Cookney v Anderson
| Jurisdiction | England & Wales |
| Judgment Date | 22 November 1862 |
| Date | 22 November 1862 |
| Court | High Court of Chancery |
English Reports Citation: 46 E.R. 146
BEFORE THE LORD CHANCELLOR LORD WESTBURY.
S. C. 31 Beav. 452; 32 L. J. Ch. 325, 427; 8 L. T. 295; 9 Jur. (N. S.), 736; 11 W. R. 628; 2 N. R. 140. See Samuel v. Rogers, 1863, 1 De G. J. & S. 396; Drummond v. Drummond, 1866, L. R. 2 Eq. 335; L. R. 2 Ch. 32. Distinguished, In re Herefordshire Banking Company, 1867, L. R. 4 Eq. 253. See Gibson v. Fisher, 1867, L. R. 5 Eq. 57; Matthasi v. Galitzin 1874, L. R. 18 Eq. 347; Ex parte Robertson, 1875, L. R. 20 Eq. 741; In re Hawthorne, 1883, 23 Ch. D. 749; In re Busfield 1886, 32 Ch. D. 126.
[368] cookney v. anderson. Before the Lord Chancellor Lord Westbury. Dec. 16, 17, 1862; Jan. 16, 24, April 25, 1863. [S. C. 31 Beav. 452 ; 32 L. J. Ch. 325, 427 ; 8 L. T. 295; 9 Jur. (N. S.), 736; 11 W. R. 628; 2 N. E. 140. See Samuel v. Rogers, 1863, 1 De G. J. & S. 396; Drummand v. Drummond, 1866, L. R. 2 Eq. 335; L. R. 2 Ch. 32. Distinguished, In re Herefordshire Banking Company^ 1867, L. R. 4 Eq. 253. See Gibson v. Fisher, 1867, L. R. 5 Eq. 57; Matthaei v. Galitzin, 1874, L. R. 18 Eq. 347 j Ex parte Eobertson, 1875, L. R. 20 Eq. 741; In re Hawthorne, 1883, 23 Ch. D. 749; In re Busfield, 1886, 32 Ch. D. 126.] The 7th rule of the 10th of the Consolidated Orders, empowering the Court to order the service of a copy of a bill upon a Defendant " in any suit" out of the jurisdiction, applies only to suits concerning land, stock or shares within 2 Will. 4. c. 33, and 4 & 5 Will. 4, e. 82. Where it appears on the face of the bill that a Defendant was, at the time of the institution of the suit, resident in a foreign country, and that the suit does not relate to any of the subjects in which this Court is warranted in exercising jurisdiction against persons so resident, he may demur to the jurisdiction, although he has not moved to discharge an order for service out of the jurisdiction, but has appeared to the bill. Thia was an appeal of the Plaintiff from a decision of the Master of the Rolls, allowing a general demurrer to the bill. The bill sought the administration of. the trusts of a deed for the benefit of creditors executed by a partnership carrying on business in Scotland. It stated that the Plaintiff was the executrix of a testator, named James Thomas Cookney, late of Lincoln's Inn Fields, solicitor. It set out the trust deed, which was dated the 9th of September 1859, and the material parts of which were the following:- " We, William Lancaster, some time Government inspector of mines residing at Stirling, now residing at the Portland Iron Works, near Harlford, in the county of Ayr, iron and coal master, and Alexander Bankier Freeland, some time of the City of Manchester, merchant, now residing at Treesbank, near Kilmarnook, in the county of Ayr, iron and coal master, as trustees for the co-partnery of Freeland and Lancaster, carrying on business as coal and iron masters, at and near Portland aforesaid; and we, the said William Lancaster [366] and Alexander Bankier Freeland, as partners of the said company, considering that finding ourselves as co-partners aforesaid unable to meet the demands against us, and to pay the debts owing by us as these became due, and being satisfied of the great disadvantage and ruinous consequences which might follow, if the operations of our works were suspended, we are desirous that the business should be continued, in the expectation that thereby our debts may be gradually cleared off, and that our works will, if necessary, be more readily disposed of as going works; and we have, at the request of our principal creditors, after named and designed, agreed to convey over the whole heritable andmoveable property belonging to us, as co-partners foresaid, to the trustee after named, in order that our works may be managed and conducted by him with the aid and assistance of the committee afternamed for a period of five years, or suoh longer or shorter period as he, with the aid and advice of such committee, shall think proper, or until a necessity arises for selling or disposing of the said works: Therefore we, the said William Lancaster and Alexander Bankier Freeland, 1DEO.J. *fcS67. COCKNEY 1 , ANDEBSON 147 as trustees and co-partners foresaid, do hereby diapona, convey, and make over from us and from the said co-partnery concern of Freeland & Lancaster, to and in favour of Jamea Anderson, iron merchant in Glasgow, whom failing, by death, resignation, or removal, to and in favour of such other party as shall be appointed in manner after mentioned, as trustee for the purposes after mentioned, and to the onerous dispenses, or assignees of such trustee, all and whole the estate heritable and moveable, real and personal, belonging to our said co-partnery of Freeland & Lancaster, or to us as partners thereof or as trustees for their behoof, with the titles, vouchers, documents and instructions thereof, and also the whole leases of lands and minerals held by us, to, or in connection with said works." [367] The deed proceeded to describe the land conveyed by it, as situated within the parishes of Riccarton and Kilmarnock, and shire of Ayr. By the declaration of trust, the trustee was empowered, under the direction and advice of the committee named in the deed, to carry on and conduct as theretofore the works for a period of five years from the date of the deed, or for such longer or shorter period as he and the committee should think proper, and under the direction and advice of the committee to pay and discharge the liabilities of the co-partnery concern of Freeland & Lancaster, in manner mentioned in the deed, with the exception of the debts after specified due to the parties after named and designed. And in the event of it appearing to the trustee and committee that the works and leases, or any part thereof, could not be profitably carried on, the trustee and committee were thereby authorised to sell and dispose of the works and leases or any part thereof, and that either by public roup or private sale, and at such price or prices and upon such terms and conditiona as the trustee and committee might approve of. The profits and proceeds of the property were directed to be applied in paying and satisfying - first and regularly the interest, and next the principal, of the debts due to the parties after named, and that rateably and proportionably in case of a deficiency of funds, that was to say, a debt to the Union Bank of Scotland, amounting to 66,803, 6s. 8d., subject to deduction of the value of 1100 tons of pig iron, valued at 2750 ; a debt to the above-named James Thomas Cookney, amounting to 25,000 ; a debt to the Glasgow and South-AVestern Railway Company, amounting to 1950 ; a debt to [368] John Freeland, amounting to 5000 ; and a debt to the trustees of William Blane, for 976, 8s. 6d. The deed appointed James Robertson manager, and James Reid cashier, both of the Union Bank of Scotland, and James Thomas Cookney, and John Freeland, and the survivors or survivor of them, a committee, under whose direction and superintendence the trustee was to act. The bill stated that after the execution of this trust deed, the ironworks were carried on by the trustee and committee, with results which the bill stated in detail, The bill also, after alleging that the trustee and committee under the trust deed had renewed or contemplated the renewal of the leases of the mines, stated that as the prices then ruled in the iron market there could be no profitable results from the management of the trust, and that there was no reasonable prospect of the works being carried on profitably ; and the Plaintiff submitted that it was manifestly for the benefit of all parties interested, that the trust should be wound up without any further delay. And after stating that there was due to the Plaintiff, as executrix of Mr. Gookney, under the trust deed for principal and interest, 26,107 and upwards, and that there was also due to the Defendants, the other creditors above specified, the whole of their principal and a large arrear of interest ; that the legal estate in part of the trust hereditaments and premises was vested in the Union Bank of Scotland, which was a joint stock bank duly registered and carrying on business in Glasgow - the Defendant James Robertson being the registered public officer thereof, and being entitled to sue and be sued in respect of all transactions in which the bank was concerned ; and [369] that the Glasgow and South-Western Railway was a joint stock company, whose principal office was in Glasgow : the bill prayed that the trusts of the trust deed might be administered and wound up ; that an account might be taken of the amount due to the Plaintiff, and all other creditors under it ; that all proper accounts might be taken, and directions given for realising the trust property, and distributing the same among the creditors in a due course of priority ; that the 148 COCKNEY V. ANDERSON 1 DE Q. J. & 8. 870. Plaintiff might be indemnified from alt liability under the leases; that the costs of the suit might be paid out of the trust property ; and for further relief. Copies of the bill were-by leave of the Court, under the Consolidated Orders (1) -served in the Isle of Man upon the Defendant William Lancaster, and in Scotland upon thfr Defendants the trustee, the committee, the Union Bank, and the Glasgow and South-Western Eailway Company. All the Defendants so served appeared, and demuned on the ground, that the Plaintiff had not, by his bill, shewn any title to discovery, or relief. The Master of the Rolls allowed the demurrer. The case is reported in the 31st Volume of Mr. Beavan's Reports (page 452). [370] Mr. Hobhouse and Mr. W. W. Mackeson, for the Appellant. On the argument of a demurrer, the case must be dealt with as if it were at its hearing, and every fact alleged in the bill had been proved. It must be taken, therefore, that there has been a great increase of the debts of the trust...
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