The Estate of Henry Lambe, Owner; Patrick Rogers, Petitioner

• Jurisdiction: Ireland
• Judgment Date: 20 January 1869
• Date: 20 January 1869
• Court: Court of Appeal in Chancery (Ireland)

Ch. App.

IN THE MATTER OF THE ESTATE OF HENRY LAMBE,

OWNER;

PATRICK ROGERS,

PETITIONER.

In re Kennedy 17 Ir. Ch. R. 104.

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

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

Fluester v. M'ClellandENR 8 C. B. N. S. 357.

Longmans v. Wallace 10 Ir. Jur. N. S. 191.

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

Blackford v. Hill 15 Q. B. 116.

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

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

In re Kennedy 17 Ir. Ch. R. 104.

Blackford v. Hill 15 Q. B. 116.

Fluester v. M'ClellandENR 8 C. B. N. S. 357.

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

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

M'Auley v. Clarendon 8 Ir. Ch. R. 121.

— Arrangement Clauses —— Registration of a Judgment as a Mortgage not "process" within the meaning of the 343rd section — Effect of the final Certificate under the 352nd section.

THE IRISH REPORTS. [I. R. IN THE MATTER OF THE ESTATE OF HENRY LA MBE, OWNER ; PATRICK ROGERS, PETITIONER. Irish Bankruptcy and Insolvency Act, 1857-Arrangement Clauses-Protection Order-Registration of a Judgment as a Mortgage not "process" within the meaning of the 343rd section-Effect of the final Certificate under the 352nd section. The 343rd section of the Irish Bankruptcy and Insolvency Act, 1857, pro vides that a trader unable to meet his engagements may present a petition to the Court of Bankruptcy, setting forth the true cause of such inability, and praying that his person and property may be protected from process until furÂÂÂÂther order ; and the Court, on such petition, shall have power to grant such protection, and may renew the same from time to time. The 352nd section directs the Court, as soon as the arrangement proÂÂÂÂceedings shall have been carried out to the satisfaction of the creditors, to give the petitioning trader a certificate, which " shall thenceforth operate to all inÂÂÂÂtents and purposes as fully as if the same were a certificate of conformity in Bankruptcy." A. having presented a petition for arrangement with his creditors, the Court of Bankruptcy, on the 14th of November, 1866, made an order granting protection from process to the petitioner's person and property until the 14th of December then next, or until further order. On that day the first private sitting was held, but the protection order was not renewed; and, on the 11th of January, 1867, the second private sitting was held, and the resolution conÂÂÂÂfirmed. On the 3rd of December, 1866, while the protection order was in force, B., a judgment creditor of A., registered a judgment as a mortgage under the 13 & 14 Viet. c. 29, against certain lands of A. ; and, on the 8th of January, 1867, after the protection order had expired, he registered a second judgment against the same lands. Throughout the arrangement proceedings B. had been a dissenting creditor, and had refused to accept the composition tendered to him by A. Held, first, that the pendency of the arrangement proceedings per se did not prevent B. registering either of his judgments as mortgages ; And, secondly, that the registration of a judgment as a mortgage is not " process," within the meaning of the 343rd section of the Irish Bankruptcy and Insolvency Act, 1857; and that, therefore, the registration of the first judgment was no infringement of the protection order. The difference between arrangement proceedings and proceedings in a bankÂÂÂÂruptcy discussed. VOL. III.] EQUITY SERIES. On the 17th of April, 1867, B. presented a petition in the Landed Estates Court, on foot of both his judgment mortgages, for the sale of the lands against which they had been registered, and, on the 21st of January, 1868, an absolute order for sale was made. A. having obtained a certificate from the Court of Bankruptcy under the 352nd section, applied to the Landed Estates Court to discharge the order for sale ; and, on the 25th of April, 1868, Judge Dobbs made an order refusing that application. An appeal having been brought from that order, Held, that the 352nd section has a prospective effect only, and does not deÂÂÂÂprive a creditor of a security which he has legally obtained prior to the grantÂÂÂÂing of the final certificate under that section. Held also, that, as the estate of an arranging trader remains in him until the second private sitting, and is not then divested unless the resolution conÂÂÂÂtains a requirement to that effect, the judgment mortgages, being registered before that sitting, affected the lands against which they were registered, and that the creditor was entitled to an order for the sale of those lands. The order of Judge Dobbs affirmed. Tins was an appeal from an order of Judge Dobbs. In the month of November, 1866, Henry Lambe, the AppelÂÂÂÂlant, being a trader within the meaning of the Irish Bankruptcy and Insolvency Act, 1857, and being then embarrassed in his cirÂÂÂÂcumstances, and unable to meet his engagements with his creditors (amongst whom was Patrick Rogers), presented a petition to the Court of Bankruptcy and Insolvency, under the 343rd section of the said Act, praying that his person and property might be protected from all process, and that such proposal as he might be able to make, or such modification thereof as might be deterÂÂÂÂmined upon by three-fifths in number and value of his creditors, might be carried into effect under the control of the Court. On the 15th November, 1866, an order was made by Judge Lynch, granting protection from all process to the Appellant's person and property, pursuant to the prayer of the petition, until the 7th of December then next, or until further order, and appointÂÂÂÂing the first sitting to be held on that day ; and it was further ordered that the estate and effects of the Appellant should be posÂÂÂÂsessed and received by the official assignee. A meeting of the Appellant's creditors was held on the 20th of November, and a proposal was then made by the Appellant which was adopted, with certain modifications, by the creditors. The THE IRISH REPORTS. R. proposal, as adopted, was as follows :-A composition of 68. 8d., payable by three equal instalments at three, six, and nine months ; the first instalment to be secured by the promissory notes of the Appellant, and the second and third by the joint promissory notes of the Appellant and Francis Kavanagh. The first private sitting, which had been appointed for the 7th of December, was adjourned to the 14th of December, but the proÂÂÂÂtection order was not renewed. On the 28th of November, Patrick Rogers recovered two judgÂÂÂÂments against the Appellant-one in the Court of Common. Pleas for the sum of £134 lls. 6d., besides £7 4s. 11d. for costs ; the other in the Court of Queen's Bench for the sum of £36 17s. 4d., besides £7 4s. lid. for costs ; and on the 3rd of December he regisÂÂÂÂtered both those judgments as mortgages under the 13 & 14 Vict. e. 29, against lands of the Appellant, the subject of the petition for sale in this matter. On the 14th of December the first private sitting was held, when three-fifths in number and value of the Appellant's creditors assented to the Appellant's proposal ; and on the same day an order was made that the second private sitting for the confirmation of the proposal should be held on the 11th of January, 1867. On the 8th of January, 1867 (the protection order having expired), Patrick Rogers recovered a third judgment against the Appellant in the Court of Queen's Bench, for the sum of £87 7s. 3d., besides 4s. 11d. for costs ; and on the 10th of January, he registered that judgment also as a statutable mortgage against the lands, the subject of the petition for sale. On the 11th of January, 1867, the second private sitting was held, and the resolution or agreement accepting the Appellant's proposal was duly confirmed. Patrick Rogers had notice of all the arrangement proceedings. The promissory notes which were to be given in pursuance of the terms of the proposal were forwarded to the several creditors of the Appellant ; but Patrick Rogers, who had from the first dissented from the arrangement accepted by the other creditors, returned the promissory notes so forwarded to him. On the 17th of April, 1867, Patrick Rogers presented a petiÂÂÂÂtion to the Landed Estates Court for the sale of the lands against VQL. III, EQUITY SERIES. which the judgment mortgages had been registered; and on tie 30th of May, a conditional order for sale was made. On the 28th of June, the Appellant filed an affidavit as cause against making that order absolute, setting forth the several proÂÂÂÂceedings in the arrangement matter ; and Patrick Rogers having moved to make the conditional order absolute notwithstanding the cause shown, on the 13th of July Judge Dobbs made an order refusing that motion and discharging the conditional order for sale. On the 11th of October, 1867, Patrick Rogers filed a petition of Appeal against that order ; and, the appeal having been heard on the 29th of November this Court made an order that the order of the Landed Estates Court of the 13th of July should be reÂÂÂÂversed, and that the conditional order for sale of the 30th of May should be made absolute ; and it was further ordered that the said order should be without prejudice to any question which might be raised by any party in the event of a certificate being obtained under the 352nd section of the Irish Bankruptcy and Insolvency Act, 1857. Patrick Rogers having again moved to make absolute the conÂÂÂÂditional order for sale of the 30th of May, 1867, on the 21st of January, 1868, Judge Dobbs made that order absolute, pursuant to the order of this Court. On the 21st January, 1868, the Appellant...