CHAN.]

Ex parte THE WOLVERHAMPTON, &c. BANKING COMPANY, re BODDINGTON.

[CHAN.

now to grant an unconditional order for this gentle-
man's discharge. I agree as to the costs.
The Solicitor-General said, that he had a fully

The order made was as follows:-There being two deposits of 201. each in court, their Lordships do order 20l. to be paid for the costs of both the opponents at Liverpool, and 15. as costs of the official assignee on the present; Turner, L. J. stating that he thought it of importance that official assignees should not be discouraged in coming to the court on these applications.

Wednesday, Feb. 19.

(Before the LORDS JUSTICES.)

Ex parte THE WOLVERHAMPTON AND STAFFORD→
SHIRE BANKING COMPANY, re BODDINGTON.

A., B. and C. were chosen assignees under a bank-
ruptcy. B. had been represented at the meeting by
a gentleman to whom he had given a power of
attorney to vote, but words in the printed form
empowering the attorney to accept the office of
assignee on behalf of B. were struck out:
Hetd, that this rendered the choice of all three invalid,
and the appointment and confirmation were vacated,
and the commissioner was directed to call another
meeting for the appointment of new assignees.
This was an application by way of appeal from a
decision of Mr. Commissioner Sanders, of the Bir-
mingham District Court of Bankruptcy, under the fol-
lowing circumstances:-

a jurisdiction which is to be exercised in the same manner as if the case had arisen after the passing of this Act of Parliament. I can give, therefore, no weight to that argument. I agree that the circum-responsible party to offer for payment of the costs of stances should be taken into consideration, as all the the old proceedings in the bankruptcy. circumstances of this case must be; but beyond that, I cannot agree to the argument that that is at all decisive of the question. Then the 230th section is put forward as decisive, and it is said that the effect of the order will be to deprive the creditors of the future estate, which would vest in them under the old Acts until the certificate was granted. I think the answer to that argument is quite plain-that the effect of that will be wholly to negative the 159th section, because the 159th section does give the court power to deal with the future estate, and therefore does give power to take away those very rights of the creditors which are relied upon as the ground of opposing this application. I think, therefore, neither the 159th nor Bankruptcy-Assignees-Irregular choice of-Choice the 230th section furnishes any decisive answer to the of new assignees-The Bankruptcy Act 1861present application. A rather ingenious suggestion Form of order. was made by Mr. Robinson upon this Act, that in the case of insolvency jurisdiction is not given, and that the future estate of an insolvent, or persons who have been insolvent before the passing of the Act, must remain liable to their creditors. But I can only suppose that the Legislature has drawn the distinction that always exists, in the law, between insolvency and bankruptcy, one being connected with trade, the other not necessarily connected with trade, and that public policy, for the purpose of encouraging trade, has influenced the Legislature in making a distinction between insolvency and bankruptcy which we find by the Act to have been made, namely, the giving the means of obtaining a certificate in cases of bankruptcy which does not exist in the case of insolvency. I think, therefore, that that argument is completely unsupported. But what I consider on the best judgment that I am at present able to form on a case of this description-not at all desiring to bind myself down to any rule whatever on the subject, because I think it would be most im- It appeared that in January last a meeting of creprudent to attempt to lay down any rule in the pre- ditors was held for the purpose of appointing assent state of the jurisdiction in bankruptcy; without signees, and at that meeting a Mr. Winstanley atknowing what cases may arise under the Act it would tended on behalf of the firm of Gaskell, Deacon and be unsafe to lay down any general rule-my present Co., who were creditors of the bankrupt. Mr. Winimpression is, that the right manner of determin- stanley and another gentleman so attended under a ing this question is to consider what the court letter of attorney or other authority authorising would have done upon the application at the them so to do, which was signed by Mr. Deacon. It time when the certificate was granted. Sup- was on one of the printed forms frequently used on posing, therefore, the 201st section to have been such occasions, and, as the form stood, empowered Mr. removed out of the case, the question to my mind is, Winstanley and the other gentleman named, to attend whether the sentence which would have operated to the meeting, to act for the firm of Gaskell, Deacon have suspended the certificate of this bankrupt for a and Co., to vote on their behalf in the choice of period of ten years, which would have operated, or assignees, and to accept the office of assignee on behalf might have operated, to his continuing prison for a of the persons who gave that letter. Before he put his period of eight months, would not have been consi-signature to it Mr. Deacon, however, ran his pen through dered by the court quite a sufficient sentence to have passed upon this bankrupt for the improper mode in which he carried on his trade. I am satisfied that if the 201st section had been put out of the case, we could not have gone further than to have said that this gentleman should not have his certificate for a period of ten years; indeed, I recollect no case in which, where there has been falsehood and fraud-which I take out of the case here, for falsehood and fraud are certainly not proved in this case-we have ever gone further than suspending the certificate for five years. I think in Boyd's case we did suspend it for five years. I think, therefore, the suspension for a period of ten years, with an imprisonment of eight months, which has followed upon the refusal of the certificate, Clement Swanston supported the appeal, and conwas quite a sufficient sentence for us to have passed attended that the choice of Mr. Gaskell was plainly irrethe time when the case came before the court origi-gular, and that it was invalid. The choice of that nally upon the application for the certificate; and, gentleman being invalid, the election of the others fell upon that ground, I am of opinion that we ought with it, for the choice of assignees was and could be

The above-named company was the app., and the object of the appeal was to obtain from their Lordships a declaration that the appointment of Messrs. Oswald, Gaskell and Veale, as assignees of the bankrupts' estate, was void, or at any rate that the appointment of the second named gentleman was void.

the words conferring upon the attorneys the power of accepting the office of assignee on behalf of the signatories, and the letter thus altered was sent to Mr. Winstanley, and was afterwards filed with the other proceedings in the bankruptcy. The creditors chose as assignees under the bankruptcy Mr. Oswald, Mr. Gaskell and Mr. Veale, and Mr. Winstanley on behalf of Mr. Gaskell, and the other gentlemen on their own behalf, accepted the nomination, and their appointment was confirmed by the learned commissioner on the 23rd Jan.

object of the apps., who were creditors of the bankrupt, was to have a new choice of assignees ordered by the court.

Re Jewagt. J. E post 340

CHAN.]

BATES V. MACKINLEY-THE EARL OF BRADFORD v. THE EARL OF ROMNEY.

De Gex appeared for Mr. Oswald and for Mr. Veale, who were both desirous of acting as assignees. He urged that the non-acceptance of Mr. Gaskell ought not to invalidate the election of the other two gentlemen; but at all events this was not a fit case for an appeal against the election, but application ought to have been made to the learned commissioner to annul what had been done.

[ROLLS

but one operation. He submitted that a new choice | Richard Rowe Veale, as assignees of the estate of the must be ordered. said bankrupt; and that the Commissioner of Her Majesty's Court of Bankruptcy, acting in the prosecu tion of this matter, do cause a meeting to be held for the choice of new assignees of the estate and effects of the said bankrupt as in that behalf provided by the Bankruptcy Act 1861. And it is further ordered that the costs of all parties of and occasioned by this appcation be paid out of the estate of the said bankrupt; and it is hereby referred to the Master of the Court of Bankruptcy to tax such costs; and it is lastly ordered that the sum of 20%. deposited under the 29th rule and order made in pursuance of the Bankrupt Law Consolidation Act 1849, be repaid to the said apps, or ta Mr. Frederick William Yeats, their solicitor.

Bardswell appeared for Mr. Gaskell, who was most unwilling to act as one of the assignees, and urged that Mr. Winstanley had no authority from him to accept the office, the more especially as the words conferring such an authority had been erased. But even if this had not been done, the letter was signed by Mr. Deacon, and that signature could not force upon Mr. Gaskell an office which imposed upon him great responsibility, and would demand much of his time.

The official assignee had not been served with notice of the present appeal motion.

The LORDS JUSTICES considered that it would be well for the parties to agree in the choice of assignees. It was necessary to rectify the misapprehension that existed; and, if they did not agree, the order as to the appointment and confirmation by the commissioner of the three gentlemen named must be vachted, and a new choice made. But, as it appeared that the official assignee had no notice of this motion, the parties should agree to waive all objection upon that ground.

The learned counsel having agreed to waive that objection, but being unable to agree in the choice of new assignees, the order was drawn up in the following

form :

"In Bankruptcy.

"In the matter of William Cockson Boddington, of Hanley, in the county of Stafford, dealer in potters' materials, a bankrupt.

>

ROLLS COURT.

Reported by H. R. YOUNG, Esq., Barrister-at-Law.
ERRATA.

The following head-note should be substituted st p 783 of the last volume :

BATES v. MACKINLEY. Company-Profits-Dividends-Bequest-Income. Where the profits of a company, in which the testator in the suit was a shareholder, were ascertained prior to his death, but the dividends out of the profits were declared on a day subsequent to tist on which he died, such dividends were Held to be income and not corpus of his estate.

In the same case, col. 2, p. 783, line 12 from botten, for "The testator died in the month of Feb. 1860, mi the estimated dividends had been declared to be payable on a day subsequent to that of the testator's death," read, "The testator died in the month of Feb. 1860, and the estimated, dividends were declared on a day subsequent to that of the testator's death."

Feb. 10 and 21.

-Evidence.

A bill filed, praying the rectification of a settlement, but leaving it ambiguous whether the case was to be treated as one of the construction or of the reformation of the settlement, was, upon the merits of the case, ultimately dismissed.

The following propositions were enunciated by the

court:

A.-Regarding the case as one of construction. I No evidence of the intention of the parties to the is strument is admissible; but only that which show their position, the state of the settled funds, and the rights and interests of the parties in them. 2. Although the court may sometimes introduce a verd, or transpose a sentence in an instrument, it will as introduce new, or modify existing recitals in, or add a new class of clauses to it.

"Whereas, motion was this day made to this court in the above matter, by Mr. Clement Swanston, of counsel for the Wolverhampton and Staffordshire THE EARL OF BRADFORD V. THE EARL OF ROMNET. Banking Company, praying that the choice of credi- Settlement-Rectification-Construction-Reformatio tors' assignees in the above matter, and the confirmation thereof by Mr. Commissioner Sanders, on the 23rd Jan. 1862, and the appointment of Edward Oswald, Holbrook Gaskell, and Richard Rowe Veale to be assignees of the estate and effects of the said bankrupt, might be declared null and void and vacated, and that the said commissioner might be ordered to proceed to a new choice of assignees of the said estate and effects, and that in the meantime the said Edward | Oswald, Holbrook Gaskell and Richard Rowe Veale might be restrained from acting as such assignees, or that in any event the choice and appointment of the said Holbrook Gaskell to be assignee as aforesaid might be declared null and void and vacated, and a new choice directed of an assignee in his place. Now, upon hearing what was alleged by the said counsel in support of, and by Mr. De Gex of counsel for Edward Oswald, and Richard Rowe Veale in opposition to the said motion, and by Mr. Bardswell of counsel for the abovenamed Holbrook Gaskell, who has not accepted the said appointment, and declines to act as such assignee, and the said parties by their said counsel hereby agreeing to waive all objection in regard to the absence of the official assignee of the estate and effects of the said bankrupt, who has not been served with notice of the said motion, and upon reading the affidavit of John Weaver, of Woolstanton, in the county of Stafford, writing clerk, of the due service of the said notice of motion upon the said bankrupt, this court doth order that the order or certificate of Mr. Commissioner Sanders, dated the 23rd Jan. 1862, be vacated so far as regards the choice, appointment and confirmation of the said Edward Oswald, Holbrook Gaskell and

B.-Regarding the case as one of reformation. 1.
Parol evidence may be adduced at any time to`show
that the instrument, as drawn, is not in accordance
with the real intention of the parties to the contrad
2. The rectification of the instrument, so as to make
it correspond with the intention of the parties, is a
question of evidence only. 3. It is a rule of equity
that the mistake, on account of which the reforma-
tion of an instrument is sought, must be an error
common to both parties to the contract. 4. In costs
of reforming a deed it is essential that the extent of
the proposed alteration should be clearly defined and
ascertained by evidence, either contemporaneous with
or anterior to the deed.
C.-Regarding the case generally. The court would not
allow the question of the construction of the instra-

ROLLS.]

THE EARL OF BRADFORD v. THE EARL OF ROMNEY.

ment to be eked out by the evidence adduced on that | of the reformation of it.

By an indenture of settlement dated the 18th day of January 1819, and executed on the marriage of the late Hon. Robert Henry Clive and the Baroness Windsor, the sum of 33,333l. 6s. 8d. Three per Cent. Consolidated Bank Annuities was settled, after the death of the survivor of Mr. Clive and the Baroness Windsor, if there should be two or more children of the marriage other than an eldest son, upon trust for all the children of the marriage except an eldest son, in equal shares, to be vested interests in the sons at twenty-one, and the daughters at twenty-one or day of marriage; and all such portions to be paid as soon as might be after the death of the survivor of Mr. Clive and the Baroness Windsor, with a clause of accruer among the surviving children in case any died before acquiring a vested interest therein.

Soon after the execution of that indenture, the sum of 33,3331. 6s. 8d. Consolidated Bank Annuities was sold out, and the result of the sale produced a sum of 31,1661. 13s. 4d, cash.

[ROLLS.

one-fourth of the original sum. A question now arose whether the estate of the late Robert Henry Clive was entitled to be recouped the sum of 10,000%, which (as the 'plts. alleged) was advanced by him on Mrs. Hussey's marriage, on account of her then expectant portion of the trust-funds comprised in the first indenture of 1819 ?

The bill in this suit was filed by the trustees of the first above-mentioned indenture of settlement of 1819, against the surviving trustees of Mr. and Mrs. Hussey's marriage-settlement, Mr. and Mrs. Hussey, their two infant children and the Baroness Windsor; and stated that it was the intention of Mr. Robert Henry Clive, and of the contracting parties, when Mr. and Mrs. Hussey's marriage-settlement was executed, and that the same was executed on the faith that the share of Mrs. Hussey in the funds held upon the trusts of the first-mentioned indenture of settlement of 1819, should be considered to amount to 10,0007., and be treated as an interest in possession, Mr. R. H. Clive determining, if necessary, to make up such share to that amount out of his own moneys; and that, in fact, the By another indenture of settlement, also dated the same was included in the 10,000l. mentioned in such 18th day of January 1819, and executed on the same marriage-settlement. The bill then prayed a declaoccasion, other funds were vested in trustees for the ration, that it was the true intent and meaning of maintenance of the children of the marriage. There the parties to such marriage-settlement," that the were seven younger children of the marriage, two of 10,000l. mentioned as the sum of 10,000l. to whom died before 1853 under twenty-one, and un- which H, S. Clive is entitled in possession," should married. One of the children, viz. Henrietta Sarah comprise, and that such sum should be deemed to Clive, attained twenty-one, and was married, in Nov. comprise, the share of Mrs. Hussey in the funds 1853, to a Mr. Edward Hussey. By the settlement held upon the trusts of the first above-mentioned inmade on the occasion of that marriage, after reciting denture of settlement of 1819; and that to the extent that it had been agreed that the sum of 10,000l., to of such share Mr. Clive was entitled to be recouped which the said Henrietta Sarah Clive was entitled in the sum of 10,000l. advanced by him as aforesaid out possession, should be settled upon the trusts of the share of Mrs. Hussey in such trust-funds. and in the manner thereinafter expressed; and The bill also prayed that, so far as might be necesthat it had been also agreed that to what-sary, the rights of all parties under Mr. and Mrs. ever other property, real or personal, the said Hussey's marriage-settlement might be ascertained, and Henrietta Sarah Clive, or Edward Hussey in her right, that, so far as was necessary, the settlement might be should become entitled during the said intended rectified accordingly. marriage, such property should also be settled upon the trusts and in the manner thereinafter expressed; and that the said sum of 10,000l. had been invested in 10,512.9s. 8d. Three per Cent. Consolidated Bank Annuities, and transferred into the names of the trustees of the settlement; certain trusts were declared in favour of Mrs. Hussey for life, with remainder to Mr. Hussey for life, with remainder to the children of the marriage as in the said indenture was mentioned. That deed also contained a covenant by the intended husband and wife, that they and all necessary parties would assure to the trustees for the time being of the settlement, all the real and personal estate to which at any time during the coverture the intended wife, or the intended husband in her right, should become entitled by descent, transmission, claim, devise, bequest, gift, donation, representation, purchase, or otherwise, to be held by such trustees upon certain trusts therein also mentioned; but trinkets and property, not exceeding 5001. in value at any one time, were excepted from the covenant to settle after-acquired property. At the time of the execution of that deed, and notwithstanding the above-mentioned recital in that behalf, Mr. Hussey was not entitled to any property in possession, but only to one-fifth part of the 31,1667. 13s. 4d., and that in The MASTER of the ROLLS.-The bill in this suit reversion, subject to the trusts of the first above-men- is filed by the trustees of the marriage-settlement exetioned indenture of settlement; but she was also then cuted in 1819, upon the marriage of Mr. Clive and Lady entitled to a possible interest in the sums payable for Windsor, against the trustees of a settlement executed maintenance under the second above-mentioned in- in 1853, on the marriage of Mrs. Hussey, and against denture of settlement of the 18th Jan. 1819. Mr. all persons interested under that settlement. The Robert Henry Clive died in Jan. 1854. The share of object of the bill is sufficiently apparent from the stateMrs. Hussey in the funds, subject to the trusts of the ments in it, and the prayer of it. [His Honour read first settlement of 1819, was in 1857, in consequence the prayer as above stated, and continued.] But the of the death in that year of one of her brothers, in- prayer of the bill is so framed as to leave it ambiguous creased from one-fifth of the sum of 31,1667. 13s. 4d. whether the case is to be treated as a question of con(i. e. 62334 6s. 8d.) to the sum of 77911. 13s. 4d., viz.struction, or as one in which the instrument itself

The cause came on upon a motion for decree. The evidence which was then adduced in support of the plt.'s case, and the nature of it, will sufficiently appear from the judgment of the M. R. infra.

Mr. Hussey made an affidavit in which he stated that, before his marriage with Miss Clive, he was utterly ignorant how the 10,000l. which was then settled was to be provided for, or of the existence of the marriage-settlement of 1819; that if Mr. Clive advanced the same under the impression in the bill mentioned, the deponent was altogether ignorant of such impression; and that, until last year, he did not know anything about it, except that Mr. Clive had agreed to settle that sum; or, as it was recited in the settlement," that his wife was entitled to the 10,0007. in possession."

Lloyd, Q. C. and Renshawce appeared for the plts. Lewin for the trustees of Mr. and Mrs. Hussey's marriage-settlement.

Baggallay, Q. C. and G. Simpson, for Mr. and Mrs. Hussey and their children; and

Charles Hall for the Baroness Windsor, who had agreed to release her life-interest in the fund in question. Lloyd, Q. C. in reply.

ROLLS.]

THE EARL OF Bradford v. THE EARL OF ROMNEY.

[ROLLS

ought to be reformed, for the purpose of making of the testimony given in the cause. Upon reading agree with the intention of the parties who entered into it, however, I must say, it appears to me absothe contract upon which the settlement was originally lutely silent upon this part of the case. The founded. The same course of blending the two ques- difficulties in the way of the plts. are nutions together was in a great measure followed in the merous, and, in my opinion, are all of them argument of the case before me. I find it, however, insuperable. It is a rule of equity in such cases, necessary to separate those questions, and to consider that, to reform adeed, it is necessary to show the cases from both points of view. In so doing, I shall that the mistake was an error common to both parties keep them quite distinct. To do otherwise would to the contract. But it is admitted that Mr. Hussey, lead to confusion, and it would be a manifest violation at least, never heard of the matter of the intereste of the rules of law to reject in the one case Miss Clive under her father's and her mother's mar what is essential to be considered in the other. riage settlement; that he, at least, had no intention In the first place, then, I will examine the ques-on the subject, and, consequently, that he could e tion of construction, and consider what is the true have made any mistake in the matter. With respect effect of the instrument as it stands. So regarding to Mr. Clive himself there is nothing to show what his it, no evidence of the intention of the parties is admis- intentions were; indeed, the whole is a blank. Al sible; that evidence only can be given which shows the that the evidence does, is to show what may be supposition of the parties, the state of the funds, and the posed his intention would have been if the matter h rights and interests of the parties in them. In that been stated to him. It might be reasonably presume view alone, I am of opinion that neither the then that Mr. Clive would have intended to make up the vested interest of Miss Clive in the 31,166l. 13s. 4d., fortune of each of his younger children to the sum nor her contingent interest therein, are included in or 10,000l., and no more. But even that rests in eform any portion of the 10,000l. advanced by Mr. scurity; and the extent to which he really intendedClive. The settlement recites that Miss Clive was if he did at all intend-that be should be recouped entitled in possession to 10,000l. Except by the gift out of their portion, is mere guess-work. Above of her father Miss Clive was entitled to nothing in things, in cases of reforming a deed, it is essenti possession. Still 10,000l. had been advanced to the that the extent of the proposed alteration should be trustees, and was invested in a sum of 10,512l. 9s. 8d. clearly defined and ascertained by evidence contem Consols; and on the true construction of the settle- poraneous with or anterior to the deed. But the diff ment she was possessed of 10,000l. by the gift of her culty, which, in the course of the argument, I sug father, and not otherwise. I have looked through the gested to the counsel for the plts., and which seems a instrument, but in vain, to find any expression that me insuperable, is this-to what extent did that sum was meant to be an accelerated advance of Clive intend to have the 10,000 made good what Miss Clive might be and ultimately was entitled to him out of the share of the 31,166/. 13. 4 to under her father's and her mother's marriage settle-to which his daughter might become entitled: ment, and which it was alleged that Mr. Clive agreed to At the time of the settlement there were fin make up to 10,000l. in possession. Now I cannot but younger children. Was his right to be recouped think that, if such had been really the purpose of the to be limited to one-fifth of the whole? F settlement, it ought to have recited some intention of not, did it extend, and if so, was it to be limited to Mr. Clive to that effect. It ought also, in the opera-one-fourth, in the event which has happened? If tive part, to have contained the necessary provision for so limited, is it to be taken to extend to one-third of making good to Mr. Clive or to his estate the share of the the whole, in case a further death should occur? 0, 31,166. 13s. 4d., to which Miss Clive would ulti- again, was it a purchase of the whole of her interest mately become entitled in possession on the decease of the 31,166l. 13s. 4d., which in one event might have the survivor of her father and her mother. It ought amounted to 15,000. If an answer be given in the also to have excepted from the after-acquired property affirmative to any one of these questions, I seek in of Mr. Clive, which was included in the settlement, her for the evidence on which that answer is to be based share of that 31,166. 13s. 4d. But, in truth, the But it is obvious that no such answer can be given to settlement does nothing of that sert. Regarding the any one of the questions founded on any evidence case, then, as one of construction, see what the court is terior to the settlement or contemporaneous with really asked to do. It is asked not merely to introduce The answer given by counsel is merely arbitrary. The a word, or to transpose a sentence, which indeed is said it is to be limited to the making good the 10,000 sometimes, though very reluctantly done, where the advanced. And why? Simply because it seemed rest of the instrument requires that course to be them more reasonable that such should have been M. adopted; but the court is also asked to reform the Clive's intention, than that he should have intended settlement altogether, to introduce new, and to modify under an apparent bounty to his daughter, to par existing recitals in it, and to add a new class of chase from her an ultimate advantage to himself. Ba clauses consequent upon that. No latitude of con- all that is mere surmise. In the evidence there is struction ever extended so far; nor can any such vio- nothing to warrant it. About one point, however, af lation of the rules of construction which obtain in all great importance there is no doubt or question. It courts of law and equity be tolerated for a moment. was most certainly intended by all parties to the c I will now consider the case as one in which it is tract and to the settlement, that all the after-acquired sought to reform the settlement by introducing in the property of the lady, not consisting of trinkets, and exrecitals a provision, which from the first point of view, ceeding 500l. in value at any one time, should be included viz. that of construction, I have said is inadmissible in the settlement. The deed says, "all the afterIn the first place, then, looking at the case from this acquired property." According to all the authorities, second point of view, as one of the reformation of the her interest in the 31,166. 13s. 4d., whether it was settlement, I may say that parol evidence may be vested or whether it was contingent, falls within the adduced. It is, in such a case, at all times competent definition of after-acquired property, provided such in for the parties to show in that way, that the settle-terest was not then vested in possession. I have looked ment, as drawn, was not in accordance with the real in vain in the evidence adduced, either parol or doceintention of the parties to the contract; and to have mentary, for any trace of an intention to limit the the same rectified so far as to make the deed in all settlement of the after-acquired property of the lady. respects correspond with their intention. That is a The plts. insisted that Mrs. Hussey's one-fifth, or question of evidence and evidence alone; and, accord-one-fourth, or one-third, whichever it might be. ingly, for that purpose I have carefully read the whole in the 31,1667. 13s. 4d., was not to be settled. But