RICHARD O'FLAHERTY, SOUTHWELL MULCAHY, ELLEN MULLALLY and EDMOND POWER, Petitioners; GEORGE M'DOWELL, Official Manager of the Tipperary Jointstock Bank, The Right Hon. JOHN DAVID FITZGERALD, HM Attorney-General, JAMES SADLEIR, one of the Public Officers of said Company, and also as a Shareholder in said Company, JAMES STERLING, and THOMAS HONE, Respondents

• Jurisdiction: Ireland
• Judgment Date: 25 November 1856
• Date: 25 November 1856
• Court: High Court of Chancery (Ireland)

Chancery.

RICHARD O'FLAHERTY, SOUTHWELL MULCAHY, ELLEN MULLALLY and EDMOND POWER,

Petitioners;

GEORGE M'DOWELL, Official Manager of the Tipperary Jointstock Bank, The Right Hon. JOHN DAVID FITZGERALD, her Majesty's Attorney-General, JAMES SADLEIR, one of the Public Officers of said Company, and also as a Shareholder in said Company, JAMES STERLING, and THOMAS HONE,

Respondents.

Ex parte Wyndham 1 M., D. & De G. 146.

Hall v.FranklinENR3 M. & W. 259.

Dodgson v. ScottENR 2 Ex. 468.

Fawcett v. HodgesUNK3 IR. Eq. Rep. 232.

Acheson v. HodgesUNK3 Ir. Eq. Rep. 516.

Hayden v. Carroll 3 Ridg. P. C. 599.

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

Ottley v. Browne 1 Ba. & Bea. 360.

Vincent v. Hackett 2 L. R. 258.

In re Anderson Co. & Alc. 1.

In re Guinness 1 Ir. Jur. 359.

Ex parte HallUNK 3 Deac. 405.

Devaynes v. NobleENR 1 Mer. 528.

Braithwaite v. BrittanENR1 Keen, 206.

Farran v. Ottiwell 2 Jebb & Sy. 97.

Morris v. MellinENR6 B. & C. 446.

Minet v. LemanENR20 Beav. 269.

Dakins v. SeamanENR 9 M. & W. 788.

Middleton v. Croft 11 Cas. temp. Hardw. 324.

Thomson v. Birnie2 Ir. Law Rep. 234.

Townsend's case Plowd. 111.

Ness v. AngasENR 3 Exch. Rep. 812.

Clements v. BowesENR 17 Sim. 175.

Waugh v. CarverENR 8 H. Bl. 235.

Fawcett v. Hodges Ubi sup.

Steward v. GravesENR10 M. & W. 711.

Walker v. MilneENR11 Beav. 507.

Cape's case 2 De. G., M'N. & G. 562.

Stewart v. DunnENR12 M. & W. 655.

Dodgson v. ScottENR2 Exch. 457.

Poler v. PageENRENR3 C. B. 16; S. C., 5 De G. & Sm. 552.

Howard v. WhatelyENR5 De G. & Sm. 552.

Hayden v. Carroll 3 Ridg. P. C. 859.

Haydon v. Rivers 3 Ridg. P. C. 537.

Stewart v. GreavesENR10 M. & W. 711.

Chapman v. MilvainENR 5 Exch. 60; vide 64.

Davidson v. FarmerENR6 Exch. 242.

Beech v. EyreUNK 5 M. & G. 419.

Blewitt v. GordonUNK 1 Dowl., N. S., 815.

Australasia v. HardingENR 9 C. B. 661.

Barker v. ButtressENR7 Beav. 134.

Heward v. WhatleyENR5 De G. & S. 552.

Ness v. AngasENR3 Exch. 805.

In re AndersonENR Cooke & Al. 1.

350 CHANCERY REPORTS. 1856. Chancery. RICHARD O'FLAHERTY, SOUTHWELL MULCAHY, ELLEN MULLALLY and EDMOND POWER, Petitioners ; GEORGE M'DOWELL, Official Manager of the Tipperary Joint-stock Bank, The Right Hon. JOHN DAVID FITZGERALD, her Majesty's Attorney-General, JAMES SADLEIR, one of the Public Officers of said Company, and also as a Shareholder in said Company, JAMES STERLING-, and THOMAS HONE, Respondents. (Chancery.) THE petition in this case, filed on the 1 lth of June 1856, stated that, in the year 1838, a certain partnership, consisting of more than six in number, called the Tipperary Joint-stock Bank, was formed in the town of Tipperary, to carry on the business of bankers in Ireland ; which partnership was regulated and agreed to be carried on according to the provisions of the 6 G. 4, c. 42, and of an indenture of the 5th of July 1842, by which it was agreed that the object of the said co-partnership should be to establish in any cities, towns and places in Ireland, and also in any other cities, towns and places the Court of Directors might think proper, banks and agencies, and, so far as the same could be effected or might not be prohibited by the laws for the time being in force, to carry on by means of such banks and agencies, or otherwise, the business of bankers, and lend moneys on cash accounts, bills of exchange, promissory notes or letters of credit, or on real or personal security, or on pledges of any kind whatsoever of any goods, wares or merchandize or other effects whatsoever ; also to keep the money or cash of any person or persons whomsoever, or of any bodies politic or corporate whatsoever, and also to deal in money, bullion and specie of all countries, and in notes, bills or other securities CHANCERY REPORTS. 351 for money, and generally to transact all such other business as it 1856. was or might or should at any time thereafter be lawful for establish- ments so carrying on banking in all its branches or dealings, in &FLAHERTY v. money, bullion or specie, or in notes, bills or other securities for M'DOWELL. money to do or transact, including therein the establishment of Statement. agencies or connections in any foreign parts, and the giving of letters of credit abroad for any purpose whatsoever ; provided howÂÂever that the co-partnership should not make or issue any bank notes or bills payable on demand, save with the sanction and subject to the provisions thereinafter mentioned and contained, and that the capital of the society should consist of the sum of 500,000, of lawful money of Great Britain and Ireland, to be contributed in 10,000 shares of 150 each, which capital of 500,000 was thereinÂÂafter distinguished by the name of the original capital, and of such further sum or sums of like lawful money as might thereafter be raised by the creation and sale of new shares, under the powers thereinafter for that purpose contained ; and by the same indenture it was agreed and provided that the business of the said co-partner-;ship should be conducted and managed as therein provided, by a Court of Directors. That various persons became shareholders and partners in the said co-partnership, and subscribed towards the capital thereof to a large amount, but not exceeding the sum of 50,000, and the said co-partnership carried on the business of bankers in Ireland, from the date of the said deed, first, at its head office at Tipperary, and afterwards at the town of Clonmel, being its head office for the last ten years and upwards ; and at Tipperary, Nenagh, Roscrea, Thurles, Carrick-on-Suir, Carlow, Athy and Thomastown ; at all which places the said co-partnership, for the last ten years and upwards, carried on and continued to carry on the business of bankers in Ireland, by discounting of bills of exchange and promisÂÂsory notes, receiving deposits of cash, paying drafts and cheques of depositors of cash, issuing letters of credit on its bankers in various localities, and transacting the general business of bankers ; save that they did not issue their own promissory notes, payable to bearer on demand ; which business they so carried on until the 352 CHANCERY REPORTS. 20th of February 1856, when the said co-partnership stopped payÂÂment at all its said branches, within the meaning of an Act of Parliament passed in the thirty-third year of the reign of his late Majesty King George the Second, entitled, " An Act for repealing an Act passed in this kingdom in the eighth year of the reign of King George the First, entitled, ' An Act for the better Securing the Payment of Bankers' Notes,' and providing a more effectual remedy for the Security and Payment of Debts due by Bankers." That at the time of said stoppage of payment, and of filing the petition, the said co-partnership was justly indebted to the petiÂÂtioners in the several principal sums as stated and set forth in the schedule to the petition, over and above all just credits and allowÂÂances, being for moneys paid to and deposited with the said coÂÂpartnership, at its offices and places of business, in the said schedule stated by the petitioners respectively, at the respective times in said schedule stated, to the credit of the petitioners respectively, in account with the said Banking Company, as depositors therein, and upon foot of which respective sums interest was paid to the petitioners respectively, within the twelve months next preceding such the stopping of payment of said co-partnership ; these sums amounting in the whole to upwards of 3000. That the said co-partnership was, at the time of such stoppage of payment, and still continued, justly indebted to various persons, exceeding in number five hundred, in a very large amount, viz., in an amount exceeding altogether the sum of 430,000; and the entire available assets and property of the said co-partnership, at the time of such its stoppage of payment, did not exceed in amount or value the sum of 50,000, and consisted of bills of exchange, promissory notes, and other securities for money, and a sum of 5,469. 9s. 7d. in cash, which had since the 8th of March 1856 been lodged to the credit of The account of the official manager of the Tipperary Joint-stock Bank," and some interests in the houses in which the said co-partnership carried on its business in the several places aforesaid. That upon the 21st of February 1856, David Rafferty, a shareÂÂholder in said co-partnership, presented his petition in the matter of the Joint-stock Companies Winding-up Acts, 1848 and 1849, CHANCERY REPORTS. 353 and of the Tipperary Joint-stock Bank, stating the stoppage of 1856. Chancery, payment by the said co-partnership on the 20th of February o ' FLAuERTY 1856, and praying for a dissolution and winding up of the affairs v. of the said co-partnership ; whereupon an order was made by the m4nOWELL, Master of the Rolls, on the 4th of March 1856, whereby it was Statement. ordered that the said Company should stand dissolved as of that date, and it was referred to Master Murphy to wind up the affairs of the said co-partnership, pursuant to the provisions of the said Acts; and on the 17th of March 1856, by an order made in the said matter, George M'Dowell, Esq., was appointed official manager of the said Bank. That the creditors of said Bank were not, under the provisions of said Winding-up Acts, entitled to intervene or take a part in the proceedings thereunder, or to examine or investigate the accounts of said Bank, and that the proceedings in said matter were exclusively shareholders' proceedings, the said Winding-up Acts being framed with a view to adjust liabilities and contribution as between the shareholders and members thereof themselves, and irrespective of the rights which the creditors were entitled to under the provisions of the said Act of the 33 G. 2 ; whereby it was amongst other things enacted, " That from and immediately after the time that any banker shall abscond or conceal himself from his creditors, or...