Ex. CH.]

of the case.

did, it probably might lead to a different examination | hold in autre droit to consist together (1 Inst. 2. I therefore think judgment ought to be for the Crown. Judgment for the Crown. For the Crown, Solicitor of Inland Revenue.

EXCHEQUER CHAMBER.
Reported by F. BAILEY, Esq., Barrister-at-Law.

Monday, Dec. 2.

APPEAL FROM THE EXCHEQUER.

(Before WIGHTMAN, WILLIAMS, Crompton, WILLES, BYLES, KEATING and BLACKBURN, JJ.)

JONES v. DAVIES AND WIFE.

Estates of husband and wife-Husband tenant by the curtesy "initiate" only-Merger of term of years of husband in freehold estate subsequently given to his wife.

this could not, as Sir E. Sugden said in his wi vendors and purchasers, be maintained after the e in Platt v. Sleap, Cro. Jac. 275; s.c. 1 Bulst. 1a most important case on the subject. It w held that, the husband being termor and the descending to the wife, there was no merger. authority had not been assailed by any text writ it must be accepted as good law. The two ends may therefore consist together if held in separate ra one in the right of the husband, the other b right of the wife. It was argued at the bar that position was subject to exception, and that second estate were acquired by the act of the himself instead of descending by operation of lav to him in right of his wife, the doctrine of merge T... apply: (Lichden v. Winsmore, 2 Rolle 472) Le Holt's opinion in Gage v. Acton, 1 Salk. 325, of Hobart, C.J. in Young v. Radford, Hob. 3, sec to the contrary; but the Court of Ex. though the reversion in this case was not acquired by it. of the party himself in the sense in which that t used in the cases to which reference was made. the reversion came to the wife by devise and right to her husband. It was only by a farcleeject-struction of the words that this could be called a acquiring of the estate by the husband's 671 Counsel argued that the husband in truth belie estates in his own right-having issne born bera already tenant by the courtesy of England, as wel termor, and although his wife was now living this no difference.

Davies, the male deft., being lessee of an estate for
years, his lessor devised the estates in fee to Davies's
wife, subject to the payment of an annuity or an-
nual rentcharge thereout to the plt., with a proviso
for entry in case of nonpayment. Davies had issue
born alive by his wife.

Previous to the expiration of the lease so granted to
the male deft. the plt. brought an action of
ment to recover possession of the premises, in con-
sequence of nonpayment of the rentcharge:
Held (affirming the judgment of the Court of Ex.),
that the action was not maintainable, the devise in
fee to the wife did not operate as a merger of the
term: during the lifetime of the wife, her husband
was only tenant by the curtesy "initiate" and not
consummate," and there was not such an estate of
freehold in his own right as would operate as a
merger of the term for years; but that the term was
still subsisting, and a bar as long as it exists to the
plt.'s right of entry.

Lord Coke says, 1 Inst. s. 35, 36 a: "Fear th do belong to an estate of tenancy by the curtesy, marriage, seisin of the wife, issue, and death &wife." Aud again he says, that although the of tenant by the curtesybe not consumare the death of the wife, yet the estate hath such a ginning after issue had in the life of the weat respected in law for divers purposes,” and he sta estate a tenancy by the curtesy **initiate" "consummate." He also mentions the purpose which such estate is considered in law to exit 24 the life of the wife, such as doing homage to the Until the wife's death, when the estate would be summate," the husband would only be tenant curtesy for certain limited purposes. The Carte the verdict was properly entered for deft, charged the rule.

This was an action of ejectment, brought for a messuage, farm and lands at Crastock and Sutton, in the county of Surrey. On the 22nd Sept. 1844 one Cliffe Hatch being seised in fee of the property in question granted a lease of it to the deft. John Davies for twenty-one years from Michaelmas then next eusuing, at the yearly rent of 70%, and the deft. entered into possession under the lease, and continued in possession down to the time of the trial of the cause at the summer assizes in 1859. The said Cliffe Hatch, by his will dated the 23rd Jan. 1845, devised the lands and hereditaments in question to Frances Davies the From that decision the plt. appealed. female deft., the wife of the said John Davies, in fee, Garth, for the app., submitted to the court the subject to the payment of a clear annuity or rent- action was maintainable. The term of years of J charge of 501. to John Jones, since deceased, and Davies, the deft., merged in the estate of the fre Sarah his wife, the testator's daughter, and the sur- for his own life, which he took in his o vivor of them, payable quarterly, with a power of entry tenant by the curtesy; that although Lord in case of the nonpayment of the annuity or rent-1 Inst. p. 30 a, mentions the estate of a tenant charge. The testator died in May 1849. The defts. curtesy as "initiate only, and not had several children issue of their marriage. The until the death of the wife, yet that it existsi annuity being in arrear, the plt. Sarah Jones, under distinct estate in the husband in his own rig the proviso for entry contained in the will, brought ficient to cause the merger. [BLACKBURN, the present action against Davies and his wife. The Coke's Entries, "Quare Impedit," 520, it is pa cause was tried before Blackburn, J., at Croydon, the husband became tenant by the curtesy when it was contended, on the part of the plt., that death of the wife. The pleader evidently the where a lessee for years of land has issue by his wife, the freehold did not arise till the death of the to whom the same lands are subsequently devised in If the husband had only an estate in right of fee, the estate for years is merged in the frecheld. the term merged in that estate, as the estate c The learned judge was of a contrary opinion, and him by purchase and not by descent. He refe directed a verdict for the defts., with leave to move to Macqueen on Husband and Wife, 27; B enter the verdict for the plt. on the ground that the Real Property, 121; Sugden's Vendors and Parce term granted to John Davies the deft. had merged. 11th edit. 771, 13th edit. 504; Wins, en Ex tors, 566; and the cases before mentioned ; Sat Touch. 8th edit. 303, n. a, 346, n. a; Bad v. Cook, 2 Plow. 417.

A rule was subsequently obtained and the case argued in the Court of Ex. in Trinity Term 1861; and that court, after time taken to consider their judgment, held that, notwithstanding it appeared to have been thought by Lord Coke that a man could not by possibility have a term for years in his own right and free

Bovill, Q.C. (J. Brown with him), for the resp not heard, the court having intimated, if they it necessary to hear him before giving judgm

BANK.]

ld do so.

Ex parte BAILY, re A TRADER-DEBTOR SUMMONS.

They subsequently, on 2nd Dec., 1861, e judgment without hearing him. VILLES, J.-We are of opinion that the judgment the Court of Ex. in this case was correct, and that re was no merger of the term of twenty-one years ated by the lease to Davies, but that it is still subing, and a bar so long as it exists to the plt.'s right entry. It is clear, upon the authorities referred to n the argument, that the devise in fee to the wife sequent to the lease for years to the husband, ld not operate as a merger of the term, because busband would have the term in his own right, and freehold in right of his wife, and to create a ger the term and the freehold must exist in one the same right. It was said, that if the freehold s acquired by the act of the husband himself, and by operation of law, there might be a merger. wever this may be, in some cases there appears to to be no ground whatever for the argument that in s case the husband acquired an estate of freehold by own act. The estate was devised to his wife in and no act was required on his part to make it t in him, and his wife in right of the wife. ether he assented or not, provided he did not sent, the estate would vest, as appears clearly in the passage in Cok. Lit. 3 a, cited in the e of Barnfather v. Jordan, 2 Doug. 451. It was ther contended for the plt. that, even if the estate Fee devised to the wife would not operate to merge term for years previously granted to the husband, had acquired an independent and separate estate of hold in himself as tenant by the curtesy in which term would merge. We are, however, of opinion, accordance with that of the Court of Ex., that whatr might have been the case had the wife died, the sband, during her life, has not such an estate of ehold in his own right as would merge the term. It only upon the death of the wife that the husband comes tenant by the curtesy in the proper sense of > term. It is said in Co. Litt. 30 a, that four ngs belong to an estate of tenancy by the curtesy, nely, marriage, seisin of the wife, issue, and death the wife. During the life of the wife he is only at is called "tenant by the curtesy initiate," and, as ch, is respected in law for some purposes which are amerated by Lord Coke; but he is not tenant by curtesy "consummate," so as to give him a sepae and independent estate of freehold until the death the wife. We are not aware of any authority for ding that, until the death of the wife, the tenancy the curtesy "initiate" would be such an estate of ehold in the husband, separate from and indendent of the estate in fee of which he and his wife re seised in right of the wife, as would merge the m. The judgment of the Court of Ex. therefore ll be affirmed. Judgment affirmed. Attorneys for plt., Chevallier and Lloyd. Attorney for deft., Linklater.

COURT OF BANKRUPTCY. Reported by A. A. DORIA and D. C. MACRAE, Esqrs.,

Barristers-at-Law.

BRISTOL.

A

[BANK.

the course he had adopted against his debtor the court awarded him his costs.

creditor is entitled to his costs of proceeding in bankruptcy under a trader-debtor summons, although the debtor has paid the debt in the interval between the service of the summons and the day upon which it was returnable.

The case of Ex parte Parry, 32 L. T. Rep. 11, observed upon.

Costs of trader-debtor summons.-The proceedings in this matter were founded upon a bill of exchange for 80l., dated Jan. 21, 1862, drawn by one Jenkins upon and accepted by the four defts. at two months date, which bill was indorsed by Jenkins to the plt. The bill not being paid at maturity the plt. on the 2nd April instructed his solicitor to commence proceedings against the defts., both at law and in bankruptcy, and accordingly on the 3rd they were served with particulars of demand in bankruptcy, and at the same time with a writ under the Bills of Exchange Act. On the 4th a trader-debtor summons was issued, returnable on the 14th, which was served the following day. On the 9th an order was made by Martin B. in chambers, to stay the action on payment of debt and taxed costs, amounting together to 841. 28 9d., which were paid on the 10th, but his Lordship declined to interfere with the costs in bankruptcy, the application for which he observed must be made to that court.

On the 14th April, the day on which the traderdebtor summons was returnable, the plt. applied for his costs incurred under the proceedings in bankruptcy.

By the 85th section of the Consolidation Act 1849, it is provided that where any such trader against whom an affidavit of debt is filed by any creditor shall be summoned to appear before the court in which such affidavit shall be filed, every such creditor or trader shall have such costs as the court in its discretion shall think fit, or the court may direct the costs of either party, if incident to or attendant upon such affidavit, and summons, to abide the event of any action brought or thereafter to be brought, &c., for the recovery of such demand or any part thereof.

Trenerry (solicitor) appeared for the plt., and cited Covington v. Hogarth, 8 Scott, 725; Webb v. Hewlett, 20 L. J. 134, Ex.; Ex parte Benham, 30 L. T. Rep. 173, and Ex parte Brown, 33 L. T. Rep. 245.

A. Brittan (solicitor), for the defts., relied upon Re A Trader Debtor Summons, 31 L. T. Rep. 381; Ex parte Parry, 32 L. T. Rep. 11; and Ex parte Purdue, 32 L T. Rep. 246.

May 15.-Mr. Commissioner HILL.-As the debt and costs in the action were paid before the summons was returnable, a question of jurisdiction arises, in respect of which it was decided by Mr. Commissioner Holroyd, in Ex parte Parry, 32 L. T. Rep. 11, that by such payment the relation between the parties of creditor and trader debtor has ceased to exist, and that the jurisdiction of the court being limited to parties holding that relation, its power to award costs either to creditor or debtor is gone. With great respect for the learning and experience of Mr. Commissioner Holroyd, I am unable to concur with him in this construction of the Consolidation Act 1849. I find no words in the 85th section, upon which the commissioner founds his judgment, pointing to such a limitation in the meaning of * parte BAILY, re A TRADER-DEBTOR SUMMONS. the words creditor and debtor. If therefore they are to 2 & 13 Vict. c. 106, s. 85-Trader-debtor summons be so limited, it must be done purely by construction. I - Costs of cannot, however, feel myself at liberty to ascribe a he Court of Bankruptcy has jurisdiction under the meaning to this section of the Act which will work in85th section of the Consolidation Act 1849 to award justice to one or either of the parties, unless I am called costs to either a creditor or debtor under a trader-upon to do so by express words. Now, if the creditor debtor summons, even though the debt be paid before was justified in fairness as well as in law in taking a the day upon which the summons is returnable. particular step, I do not understand how anything that here it appeared that the creditor was justified in is done afterwards by his opponent can justly throw

April 14 and May 15.
(Before Mr. Commissioner HILL.)

BANK.]

Re CARTWRIGHT.

Re HELLIER. Re WEST.

Friday, May 30.

(Before Mr. Commissioner HILL.
Re CARTWRIGHT. Re HELLIER. Re WEST
Jurisdiction under registered trust-dreds.
The district courts have concurrent jurisdiction
the London Court under trust-deeds.

Henderson (solicitor) applied under the 19th
tion of the 24 & 25 Vict. c. 134, for a summar
Re Zachariah Cartwright, and produced a deed it
assignment made from the insolvent trader to t
trustees, which had been duly registered in the an
of Bankruptcy in London, and had the seal f
court affixed to it. Upon the production of that
he applied for a summons to examine a witness
court, charging the person to be served with it wa
having property of the insolvent trader or quari bate
rupt in his possession. Having read the 197th se
of the Bankruptcy Act 1861, Mr. Henderson su, a
proposed to accompany the production of the deed
an affidavit showing that this was the district in re
the assignor had resided and carried on business, a

he been declared bankrupt. He contended that words of the 197th section, "subject to the jurisde tion of the Court of Bankruptcy," would, accorag the interpretation clause, mean any district out; and further, he pointed out that wherever the cour London was intended to be referred to in the Act. words "in London" were added in italics. He took therefore, that his Honour would be satisfied that t court had the same jurisdiction in this matter as t court in London would have. This view was strengthened by reference to the 6th section of the i & 13 Vict. c. 106, the Bankrupt Law Const Act, which had not been repealed by the state 1861.

the costs of that step upon him; nor, on the other hand, do I see that in the event of such step being oppressive or unnecessary, the debtor should be deprived of the costs of coming to the court to defend himself against the attempt of the creditor to fix him with expenses which ought never to have been incurred. I must think that if the court have jurisdiction to issue process, and if it have the power of fixing either party with costs, suppo-ing it possible to determine at that moment upon whom the burden ought to fall, it cannot be reasonable to hold that the power over costs is gone before the parties have had an opportunity of raising the question, which they have not until the proceedings have arrived at their termination. must therefore hold that the court has not lost its jurisdiction. In the cases in which it has been exercised, the commissioners appear to have been guided by their view of what steps it was fair for the creditor to take, which must almost altogether depend upon special circumstances. In the case before the court, the defts. were engaged in working a colliery, and the debt was in respect of a dis-in which the adjudication would have taken plan au honoured bill of exchange, of which they were the acceptors. The bill arrived at maturity on the 24th March. On the 25th the plt. applied for payment, and three days afterwards made a second application, with a threat of immediate proceedings in case of further default. No answer having been returned to either letter, the plts. on the 2nd April instructed their solicitor to sue the defts. in the Q.B., and also to proceed in bankruptcy; and I cannot say that traders dishonouring their acceptance, and returning no answer to applications for payment, have a right to expect that their creditors will forego any means furnished by the Legislature of enforcing their rights. On the 3rd April notice and particulars of demand were served upon the defts., when R. T., one of the defts., Brittan (solicitor) made a similar application informed the clerk who served the documents that Hellier, and said that in his case a petition was i the firm was not prepared to pay the debt, that they in this court, but the adjudication was suspratale were negotiating a sale of their colliery works, and an undertaking to produce a registered deed that when the sale should be completed they should twenty-eight days. This was done; the dee be able to settle with all their creditors. The clerk produced, properly signed, and with the regis then made an appointment with R. T. to meet the indorsed, and the proceedings in bankruptcy re defts. at their colliery at Baglan, near Neath, on the stayed on the court being satisfied that the 5th April; for what purpose, however, does not ap- properly registered and signed by a sufficient pear. Certainly this avowal of R. T., coupled with of creditors. His position was somewhat different fort the delay which had then occurred in taking up the that of his friends, as he had already satisfied t dishonoured acceptance, was calculated to throw great court that this was the proper court for the pr doubt upon the capacity of the defts. to make pay-tion of the bankruptcy by the affidavit filed with ments at all. I therefore think that the plt. was petition; and in this case the trustee sought to i justified in taking the next step, that of suing out a summons, and did issue a summons, against a pest trader-debtor summons. This took place on the 4th suspected of having possessed himself of a portar April. On the 5th the defts. did not keep their the bankrupt's estate. In addition to the sec appointment at Baglan, but R. T., by letter, made an already cited, he would call attention to appointment for himself to meet the clerk at Neath. others as bearing upon the subject. The latter The clerk being at Baglan, according to the first ap- of the 197th section of the Act of 1861 provide pointment, inquired for and found the other defts.," the court shall determine all questions arisBS whom, under the circumstances, he very naturally and the deed according to the law and practice in properly, as it appears to me, served with the sum-ruptcy, so far as they may be applicable, and sha mons. R. T. did not keep his second appointment, but, on the clerk meeting him in one of the streets of Neath, and serving the summons upon him, he stated that he had paid the debt into the bank, and that it would be remitted to the plt. Upon the 7th April the defts.' solicitor tendered the debt and costs of the action at law, but this offer was declined on the part of the plt., unless the costs in bankruptcy were paid also. The action was stayed upon payment of the debt and costs of the action at law, but without prejudice to the plt.'s application to this court for the costs incurred by him in these proceedings in bank ruptcy. I must decide that he is entitled to receive those costs, Ordered accordingly.

power to make and enforce all such orders as it
be authorised to do if the debtor in such deed had be
adjudged bankrupt, and his estate were admin sten
bankruptcy." Now, by the interpretation clause,
court" meant the court in London, or any county
trict court, or any County Court acting under this
and the 2nd section of the statute of 1861 beg
"The present commissioners of the Court of
ruptcy shall continue to be commissioners of the c
thereby showing that the term "the court" me
court at large, and was not confined in its app
to the London court. The 6th and 8th and
and 17th sections also showed that whenever the
in Loudon was meant it was so specifically
and they also referred to the country district coura
His HONOUR.-The Court of Bankruptcy
both the London and the district courts; bat

BANK.]

Re CARTWRIGHT.

ire to distinguish them-if you mean a country] rt, you must say the District Court of Bankruptcy; if you mean the London court, you must say the art of Bankruptcy in London.

[BANK.

Re HELLIER. Re WEST. courts as those in the earlier set, it is not quite easy to explain why there should have been two distinct sets or codes. It would be difficult to believe, even without reference to the Bill which has resulted in this Miller (solicitor) said his case came under the Act, that the framers did not intend the jurisdiction 5th section of the Bankruptcy Act 1861, Re to be distinct. The question, however, will be not st. This Was a registered trust-deed, all the what was the intention of the framers, but what legal ties residing within the jurisdiction of this court, intendment is to be collected from the Act itself, trustees living in Bristol, and the assignor or praying in aid of its construction other Acts still in ler at Weston-super-Mare. The application to force, together with the general policy of the law, court was to decide a difference between the especially of the law of bankruptcy. It is an admitted ties under the 136th section. He took first principle of the law of England that justice should be all the heading of the 192nd, or trust-deed brought to every man's door, and we thus commence ise-"As to trust deeds for benefit of credi- our inquiry with some leaning in favour of jurisdiction s, composition and inspectorship deeds executed in the district courts. With regard to the policy of a debtor." He now turned to the 197th section, the bankrupt law, we find that it has been gradually ich said that, "From and after the registration of adapting itself to the convenience of suitors in ry such deed or instrument in manner aforesaid, the respect to their resort to courts in their own neightor and creditors, and trustees, parties to such deed, bourhood, and no Act has more signally developed who have assented thereto, or are bound thereby, this very salutary principle than that now under conall, in matters relating to the estate and effects of struction, which enables creditors in bankruptcy to rech debtor, be subject to the jurisdiction of the Court move the proceedings to some County Court, one of Bankruptcy," the meaning of which was, that the which, as they are very numerous, can always be found ties to a trust deed which had been duly registered at no great distance from the habitations of the prin uld be entitled to all the benefits of this Act. Now, cipal body of creditors. Furthermore, we find that e 136th clause, which was placed, oddly enough, from the year 1847 up to the passing of this Act, the ween one providing that sequestration of profits of affairs of debtors arranging with their creditors to efice of a bankrupt clergyman may be obtained, and divide their property equally among them have been other giving power to assignees to sell bankrupts' placed under the control of the courts which would k-debts, goodwill, &c, enacted-"In case of any have had jurisdiction had the estates been wound-up im, dispute, or difference between the official assignee in bankruptcy. Again, the questions arising upon d the creditors, or any such persons, or between any the deeds contemplated in the second set of clauses, rsons claiming under a trust-deed, deed of compo- like the questions contemplated in what is called Count ion or arrangement, relating to any bankrupt's or D'Orsay's Act and the Consolidation Act 1849, are btor's estate." Now this, he said, brought him precisely those which all Courts of Bankruptcy have early under the deeds referred to in the 192nd daily before them in bankruptcy cases, strictly so called, ction. The 136th section went on to say, "Either so that while every reason which has hitherto inrty may apply to the court having jurisdiction in the fluenced the Legislature to give jurisdiction over nkruptcy, and, in other cases, to the court in Lon- the affairs of arranging debtors remains unaffected, n," thereby showing that the courts in the country there is nothing in the questions to be considered ere distinguished from the court in London. as arising upon the new deeds calling on the After an elaborate argument his HONOUR reserved his commissioners of the district courts to enter dgment. On a subsequent day he delivered that judg- upon inquiries with which they are not perfectly ent as follows:-Three applications have been made to familiar. Under these circumstances it would seem is court to issue its process for the purpose of insti- that very clear and explicit provisions must be ting inquiries and determining questions arising on required to exclude the district courts from the jurisree distinct deeds made by debtors (not bankrupts) diction which they have exercised now for fifteen years r the purpose of winding-up their respective estates. -exercised in substance-for I do not think the difeach case, had the creditors proceeded in bankruptcy ference between the deeds of arrangement provided by is would have been the court in which such pro- the Consolidation Act and those provided by the edings would have been prosecuted. The question present Act have any material bearing on the question r decision is the same in each case, namely, whether before the court. The applicants, when called upon to not this court has jurisdiction over matters arising prove the jurisdiction of the court, refer to sect. 197, the deeds now before it. The applicants rely on which enacts that," from and after the registration of e clauses in the Act of 1861 which are ranged under every such deed" (that is to say, every trust-deed for e heading "As to trust deeds for the benefit of the benefit of creditors, composition, or inspectorship reditors, composition and inspectorship deeds exe- deed), "the debtor and creditors and trustees, parties uted by a debtor." These clauses, beginning with to such deed, or who have assented thereto, or are ect. 192 and ending with sect. 200, relate exclu- bound thereby, shall, in all matters relating to the vely to the deeds of debtors not bankrupt, and are estate and effects of such debtor, be subject to the hade subject to a different course of treatment to that jurisdiction of the Court of Bankruptcy, and shall hich is prescribed for deeds having their origin in bank-respectively have the benefit of, and be liable to, all uptcy which are ranged under the heading" As to change the provisions of this Act, in the same or like manner rom bankruptcy to arrangement," being the clauses be- as if the debtor had been adjudged a bankrupt, and ginning with sect. 185 and ending with sect. 191. With the creditors had proved, and the trustees had egard to the earlier set of clauses, namely, those beginning been appointed creditors' assignees under such with sect. 185, there can be no doubt that the court bankruptcy, and the existing or future trustees of any having jurisdiction in the bankruptcy is the court such deed, and the creditors under the same shall, as ander whose conduct all proceedings are to be carried between themselves respectively, and between themon, except as regards registration, which is always to selves and the debtor, and against third persons, have be made in the London Court of Bankruptcy, and the the same powers, rights and remedies with respect to protection to the debtor which he can claim as flowing the debtor and his estate and effects, and the collection of right and of course from the act of registration, and and recovery of the same, as are possessed, or may be only requiring to be evidenced by the certificate of the used or exercised, by assignees or creditors with respect chief registrar. Now, if the proceedings under the to the bankrupt, or his acts, estate and effects in second set of clauses were to be taken in the same bankruptcy, and except where the deed shall expressly

Expte for 6 L. I. n. s. blg

provide otherwise, the court shall determine all ques- I award costs personally or in any other manner,
tions arising under the deed according to the law and the official or creditors' assignee, trustee, or aỊ DE
practice in bankruptcy, so far as may be applicable, person; provided that in all cases in which a s
and shall have power to make and enforce all such tion has been come to by a majority in
orders as it would be authorised to do if the debtor value of the creditors assembled in a meeting, ver.
in such deed had been adjudged bankrupt and his shall be had by the court to such resolution, and
estate were administered in bankruptcy." Now the same shall not be varied or set aside by the or
court of bankruptcy mentioned in this clause they unless such resolution shall in the opinion of .
contend is the court which would have jurisdiction court be unjust or inequitable, and not t
if the estate were wound-up in bankruptcy. They binding and conclusive under this Act
refer to the interpretation clause to show that the de- clause would appear to be an enactment is
signation "Court of Bankruptcy" is a general term, in-ring in brief but compendious terms all ne
cluding both the London court and every district court.
They also call attention to many sections in which the
words "Court of Bankruptcy" clearly refer to dis-
trict courts. On this point there can be, to a certain
extent, no doubt. The interpretation clause especially
enacts that the words "Court of Bankruptcy" shall
include all the courts which exercise jurisdiction in
bankruptcy, and that to preclude their application to
any particular court, there must be something in the
context repugnant to such a construction. But the
applicants go on to contend that, so far from its being
repugnant to the context that the district court should
be included, the suitor could not have all the advan-
tages conferred upon him by the provisions of the 197th
section on any other construction. For how, may I
a-k, could he have the benefit of all the provisions of
this Act in like manner as if the debtor had been
adjudged a bankrupt, unless he has as cheap and
ready access to a court of competent jurisdiction in the
one case as in the other? They also fortify their
case by reference to sect. 6 of the Consolidation Act
1849, the concluding words of which are," and each
and every of the commissioners for the time being acting
in London, and in the several districts in the country,
shall, singly and simultaneously, or otherwise, as
occasion may require, be and form the court for every
purpose under this Act, or in execution of any
duty which may hereafter be imposed on the court,
except where otherwise in this Act specially pro-
vided." And this clause they truly observe is made
part of the present Act by sect. 232. Certainly these
arguments are of weight; and notwithstanding that
the court may be conscious of some undefined inten-
tion in the Legislature to point to the Court of Bank-
ruprey in London when it here uses the general desig-
nation found in sect. 197, yet if those portions of the
Act to which I have adverted comprised all that relates
to the subject in hand, I should feel but little difficulty
in deciding in favour, not only of the jurisdiction, but
of the exclusive jurisdiction of the court in which the
bankruptcy must have been prosecuted, whether that
court was the court in London or a district court.
But there is another most important clause on which
I have now to comment, which puts a different aspect
upon the case, and which, if it stood alone, would, I
think, demonstrate that this court could have no juris-
diction in the matter, either exclusive or concurrent.
Sect. 136 is in these words-" In case of any claim,
dispute, or difference between the official assignee,
the creditors' assignee and the creditors, or any
of such persons, or between any persons claiming
under a trust-deed, deed of composition, or arrange-
ment, relating to any bankrupt's or debtor's estate, or
to any money or property claimed as part of the estate
of any bankrupt or debtor, either party may apply to
the court having jurisdiction in the bankruptcy, and in
other cases to the court in London; and it shall be
lawful for the court to determine the same, and to
summon and examine upon oath the official or creditors'
assignee, trustee, or any other person whomsoever, as
to any matters and things concerning the bankruptcy
or trust-estate, and to direct such inquiries, and to give
such directions and make such orders relative thereto,

as shall to the court seem just and expedient, and to

arising in bankruptcy to the court in which the pa
ticular bankruptcy is prosecuted, and all other man
relating to trust-d eds of the kind mentioned in t
second set of clauses to the Bankruptcy *Conn
London." It is not very obvious why sect. 136 san
have retained its place in a Bill in which
thought desirable afterwards to introduce the two t
of clauses to which reference has so frequently
made, these two sets being only more full and de-
orate provisions directed to the same objects as the
provided for by sect. 136. It is, however, OS
of history that the Bill was so altered in its passag
through the two Houses of Parliament that
prise can be entertained that its various enact
do not fit so well into each other as could be
wished, nor that sometimes an intention sho
indicated while words should be wanting to
such intention into effect. And, as might be expect
it is not possible to bring these different portions of t
Act into perfect harmony with each other. Deni
sect. 136, considered alone, would give the jur
diction in question to the London court T-
clusively, because, if the other parts of
Act were not in existence, the jurisdiction
altogether sought in that clause.
For the r
ence to the London court of matters arising
such deeds as those now before me is clear,
and limited to that court. That the Lond
therefore, has jurisdiction, as regards these d
cannot, I think, be doubted, and the only rem
question is as to the nature of that jurisdiction b
exclusive or is it concurrent? Now it must
forgotten that the clause contains no negative
and if, therefore, a jurisdiction can be found in the
portions of the Act, as I have already stated
may be done, I feel driven to the conclusion that ti
jurisdiction of the court in London is concurrent
that of this court. Yet I feel bound to state, f
guidance of suitors, that the jurisdiction of this t
is by no means so clear to my mind as that t
court in London. Therefore, although I am boi
act on the opinion I have formed, and to issue c
to suitors who choose to apply, yet I shall fe
cumbent upon me to protect my officers, so far as p
sible, against the consequences of acting under
which it may possibly be held elsewhere the curba
no jurisdiction to make. It will then follow thi
every officer who would be liable to an action if t
jurisdiction of this court could not be sustained,
be indemnified before he is called upon to acti
process issue in each of the three cases, if the p
cants persist in their application.

Equity Courts.

V. C. WOOD'S COURT.
Reported by W. H. BENNET, Esq., Barrister-at-Law.
Monday, March 10.
DALTON V. HILL.

Will-Construction - Restrictive words enlarged-
Legacy-Vesting.
Testator by his will gave to "all and every the ción
Poon v. Dover 10.£T.15.47