Ex parte Sir John William Lubbock, Bart Samuel Flood and Harry Buckland Lott, Bankrupts
| Jurisdiction | England & Wales |
| Judgment Date | 22 May 1863 |
| Date | 22 May 1863 |
| Court | High Court of Chancery |
English Reports Citation: 46 E.R. 1019
BEFORE THE LORD CHANCELLOR LORD WESTBURY.
S. C. 32 L. J. Bk. 58; 9 Jur. (N. S.), 854; 8 L. T. 474. See In re Savin, 1872, L. R. 7 Ch. 763; Ex parte Cockburn, 1878, 39 L. T. 363.
[516] Ex parte sir john william lubbock, bart. In the Matter of samuel flood and harry buckland lott, Bankrupts. Before the Lord Chancellor Lord Westbury. May 22, 1863. [S. C. 32 L. J. Bk. 58; 9 Jur. (N. S.), 854; 8 L. T. 474. See In re Savin, 1872, L. E. 7 Ch. 763; Ex parte, Cockburn, 1878, 39 L. T. 363.] The language of the orders of the Court of Bankruptcy must be construed with reference to the settled rules of the Court; and it being the settled practice of the Court, that where a security consists of an equitable mortgage, and the mortgagee after a bankruptcy presents a petition for the realisation of the security, he is not entitled to any interest subsequent to the date of the fiat. Held, that where securities by way of equitable mortgage comprised joint property of bankrupt partners, separate property of one partner, and property of a stranger, and the mortgagees being joint and separate creditors elected to prove against the separate estates, an order made on their petition and directing an account of principal and interest due to them without express limitation of the calculation of the interest to interest due at the date of the fiat, did not entitle them to a calculation of, or to retain out of the proceeds of the securities, interest subsequent to the date of the fiat. Dividends paid upon an erroneous principle ordered to be refunded after a considerable lapse of time and change of circumstances. This was an appeal by Sir John William Lubbock, Bart., the surviving partner in a firm of bankers, against an order made on the 17th of April 1863 by Mr. Biggs Andrews, the Commissioner of the Court of Bankruptcy for the Exeter District, whereby the Appellant [517] was ordered in effect to refund to the assignees of the bankrupts a sum of money which had been paid out of the estates of the bankrupts in respect of interest accrued due subsequent to the date of the fiat-November 1847 -on certain equitable securities held by the Appellant and his late partners. The facts of the case were exceedingly complicated, but for the purposes of this report the following short statement of them is sufficient:- On April 13th, 1849, the Appellant's firm presented a petition in bankruptcy, setting forth their securities, which were by deposit of title-deeds of estates some of which constituted joint-estate, others separate estate of one of the partners, and others property of a surety, and claiming to be creditors of the bankrupts...
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