and in the same manner as are d scribed in the specification of C. H. Wild, and that the supposed invention by him was not new. That the supposed invention by the said C. H. Wild was nothing more than an application to a new subject matter, viz., the fishes and rails of railways, of a known chanical contrivance, and could not be the subject of a patent. That the defts. are entitled to have a new trial upon the ground of misdirection. That the Lord Chief Justice ought not, on the finding of the jury, t have directed the verdict to be entered for the pl and that the questions put by the Lord Chief Just were not the proper questions to be left to the jury and were not decisive of the issues on the second an fourth pleas. That, although at the time of t construction of the Hackney-bridge, there was no tentional reference to the special advantages which arise from the use of a grooved fish rather than a dat one, there was, in fact, in the Hackney-bridge grooved fish, effecting the same objects, and in the same manner as are described in the specification, and that the said C. H. Wild could not afterwards obtain a valid patent for such grooved fish. That all that was done by the said C. H. Wild was in effect, after the grooved fish had been publicly used, to point out the fact that certain special advantages resulted from the use of such grooved fish, and that this could not be the subject of a patent. He cited Losh v. Hague, Web. P. C. 206; Brunton v. Hawkes, 4 B. & All 541; R. v. Cutler, 1 Stark. 354; Bottle Envelope Company v. Seymour, 5 C. B., N. S., 164; Tetley Earton, 2 C. B., N. S., 706; Brook v. Aston, 8 E. & B. 478; in error, 28 L. J. 174 Q. B. Grove, Q.C. (Webster and Hindmarch with him) for Ex. CH.] HARWOOD v. GREAT NORTHERN RAILWAY COMPANY. [Ex. CH. It the resps. (the plts. below) contended that the judg-iron upon the railway bridges, independently of the ment of the Court of Q.B. appealed against was right, and ought to be affirmed, for the following amongst other reasons:- -That the channel-iron used in the construction of the bridges mentioned in the case (other than the Hackney-bridge) were used for a purpose and combined and applied in a manner distinct and different from the invention of C. H. Wild, mentioned in the case. That in none of the said bridges was there any fishing, or were there any joints to be fished, or any application of a grooved iron to a joint for securing it. That the said manufacture was new, and was a good subject of patent privilege within the meaning of the statute 21 Jac. 1, c. 3, sect. 6. That the channel-iron placed at a scarf joint in the Hackneybridge, as mentioned in the case, operated in a manner different from the grooved fishes of the said C. H. Wild, and was not combined in the manner de scribed in the specification of the said C. H. Wild. That the channel-iron used in the construction of the Hackney-bridge was not applied directly to the beam of timber at the joint, but the ends of deals were interposed between the iron and the beam in such a way as to prevent that use of the channel-iron from being any publication of the invention of the said C. H. Wild. That the prior user of the channel-iron at the scarf joint, in ignorance of its nature and effects, does not amount to such a publication as will defeat the patent for the invention by Wild. He cited Hill v. Thompson and another, Web. P. C. 231; Crane v. Price, Web. P. C. 377-393; Hall v. Jarvis and Boot, Web. P. C. 100; Higgs v. Godwin, 27 L. J. 421, Q. B.; 1 E. B. & E. 529; Derosne v. Fairie, 2 C. M. & R. 476; Newton v. Vaucher, 6 Ex. 859; Jones v. Pearce, Web. P. C. 120; Webster on Property in Designs, 59-60; Minter v. Mower, Web. P. C. 138. single instance of the Hackney-bridge, were used before the plt.'s patent for the double purpose of obtaining increased strength and preventing the bolt-heads from turning round, but that they were not used for the purpose of fishing; secondly, that the fastening of the scarf joint of the longitudinal beam at the Hackneybridge was a fishing of that joint, but that the use of the channelled iron as one of the plates of the fishing arose from its being already there for the purpose of fastening the beam and the iron together, and was not adopted by Mr. Brunel with reference to or in contemplation of the special advantages in fishing contemplated by the plts.' patent. appears from the statements of fact in the special case that the alleged invention claimed by the plt. as his when applied to the pieces of iron used for holding together the ends of rails to make them for practical purposes a continuous solid body had previously been known and used as applied to pieces of iron used for holding together the broad sides of pieces of wood placed vertically upon one another, to make them for practical purposes a continuous solid body. In each case the benefit contemplated and effected was effected by means of the grooves, which gave lightness with strength to the binding iron, and served to hold the heads of the bolts steady whilst the nuts were being screwed on at the other end. This was the one mechanical contrivance used in each case. It was complete in itself when first invented, and though not immediately applied, it was immediately applicable to all forms of pieces of iron used for holding together other materials by the aid of bolts having a bearing upon the pieces of iron. It required no new invention, but merely an application of the mechanical contrivance already invented and used, to employ it upon several strips of iron instead of one strip of iron, to hold together C. E. Pollock was heard in reply by permission of iron instead of wood, materials placed together horiCur, adv. vult. zontally instead of materials placed together vertically, Feb. 3. WILLES, J.-This was an action solids the small ends of which are in contact instead upon a patent for improvements in fishes and fish- of solids the broad sides of which are in contract, rails joints for connecting the rails of railways. The pleas instead of beams. Indeed, it further appears from raised the question whether the invention was new, the facts recited that the invention in question had and whether it was a good subject-matter of a patent. been previously applied to pieces of iron used The material part of the specification is as follows:- for fishing in the instance of the Hackney-bridge. [His Lordship read the material parts of the specifica- The counsel for the plts. endeavoured to get rid tion.] His Lordship then continued :-It thus appears of the effect of this by contending that Mr. Brunel on the face of the specification that there was nothing made use of the grooved iron only because it was lying new in the points of the rails, and nothing new in the at the place, and other iron was not in readiness, and process of fishing, and that the only difference between that in using it he did not contemplate the "special the known method and that patented consisted in the advantages "in fishing contemplated by the plts.' fishes being grooved so as to hold the heads of the bolts patent. Now this expression "special advantages firmly, and to require a less quantity of iron in their is a vague one, and calculated to mislead unless its construction. Now, of course, if the application of true meaning and value be ascertained. It is clear grooves in pieces of iron used for the purpose of hold- even from the specification that such special advaning pieces of other materials firmly together, with a tages do not include any difference, much less imview to the securing of materials and the better fixing provement, in the grooves, or in the mode of making of the bolts by which the necessary solidity was or applying them to the rails, or indeed to anything obtained, had been new, which it clearly and notoriously other than the application of grooves to fishing-rails. was not, this would have been a sufficient subject- It follows that the statement that Mr. Brunel used matter of a patent. On the other hand, if the appli- the grooved iron for fishing without reference to the cation of such grooves in pieces of iron so used "special advantages" of the plts.' patent, means had previously been made for a purpose the nothing more than that he did not know of or refer to or analogous to that for which the plt. the use to which the grooved iron could be put in applied such grooves, and there was no novelty fishing rails. It stands that he used it for fishing, or invention in the mode of applying the old and it is not proved or suggested that he was ignorant contrivance to the new purpose, such application, of the advantages in point of strength combined with though useful, and made by the plt. for the lightness and the holding of the heads of the bolts first time in the particular instance, would not be whilst the nuts were being screwed on. Indeed, the an invention for which a patent could lawfully be case in the paragraphs immediately following the degranted, or being granted could be sustained. The scription of the Hackney-bridge states the contrary. parts of the evidence material to be considered in It would be erroneous to describe this as a case in determining these questions are stated in the special which the person who used the contrivance was ignocase as follows: [His Lordship read the evi- rant of the principle and of its beneficial action in dence. In answer to questions put by the Lord the particular instance, though we by no means Chief Justice, the jury found, first, that the channel- say that prior use of an invention is to be of the court. same as : ADM.] DIGEST OF MARITIME LAW CASES. no avail because the principle upon which it acts was either unknown or misapplied. We need not, however, advert further to the considerations arising out of the use of the grooved iron for fishing in the Hackney-bridge, because, in our opinion, quite independent of the use at that bridge, the use of grooves in pieces of iron for holding materials together by means of bolts and nuts had been given to the world, together with all its advantages, before the date of the plts.' patent, and the plts.' alleged invention was a mere application of that old contrivance, in the old way, to an analogous subject, without any novelty or invention in the mode of applying such old contrivance to the new purpose, and an application such as this does not make a valid subject-matter of a patent. The judgment of the court below to the contrary effect must, therefore, be reversed, and the rule must be absolute to enter a verdict for the defts. upon the pleas denying the novelty of the invention and that it was the subject-matter of a patent. Judgment reversed. Johnson, Farquhar and Leach, attorneys for apps. Wilson, Bristows and Carpmael, attorneys for resps. DIGEST OF MARITIME LAW CASES (EXCEPTING SALVAGE AWARDS.) FROM 1837 TO 1860. (Continued from p. 166.) IN.B.-The LAW TIMES REPORTS, N. 8., will give all the Maritime Law Cases decided from Michaelmas Term 1859. This Digest will contain all (except the Salvage Awards) decided from 1837 to Nov. 1859. A Digest of the Salvage Cases during the same period is appearing in the LAW TIMES.] COSTS. 931. In salvage cases, costs are not generally allowed by the Admiralty Court where on appeal the award of commissioners of Cinque Ports is reversed. Each party left to pay his own costs: (The David Luckie, A. C., Nov. 19, 1840; 9 Monthly Law Mag., Notes of Cases, 212; Pritchard's Digest, 399; see Appendix to part 1 of Reports of Maritime Law Cases, Digest of Salvage Awards; The Lord Gooderich, A. C., Feb. 22, 1841; ditto 217; Pritchard's Digest, 399.) 932. In ordinary salvage suits it would be considered vexatious to proceed against the master or mate of a ship for costs, instead of proceeding against the owners. Proctor found liable in costs to a foreign shipowner, having instituted an action for salvage without proper authority of a steam-packet company: (The Wilhelmine, A. C., March 10, 1843, Shipping Gazette.) 933. Practice of the Admiralty Court as to costs when freight is withheld by any party against whom a monition is issued for its payment into the registry of the court: (The Lord Auckland, A. C., May 23, 1844, Shipping Gazette.) 934. Costs not allowed in Admiralty Court when a question of law is decided for the first time, and that on a matter of difficulty: (The Princess Royal, A. C., May 6, 1845; 9 Jur. 434; Pritchard's Digest, 112.) 935. Costs not generally allowed in cases of collision caused by accident, but cases might occur where they would be allowed though collision accidental: (The Adler, A. C., Dec. 5, 1845, Shipping Gazette.) 936. Costs not allowed to owners who had obtained judgment in their favour on the ground that a duly licensed pilot was alone in fault, but had contested the action on the ground that the other ship was in fault, on which point the court pronounced against them. Had they gone entirely on the Pilot Act and not disputed the facts, the court would have given costs: (The Batavier, A. C., Dec. 17, 1845; 10 Jur. 20; 4 Notes of Cases, 356; Pritchard's Digest 140.) 937. Where, on a reference to the registrar and merchants, no very large deductions are made from the claim of a bottomry bondholder, where the court had suspicions as to the claim, the mortgagee was held to have been perfectly justified in prosecuting the investigation of the accuracy of the bondholder's claims, and costs were given to neither party: (The Ocean, A. C., May 28, 1846, Shipping Gazette.) 938. Costs of reference to registrar and merchants always allowed against a party claiming under a bottomry bond, or in any other case where very large deductions are made from the claim. A bondholder ought to substantiate his claim by proper accounts and vouchers: (The Catherine, A. C., June 11, 1849; The Shamrock, A. C., June 20, 1819, Shipping Gazette.) 939. Costs always allowed to salvors, when a tender made is not a legal one: (The Thomas and Mary, A. C., July 14, 1848, Shipping Gazette.) 940. Very large deductions being made from bottomry bond, bondholder condemned in costs of reference to re [ADM gistrar and merchants: (The Gauntlet, A. C., May 4, 188, 13 Jur. 413.) brought into court, and held to be ample, costs are allowed 941. In salvage cases, when a tender is made, and money to the party making the tender from the date when it w made: (The I. O., A. C., July 10, 1849, Shipping Gazette) from an Englishman serving on board one of the Queen' 942. Question relative to security for costs being required ships in foreign service: (Fullerton v. Vallack, C. E., Nov. 17, 1849, Shipping Gazette.) ful suitor, because the master of his vessel had not adopted means to save the life of one of the crew of the other vess who was drowned: (The Cosmopolitan v. The St. Laurea See "Collision, A. C., May 2, 1850, Shipping Gazette. 752 a, &c.) 943. In a collision case costs not allowed to the succes 943. A foreign sailor domiciled in this country not re quired to give security for costs, on the ground that after be wages were exhausted he would be obliged to go to again: (Drummond ▾. Tillinghurst, Q. B., April 17, 1851, 15 Jur. 384.) 944. Costs always awarded in Admiralty Court in salvagy cases where no tender has been made: (The Ann Mic Mitchell v. Bartlett, J. C. P. C., Feb. 7, 1852, Shipping Gauti 945. Costs in a cause of possession: (The Virtue, A. C June 9, 1853; 1 E. & A. R. 77.) 946. Costs never allowed when a tender made is considered by the court to be ample, and so the salvors might hav A. C., March 10, 1855; 2 E. & A. R. 249.) had full compensation without litigation: (The Hopeni 947. Rule of the Admiralty Court as to costs when cross-actions are instituted, and both parties fail in proving their case: (The Mystery v. The Gabriel, A.C., Nov. 13, 155, Shipping Gazette.) 948. The Admiralty Court declined to order security for costs in a collision suit to be given by the defendan though a foreigner: (The Argo, A.C., Dec. 19, 1855, Shipping Gazette.) 949. In a case of damages for wrongful capture of ars sel, on suspicion of being engaged in the slave trade, sp owner subjected in the costs of reference to registrar and merchants, and of the appeal, because of the exorbitanty the claim and the large deductions made, their report being affirmed: (7he Leven Lass, J. C. P. C., Shipping Ca Feb. 12, 1856.) COTTON. 950. Held by a jury that at Alexandria "pressed bala mean hydraulic-pressed bales, and not square bales: (K vain v. Cassarelli, Northern Circuit, Newcastle, March 1851. Rule for new trial granted, Q. B., April 21, 18. Shipping Gazette.) 951. Verdict against shippers for not supplying a " tificate of purification" of Egyptian cotton exported Russia: (The Canton and The Halcyon; Torr v. Ferrals, Q. B., July 11, 1854, Shipping Gazette.) COURT OF ADMIRALTY. 952. The term "craft," as used in 7 & 8 Geo. 4, c. 75, p lating the Watermen's Company, held not to include stea tugs navigating on the Thames: (The Queen v. Read, Q. B. June 7, 1854, Shipping Gazette.) CRANE. 953. Damages given by a jury for injury to a crane shore by negligence in navigating a vessel: (Hacked Somers, Q. B., Feb. 21, 1840, Shipping Gazette.) CREW. (See "Abandonment of Ship," 1; “Salvage," 1786; "Seamen.") 954. Loss of part of crew of a whaling vessel may render her unfit for sea: (The Mary, 7 Jur. 404, Ad; Har rison's Digested Index, 1843.) 954 a. Crew held entitled under provisions of 178 3 Vict. c. 104, s. 223, to compensation for being put on allowance of provisions owing to unexpected length voyage: (The Josephine, Harrison's Digest (1856) 2 Jur. NS 1148, Adm.) CRIMINAL LAW. (See "Dividends.") CUSTOM. (See "Deck-Cargo," Mutiny," "Usage.") 955. Proof of the existence of a custom for a long perio is the best evidence of its justice and utility. Case as whaling ships in South Seas rendering mutual assistance gratuitously: (The Harriett, A. C., Feb. 9, 1841; 1 W. Est 439; Shee's Tenterden, 494.) 956. Observations of Dr. Lushington as to the effect of usage in insurance questions: "The custom of merchasi engrafted upon any policy of insurance just the same as it had been originally inscribed in the contract itself (The Gazelle, A. C., May 3, 1844; 2 W. Rob.; 8 Jur.; 3 Nat of Cases.) 957. Observations of Dr. Lushington as to the establishing of mercantile custom: (The Westminster, A. C., Nov. 4 and, 1845, Shipping Gazette.) 958. A custom must be certain, uniform, and universal, to BANK.] [BANK. Re DUFAUR-Re HENRY WHITFIELD-Ex parte ABBOTT, re ABBOTT. make it binding. Question as to payment of freight: (American case: Soule, &c. v. Ranstead, &c., C. P., Boston, U. S., 1849.) 959. A general custom can only be established by an overwhelming bulk of evidence: (The Fairy, A. C., March 18, 1850, Shipping Gazette.) upon his own petition, after having shortly before the second bankruptcy denuded himself of all his property, by bill of sale to a favoured creditor, and producing no assets. Petition dismissed. The bankrupt was adjudicated on the 3rd Feb. 960. Usage not to allow primage on timber cargoes in British North America, allowed in United States: (Thomp-1862, as a haberdasher, he being at the time uncertion v. Hawksley, C. P., Boston, U. S., Shipping Gazette, Feb. 28, 1851.) 961. Held, that "under a bill of lading at a certain rate of freight, with primage and average accustomed," the erm "accustomed" qualified primage as well as average, and that evidence was admissible to show a universal and well understood custom of the trade to pay no primage: American case: Voss v. Marton, Supreme Judicial Court of Massachusetts, March Term 1856, 9 M. L. R. 43.) 962. Held, by a jury, that if there be any deficiency in the number of quarters specified in the bill of lading of a floating cargo of corn, it is the custom for all over 1 per cent. to be made good by the seller to the buyer: (The Mary and Ellen; Livingston v. Ralli, Q. B., July 3, 1856, Shipping Gazette.) CUSTOM-HOUSE OFFICER. 963. A captor of a ship, where the capture is made by a ship of war on the high seas, is not confined to the ground apon which the seizure was made, but the ship may be conlemned on some other ground. But it is doubtful whether his applies to a non-commissioned captor, as where a cusom-house officer seized a ship wrongfully: (The Elise Wilelmine, A. C., Nov. 22, 1854; 2 E. & A. 38,; The Ostsee, J. C. P. C., March 29, 1855; 2 E. & A. 170, 185.) 964. Captain and mate of an American ship fined a mitigated penalty of 251, each for obstructing customs officers in the performance of their duty: (The Celestial Empire, Queenstown police, Mitchell's Maritime Register, Oct. 18, 1856.) (To be continued.) COURT OF BANKRUPTCY. Reported by A. A. DORIA and D. C. MACRAE, Esqrs., Barristers-at-Law. Tuesday, April 1. (Before Mr. Commissioner EVANS.) Bankrupt's own petition-Payment to solicitor-No assets-Petition dismissed. If a bankrupt very shortly before he comes to this court upon his own petition dispose of all his property for the purpose, amongst other things, of defraying the expenses of his solicitor in passing him through the court, and leave nothing whatever for his creditors, his petition will be dismissed. Last examination and discharge. The bankrupt was adjudicated upon his own petition, and about a ortnight previously had sold the whole of his furniture, which cost him about 200l., for 50%. Of this sum he handed 251. to his solicitor for the expenses of his petition, and the balance was expended, partly for domestie purposes and partly in paying small debts. There was no estate of any kind. Lewis (solicitor) appeared for the bankrupt. Sargood, for an opposing creditor, asked that the petition might be dismissed, in accordance with the decisions, in Re Spong and Re Dennis, before Holroyd, C., 27th Feb. 1862. (a) Bartlett (solicitor) appeared for the assignees. Mr. Commissioner EVANS, having conferred with Mr. Commissioner Holroyd, said he thought the petition ought to be dismissed upon the grounds stated by the opposition. Petition dismissed. ficated under a former bankruptcy. All the property he had was included in a bill of sale, which he had given to a friendly creditor shortly before his bankruptcy. Robertson Griffiths, for an opposing creditor, asked that the petition might be dismissed. The bankrupt had been trading under the name of Mark Booker, which he had assumed for the purpose, and under which some of his debts had been contracted. then came to the court in his own name, and in this way his creditors were deceived. He Aldridge (solicitor), represented the official assignee, no creditors' assignee having been chosen. Mr. Commissioner GOULBURN, after referring to the facts, as shortly detailed above, said it was a very bad case; and, considering the circumstances of the present case, and the fact that there was a former bankruptcy still in existence, he was of opinion that he ought to dismiss the petition. Petition dismissed. (Before Mr. Commissioner HoLROYD.) Re THE GERALDINE MINING COMPANY (LIMITED.) Joint-stock company-Shares fully paid up-Settling of list-When. Where it is admitted that all the shares in a jointstock company are fully paid up and nothing more is to be received from the shareholders in respect thereof, and that the only object in settling the list of contributories is to ascertain who are entitled to share in any surplus assets, after payment of debts and the costs of winding-up, the court will adjourn the settling of the list generally until such surplus shall arise. List.-A special resolution had been passed by the shareholders pursuant to the 34th section of the Joint-Stock Companies Act 1856 to wind-up the company voluntarily, but difficulties having arisen, the liquidators appointed for that purpose presented their petition to wind-up the company under the control of the court, which was ordered accordingly, and it was ordered that the proceedings under the shares subscribed for were fully paid up, so that the voluntary liquidation should be adopted. purpose of settling the list of contributories was to ascertain those shareholders who would be entitled to participate in any surplus that might remain after pay ment of debts and costs of winding-up. Doria appeared for the official liquidator. All the Mr. Commissioner HOLROYD said he could not see All the the utility of settling the list at present. shares being fully paid up the contributories would have nothing to pay. As to there being contributories to receive, the proper time to ascertain who they were the shareholders. The settling of the list had better would be when a surplus arose for distribution amongst be adjourned. Adjourned accordingly. Thursday, April 3. (Before Mr. Commissioner EVANS.) 24 & 25 Vict. c. 134, s. 1-Jurisdiction-Trustdeed under sect. 192-Action by non-assenting creditor-Right to stay. The court has no jurisdiction under the 1st section of the Bankruptcy Act 1861 to stay proceedings in an action by a dissenting creditor to a trust-deed executed under the 192nd section, and duly registered Semble, a non-assenting creditor under a trust-deed, against the debtor : but who is bound by it only by operation of law, is BANK. Ex parte THE TRUSTEES OF, &c., re LOVELL-RE BRAWN AND KORTOSKE. in a different position from a creditor who has proved his debt under a bankruptcy. [BANK. the assignees, with the leave of the court first obtained, upon application to such court, but not otherwise, may commence, prosecute, or defend any action at law, or suit in equity, which the bankrupt might have con Trust-deed. The debtor had executed a deed of assignment under the 192nd section of the Bankruptcy Act 1861, which had been duly registered. Subse-menced and prosecuted or defended. quently to the registration a non-assenting creditor had brought an action in the Court of C. P. against the debtor for the recovery of his debt. Bagley, for the debtor, applied for an order to stay the action, upon the ground that the validity of the deed had been questioned before the court, and decided in favour of the debtor. The creditor ought to have appealed against that decision. He referred to the 1st section of the Act of 1861, as giving jurisdiction to the court in questions of this kind. By this 1st section it is provided that the Court of Bankruptcy shall have and exercise for the purposes of this Act all the powers and authorities of the Superior Courts of law and equity, and all the jurisdiction, powers and authorities now possessed by the Court for the Relief of Insolvent Debtors in England. He also referred to sect. 197 of the same Act, and cited Ex parte Flower, De Gex, 503, in which case Knight Bruce, L.J., sitting as chief judge of the Court of Review, restrained a creditor from proceeding in an action in the Middlesex County Court for the same demand in respect of which he had proved under the bankruptcy. Willoughby (solicitor), on behalf of the creditor, contended that the court had no jurisdiction to interpose in the matter. Bagley in reply. Mr. Commissioner EVANS.-I am of opinion that a non-assenting creditor, who is bound by the trust-deed by operation of law only, is in a different position from a creditor who has proved his debt under a bankruptcy. In the latter case the creditor has made his election by his proof, as in Ex parte Flower. But the creditor in this case has not assented to the deed, although in law he is bound by it. Under these circumstances, I do not think I have any jurisdiction to stay the Application refused. action. (Before Mr. Commissioner EVANS.) Ex parte THE TRUSTEES OF, &c., re LOVELL. 24 & 25 Vict. c. 134, ss. 192 et seqq.-Sanction of court to trustees to bring action-When. If a debtor, upon the written demand of the trustees under a deed executed and registered pursuant to sects. 192, et seqq. of the Bankruptcy Act 1861, do not pay the amount owing by him to the estate, the court will, under the circumstances, and by analogy to the practice in bankruptcy under the 197th section, sanction the bringing of an action by the trustees to recover the amount. Lovell had executed a deed of assignment under the 192nd section of the Bankruptcy Act 1862 for the benefit of his creditors, which was registered in due conrse. The trustees under the deed wishing to collect the debts due to the estate, proposed to sue one of the debtors at law, but were advised that the sanction of the court was necessary for this purpose, as in bankruptcy. By sect. 197 of the Bankruptcy Act 1861, it is enacted that from and after the registration of every such deed... the existing or future trustees of any such deed or instrument, and the creditors under the same, shall, as between themselves respectively, and as between themselves and the debtor, and against third persons, have the same powers, rights and remedies with respect to the debtor and his estate and effects, and the collection and recovery of the same, as are possessed or may be used or exercised by assignees or creditors with respect to the bankrupt, or his acts, estate and effects in bankruptcy." By the 153rd section of the Consolidation Act 1849, Sargood, for the trustees, applied ex parte for leave to take the necessary proceedings to recover the debt. The COMMISSIONER asked whether the trustees had applied to the debtor for payment? Sargood was not aware that they had. Mr. Commissioner EVANS.-The trustees must make a written demand for payment of the debt in the first instance. If the debtor do not then pay I will w sanction the bringing of an action. Tuesday, April 8. (Before Mr. Commissioner HOLROYD.) Ex parte THE TRUSTEES, OF, &c., re WAKE. 24 & 25 Vict. c. 134, s. 197-Construction of. The Court of Bankruptcy has no jurisdiction under trust-deeds to interpose its authority, except upon n the application of a party entitled to call for its interference; and the jurisdiction of the court must be considered as ancillary only to the proceedings of the trustees in case of need. Reed (solicitor), on behalf of the trustees, applied the ex parte for leave to compromise a debt, and also that the court would appoint a day for a meeting of credi tors under this estate for the purpose of declaring a dividend pursuant to the 174th section of the bankruptcy Act 1861, whereby at the expiration of four months from the date of the adjudication of bankruptcy, "or as much earlier as the court shall ap point," such meeting of creditors might be called for the purpose. In the present case, the four months were not expired, but the application was under the words "or as much earlier as the court shall appoint." He also referred to the 197th section, whereby the practice under trust deeds in refe rence to these matters was assimilated to the practice in bankruptcy; and to the case of Re Lovell, reported above. It was doubtful whether, by that decision, the court proposed to lay down a rule that after the registration of a trust-deed under sect. 192 and following sections, the Court of Bankruptcy was to be considered as directing and controlling every subsequent proceeding as in bankruptcy, or whether the court was to be deemed merely a judicial tribunal, to which the trustees or other parties to such deed, or any creditor, might resort in case of need. Mr. Commissioner HOLROYD, having consulted Mr. Commissioner Evans and Mr. Commissioner Fonblanque upon the subject, declined to make any order in the matter. With reference to the decision of Mr. Commissioner Evans in Re Lovell, his Honour said, that case is not to be understood as deciding that the Court of Bankruptcy has jurisdiction under trust-deeds to interpose its authority for the prevention of fraud or manifest irregularity, except upon the application o a party entitled to call for its interference. In al other respects the trustees must be deemed to be acting, for the interests of those by whom they are appointed, and the court can only be considered as ancillary to their proceedings in case of need. Application refused. |