Re Gordon
| Jurisdiction | England & Wales |
| Judgment Date | 16 January 1860 |
| Date | 16 January 1860 |
| Court | High Court of Chancery |
English Reports Citation: 54 E.R. 267
Rolls Court
Affirmed, 1 De G. F. & J. 381; 45 E. R. 407; 2 L. T. 100; 6 Jur. (N. S.) 409; 8 W. R. 298.
[5] Re GORDON. Jen, 14, 16, 1860. [Affirmed, 1 De G. F. & J. 381 ; 45 E. R. 407 ; 2 L. T. 100 ; 6 Jur. (N. S.) 409 ; 8 W. R. 298.] In 1833 A. B. was discharged by the Court for the Relief of Insolvent Debtors at Calcutta from liability to arrest merely. By a subsequent Act, passed in 1834, the Court was empowered to discharge "any person who now is or shall hereafter become an: insolvent debtor," from liability from his debts. Held, that A. B. was, in 1834, an insolvent debtor within the second Act, and that a supplementary. order of the Insolvent Court, made in 1836 under that Act, was a complete dis- charge to A. B. from his debts. This was a summons to vary the Chief Clerk's separate certificate, which found a large debt of 18,811 due from the estate of George James Gordon to the repre- sentatives of Colonel Charles Mouat, deceased. George James Gordon was a partner in the firm of Macintosh & Co. of Calcutta, and under a power of attorney sent out from England to that firm in 1831, Mr. Gordon took out letters of administration to the estate of Colonel Mouat in India. As such administrator be received large sums, which he paid to the house of Macintosh & Co., to the credit of his own account " as administrator of Charles Mouat." The firm stopped payment, and were declared insol-[6]-vents by an order of the Court for the Relief of Insolvent Debtors at Calcutta on the 7th of May 1833, and by a subsequent order of the same Court made on the 28th of September 1833, that Court " did thereby adjudge " that the firm were entitled to the benefit of the Act of 9 Geo. 4, c. 73, as to the debts in the schedule. Mr. Gordon petitioned the Insolvent Court separately, and by an order of that Court, made the 28th,. of September 1833, he also was adjudged entitled to the benefit of the Act of 9 Geo. 4, as to the debts in the schedule. The debt due to the estate of Colonel Charles Mouat was entered in both schedules. This Act (9 Geo. 4, c. 73), establishing Insolvent Courts in India, provided (ss. 23, 24, 25) that the Court (upon the insolvents putting their assigns into possession of estate of the amount of half their debts) might grant certificates protecting the insol- vents from arrest within the limits of the company, and which, upon the final hearing, it might " cancel or renew " (s. 38). It further enacted (s. 63) that when the estate had been sufficient to pay three-fourths of the amount of the debts, or where half of the creditors consented, "such Court may inquire into the conduct of the said insol- vent ; and if it shall appear to such Court that the said insolvent has acted fairly and honestly towards his or her creditors, such Court shall be fully authorized and em- powered, thereupon, to order that the said insolvent shall be for ever discharged from all liability whatsoever for or in respect of such debts, so established as aforesaid, and after any such order shall have been so made, no further proceedings shall be had in the matter of the petition before the Court, unless upon appeal made to the Supreme Court." It then provided that no such [7] order shall prevent any creditor who should not be resident within the limits of the charter, and who should not have taken part in the proceedings under the petition, from obtaining execution against the goods of the insolvent in India, or from bringing any suit or action without the limits of the charter. After this (on the:14th of August 1834), the Act of 4 & 5 Will. 4, c. 79, passed. It referred to the 9 Geo. 4, c. 73, and the 2 Will. 4, c. 43 (which had continued it until March 1836), and recited the 63d section at length, and proceeded to recite, " that it was expedient to extend and add to the provisions of the said Act, so as to give to insolvent debtors, being traders, who should have acted fairly and honestly towards their creditors, an additional and more complete discharge," &c. The 1st section then enacted, in substance, as follows :" That any person who now is or who shall hereafter become an insolvent sickest within the intent and meaning of 2.68 RE GORDON 28 UV. 8. the said Act 9 Geo. 4, either upon petition being filed or by adjudication on an act of insolvency, as therein provided," shall be at liberty to apply by petition for his discharge to the Insolvent Courts in the East Indies. It then provided that notices should be inserted in the Gazette of the Presidency, and transmitted to the East India Company, and inserted in the London Gazette, and that creditors who should not, within fourteen months, dissent to his discharge, should be taken to have assented. It then proceeded as follows :" And thereupon and at the expiration of the said fourteen calendar months from...
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