Moran and Another v Reynolds

• Jurisdiction: Ireland
• Judgment Date: 22 January 1869
• Date: 22 January 1869
• Court: Queen's Bench Division (Ireland)

Q. Bench.

MORAN AND ANOTHER

and

REYNOLDS.

Kennedy v. Blackburn 11 Ir. Jur. N. S. 388.

Blackford v. Hill 15 Q. B. Rep. 116.

Davis v. Percy 1 L. R. C. P. 256.

Temple v. SleighENR 9 C. B. 348.

Jones v. SimpsonENR 3 H. & N. 836.

Davis v. PercyELR L. R. 1 C. P. 256.

Lister v. MundellUNK 1 B. & P. 427.

Hanson v. BlakeyUNK 1 B. & P. 261.

Davis v. ShapleyENR 1 B. & Ad. 54.

Barrow v. PoileENR 1 B. & Ad. 630.

Bankruptcy — Private Arrangement — Protection.

353 By consent, the demurrer to the 5th defence to the first count Q. Bench. was withdrawn, 1868. Judgment for the Plaintiff upon the defences to the first count, and ATHOL for the Defendant 'upon the second count. V. MID. GREAT WESTERN Attorney for the Plaintiff : James Goff. RAILWAY CO. Attorney for the Defendants : W. P. _Kirwan. MORAN AND ANOTHER v. REYNOLDS. Bankruptcy-Private Arrangement-Protection. Where, under the arrangement clauses of the Irish Bankruptcy and InsolÂvency Act, 1857, the agreement and resolution for the composition had been ratified and confirmed by, and filed of record in, the Court, and protection granted, Held (dissentiente WHITESIDE, C. J.), that this protection only protected the person of the debtor; and that until the final certificate under section 352 was obtained, a non-assenting creditor might proceed to execution against the goods of the debtor. Q. Bench. 1869. Jan. 19, 20, 22. MOTION to set aside an execution. The action was brought to recover £73 10s. 11d., with interest, on foot of a bill of exchange. Upon the 12th of June, 1868, before the Plaintiff was entitled to judgment, the Defendant filed a petition under the arrangement clauses of the Irish Bankruptcy and Insolvency Act, 1857. Upon that same day protection under section 343 was granted to him, and it was ordered that his estates and effects should be possessed and" received by one of the official assignees of the Court. On the 15th of June the Defendant served a copy of the order for protection upon the Plaintiff's attorney, and also a notice cautioning him against proceeding further in the matter. On the 19th of June the first meeting of creditors was held. The first private sitting was held upon the 3rd of July. The Defendant proposed a composition of 6s. 8d. in the pound, payable in three instalments at 3, 6, and 9 months, the third instalment to be secured by the joint and several promissory notes of the Defendant and a Mr. Hopkins. This proposition was agreed to, without any creditor dissenting, and a second sitting for the confirmation of the proposal was appointed THE IRISH REPORTS. for the 24th of July, and protection to the person and property of the Defendant was granted until the 24th of July. The second private sitting took place upon the 24th of July, when the Court approved and confirmed the proposal, and adjourned the sitting until the 7th of August, to allow of the sitting for proof of debts to be held, and the bills for the composition to be prepared in the meantime, and extended the protection until that day. On the 3rd of August the sitting for the proof of debts was held before the Chief Registrar, and the list of composition was settled by the official assignee upon the 4th. The bills for the composition were perfected, and lodged with the official assignee upon the 6th ; on the 7th the adjourned sitting was held. The Court ratified the resolution and agreement, and it was filed of record in the Court, and the Court granted protection in the usual form until the 27th of October, the day upon which the bills for the first instalment would fall due. The Plaintiffs had notice of all these proceedings, but did not attend the meetings or assent to the arrangement. They marked judgment upon the 8th of July, issued a writ of fieri 'alas, and seized the Defendant's goods upon the 10th of August. On the 12th of August the Plaintiffs received the bills for the composition, but immediately returned them to the official assignee. The Defendant swore that he had paid all the bills for the first instalment of the composition, with the exception of the bill to the Plaintiffs, and that he was, and had been, ready and willing to pay that if they would have accepted it. The Defendant now moved to set aside the writ of fieri facias and all subsequent proceedings thereunder, as being issued in contravention of the Irish Bankrupt and Insolvent Act, 1857, and as improperly issued, having regard to the proceedings in the Bankrupt and Insolvent Court. Butt, Q. C., and _a, H. Mae Dermot, in support of the motion. Kernan, Q. C., and Seeds, for the Plaintiffs. The arguments used and the authorities cited are so fully given in the judgments, that it is not necessary to state them. Cur. adv. suit. VOL. III.] COMMON LAW SERIES. GEORGE, J. The question arising upon this motion is one of great importance to the mercantile community, affecting as it does the rights of creditors, and the practice as to "arrangements" under the control of the Court of Bankruptcy in Ireland, accordÂing to the provisions of the Irish Bankrupt Act, 20 & 21 Viet. e. 60. The object of the motion is to set aside an execution under a fa., issued by the Plaintiff against the goods of the Defendant, subsequent to the second private sitting, and the protection given consequent thereon, the Defendant alleging that the execution against the property of the Defendant is in contravention of the arrangeÂment clauses of the Irish Bankrupt Act, and of the protection given thereby, the Plaintiff alleging that these clauses (under the circumstances of this case) protect the debtor from arrest of his person only, and not from a seizure of his property. The Defendant, Reynolds, was a trader within the meaning of the Irish Bankrupt Act, 20 & 21 Vict., c. 60, and on the 12th of June, 1868, he presented his petition to the Court, praying for protection to his person and property under the 343rd section of the Act. It will be of importance to accurately fix the dates of the subsequent proceedings. On the 3rd July, 1868, the first private sitÂting was held, section 344, and usual protection given. On the 8th ofJuly, 1868, the judgment on which the execution afterwards issued was recovered by the Plaintiff. On the 19th of July, 1868, a comÂposition of 6s. 8d. in the pound was proposed and agreed to. On the 24th of July, 1868, the second private sitting took place, and the usual order for protection was made. On the 10th of August, 1868, a seizure of the Defendant's goods was made under the fi. fa. on foot of the judgment, and on the 12th of August, 1868, but not till then, composition bills at 6s. 8d. in the pound were sent by the official assignee to the Plaintiff, but were not accepted by him. The Defendant contends that the protection given to him at the second private sitting, which was in the ordinary form preÂcribed by the Act, extending in terms to the person only-in fact protected his property-and also that the Plaintiff had no right to issue the fi. fa. subsequent to that protection. The Plaintiff contends that the protection, under the 347th section, at the second sitting, extended to the person only, and not to property. THE IRISH REPORTS. [I. R. No proceedings have been taken by the trader, or any one on his behalf, to vest his property in the official assignee of the Court, under the provisions .of the Act, nor had any final certificate been given to the trader under the 352nd section of the Act. The rights of the parties, and the solution of the difficult quesÂtions to be decided here between them, depend on the construction to be given to the " arrangement clauses" of the Irish Bankrupt Act, and on the weight to be given to the authorities in this country and in England, decided upon the Irish Act, 1857, and upon the English Acts of the 7 & 8 Viet. c. 70, and the BankÂruptcy Arrangement Act, 1848. The arrangement clauses of the Irish Bankrupt Act, 20 & 21 Viet. c. 60, 1857, extend from the 343rd to the 353rd clause inÂclusive. Their object is to facilitate arrangements between traders and their creditors without having recourse to bankruptcy, and to afford protection to the person and property of traders who shall comply with the provisions of the Act. The 343rd section provides that a trader (as therein) may petiÂtion the Court of Bankruptcy, and pray that his person and proÂperty may be protected from process till further order. I premise that the Court shall have power to grant such protection and renew it from time to time, and that if petitioner is in custody for debt it may order his release, provided that such release shall in no wise affect any rights of the creditor against such petitioner, except the right of detaining him in prison whilst protected from imprisonÂment by order of the Court. It appears that the usual protection order under this section was made. There are two distinct objects referred to in this section : protection to the person and protection to the property of the trader. The protection to the person of the trader appears to be given as of course (in the subsequent sections) by the Court itself. But protection to the property of the trader is only given on cause shown by the trader himself, under the 344th section, or, if such should be required, by the resolution in the 349th section, or by the final operation of the 352nd section. No steps have been taken in this case by the trader, as I have said, to vest the property in the official assignee, nor has the final certificate of conformity been obtained. VoL. III.] COMMON LAW SERIES. The 344th section enacts that forthwith, after the granting of any order for protection, the Court shall appoint a private sitting, and upon sufficient cause shown may, if it shall think fit, direct that the estate and effects of the petitioner shall be received by the offiÂcial assignee or messenger, to be subject as in bankruptcy, and...