Billeder på siden
PDF
ePub

proof for 7,8457. and 6,1617. under the commission against Henry Sudell, but the commissioners rejected the proofs, without assigning any reason.

The present petition of re-hearing further stated the hearing of the original petition, when it was ordered that the petitioners should prove for 7,8457. and 6,1617. against the estate of Henry Sudell, and that the petitioners should be paid dividends on the amount of such proofs, &c., but not disturbing any dividend then already declared:

That Myers and Co., on the 10th June 1833, proved for 7,8451. and 6,1617.; and that dividends to the amount of 1,0797. had been paid thereon :

That the petitioners were advised that such decision was erroneous, and the petitioners were aggrieved thereby :

That various affidavits were filed in support and in opposition to the original petition :

That since the hearing of the original petition the present petitioners had discovered further evidence with respect to the said sum of 7,8457., viz. that Messrs. Ewart and Co. not only made no report, and rendered no account of sales of the said goods to Henry Sudell, or to the petitioners, his assignees after his bankruptcy, but that Messrs. Ewart and Co. from time to time rendered accounts of such sales to Lyne and Sudell, and to the assignees of Lyne and Sudell, in the following form; viz.

"Liverpool, Exchange Alley, 12th Nov. 1827. "Messrs. William Lyne and Thomas Sudell.

"We have this day sold for you the under-mentioned cotton to Joseph Hogson and Son.

"H. S. 20 Egyptians, per Thomas, at 75/8.
"Payment, ten days and three months.

"Yours respectfully,

"For Ewart, Myers, and Co.,

"B. BRADSHAW,"

1834.

Ex parte SIMPSON and others.

In the matter

of

SUDELL,

1834.

Ex parte SIMPSON and others.

In the matter of

SUDELL.

The petition prayed that the original petition might be re-heard, the order rescinded, and the original petition of Myers and Co. dismissed, and that the affidavits filed in support and in opposition to the original petition might be read upon the hearing of this petition, and that the proofs made might be expunged, and that the dividends received might be refunded.

Mr. Montagu and Mr. Richards for the petition:This is an application to prove for 6,161l. advanced on bills under a guarantee, and for 7,8451. for money lent.

As to the 6,1617., the question is, whether those bills be proveable under the commission against Henry Sudell.

Considerable doubt has been entertained on this subject, both by the Court and by commissioners. In ex parte Marshall, ante, page 118 (a), some observations were made by both on the case now before the Court. At page 119, Mr. Merivale, when speaking of this case (ex parte Myers), says, this Court recently decided, "that a debt on a guarantee, which had not become absolute before the bankruptcy, is a debt proveable under the 56th section ;" and, in another part of his judgment, he says, " ex parte Myers, where the question was represented (in support of the petitioner) to be, merely whether the surety had contracted a debt' payable on a contingency within the 56th section; and it was taken for granted that, previous to the statute, a debt on a guarantee, which had not become absolute before the bankruptcy, was not proveable, though (as it was agreed) the proof was prevented, not by the nature of the debt, as being a

(a) See an elaborate note on the case of ex parte Marshall by Mr. Commissioner Fane, Appendix.

guarantee, but because it was upon a contingency. And then, in answer to a question of one of the learned Judges (Sir J. Cross), how could this be a debt, or capable of valuation before the deficiencies were known?" the counsel for the petitioner is driven to a construction of the latter part of the section (which I consider to be wholly untenable), that a demand not proveable as a debt due on a contingency at the time of the bankruptcy might become proveable by the subsequent happening of the contingency." Mr. Holroyd says (p. 142), "As to the case of ex parte Myers, the contract there was not to indemnify against contingent damages, but an absolute engagement by the bankrupt, that he (the bankrupt) or certain other persons (named) should provide for the payment of certain bills, to the extent of 12,000l." When the case of ex parte Marshall was brought a second time before the Court of Review (ante, page 145), the counsel (Mr. Swanston and Mr. Bethell) said, "the late case of ex parte Myers, Mont. & Bli. 229, is conclusive in favour of the petitioner, it having there been decided, that a debt on a guarantee not absolute before the bankruptcy was nevertheless proveable as a contingent debt." And the Chief Judge said, "It has been imagined that the decision in this case must shake either ex parte Myers (a) or ex parte Thompson (b), but it will not necessarily disturb either. In ex parte Thompson (b) there was no existing debt when the commission issued, but there was in ex parte Myers (a), Sudell being indebted on a bill, the payment of which depended on a contingency." And Sir George Rose said (page 154), "As to ex parte Myers (a), there never was a doubt but that a debt on a guarantee depending on

[blocks in formation]

1834.

Ex parte SIMPSON and others. In the matter of

SUDELL

1834.

Ex parte SIMPSON and others.

In the matter

of SUDELL.

a contingency was proveable after the contingency had happened. Twenty cases have fallen within my own observation in which commissioners have admitted such proofs as on a species of assumpsit, viewing such cases as similar to those which must go to a jury to decide the amount. It is familiar law that an undertaking to replace bank stock constitutes a liability which enables a proof to be made whenever the amount or value of the liability can be ascertained." And the Chief Judge said (page 156), "As upon referring to the reports of ex parte Myers (b) it appears to me that I have gone further than the authorities upon closer examination will warrant, I wish to avail myself of the reservation of our final judgment on this petition, by pointing out more precisely the view I take of the question. In my judgment in ex parte Myers (b) I have not distinctly marked the distinction between contingent liabilities that may never become debts and contingent debts that may never become payable. Upon the fullest consideration of all the reported decisions, I am satisfied that claims under the first class, upon which no debt has arisen till after the bankruptcy, cannot be proved under the 56th section, but that all claims falling within the latter class, that are either capable of valuation before the contingency happens, or have become payable by the happening of the contingency after the bankruptcy and before proof is tendered, may be admitted. The case of ex parte Thompson (a) is an example of the first class: the case of ex parte Myers (b) was decided as belonging to the second class. In the case of ex parte Thompson (a) there was no debt due from any one till after the bankruptcy; in ex parte Myers (b) a debt had been clearly contracted with the holders of the bills before the bankruptcy for a specific sum, which the bankrupt

(a) Mont. & Bli. 219.

(b) Mont. & Bli. 229.

had engaged to pay unless he should be released from his obligation by the drawers taking up the bills. Whether in deciding that case we sufficiently adverted to the distinction between guarantees for the repayment of monies actually advanced or goods sold and delivered to third parties before the bankruptcy, and guarantees for payment of securities current at the time, may perhaps be a fit subject for consideration whenever a similar case may arise. It is enough here to say no such point arises in this case." And Sir George Rose says (page 160), "An opinion appears to have prevailed that some discrepancy exists between ex parte Thompson (a) and ex parte Myers. (b) Those cases are completely reconcileable. The act speaks of a debt payable on a contingency; the first question therefore must be, whether any debt exists?"

These observations prove the law to be so unsettled as to require a minute examination of the principle on which it is founded, and of the various decisions on the

statute.

The 6 Geo. 4. c. 16. s. 56. being remedial, it is necessary to consider the evil existing before it passed. Prior to that act there were various provisions for the proof of debts not immediately payable, and which were incorporated in the 6 Geo. 4. c. 16., by section 51 of which act debts payable on a certain future day are proveable. By section 52, sureties liable for the payment of a sum certain which is paid after the bankruptcy are entitled to prove. These claims relate to debts payable on a day certain. Sections 53, 54, and 55, relate to demands which depend on contingency whether they will or not be debts, section 53, relating to bottomry and respondentia bonds, and sections 54

(a) Mont. & Bli. 219.

(b) Mont. & Bli. 229.

1834.

Ex parte SIMPSON and others. In the matter

of

SUDELL.

« ForrigeFortsæt »