Davies v Kennedy, and Others

• Jurisdiction: Ireland
• Judgment Date: 12 December 1868
• Date: 12 December 1868
• Court: Rolls Court (Ireland)

Rolls.

DAVIES

and

KENNEDY, AND OTHERS.

Hayden v. Carroll 3 Ridg. P. C. 592.

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

In re AndersonENR Cooke & Al. 1.

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

Fawcett v. HodgesENR Fl. & Kel. 100.

In re Guinness 1 Ir. Jur. 359.

Stafford v. Henry 12 Ir. Eq. R. 400.

The Queen v. Guinness 3 Ir. Ch. R. 211.

Guinness v. Fitzsimons 13 Ir. Eq. R. 189.

O'Flaherty v. M'Dowell 6 Ir. Ch. R. 350.

Fordyce v. BridgesENR 1 H. L. C. 1.

Hayden v. Carroll 3 Ridg. P. C. 592.

Stafford v. Henry 12 Ir. Eq. R. 400.

In re Guinness 1 Ir. Jur. 359.

v. Fitzsimons 13 Ir. Eq. R. 189.

O'Flaherty v. M'Dowell 6 Ir. Ch. R. 350.

Pearce v. MorrisENR 2 Ad. & El. 96.

Rex v. The Inhabitants of St. GregoryENR 2 Ad. & El. 99.

Neve v. PennellENR 2 H. & M. 170.

In re Hamilton 9 Ir. Ch. R. 512.

Moore v. CulverhouseENR 27 Beav. 639.

In re Driscoll I. R. 1 Eq. 285.

In re Fitzgerald's Estate 11 Ir. Ch. R. 278.

In re Monsell 5 Ir. Ch. R. 529.

Brown v. Thorp L. R. 9 Ap. 220.

O'Flaherty v. M'DowellENR 6 H. L. C. 166, 169, 185.

Stafford v. Henry 12 Ir. Eq. R. 400.

In re Guinness 1 Ir. Jur 359.

Bedell v. ConstableENR Vaugh. 17.

Zouch v. Parsons 2 Bur. 1792.

Hawkins v. Gathercole 6 D. M. & G. 31.

Fitzgerald v. ChampneysENR 2 J. & H. 31.

Ex parte Gardan 15 Ves. 286.

Parslow v. DearloveENR 4 East, 438.

Banfield v. BurrellUNK 2 B. & P. 1.

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

In re Driscoll I. R. 1 Eq. 285.

Neve v. PennellENR 2 H. & M. 170.

Eyre v. M'DowellENR 9 H. L. C. 619.

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

Beavan v. Lord Oxford 6 D. M. & G. 492.

Marples v. HartleyENR 2 El. & El. 610.

Banbury v. White 2 Y. & C. C. 300.

Hickson v. CollesUNK 6 Ir. Eq. R. 524; 10 Ir. Eq. Rep. 447.

Warburton v. LovelandENR 6 Bli. N. S. 1; 2 Dow. & Cl. 460 VOL. III.

O'Connor v. StephensUNK 13 Ir. C. L. 63.

Brown v. Thorp L. R. 2 Ap. 240.

Fowler v. Fowler 16 Ir. Ch. R. 507.

In re Edgeworth's Estate 11 Ir. Ch. R. 293.

In re Power's Estate 11 Ir. Ch. R. 288, 295.

Slator v. Slator 16 Ir. Ch. R. 488.

Woodroffe v. Greene 14 Ir. Ch. R. 224; on appeal, 15 Ir. Ch. R. 176.

Metcalfe v. Pulvertoft 2 Ves. & B. 295.

Fullerton v. TylerENR 25 Beav. 47.

Re Anderson Cook. & Alc. 1, see post.

Acheson v. Hodges 3 Ir. Eq. R. 232, 516.

Stafford v. Henry 12 Ir. Eq. R. 400.

Guinness v. Fitzsimon 13 Ir. Eq. R. 193.

O'Flaherty v. M'Dowell 6 H. L. Cas. 166.

Hayden v. Rivers 2 Law Rec. O. S., see pp. 258,

Stafford v. Henry 12 Ir. Eq. R. 400.

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

Co.'s Bank Co. & Alc. 1.

Stafford v. Henry 12 Ir. Eq. R. 400.

Re Guinness 1 Ir. Jur. 359.

Guinness v. Fitzsimons 13 Ir. Eq. R., 189; 1 Ir. Jur. 357.

Thorp v. Brown L. Rep. 2 Ap. 220.

33 Geo. 2, c. 14 (Ireland) — Not repealed — Not confined to Bankers issuing Notes —— Stoppage of Payment — Trust Deed — Deed — Levelling Securities — Equitable Mortgage — Judgment Mortgage.

VOL. III.] EQUITY SERIES. support his argument on the other point, that was the time conÂÂÂtended for by the Petitioner's counsel, and Norman v. Norman (1) was relied on. That was a peculiar case, and does not resemble this, nor do I see how it would be possible to apply the very intricate and inconÂÂÂvenient principle of it to a case like the present, unless I were to hold, as was there suggested, that more remote issue were to be provided for by giving a share to the parents, a proposition, in my opinion, impossible to be sustained. The cases of Kimberley v. Tew and Dennis's Trusts, in the principles of which I fully conÂÂÂcur, are plainly distinguishable from the present case. I must adjourn this case into Chambers to inquire who were the issue of Mr. William Dixon and Anne, his wife, at the time of the death of said Anne Dixon. Solicitor for the Petitioner : Mr. H. C. Neilson. Solicitor for the Minors : The Solicitor for Minors. DAVIES v. KENNEDY, AND OTHERS. Rolls. 1868. Bankers' Act, 33 Geo. 2, c. 14 (Ireland)-Not repealed-Not confined to Bankers issuing Notes-Holders of current Notes, Creditors under the Act-Stoppage of Payment-Trust Deed-Levelling Securities-Equitable MortÂÂÂgage-Judgment Mortgage. The Bankers' Act, 33 Geo. 2, c. 14 (Ireland), is not repeated by the 11 & 12 Geo. 3, c. 8 (Ireland), or by the subsequent Bankrupt Acts in force in IreÂÂÂland. Observations of Lord St. Leonards to the contrary in 0' Flaherty v. M'Dowell, 6 H. L. C. 166, et seq., dissented from. Therefore, where a banker executed a trust deed in pursuance of the 10th section of the Act, and was adjudicated a bankrupt on a declaration of insolÂÂÂvency afterwards filed by him, it was Held, that his estate should be admiÂÂÂnistered under the deed of trust. The Act applies to bankers who do not issue notes. Persons who have given credit to or trusted a banker are creditors within the meaning of the Act, whether the period of credit has expired or not. There (1) Beatty, Rep. 40. THE IRISH REPORTS. [I. R. fore, the holders of bills discounted for and indorsed by a banker, but not due at the time of stoppage of payment, are to be taken into account in calculating the majority in value of the creditors who are to approve of the trustees under the 11th section of the Act. The 2nd section of the Bankers' Act enacts, that all deeds executed by bankers affecting their lands shall be registered within a month of the execuÂÂÂtion thereof ; and for want of such registration shall be deemed to be fraudulent and void against creditors for valuable consideration. Section 8 enacts, that from the stoppage of payment by a banker all his real and personal estate shall be liable to the payment of his debts of every nature without priority or preference, except debts which he had contracted before he became a banker, and debts secured by deeds registered as aforesaid. Section 10 declares that the estates, real and personal, of bankers, shall stand vested in trustees, accordÂÂÂing to the several estates, rights, and interests of such bankers. On the 29th of June a banker agreed to deposit certain title deeds and deposited one of them, for an advance then made to him. Other deeds were deposited on the 6th of July, and with them a letter of agreement dated the 29th of June. On the 20th of July further deeds, some of which were not comprised in the letter, were deposited. He stopped payment on the 1st of August. The letter was not registered. Held, that the debt secured was levelled under the 8th section of the Act, and was not entitled to any priority. Semble, parol evidence is not admissible to dissociate the deposit from the letter. Semble, also, if the transaction was to be referred to the 6th or the 20th of July, it might have been effectually registered after the stoppage of payment. Semble, also, an equitable mortgage by deposit of deeds without writing, though incapable of registration, is levelled by the 8th section of the Act. A creditor by judgment mortgage is entitled to the benefit of the exception in the 8th section of the Bankers' Act. A judgment was recovered by " E. G. B., of, &c., Esq., M. D., and J. P., of, &c., Esq., barrister," against "J. B. K., of College-street, in the city of D.," the residence of the Defendant being College-green. The affidavit reÂÂÂgistered under the 13 & 14 Vict. e. 29, stated that the judgment was recovered by " E. G. B., of, &c., M. D., and J. P., of B.-street, in the city of D.," against " J. B. K., of College-green, in the city of D." Held, that the affidavit was a sufficient compliance with the Act (13 & 14 Vict. c. 29), there being no error in it calculated to mislead. JAMES BIRCH KENNEDY, for several years previous to the year 1851, and until he stopped payment on the 1st day of August, 1866, carried on the trade or business of a banker, in the city of Dublin, under the name and style of James Birch Kennedy and Company. During the entire time he assumed the character of VOL. III.] EQUITY SERIES. and acted as a banker ; in the usual and settled course of his busiÂÂÂness, he received lodgments on accountable receipts, paid the cheques and drafts of persons having banking accounts with him and his firm, issued letters of credit on Bankers both in England and abroad, charged and was allowed banker's commission and charges in his dealing, discounted bills and promissory notes, and kept a public and open office in the city of Dublin, where he transacted the general business of a banker, save that be did not issue his own promissory notes payable to bearer on demand. He gave to his customers what are ordinarily known as pass and cheque books ; and the regular course of business transacted by him during the said period at his office or place of business at all times, in its customary routine, details, and management, was in all respects similar to that adopted at their places of business respecÂÂÂtively by other bankers and joint-stock banks in Ireland who are not entitled to the privileges of issuing notes. The books of J. B. Kennedy, were all kept and made out in the ordinary way and form in which bankers are accustomed to keep books, and they showed that he derived his profits in business from interest, comÂÂÂmission charges usually paid to bankers, and discounts, in the same way as other bankers not issuing notes acquire their profits. J. B. Kennedy, whilst so carrying on the business of a banker, became heavily indebted, unable to pay his customers and other creditors, and stopped payment on the 1st day of August, 1866. On the 2nd of August, 1866, J. B. Kennedy, with the view and object of effecting an arrangement with his creditors, presented a petition under the arrangement clauses of the Irish Bankrupt and Insolvent Act, 1857, proposing a composition of 7s. 6d. in the pound; but no further proceedings except the filing of his schedule in the said arrangement proceedings were taken by him. A meeting of his...