Davies and Others v Kennedy and Others

• Jurisdiction: Ireland
• Judgment Date: 15 June 1869
• Date: 15 June 1869
• Court: Court of Appeal in Chancery (Ireland)

Ch. App.

DAVIES AND OTHERS

and

KENNEDY AND OTHERS.

O'Flaherty v. M'DowellENR 6 H. L. C. 142.

Stafford v. HenryUNK 12 Ir. Eq. Rep. 400.

Guinness, Petitioner 1 Ir. Jur. 359.

Emmanuel v. ConstableENR 3 Russ. 436.

Hawkins v. GathercoleENR 6 De G. M. & G. 421.

Stradling v. Morgan Plowd. 204.

Salkeld v. JohnstonENR 1 Hare, 196.

Crespigny v. WittenoomENR 4 T. R. 790.

Beavan v. The Earl of OxfordENR 6 De G. M. & G. 492.

Shaw v. NealeENR 6 H. L. C. 581.

Maples v. Hartley 3 Ell. & Ell. 610; S. C. 30 L. J. N. S. Q. B. 92.

Bambury v. WhiteENR 2 H. & C. 300.

Sumpter v. CooperENR 2 B. & Ad. 223.

Neve v. PennellENR 2 H. & M. 176.

Hiern v. Mill 13 Ves. 114.

Driscoll's Estate Ir. R. 1 Eq. 285.

Garry v. Sharrett 10 B. & Cr. 716.

Metcalfe v. PulvertoftENR 2 V. & B. 200.

Tyler v. ThomasENR 25 Beav. 47.

Harrison v. The Earl of AldboroughUNK 1 Ir. Ch. Rep. 666.

Hayden v. Carroll Ridgway's P. C. 549, 590.

In re Anderson Cooke & Alc. 1.

Stafford v. HenryUNK 12 Ir. Eq. Rep. 400.

Spearing v. Delacour 1 Dr. & War. 591.

Guinness v. FitzsimonUNK 13 Ir. Eq. Rep. 189.

The Queen v. GuinnessUNK 3 Ir. Ch. Rep. 211.

Assignee of Collis v. Heir of Mahon 1 Jones' Rep. 132.

O'Flaherty v. M'DowellENR 6 H. L. C. 142.

Emmanuel v. ConstableENR 3 Russ. 436.

Nolan's CaseUNK 4 Ir. C. L. 290.

Stafford v. HenryUNK 12 Ir. Eq. Rep. 400.

Guinness v. Fitzsimon 1 Ir. Jur. 357.

In re HamiltonUNK 9 Ir. Ch. Rep. 512, 518.

Rex v. The Inhabitants of St. Gregory 2 Ad. & Ell. 99.

Pierce v. Morris 2 Ad. & Ell. 96.

Hayden v. Carroll 2 Ridgeway's P. C. 549.

O'Flaherty v. M'DowellENR 6 H. L. C. 142.

Vincent v. Hackett 2 Law Rec. O. S. 258.

Stafford v. HenryUNK 12 Ir. Eq. Rep. 400.

Spearing v. Delacour 1 Dr. & War. 591.

The Dean and Chapter of Ely v. BlissENR 5 Beav. 574, 582.

Ex parte Gardom 15 Ves. 286.

Johnston v. ComptonENR 4 Sim. 37.

Parslow v. DearloveENR 4 East, 438.

Bamford v. Burrell 2 Bos. & Pull. 1.

O'Flaherty v. M'DowellENR 6 H. L. C. 166.

Emmanuel v. ConstableENR 3 Russ. 438.

In re Guinness 1 Ir. Jur. 359.

Stafford v. HenryUNK 12 Ir. Eq. Rep. 407.

Stafford v. HenryIR 12 Ir. Eq. 400.

Heydon's CaseUNK 3 Rep. 7, b.

Hayden v. Carroll 3 Ridgway's P. C. 545.

Emmanuel v. ConstableENR 3 Russ. 436.

Hawkins v. Gathercole 6 De G. M'N. & G. 1.

Salkeld v. JohnsonENR 1 Hare, 196.

Stafford v. Henry 12 Ir. Eq. R. 407.

Stafford v. HenryUNK 12 Ir. Eq. Rep. 400.

— is confined to Bankers who issue Notes — Stoppage of Payment — Trust Deed — Levelling Securities — Equitable Mortgage.

668 THE IRISH REPORTS. [I. R. C74 App, DAVIES AND 01.1thRs v. KENNEDY AND OTIIERs. Bankers' Act, 33 Geo. 2, c. 14 (Ir.)- Whether that Act is confined to Bankers who issue Notes-Stoppage of Payment-Trust Deed-Levelling Securities -Equitable Mortgage. A banker, who did not issue notes, having stopped payment, executed a trust deed in pursuance of the 10th section of the Bankers' Act, 33 Geo. 2, e. 14 (Ir.), and was afterwards adjudicated a bankrupt. A bill having been.filed by the trustees of that deed, praying that the trusts of it might be carried into execution, The Master of the Rolls made a decree that the estate of the banker should be administered under and pursuant to the provisions of the Bankers' Act. An appeal having been brought from that decree, Held, by the LORD CHANCELLOR, that the Bankers' Act is not repealed, that it applies to all bankers, whether they issue notes or not, and that the decree of the Master of the Rolls should be affirmed in all other respects. Held by the LORD JUSTICE OP APPEAL, that the decree ought to be reversed, on the ground that the Bankers' Act is confined to bankers who issue notes. His Lordship did not express any opinion on the other questions in the case. Tins was an appeal from a decree of the Master of the Rolls. The facts of the case will be found fully stated in the report of the case in the Court below (ante, p. 31). By the decree of the Master of the Rolls, it was declared that the trusts of the indenture of the 27th day of August, 1866, in the pleadings mentioned, ought to be performed and carried into execution, and. that the same should be decreed accordingly ; and it was also declared that the funds realized and to be realized from the sales, calling in, or disposition of the estates, real and personal, of the Defendant, James Birch Kennedy, which were conveyed and assigned to the Plaintiffs as in their bill mentioned, ought to be administered under and pursuant to the provisions of the StaÂÂtute 33 Geo. 2, e. 14 (Ireland); and it was further declared that the Plaintiffs and the other creditors of the said Defendant, James Birch Kennedy, who were such at the time when he stopped payÂÂment, as in the Plaintiff's bill mentioned, ought to be paid their demands out of the real estate, whether for lives, in fee simple, or in fee tail ; and all the personal estate, credits, and effects whatso VOL. III.] EQUITY SERIES. ever, either in Law or in Equity, of which the said James Birch Kennedy was seised, possessed of, or entitled to at the time of his so stopping payment, so far as the same will extend, to discharge such demands (after and subject to the payment thereout of the costs of this suit as hereinafter mentioned) without any regard to priority or preference in point of payment, other than and except as is provided by and. pursuant to the provisions of the said StaÂÂtute, save as hereinafter mentioned. And the said. decree, after directing certain accounts and inquiries, proceeded as follows; And it is further declared that the debts claimed by the said Defendants, James Peebles and the Royal Bank of Ireland, to be due to them, and to be secured by the equitable mortgages in the pleadings mentioned, are not debts secured by deed or conveyÂÂance registered pursuant to the provisions of the said Statute, 33 Geo. 2, c. 14 ; and it is declared that the said. Defendants, James Peebles and the Royal Bank, respectively, have no right to priority or preference by virtue of the said. equitable mortgages respectively, in point of payment thereof, over the Plaintiffs and the other creditors of the said Defendant, James Birch Kennedy. From that decree the Royal Bank and Mr. Peebles now apÂÂpealed. Mr. Palles, Q. C. (with him Mr. Samuel Walker), for the Royal April 19, 20, Bank. 21. The Bankers' Act, 33 Geo. 2, c. 14 (Ir.), is repealed by the Bankrupt Act, 11 & 12 Geo. 3, c. 8 (Ir.), at least so far as the question now before the Court is concerned. We do not contend that it is wholly repealed ; but so far as the provisions of the two Acts are inconsistent, the latter Act has superseded and repealed the former. It is plain that the provisions of the two Acts are in direct conflict with each other. The Act of Geo. 3 applies exÂÂpressly to bankers. The sixth section leaves unimpeached a transÂÂaction which would be invalid under the 2nd section of the Act of Geo. 2 ; the 7th section protects a settlement on the marriage of a child of the Bankrupt, which under the 3rd section of the earlier Statute could not stand ; and the 8th, 27th, 43rd, 45th, 58th, and 63rd sections of the Bankrupt Act are equally inconsisÂÂtent with the provisions of the Act of Geo. 2. Suppose a banker Vox. III. 3 C THE IRISH REPORTS. [I. R. commit an act which is both an act of Bankruptcy and. stopping payment, there at once arises a conflicting jurisdiction between the Commissioners under the 3rd section of the Bankrupt Act and the Trustees under the 10th section of the Bankers' Act ; and when it is recollected that the former Act was passed only twelve years after the latter, it is impossible to come to the conclusion that the Legislature, when passing the Act of Geo. 3, and having the then recent Act of 33 Geo. 2, e. 14, before them, intended that these two conflicting jurisdictions should exist together ; it must have been their intention that so far as the provisions of the two Acts were inconsistent, the later Act should supersede the earlier. This was the opinion of Lord St. Leonards in 0' Flaherty v. III-Towed (1) ; at page 166 he says : "Every provision of the 11 & 12 Geo. 3 is, in my opinion, in direct conflict with the 33 Geo. 2." But whether the Bankers' Act be repealed or not, we submit that its provisions are confined to bankers who issue notes. This Act was passed to extend the provisions of the 8 Geo. 1, c. 14, and at the same time to repeal that Statute. The 8 Geo. 1, c. 14, apÂÂplied only to bankers who issued notes. That is plain from the title and. preamble. The object with which that Act was passed was, as stated in the preamble, to give greater security for the payment of bankers' notes, or as they are called " cash notes," which we know, as an historical fact, constituted at that time by far the greater part of the currency of the country. Accordingly, the 1st section is directed to bankers who receive money on deposit, and who " give or issue out promissory notes for the payment of money so deposited, on demand, or upon any certain day." In sections 2 and 3, the word banker is qualified by the word " such," referring to the same class of bankers as is mentioned in the 1st section. In section 4, no doubt, the word banker occurs without any qualification ; but that section was framed to remedy the misÂÂchief recited in the preamble to exist-namely, that the real estates of bankers were not liable, after their deaths, to the payment of cash notes issued by them ; showing that the section points to the same class of bankers as are referred to in the previous sections. The 5th (1) 6 H. L. C. 142. Von. III.] EQUITY SERIES. 671 section is nothing but a corollary to the 4th. This was the opinion ch. App. of Pennefather, B., in Stafford v. Henry (1) ; at p. 407, he says : " It 1869. appears to me to be quite clear that the Statute 8 Geo. 1, c. 14, DAVIES only contemplates as bankers those persons who issued notes, and KENNEDY. who, in the...