Hollis v. Bryant.

Chancellor, on behalf of Bryant, to discharge the Vice-Chancellor's order.

On the 2d of May his Lordship delivered the following judg

ment.

THE LORD CHANCELLOR :-This was an appeal from an order of the Vice-Chancellor appointing a receiver in this cause.

The facts of the case were these. Several years ago a commission was issued against Mr. Bryant. Mr. Bryant contested that commission; and, at last, a compromise was entered into between him and his creditors. Mr. Bryant paid a certain sum of money, which the creditors accepted; and no further proceedings have ever since taken place under that commission. It appears that the original assignees under the commission, are dead; and, a short time since, the proceedings under that commission were transferred to the Court of Bankruptcy; and Mr. Belcher, one of the defendants on the present record, was appointed official assignee. Those are the circumstances so far as relates to the bankruptcy. The present plaintiff, Mr. Hollis, was a creditor of Mr. Bryant; not a creditor under the bankruptcy; *but a creditor upon a transaction arising many years [*501] afterwards. Not being able to obtain payment of his

debt, he brought an action, in the Common Pleas, against Mr. Bryant, and recovered judgment in that action. Mr. Bryant had, for many years of his life, lived within the rules of the Queen's Bench prison; and, in consequence of that, a detainer was lodged against him. Upon the lodging of that detainer, the plaintiff, Mr. Hollis, applied to the Insolvent Debtors' Court, to be appointed assignee under the provisions contained in the Insolvent Debtors' Act which are of a compulsory nature. That application was resisted by Mr. Bryant, who attended by counsel; but the result was that the order was made and Mr. Hollis was ap pointed assignee. Some controversy arose at the bar as to whether or not there was any vesting order. It is quite clear that there was a vesting order, though it was contended that that vesting

Hollis v. Bryant.

order was not valid; but, in fact, the order never was discharged. It was a subsisting order, and, therefore, when Mr. Hollis was appointed assignee under the Act of Parliament, all the right and interest, subject to the existing bankruptcy, which Mr. Bryant had in any part of his property, vested in that assignee, that is, in the plaintiff, Mr. Hollis. Mr. Hollis endeavored to compel Mr. Bryant to file a schedule under the Insolvent Debtors' Act; but he was not successful in that application; and, in truth, the Act of Parliament is defective in that particular; for there are no adequate means by which the Commissioners of the Insolvent Debtors' Court can, under those clauses of the Act, compel a party to file a schedule. Mr. Hollis attempted also to recover his debt by some application under the bankruptcy; but, not

being a creditor under the commission, his application [*502] *in that respect was unsuccessful. It appears, therefore, that Mr. Hollis had no alternative but to proceed in the manner which he has done.

The argument at the bar and the point principally raised and contested, indeed the sole point, was this, that he ought not to have instituted the present suit, but that he ought to have gone on in the Insolvent Debtors' Court.

Now, adverting to the 40th section of the 1st and 2d Vict., c. 110, it is quite clear that he could not proceed in the Insolvent Debtors' Court; because, in consequence of the existence of the commission, the assignment which was made to Mr. Hollis, was not valid for any beneficial purposes to him. It was valid so far only as it enabled him to conduct certain inquiries with respect to the state of Mr. Bryant's property. But it is expressly provided that, though not valid in its original operation, so as to give the party any means of obtaining payment of his debt, it is valid for the purpose of inquiry; and, when a certificate under the commission is obtained, then the order becomes valid for all purposes. Therefore, until a certificate is obtained under the commission, or until the commission is superseded, that order is, in point of fact, for all beneficial purposes to Mr. Hollis, suspend

Storer v. Jackson.

ed: it was inoperative. But it is perfectly clear that Mr. Bryant will not take steps to supersede his commission: nor will he take steps for the purpose of obtaining his certificate; and, therefore, that vesting order remains, for all beneficial purposes, suspended. That being the case, what alternative had Mr. Hollis to pursue, but to institute a proceeding like the present?

*I am of opinion the proceeding was perfectly regu- [*503] lar; and the order for the appointment of a receiver follows, as a matter of course.

Consequently the Vice-Chancellor's order must be affirmed with

costs.

1842 22d February.

STORER V. JACKSON.

Practice.-Injunction.

The court refused to hear a motion to dissolve an injunction, pending a motion, of which the plaintiff had given notice, for production of documents mentioned in a schedule to the answer, no unnecessary delay having taken place in giving notice of the latter motion.

MOTION to dissolve an ex parte injunction on the coming in of the answer, pending a motion, of which the plaintiff had given notice, for production of documents mentioned in the schedule to the answer.

The Vice-Chancellor refused to hear the motion to dissolve, until the motion for production had been disposed of: because the contents of the documents were part of the discovery which the plaintiff was entitled to extract from the defendant, and the plaintiff had not been guilty of any unnecessary delay in giving notice of his motion; so that it was not a mere contrivance to avoid the motion to dissolve.

Turner v. Dorgan.

Mr. Bethell, for the defendant.

Mr. G. Richards and Mr. Mylne, for the plaintiff.

[*504]

*TURNER v. DORGAN.-MYATT v. DORGAN.

1842: 7th March.

Practice.-Order.-Contempt.

A. and B. each instituted a creditors' suit against C., the executrix of their de ceased debtor. A decree having been made in A.'s suit, C. obtained an order staying B.'s suit.-C. being in contempt for want of answer in that suit, the order was drawn up in the other suit.

BOTH the above suits were instituted, by creditors, for the administration of the estate of the same deceased debtor; and a decree having been obtained in the first, the defendant, the executrix of the deceased, moved to stay the proceedings in the second suit.

The Vice-Chancellor granted the motion; but, as the defend ant was in contempt for want of answer in the second suit, a question arose as to the form in which the order ought to be drawn up.

His honor, following an order made, under similar circumstances, in a cause of Weeks v. Williams, (with a copy of which the Registrar had furnished him.) directed the order to be drawn up as an order in the first suit, that being the suit in which the party moving was not in contempt.

Mr. G. Richards and Mr. Glasse, for the motion.

Bethell and Mr. Berry, for Myatt, the plaintiff in the second

suit.

Elliott v. Fisher.

*ELLIOTT v. FISHER.

[*505]

1842: 11th March.

Will.-Conversion.

Testator devised a real estate to his daughter for life, and then to be sold and the proceeds divided amongst her children. One of her children died in her lifetime, having devised his share of the estate to his son.

Held that the deceased child took his share of the estate as personalty in reversion expectant on his mother's death; and, consequently, that his executrix, and not his son, was entitled to it.

THOMAS WATMAN, being seised of an estate, partly freehold and partly copyhold, called the Gale estate, and having sur rendered the copy hold part to the use of his will, devised the estate to his daughter Ann Elliott, for her life, and then to be sold by his trustees thereinafter named, and the proceeds divided amongst all the children of his said daughter, share and share alike, excepting Bella Fisher; and he appointed John Biglands, John Chambers, and William Donald trustees of his will.

The testator died in 1818. His eldest son, Robert Watman, was his heir-at-law and customary heir.

On the testator's death, his daughter Ann Elliott entered into possession of the Gale estate; and continued in possession of it until her death. She had ten children including Bella Fisher. All of them, except Thomas who was her eldest son, survived her. He, by his will dated the 19th of September, 1840, gave to his son, the defendant Thomas Robert Watman Elliott, and his heirs, all his, the testator's, share of the estate called Gale, as willed to him, by his late grandfather Thomas Watman, subject to his mother's life interest therein; and he appointed the plaintiff, Fanny Elliott, sole executrix of his will. He died shortly after the date of his will. His mother, Ann Elliott, died on the 5th of November, 1841.

Two of the questions raised by the bill, were whether the legal estate in fee in the Gale estate, was vested, under the