Mendham v Robinson
| Jurisdiction | England & Wales |
| Judgment Date | 29 January 1833 |
| Date | 29 January 1833 |
| Court | High Court of Chancery |
English Reports Citation: 39 E.R. 663
HIGH COURT OF CHANCERY
[217] mendham v. robinson. Jan. 24, 29, 1833. The twenty-sixth section of the Insolvent Debtors Act, 7 G. 4, c. 57, does not empower the Court on motion to substitute a new provisional assignee as a Defendant in the room of the retiring provisional assignee. The Defendant Robinson had been discharged under the Insolvent Debtors Act (7 G. 4, e. 57), after having made the usual assignment to Dance, the provisional assignee, who was in that character joined with the insolvent as a Co-defendant. In December 1831 Dance was removed from his office, and Mr. Sturgis was appointed in his stead. On an ex parte application, the Vice-Chancellor ordered that the name of Mr, Sturgis should be inserted as a Defendant in the place of that of Mr. Dance : and a motion was now made to discharge that order. Sir E. Sugden and Mr. Reynolds, in support of the motion, contended, that from an examination of the whole scope and context of the statute, which kept up a marked distinction throughout between the provisional and ordinary assignees, and especially from a comparison of the sixteenth, nineteenth, twenty-fourth, thirty-eighth, and thirty-ninth sections, it appeared that the twenty-sixth section, (1) upon which the Vice-Chancellor [218] had proceeded, had no reference whatever to the case of a provisional assignee, who, when the Act was meant to extend to him, was always particularly described. At all events, the peculiar wording of the twenty-sixth section shewed beyond a doubt that the provision was only appb'cable to cases in which the assignee was the Plaintiff, the only party who, with propriety of speech, could be said to commence or prosecute the suit. This point was so decided by Lord Lyndhurst in Bainbrigge v. Blair (1 Younge, 386), and the present Master of the Rolls had expressed a similar opinion. The privilege was intended solely for the benefit of creditors in suits for the recovery of the insolvent's property. Mr. Gircllestone, senior, in support of the order, submitted that the Vice-Chancellor's construction, which had been adopted by the same learned Judge in a previous case of Gikhrist v. Ponten (1 Younge, 387, n.), was a reasonable and convenient one. The remedy for and against the insolvent's estate ought to be reciprocal. The words of the twenty-sixth section were general, and might well include both the assignees of the Court and those chosen by the creditors. Why...
To continue reading
Request your trial