Salomons v Pender
| Jurisdiction | England & Wales |
| Judgment Date | 21 April 1865 |
| Date | 21 April 1865 |
| Court | Exchequer |
English Reports Citation: 159 E.R. 682
Exchequer Division
S. C. 34 L. J. Ex. 95; 11 Jur (N S) 432, 13 W R. 637, 12 L T 267. Observations adopted, Tetley v. Shand, 1871, 20 W. R 206; 25 L T 658 Referred to, Robinson v. Mollett, 1875, L R. 7 H L 829 Applied, Andrew v. Ramsay, [1903] 2 K. B. 635, Stubbs v. Slater, [1910] 1 Ch. 195.
682 SALOMONS V. PENDER 3 Et & C.635. other creditors. Butt think that we are bound by the decision of the Lord Chancellor in that case Here no creditor can obtain the composition money unless he signs the deed. That is not what the statute intended. The statute intended that all the creditors should be in the same position whether they signed the deed or not Here those creditors who sign the deed, and those who do not are in a different position , and I think that, on that ground, the deed is void, and the plaintiff is entitled to jadgment. MARTIN, B. I am also of opinion that the plaintiff is entitled to judgment. It has been argued on the part of the defendant that the words " payable on signing the deed," mean "on the signature of the debtor , " but we could not put that construction upon them without doing violence to the language, and reading the words in a sense quite different from that which they express The deed seems to me clearly to express that each creditor is to sign the deed, and that upon his signing it he is to be paid the composition, so that the signature by each creditor is a condition precedent to his right to receive the composition money. In the case of Ex pur te Cockburn (33 L. J. Bank. 19) the Lord Chancellor said : "To render a deed of composition and release binding on the minority of the creditors who ha,se not executed or assented to or approved of it in writing, it is necessary that the non-assenting creditors should [638] stand under the deed in the same situation arid with the same advantages as creditors forming the majority." In another judgment in that case the Lord Chancellor said (33 L. J. Bank. 22) "As I explained on a former occasion, in my view of the statute a deed to bind creditors who have not executed it must be a deed which places the parties who execute and the parties who have not executed it precisely upon an equal footing in point of law." That is riot so with this deed In common and ordinary justice creditors who assent should riot be placed in better positron than those who dissent Here creditors who do not sign the deed get nothing That is the plain and direct provision of the deed I think that, upon the authority of Ilclertm v. Jewell (16 C. B. N. S 142) this plea is bad, and that the plaintiff is entitled to judgment. BRAMWELL, B I am of the same opinion. It is sufficient to say that I think the case of Ildertan v. Jewell is in point , but I cannot help remarking that the law on tl subject is in a very unsatisfactory state. It should he remembered, however, that Courts of law have to deal with cases of the worst aspect, and know nothing of the numerous cases in which...
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Imageview Management Ltd v Jack
...cases to demonstrate that what I said above contains nothing new. 9 At least as early as 1888 (there are earlier cases, for instance Salomons v Pender 1 H&C 639, a citation from which appears below) the principles were firmly laid down in Boston Deep Sea Fishing v Ansell (1888) 39 Ch. D. 33......
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