Richard Howe Cockerell, Dwarkananth Tagore, and Anshootosh Day, - Appellants; Theodore Dickens, - Respondent
| Jurisdiction | UK Non-devolved |
| Judgment Date | 24 February 1840 |
| Date | 24 February 1840 |
| Court | Privy Council |
English Reports Citation: 13 E.R. 45
ON APPEAL FROM THE SUPREME COURT OF JUDICATURE AT FORT WILLIAM IN BENGAL.
Mews Dig. tit. Bankruptcy, B. V. Proof of Debts, 28, iv; VIII. Dividends, 1; also tit. Executor and Administrator; X. Administration, d.; also tit. Payment, A. I.; also tit. Practice, XXV. Pleading, b. S.C. 2 Moo. Ind. App. 353; 1 Mont. D. and D. 45; Morton, 407. See Indian Insolvent Act, 1848 (11 and 12 Vict. c. 21), s. 7; Ex parte Rogers, 1881, 16 Ch. D. 665; Callender v. Colonial Secretary of Lagos (1891), A.C. 460; Cooke v. Charles A. Vogeler Co. (1901), A.C. 102; Dicey, Confl. of Laws, 334, 336; Westlake, Priv. Int. Law, 3rd ed. 153, 155, 156, 157.
COCKERELL V. DICKENS [1840] III MOORE, 99 ON APPEAL FROM THE SUPREME COURT OF JUDICATURE AT FORT WILLIAM IN BENGAL. RICHARD HOWE COCKERELL, DWARKANANTH TAGORE, and ANSHOOTOSH DAT,-Appellants; THEODORE DICKENS,-Respondent* [Feb. 11 and 24, 1840]. The principle that one creditor shall not take a part of the fund which otherwise would have been available for the payment of all the creditors, and at the same time be allowed to come in pari passu with the other creditors, for satisfaction out of the remainder of that fund, does not apply, where that creditor obtains by his diligence something which did not, and could not, form a part of that fund [3 Moo. P.C. 132]. The Orphan Chamber of Batavia, being the executors of a foreign creditor in the island of Java, by their agent in Calcutta, proved the amount of their whole debt against the estate of A. B., who had been declared insolvent under the Indian Insolvent Act, 9 Geo. IV., c. 73, and after making such proof, and receiving the dividends upon the whole debt, instituted a suit in the island of Java, to recover a plantation or estate there, held by one of the insolvents as trustee for the firm of A. B., and C. D., in equal shares; to which suit the assignees of the insolvent appeared as Defendants, but judgment was given in favour of the creditor, and for the sale of the estate for his benefit; the proceeds of which amounted to three-fifths of his whole debt. The assignees of A,. B. filed a bill on the equity side of the Supreme Court at Calcutta, against the agent of the foreign creditor, resident within the jurisdiction, praying that the dividends might be refunded, and that the Defendants might be restrained by injunction from receiving any further dividends, until all the other creditors were put on an equal footing with the creditor at Java: the Defendant demurred, and obtained judgment against the assignees. Held, on Appeal, by the Judicial Committee, that the estate in Java, not passing to the assignees under the assignment, did not form any part of the fund that was available for the benefit of the general creditors, and that the creditor was therefore not bound to refund the dividends, nor ought to* be prevented from receiving any future dividends, provided he did not receive more than 20s. in the pound upon his whole debt [3 Moo. P.C. 133]. But the bill having stated that the creditor had also instituted proceedings against certain debtors of the insolvents at Bencoolen; held, that the assignees were entitled, under the prayer for general relief, to an injunction to stay the receipt of further dividends until the proceedings at Bencoolen were abandoned [3 Moo. P.C. 134-136]. Under the prayer for general relief, specific relief may be granted of a different description from the specific relief prayed for by the bill: provided the bill contains charges, putting material facts in issue, which will sustain such relief [3 Moo. P.C. 135]. This was an Appeal from a judgment on the equity side of the Supreme Court of Judicature at Fort [99] William in Bengal, in a suit in which the Appellants were Plaintiffs, and the Respondent the Defendant. The Appellants were the surviving assignees of the joint estate and effects of John Palmer, George Alexander Prinsep, William Prinsep, and Charles Barber Palmer, formerly of Calcutta, merchants and agents, trading under the firm of Palmer and Co., who in the year 1830 were declared insolvent, under the Indian Insolvent Act, 9 Geo. IV., c. 73. The bill, which was filed on the 11th January 1837, stated, that the insolvents, on the 4th January 1830, duly filed their petition of insolvency in the Court established at Calcutta for relief of insolvents, and assigned and conveyed the whole of their estate and effects to the common assignee of the said Court, who by order of * Present:-Mr. Baron Parke, Mr. Justice Bosanquet, Mr. Justice Erskine, and the Right Hon. Dr. Lushington. Privy Councillor,-Assessor,-Sir Edward Hyde East, Bart. 45 Ill MOORE, 100 COCKERELL V. DICKENS [1840] the Court afterwards duly assigned over the same to certain persons as special assignees, of whom some had since died, and others had been removed by order of the Court, leaving the Appellants, [100] Dwarkananth Tagmore, and Anshootosh Day, the only surviving and continuing assignees, and that the Appellant, Richard Howe Cockerell, had been subsequently appointed an assignee by order of the Court; whereby the whole of the estate and effects of the insolvent firm had become vested in the Appellants: that on the 22nd January 1836, John Palmer died; and that the surviving insolvents were afterwards, by two several orders of the Court, duly discharged from their debts. That the insolvents in due course filed the schedule of their debts and assets, and that amongst other claims set forth, was a debt or sum of 2,52,460 sicca rupees, being the balance due from- the insolvent firm to the estate of one Gavorke Manuk (formerly an Armenian merchant, and inhabitant of Batavia, within the territories of the King of the Netherlands), who died at Batavia in the island of Java, on the 2nd October 1827, having made his Will according to the laws of that island, and constituted a, certain public body or institution there (out of, and not subject to, the jurisdiction of the Court), called the Orphan Chamber of Batavia, executors and trustees of his Will. That the testator bequeathed the residue of his real and personal estate to his brother, Malcum Manuk, formerly of Calcutta, and since deceased, and in case of his death in the lifetime of the testator, to the heirs of the next of kin of the said Malcum Manuk. The bill then proceeded to state, that Gavorke Manuk died possessed of very large property, sufficient to pay all his debts and legacies: that shortly after his death, and before the arrival of any authority or power from his executors, the Orphan Chamber, James Wier Hogg, the then registrar of the Supreme Court, on the 29th January 1829, obtained adminis-[101]-tration, with the Will annexed, to the goods of Gavorke Manuk, and got in effects of the testator within the jurisdiction of the Court, to the amount of 4,84,000 rupees: that the Orphan Chamber being dissatisfied thereat, transmitted powers of attorney to the firm of Palmer and Co., empowering them jointly or severally to apply for administration of the goods of the testator. That William Prinsep, on the 28th April 1829, obtained accordingly such administration, with the Will annexed, and received from Hogg, the registrar, 1,85,147 rupees, 14 annas, 10 pice, part of the testator's estate, leaving in the hands of the registrar 2,98,202 rupees, being the amount of several legacies directed in the Will to be paid into the hands of the ecclesiastical registrar for the time being. That William Prinsep entered into the administration of the estate, got in assets, and paid them into the hands of the firm of Palmer and Co. That at the date of filing the petition of insolvency, there was due to the estate of Gavorke Manuk from the firm; of Palmer and Co., as such constituted agents, the said sum of 2,52,466 sicca rupees. That Malcum Manuk, the sole residuary legatee, died on the 20th of February 1826, in the lifetime of the testator, leaving four sons and three daughters, infants under the age of twenty-one, who were Defendants in the suit. The bill then stated, that after the insolvency of Palmer and Co., the letters of administration to Prinsep were cancelled; and that on the 23rd of August 1831, fresh letters of administration were granted to Hogg, with the Will annexed; and that afterwards the Defendant Dickens became, and then was, the sole personal representative of Gavorke [102] Manuk, deceased, within the jurisdiction of the Supreme Court, and was in possession of assets amounting to 75,000 rupees. That Hogg, on the 29th of August 1831, received from the Plaintiffs, and their then co-assignees, a dividend of 5 per cent, on 2,52,466 sicca rupees, appearing in the schedule to be due from Palmer and Co. to Gavorke Manuk, amounting to 12,623 rupees; and that Smoult and .Dickens, his successors in office, had received other dividends, which, inclusive of the dividend paid to Hogg, amounted to 71,793 rupees. That the insolvent firm, at the time of its insolvency, was possessed, jointly with the firm of Sir Charles Cockerell and Co., of London, of the beneficial interest in a large plantation in the island of Java, purchased and carried on for account, and with the joint funds of the two firms of Palmer and Co., and Cockerell and Co., but in the sole name of John Palmer, for the joint benefit of the two firms, in equal shares. 46 COOKBRBLL V. DICKENS [1840] III MOORE, 103 That the Plaintiffs directed their agents at Batavia (after the insolvency of Palmer and Co.) to take possession of the plantation, and dispose of it- for the benefit of the creditors of the insolvent firm, and remit the proceeds to the assignees for distribution. That although the administrator at Calcutta had received dividends on a debt due from the insolvent there, the Orphan Chamber of Batavia, though apprised of the receipt of such dividends, on the 20th March 1833, caused a...
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Richard Howe Cockerell, Dwarkanath Tagore, and Anshootosh Day, - Appellants; Theodore Dickens, - Respondent
...VIII. Dividends, 1; tit. Executor and Administrator, X. Administration, d.; tit. Payment, A. I.; tit. Practice, XXV. Pleading, b. S.C. 3 Moo. P.C. 98; 1 Mont. D. and D. 45; Morton, 407. See Indian Insolvent Act, 1848 (11 and 12 Vict. c. 21), s. 1; Ex parte Rogers, 1881, 16 Ch. D. 665; Calle......
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