Tudway v Jones
| Jurisdiction | England & Wales |
| Judgment Date | 23 May 1855 |
| Date | 23 May 1855 |
| Court | High Court of Chancery |
English Reports Citation: 69 E.R. 638
HIGH COURT OF CHANCERY
Pleading. Plea. Insolvency. 1 & 2 Vict. c. 110, ss. 37, 44, 62, 92. Amendment. 15 & 16 Vict. c. 86, s. 53.
[691] tudway v. jones. May 23, 1855. Pleading. Plea. Insolvency. 1 & 2 Viet. c. 110, ss. 37, 44, 62, 92. Amendment. 15 & 16 Viet. e. 86, s. 53. Bill for an account of partnership transactions from 1837 to 1848. Plea, that in 1850 the Plaintiff being then in custody, detained at the suit of two creditors, applied, by petition under stat. 1 & 2 Viet. c. 110, to the Court for Eelief of Insolvent Debtors for his discharge : and that in the same year the usual vesting order was made. The plea disclosed that the Plaintiff was subsequently discharged out of custody by the consent of the detaining creditors without any adjudication being made upon his petition, and that the petition had not been dismissed. It stated that no order had ever been made for revesting the estate and effects of the Plaintiff in him; but did not state that there was any other creditor or any schedule of debts. Plea allowed, on the ground that, notwithstanding the Plaintiffs discharge from custody, the estate remained vested in the assignee by the operation of the vesting order; that it was so vested in the assignee for the benefit of the Plaintiff's creditors, and not as a bare trustee for the Plaintiff; and that, in order to qualify himself to sue, the Plaintiff must apply, under sect. 92 of the Act 1 & 2 Viet. c. 110, to the Court for Relief of Insolvent Debtors, and obtain from that Court an order revesting the estate. The hearing of a plea is the hearing of the cause; the Court, therefore, refused to allow the cause to stand over upon the suggestion that, before the hearing, the Plaintiff would have obtained an order revesting the estate. But leave to amend for the same purpose was given, on the ground that, by the Act 15 & 16 Viet. c. 86, s. 53, facts and circumstances occurring after the institution of a suit may be introduced by way of amendment. The bill was filed on the 17th of March 1855. It prayed an account of all the dealings and transactions of the Plaintiff and the Defendants as co-partners in the business of attorneys and solicitors from the 1st of September 1837, when the partnership was alleged to have commenced, to the 31st of August 1848, the alleged date of its dissolution. The Defendants pleaded that, on the 19th of October 1850, the Plaintiff, being then a prisoner in actual custody within the Queen's prison in the county of Surrey, detained at the suit of one William Martin for the sum of 164, 18s., and by one John Martin for the sum of 20, 15s., did, by the permission, leave and order of the Court for Relief of Insolvent Debtors, duly and according to the directions and provisions of the statute 1 & 2 Viet. c. 110, apply by petition in a summary way to the Court for Relief of Insolvent Debtors for his discharge from such custody according to the provisions of the Act, which petition was within the time prescribed by the Act duly subscribed by the Plaintiff, and was, on the 21st of October [692] 1850, IK. &J.693. TUDWAY V. JONES 639 filed in the Court pursuant to the Act. The plea then stated that, upon the filing of the petition, the Plaintiff still being a prisoner in actual custody, the Court, in pursuance of and according to the statute, made the usual vesting order, dated the 22d of October 1850, vesting all the real and personal estate and effects of the Plaintiff, except his wearing apparel, &c., not exceeding in the whole the value of 20, and all the future estate, &c., of the Plaintiff in or to any real and personal estates and effects within the realm or abroad, as directed by the Act, in the provisional assignee of the estates and effects of insolvent debtors in England, his successors and assigns, in trust for the creditors of the Plaintiff, who should be entitled to share in a dividend of the said estate and effects under the provisions of the Act, and for such other intents and purposes, and in such manner and form, as in the Act expressed; and that the order was duly entered on record in the Court...
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