The Queen v Guinness

• Jurisdiction: Ireland
• Judgment Date: 28 May 1853
• Date: 28 May 1853
• Court: High Court of Chancery (Ireland)

Chancery.

THE QUEEN

and

GUINNESS.

The Queen v. O'DonnellUNK6 Ir. Eq. Rep. 639; S. C., 1 J. & L. 271.

Rex v. Pixley Bun. 202.

Willion v. Berkley Plow. 223.

Magdalene College case 11 Co. 66 b.

Archbishop of ArmaghENR 8 Mod. 8.

The Queen v. BayleyUNK4 Ir. Eq. Rep. 142.

Ex parte UsherUNK 1 B. & B. 197.

Ex parte DaltonUNK 2 Moll. 442; 1 Rose, 366.

Reilly v. MurphyENR Sau. & Sc. 488.

Tighe v. Walsh 3 Ir. Jur. 251.

Greaves v. D'Acastro Bun. 194.

St. John's College v. Murcott 7 Term R. 259, 264.

The King v. De CauxENR2 Price, 17.

Anonymous 1 Law Rec., N. S., 21.

Smith v. Pepper 2 Ibid, 21, 24.

Tighe v. Walsh Ubi supra.

The King v. WrightENR 1 Ad. & El. 437.

The King v. OsbourneENR6 Price, 94.

Rex v. Fenton & Motherwell S. & B. 40.

Regina v. Chambers and othersENR11 M. & W. 776.

(Petty-bag Side.)

. CHANCERY REPORTS 211 THE QUEEN v. GUINNESS.* (Petty-bag Side.) THE recognizance in this case was entered into by Richard Samuel Guinness, as receiver in a cause pending in the equity side of the Court, and was in the usual form. The following are the material pleas put in to the scire facias issued upon it : First plea-" And the said R. S. Guinness, by, &c., comes and says, that our Lady the Queen ought not to have execution for the sum of 4500 in the said writ of scire facias mentioned, because he saith that heretofore and before the issuing of the said writ, he was ,a banker within the true intent and meaning of the statutable enactments made and in force concerning bankers in Ireland ; and being such banker, he the said defendant stopped payment, heretoÂÂfore, to wit, &c. ; and the said defendant further saith, that the said sum of 4500 was a debt contracted and owing by him before he stopped payment ; and that the cause of action, &c., accrued before such time as he stopped payment, to wit, &c. ; and of this," &c. Second plea-Executio non, (5-c.-" Because the said R. S. GuinÂÂness saith, that the said recognizance was taken and acknowledged for the security of the parties in a certain cause instituted and then pending in the High Court of Chancery of our Lady, &c., and wherein T. H. F. and W. C. were plaintiffs, and H. L. was defendÂÂant, and was not taken or acknowledged for any debt due to our said Lady, to secure the payment of any public debt, or the perÂÂformance of any public duty ; and the said R. S. Guinness further saith, that after the taking and acknowledging of the said recogniÂÂzance, and after the enrolment of the same, &c., and after the said sum of 4500 became due and payable, and after the cause of action accrued to our said Lady, to wit, upon, &c., he the said R. S. GuinÂÂness, being a banker within the true intent and meaning of the * Ex relatione ALFRED M`FARLAND, Esq. 212 CHANCERY REPORTS. statutable enactments made and then in force concerning bankers in. Ireland, stopped payment ; and the said R. S. Guinness further saith that the cause of action in, &c., accrued to our said Lady before he stopped payment as a banker, as aforesaid, to wit, &c.; and of this," &c. Third plea-Executio non.-" Because that heretofore, to wit, before the issuing of the said writ, he the said R. S. Guinness was a banker within the true intent, &c. (as in the first plea), and 'did use, exercise and carry on the trade and business of a banker, according to the provisions of the said enactments, to wit, at, &c.; and the said R. S. Guinness further saith, that being such banker, he stopped payment heretofore, &c., to wit, &c. ; and that according to the provisions of a certain Act of Parliament, &c. (the 33rd G. 2, c. 14 (Ir.), and of a certain other Act, &c. (the 40th G. 3, c. 22 (Ir.), E. B. and S. V. were approved of as trustees by the majority in value of the creditors of the said R. S. Guinness, heretofore, to wit, on, &e. ; and the said R. S. Guinness further saith that he did, within three calendar months after he so stopped payment, to wit, on, &c., by certain indentures, &c., vest his whole real and personal estate in the said E. B. and S. V., as trustees for the payment of all the debts that were or should be due by him at the time of the execution of the said deeds. And the said R. S. Guinness further saith, that the said E. B. and S. V., afterwards, to wit, &c., in writing under their 'hands and seals, certified to the Right Hon. MAZIERE BRADY, being the Lord Chancellor of Ireland, that the said R. S. Guinness in all things conformed himself to the directions of the said Act of, &c. (the 33rd G. 2) ; and that the said certificate was afterÂÂwards, to wit, &c., laid before the said Lord High Chancellor, and was allowed and confirmed by him, according to the form of the staÂÂtute, &c.; and the said R. S. Guinness further saith, that he did, &c., on, &c., duly make oath that such certificate was obtained fairly and without fraud, &c. ; and that afterwards, to wit, &e., and on divers days between, &c., two parts in three in number and value of his creÂÂditors, who were such for not less than 20 respectively, and who proved their debts before the said E. B. and S. V., signed the said certificate, and testified their consent to the allowance of such certi CHANCERY REPORTS. 213 ficate by the said Right Hon. MAZIERE BRADY ; and the said R. S. Guinness further saith, that the cause of action, &c., accrued, &c., before the time that be stopped payment, to wit, &c.; and this, &c., wherefore," &e. To the first and second of the above pleas the Crown demurred generally, and also assigned certain causes of special demurrer ; but neither the argument of Counsel nor the judgment of the Court turned upon the latter ; and to the third plea a general demurrer, simply, was put in. Mr. S. Ferguson (with whom was Mr. F. Fitzgerald), for the plaintiff, in support of the demurrers. The substantial question is, whether the Crown is bound by the Argument. 33 G. 2, c. 14,* and the 40 G. 3, c. 22.t We say that it is not ; but the defendant contends that it is ; and that is the defence * By this statute (of 1759), after reciting that " the trade and manufactures of this kingdom are in a great measure carried on and supported by the means of promissory notes and accountable receipts given by bankers ; and the credit of such bankers and the currency of their notes will be promoted by giving a more effectual security to the creditors of such bankers than they have at present ; " and repealing the prior Act of 8 G. 1, c. 14, as to bankers and their creditors-it is enacted (section 7), " That the persons of all bankers who shall have stopped payment at any time between the 1st day of " the then Session of Parliament and the 15th of April 1766, and who at any time between the former date and the 1st of June 1760, " shall vest his whole real and personal estate, or a sufficient part thereof, in one or more trustees, for the payment of all their debts, and for defraying the expenses of executing that trust, shall be free from all arrests and executions at the suit of any of his creditors, until the 5th day of March 1762," &c. Section 8.-" And be it further enacted, that from and immediately after the time that any banker shall abscond or conceal himself from his creditors, or stop payment, or die, all the real estate, whether for lives, in fee-simple, or fee-tail, and all the personal estate, credits and effects whatsoever, either in law or equity, of which such banker shall be seised, possessed of, or entitled unto, at the time of his death, or stopping payment, or absconding, or concealing himself from his creditors, shall be liable and subject to the payment of all and every his debts, bf what nature or kind soever the same be, without any regard to priority or preference in point of payment, other than and except such debts and incumbrances as such banker had contracted before he became a banker, or shall contract before he becomes a banker, and other than and except such debts and incumbrances as shall...