Insol. Case.]

insolvent of the amount of goods delivered to Kerr, McKenzie & Co., they promising to send him an account. At the time Kerr, McKenzie & Co. got these dry goods, three or four other creditors had overdue accounts against insolvent. About this time Childs & Co. sued insolvent for a claim of $300, and the sheriff sold the stock, amounting to $800 or $900, to satisfy the executions in Child's case. Beare kept no books while at Walsingham, and kept no account of the cash. The daily sales were not large.

West Brothers' debt was contracted in August, 1863, on four months' credit, and were shipped to insolvent while at Widder, addressed to William Bruce, and taken from the railway station by insolvent, who paid the freight. Some letters were addressed to William Bruce. One was from a lawyer, and had reference to these goods, addresed to the William Bruce, which insolvent opened and returned to the post office.

The insolvent's liabilities for which he sought a discharge amounted to $1,529 20.

Fitch, for the insolvent, applied for an order for his discharge.

McMahon, contra. The discharge should be conditional, on payment of West Brothers' claim. The goods were got in 1863, addressed "William Bruce." Beare was then solvent, but concealed from West Brothers that he had these goods. They could then have collected their claim. The goods given to Kerr, McKenzie & Co. was a fraudulent preference. Insolvent said he thought he was satisfying the whole of their claim. He gave them more than half of his assets. After he gave Kerr, McKenzie & Co. these goods, he owed several other creditors claims. His whole estate left only realized $400. Re Lamb, 3 L. J. N. S. 18. He did not keep books at Walsingham. Ib.

Fitch, in reply. The goods sent by mistake do not show any fraud, but a mistake on Beare's part, through the fault of West. As to fraudulent preference, see Insolvent Act, 1864, sec. 9, sub-sec. 6, and sec. 8, sub-sec. 4. He gave the goods back to the person from whom he purchased them.

JONES, Co. J.-I think the transaction of the insolvent with McKenzie & Co., in January, 1865, was a fraudulent preference, and as such would afford grounds under the act for the creditors of the insolvent to oppose his discharge; also the fact that he kept no account book of his cash -receipts and payments, or other books of account suitable for his trade, while he carried on business in the county of Norfolk, where he was in business from September, 1864, up to the time he failed, in the spring of 1865, would entitle the creditors successfully to oppose his discharge. The importance of having such books of account is evident; for the insolvent swears he was solvent when he removed to the county of Norfolk, and it was while he was there, and while he kept no books, that he became insolvent; and there is therefore no way of tracing his transactions, to show how he became insolvent, because no record of his business transactions or of his cash receipts or payments has been kept. The Insolvent Act provides that the neglect in keeping such books after the passing of the act (30th June, 1864), shall be a sufficient ground for opposing the insolvent's discharge; and it was

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about three months after that date that he commenced business in Norfolk.

The turning over of all his dry goods to Kerr, McKenzie & Co., besides being. I think, a fraudulent preference under the act, was a transaction showing on the part of the insolvent a complete recklessness as to what he did, and a total disregard of the interests of his other creditors. The agent of Kerr, McKenzie & Co. came to the insolvent and stated, without any previous intimation, the steps they intended to take; that it would be for his interest to go out of the dry goods business, and deal only in groceries; to which he at once assented; and they then proceed to take, without any objection on his part, the whole of the dry goods stock, which was the bulk of the whole stock, and remove it to London. He did not even keep any account of the quantity or value of the goods they took: they promised, he said, to send him an account, which they never did.

This transfer of so large a portion of his goods, in my opinion, reduced Mr. Beare to a state of insolvency, and in two months thereafter he gave notice of insolvency; and the whole transaction showed such an utter disregard of the interests of his other creditors, as can only be reconciled, in my opinion, with the fact that he intended to give his creditors Kerr, McKenzie & Co. a fraudulent preference.

I also thiuk that the circumstances under which West's debt was contracted are such, that if I had granted a discharge, it would only have been conditional on the insolvent's paying that debt. Although Mr. Beare was well aware that these goods were wrongfully addressed, and from the letters received at the post office to the same address, one of which he (Beare) opened, he must have known that West Brothers were not aware that he (Beare) had got these goods, yet he concealed that fact from them, and this at a time when, had they known that he got the goods, they could have obtained payment, for Beare was at that time quite solvent. Nor did he admit that he received these goods until afterwards, when they had otherwise ascertained the fact, and were suing him for the amount of their claim.

I think, from the above considerations, and from the observations of the court In re Lamb 3 U. C. L. J. N. S. 18, that it is my duty, in this case, to make an order refusing the discharge of the insolvent absolutely.

This was an appeal taken by Francis Wren from two orders of Judge Dobbs, dated the 23rd of November, 1866, and 30th of January, 1867, respectively. The petition of appeal stated that on the 5th of July, 1866, a certain estate, consisting of houses in Wexford-street, in the city of Dublin, was set up for sale in the Landed Estates Court, Ireland, in two lots.

The following is a copy of the advertisement: "Rental and particulars of houses and premises situate in Wexford-street, formerly Kevin'sport, and Protestant-row.

"Nos. 8, 9, 10, and 11, in Wexford-street, and No. 1, Protestant-row, held under three several leases from the corporation of Dublin, dated respectively the 30th of April, 1808, for the term of ninety-nine years from the date of said leases."

To be sold by auction in two lots, as in annexed rental, at the Landed Estates Court, Dublin, on Thursday, 5th July, 1866."

"LOT No. 1.

"The houses in this lot are held under lease of the Corporation of Dublin, dated 30th April, 1808 :-

Denomination.

Tenant's Name.

Observations.

Ο Ο ΟΙ

69

22

Deduct head rent

51 19 9

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from 25th March then last, at the yearly rent of £27 15s. The premises are described as that lot containing in front 20 feet 8 inches, and in the rear to Mrs. Gartside's holding, 16 feet 9 inches, in depth on the south side, adjoining Protestant Row, 76 feet 10 inches; and on the north adjoining another building of W. Bond, 78 feet."

Lot No. 2.

"The houses and premises in this lot are held under two several leases from the Corporation of Dublin, dated respectively 30th April, 1808, for 99 years from the date of said leases :

Denomination.

Tenant's Name.

CITY OF DUBLIN.

The dwelling-house and Mary M Gee premises in Wexford

The two several dwelling Mary M'Gee

St., formerly Kevin's
Port, No. 8

"NOTE. This lot is held under two leases, dated respectively 30th April, 1808, from the Lord Mayor. to W. Bond, . . . . for 99

years from 25th March then last The premises demised by the first lease are described as That lot or parcel of ground on the east side of Kevin's Port, containing in front to Kevin's Port 20 feet 8 inches; in the rear to Mrs. Gartside's holding, 16 feet 9 inches; in depth from front to rear on the north adjoining John Rogers' holding, 82 feet; and on the south adjoining another holding of William Bond's, 80 feet.' The premises, demised by the other lease, are described as 'That lot or parcel of ground on the east side of Kevin's Port, containing in front to Kevin's Port 20 feet 8 inches; in the rear to

Mrs. Gartside's holding, 16 feet 9 inches; in depth from front to rear on the south adjoining another holding of W. Bond's, 78 feet; and on the north side, 80 feet.'"

This description was followed by a plan of the premises in conformity therewith.

Lot No. 1 was purchased by Philip Redmund, the tenant thereof, and lot No. 2 by the appellant, who paid the sum of £290 therefor, and received a conveyance executed under the hand and seal of Judge Dobbs, in which conveyance the metes and bounds were those above given. The appellant now submitted that the interest of the owners in the entirety of the premises expressed therein to be held under the two several leases from the Corporation of Dublin to William Bond in the said year 1808, which were stated by the rental to constitute lot No. 2, were conveyed absolutely to him, subject to the payment of the two several rents, and to the performance of the condition, covenants, and agreements on the lessees' part in the said leases contained, and also subject to the tenancies and sub-lease therein mentioned, and to no other right, title, charge, or incumbrance whatever. This conveyance was duly registered in the proper office for registering deeds in Dublin on the 9th of August, 1866.

The petition of appeal then stated that the petitioner was not personally acquainted with those premises, except that he had been in one of the shops fronting Wexford-street shortly previous to the sale, and that he was induced to become the purchaser of lot 2 entirely from the description thereof given in said rental, and that he was led to believe, and did believe, that he had purchased the entire of the premises comprised in said lot No. 2, as set forth on the said rental. However, the appellant, in the month of November, 1866, discovered that a portion of the premises which he had so purchased, being the rear portion of the premises contained in and demised by the said two several indentures of lease, was in the occupation of Philip Redmund, who refused to give possession thereof, on an allegation that such portion was really included in lot No. 1 in said rental (which had been purchased by Redmund), and that it had been in error conveyed to petitioner, who, so Redmund alleged, never intended to purchase, and in fact had not purchased the same.

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the premises which were demised by the said two indentures of lease, and none others.

To the above petition of appeal David McBirnie, at whose petition the several premises in the Landed Estates Court were sold, answered that the premises of which said Francis Wren became the purchaser were stated in the rental to consist of two denominations, viz., No. 8, Wexfordstreet, and Nos. 9 and 10 in the same street, all of which were in the possession of a Mrs. M'Gee as tenant to the owner under a lease for 65 years, at a rent of £60, and that the net annual rental of No. 2 was stated in said rental to be £36: that in the conveyance of the said lot No. 2 the measurements in the said leases of 108 were inserted by mistake; that such measurements included a plot of ground or yard at the rear of said two denominations, but that said plot was not intended to be sold, and was in fact not sold to said Francis Wren as purchaser of said lot No. 2; that the premises sold to Francis Wren consisted of Nos. 8, 9 and 10, Wexford-street, and nothing more; and that said yard never formed part of said premises, but has always formed part of the premises No. 1, Protestant-row, and were included and demised by a certain lease of the 5th of July, 1813, which lease is mentioned only in the column of observations in lot No. 1, and is stated in column No. 2 of said lot No. 1 to be in the tenancy of Philip Redmund thereunder that Francis Wren shortly after he obtained his conveyance claimed said yard or plot of ground, when Philip Redmund, who had purchased lot No. 1, claimed compensation, alleging that said yard was comprised in said lot No. 1, and sold to him: that on the hearing of the application to the Landed Estates Court a verified map of said premises was used; that Francis Wren did not then venture to swear that he had purchased said yard, or that he even believed he had done so; and that the said yard and the rest of lot No. 1 had been occupied together as one house since 1843; and finally, that Philip Redmund was not only tenant of lot No. 1 aforesaid, but was also tenant of this portion of lot No. 2, under a lease of 1819, for a long term of years, and yet it was now sought to have the whole of lot 2 conveyed discharged of this lease to said Francis Wren, the appellant, when the lease of said yard was actually in being.

:

The conveyance which Judge Dobbs had made in manner above-mentioned granted "unto the said Francis Wren the said respective lots of ground and premises expressed to be demised by said two several indentures of lease situate res

lant was directed within one week after the service thereof to re-convey to the purchaser of lot No. 1 the said portion of the premises so conveyed to him as aforesaid, and in the event of his declining to execute such conveyance, then it was ordered that the said conveyance to the appellant should be recalled and cancelled, and that the same should be brought into the said Court, and lodged with the examiner of the Judge for such purpose.

It was not alleged that there had been any fraud in relation to the purchase, or any error or mistake on the face of the conveyance; on the contrary, all parties to the said motion admitted that the premises conveyed to the petitioner were

Dublin, with the appurtenances," subject to the tenancies therein mentioned.

Pilkington, Q.C., and Tottenham, were heard in support of the appeal.-After the conveyance the Judge had no power either to recall or to cancel it; neither had he power to order the purchaser to convey the yard at the rear of his premises to any other party. The 61st section of 21 & 22 Vic. cap. 73, makes the conveyance executed by the Judge of the Landed Estates Court conclusive against all persons whatsoever. Thereby the then purchaser's title was after the execution and delivery of the conveyance indefeasible, and the lands so conveyed were discharged of all tenancies and encumbrances, save

those which appeared on the face of the conveyance. The 85th section of the Act makes the conveyance for all purposes conclusive evidence that every act which ought to have been done previous to the execution of the conveyance has been done Errington v. Rorke, 7 H. L. C. 630; Power's estate, 10 H. L. C. 645; Dublin and Kingstown Railway Company v. Bradford, 7 Ir. CL. 57; Roe v. Lidwell, 9 Ir. C. L. 184; Purcell's estnte, 3 Ir. Jur. O. 8. 102 n.; Bodkin's estate, 3 Ir. Jur. O. S. 101. A court of equity, had this sale taken place therein, could not reform the conveyance, had it been made by vendor to purchaser: Bennett v. Hamill, 2 Sch. & Lef. 566.

Flanagan, Q.C., and Henry Loughnan, for the respondent McBirnie, in support of the order of judge Dobbs Wren never purchased, nor meant to purchase, this yard in question. He purchased the premises Nos. 8, 9, and 10. Wexfordstreet, producing £36 17s. 2d., and no more. This yard did not contribute to pay that rent, inasmuch as it was attached to lot No. 1. The Landed Estates Court is a court of equity, it is constituted, as such by the 37th section of 21 & 22 Vict. c. 72: "The said Landed Estates Court, Ireland, shall be a Court of Record, and shall have all the powers, authority, and jurisdiction of a court of equity in Ireland" The Court then had the same power to deal with its own conveyances as a court of equity would have for rescinding or varying any contract for sale in the matters incident to or consequent on a sale under the Act. Francis Wren did not pledge his oath that he believed he purchased this yard: Collis's estate, 14 Ir. Ch. 511. The principle which guides the local equity court in such cases is that if by any fraud, negligence, or other misconduct of the party having the carriage of the sale, he procures the Court to sell and convey to him property which ought not to have been sold or conveyed, the Court has jurisdiction to compel him to reconvey: Langley's estates (not reported). mentioned in argument in Collis's estate, 14 Ir. Ch 514. In Re Vesey's Estate, 1 Ir. Jur. N. S. 66, Baron Richards, then Chief Commissioner, says, that the Court had full jurisdiction to amend the conveyance in any matter arising from mistake" The late Master of the Rolls (Smith) in Locke v. Ash, 4 Ir. Jur. 180, where lands, as in the case under consideration, were sold, discharged of a subsisting lease, thus expressed himself in giving judgment on a motion to have the receiver discharged from over the lands so sold;"Were I the commissioner who sold this property, I have little hesitation in saying that I would, under the circumstances, order the conveyance to be re-lodged, for the purpose of having the lease, which was lodged in court for the purposes of the sale, set out in the schedule to the conveyance." In answer to the argument on the 85th section, that it ousts the jurisdiction of the Landed Estates Court as well as the Court of Chancery, and precludes the possibility of taking objection to anything behind the conveyance, we say that the conveyance is conclusive only so long as it stands. [THE LORD JUSTICE OF APPEAL. Tkat is to say, the conveyance may be impeached by the allegation of those things, of the non-existence of which the conveyance itself is made conclusive.] Re Giraud, 32 Beav. 385.

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Henry Fitzgibbon appeared for Mr. Redmund, also in support of the order of the Court below.

I

BREWSTER, C.-This is an appeal from Judge Dobbs. The order of that learned judge directs that Mr. Wren should reconvey a certain yard or portion of the premises conveyed to him, or, that in case Wren should decline to do so, then the conveyance should be recalled and cancelled. I pass over all technicalities in this case and go directly to the point, which is of the utmost importance. The premises here were divided into two lots. Lot No. 1 was conveyed to one party, and lot No. 2 to another. Each of the purchasers of these lots purchased by exact measurements the lots which were set up to be sold; after the conveyance of lot 2 has been made, the purchaser of lot says that he will not give the purchaser of lot 2 what he purchased, namely, the yard, which was at the rear of his house, and which he holds in his possession. A motion was accordingly made to Judge Dobos, and he made this order now appealed from. I am bound to say that that learned judge has exceeded his power in ordering Mr. Wren to bring back this conveyance for the purpose of rectification; such an order is clearly opposed to law as well as to natural justice. He it was that was the seller of these premises, and he had taken Mr. Wren's money, and Mr. Wren had purchased on the faith of the statements in the rental; but the judge finding that he himself had made a mistake ordered the purchaser to bring in the conveyance for the purpose of having that mistake rectified. The judge had no such power. Once the conveyance left his hands he had no more to do with it than any person outside the Court, he then was powerless to undo what he had done. The judge of the Landed Estates Court is the creature of the statute, and was in no wise empowered to defeat its purposes. The law is explicit that the party who has become the purchaser in the Landed Estates Court, and has had a conveyance executed to him by that Court, has such a title as he can enforce in the ordinary courts of justice. In a word, the act of the judge in executing the conveyance is irrevocable. The policy of the Legislature was to make conveyances of the Landed Estates Court indefensible; to this end did they pass the Landed Estates Court Act; they thereby gave specific powers to the Court; large powers, but which must not be exceeded. Have these powers enabled the judge of the Landed Estates Court, having executed a conveyance and perfected the title in the purchaser, to take that title from him of his own will and pleasure? The 37th section of the Aot has been relied upon in support of the order of the Landed Estates Court, and it was urged that that Court was a Court of record, and that it was to have all the powers, authority, and jurisdicion of a Court of Equity, and therefore it possessed within itself all the incidents of a court of record. I cannot, however, find that a court of equity ever claimed the power of doing what has been done in this case. A court of equity is of a nature entirely different from the Lauded Estates Court, which has no powers at all except those defined by the statute; a court of equity does not itself convey an estate to a purchaser, it merely directs the parties to do so, and it regulates their rights. The case we are now dealing with is one of mere

Irish Rep.]

mistake, and that on the part of the vendor of the property. I am not aware that even a Court of equity could reform a deed where only one of two parties had committed a mistake, for unless the mistake be mutual a Court of equity will not reform a mistake. It was the ancient law of this country that deeds solemnly entered into were not to be treated as waste paper; we must now take that to be law, banded down as it is to us from remote antiquity. Here it was not one party who conveyed to the other, it was the judge who conveyed, and then he turns round and says, "Oh! I have made a mistake; the solemn deed I have executed is worth nothing; bring it back, and if you don't I'll put you in gaol.' Great as the powers are which the Landed Estates Court has, no Act of Parliament ever gave them such wide prerogatives as these. The Legislature in passing this, the Landed Estates Court Act, have defined all the preliminary steps to be taken where a sale is had in that Court, I need not occupy the public time in going through them further than so much of the 61st section as applies to leases; that section declares that "every such conveyance or assignment executed by the said judge upon the sale of a lease or rentcharge, or an annuity charged on land, or any partial or lesser estate than an estate in fee simple, shall be effectual to pass the estate created or agreed to be created by such lease then remaining unexpired, or by the instrument creating such lesser or partial estate." Now clearly this leasehold interest was conveyed, and the 85th section declares that conveyances, assignments, and orders for partition, exchange or division and allotment made by the Landed Estates Court, shall be conclusive. That section is analogous to the 49th section of the Incumbered Court Act, 12 & 13 Vict. c. 77, and the decision of the House of Lords in Errington v. Rorke, 7 H. L. C. 630, puts the question beyond all doubt. The case of In re Langley, cited, or rather reported, in the statement in Collis's Estate. 14 Ir. Ch. 512, has been relied on in support of Judge Dobb's order. The case of In re Langley was decided in the Incumbered Estates Court, and was about being appealed from. but the case being compromised the appeal fell to the ground, and is a case of no great weight and authority, and I am very much disposed to think was much weaker than Judge Hargreave was willing to allow; and 1 am not disposed to go against the plain words of an Act of Parliament on the extra-judicial opinion of any judge. No judge that I am aware of ever made such an order under the authority of either the Incumcumbered Estates Conft Act or Landed Estates Court Act as the order we have now under our consideration. Judge Hargreave has merely told us extra-judicially what the Court would do, so that this case is now one of first impression, and we are not hampered by any authorities whatever. Need I call attention to Power's Estate, 10 H. L. C. 645, a case of the very highest authority, an appeal from the Court of Appeal in Chancery in Ireland? It was there held that a conveyance made under the 21 and 22 Vict. c. 72 (“Sale and transfer of lands, Ireland) is by section 85 for all purposes "conclusive evidence" that all previous proceedings leading to such conveyance had been regularly taken. There

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can be no doubt that that case and Errington v. Rorke are conclusive on the case under consideration.

Mr. Flanagan brought forward another case, and I confess I do not look on that as any nuthority whatever, the case of Re Giraud, 32 Beav. 385, thus:-" By an order made under the Trustee Act real estate was inadvertently vested in an alien. The Court declined to vary the order by inserting the name of a natural born subject without the consent of the Crown, but the order was made on a rehearing." What has that case to do with the present? The Trustee Act does not confer auy indefeasible title, and there was nothing I can see from preventing the Master of the Rolls from varying his order at all. I ask how is that case any authority on the construction of the Landed Estates Court Act?

It is expected that all parties in the Landed Estates coming before the Judge should take care that all matters of detail are brought accurately before him. It is utterly impossible for any judge or any court to see that every minute detail of all proceedings brought before him is in accordance with the truth. It is sufficient that parties coming before a judge have that regard for their own interest which would induce them to see that matters of detail are correct. The judge of the Landed Estates Court has a right to expect that no rental should be prepared, or conveyance presented to him for execution, which is not in accordance with the fact; and it would be expecting a judge to perform a duty beyond all human power to accomplish. to expect him to be responsible for an error such as has unfortunately raised the difficulty in this case. The judge or his immediate officer would require omniscience to do that which the parties ought to do for themselves. Therefore, with reference to the judge having executed the deed of conveyance, no person could wonder at it; on the contrary, it would be matter of wonder if he had not executed it in the shape in which it was presented to him, and, particularly, he being in profound ignorance of the matters brought before the Court on this appeal. Somebody, of course, must suffer for the mistake; but all the Court has now to say is, that the judge has exceeded the bounds which the law had set to his power, and, therefore, the order made by him must be reversed.

CHRISTIAN, L. J.-I concur with the Lord Chancellor in the judgment his Lordship has just pronounced. This is a case of no ordinary importance,-nothing would be more calculated to shake the faith of the public in the parliamentary titles conferred by the Landed Estates Court than the course taken here by the judge of that court. At present the public are attracted to that court by the prospect held out of an indefeasible title being conferred by it It is believed that once the deed of conveyance has been executed a veil is drawn over the past, over all antecedent transactions, and that an impregnable bulwark is raised against the re-opening of any matter lying behind that deed. What is to become of that confidence, if months, and it might be years, after a conveyance has been executed, the purchaser is to be called upon to submit to the alternative of a re-conveyance or