it followed that the election would be made by two out of the three. That was a state of facts which their Lordships would not be very ready to recognize. These elections had been compared to elections for Members of Parliament. But cases of the latter description did not necessarily apply; as such elections were not properly corporate acts, nor under the control of courts of law. One mode of proceeding might be adapted to the one case, and another to the other. He had quoted some cases to show that the members ought to have an opportunity of deliberating.

(ELDON, L.C.: Did the Court consider it the duty of the returning officer to begin again in these cases? He could easily conceive in theory all might be considered as present during the whole time. If those who had voted without notice. did not claim to vote again, was there any rule that the returning officer should desire them to do so? If that was brought before the Court below, they thought nothing of it. The calling upon them to vote again, by the objecting party or presiding officer, might furnish better evidence, but neither the party nor officer was bound to do so.)

Unless the election of Hawkins was a mere nullity, Spicer was not well elected. Unless it should be the rule that the notice must be given before the commencement of the election, many of the voters might go away after having voted, and never hear of the disqualification; and he might put that case. They might never know that any objection was started; and yet all they had done might be unavailing, and the voice of one might elect. Though the law might presume that all the voters were present during the whole time, that was contrary to the fact. In some cases, the places were not large enough to hold them all. He was not aware, however, of any instance in which electors, under such circumstances, voted twice. They were not called upon to do so here; and it would be attended with great inconvenience, even though it were to be done at their own request. All that inconvenience would be avoided, if it were laid down as the rule, that the notice of disqualification must be given before the commencement of the election.

HAWKINS

t.

REX.

[145]

HAWKINS ?.

REX.

[ *146 ]

[ *147 ]

ELDON, L.C.:

Though before final judgment he should avail himself of the opportunities which he might have of consulting the Judges to rectify his opinion in case he should be wrong; yet, as he was unwilling to postpone the decision, in case his opinion should be confirmed, he should now state what occurred to him on the question.

He would confine himself to what appeared in the special verdict; but Mr. Abbott was right in urging every point which he thought necessary to do justice to his case, and he seldom, it might be said never, submitted any point that was not worthy of attention.

The special verdict stated, that "the mayor, justice of the peace, and the rest of the aldermen of the said borough, and divers, to wit 34 of the free burgesses of the said borough, did assemble and meet, &c. on due notice." Taking it, then, that the electors ought to have an opportunity to deliberate and speak, it must be after they were met. When deliberating separately as individuals, they were not then deliberating as a corporation. There was a fixed time and place for meeting and deliberating in their corporate capacity.

However, they met here on due notice. There were two candidates,-Hawkins and Spicer. It might happen that an objection might be kept back fraudulently. In this particular case, there was no appearance of fraud. There were a considerable number of free burgesses present,-40, suppose:-two voted for each candidate; and it must be supposed that the knowledge of the disqualification then appeared. Their Lordships would attend to that, as a question had been made, Whether the notice must not be given before the election commenced?

It did not appear that any of them voted either *for Hawkins or Spicer, that would not, at any rate, have voted for them; but he agreed that the objection might be taken by both parties, as in Burke's case. They might say, "We did vote for E. B. and the other candidate; but if we had known all the circumstances, we would have voted for neither of them."

No objection of this kind was then taken. The election proceeded, and the great majority voted for Hawkins; and the

election of Hawkins was an absolute nullity by the Act 13 Car. II. lib. 1. If there had been no other candidate, it was a nullity, independent of the Indemnity Act: and if there was another candidate, it might then have been to be considered whether the Indemnity Act could take effect. But there was no such question here, if Spicer was duly elected.

If the majority were unpolled at the time of the notice given, the utmost that those who had polled without notice could say would be, "Place us in the same situation in which we would have been if notice had been given at the beginning of the election;" and that was only matter for consideration, if they could not proceed on the theory, that all continued present till the election was over. The notice was given, and why did the election continue under these circumstances? and why did not those, who were surprised perhaps, require to vote again? Unless it was the duty of others to call on them to do so, they ought to have done it; and if they did not, they sanctioned all that was done; and their complaint came too late when they *might have required to vote again, and have made the election effectual by voting, or ineffectual, if their votes had been refused.

But no other man would have been chosen here. The majority knowingly voted for this dead man, and that was to be attended to. If he were to go farther, he should take the ground that the majority was unpolled at the time of the notice; and if he were to go farther, he should say, it was his opinion, that when a voter had polled without notice, it rested on him to require to be permitted to vote again. If he should alter his opinion, he would state that circumstance afterwards.

Judgment of Court below affirmed.

HAWKINS

v.

REX.

[ *148 ]

R.R.-VOL. XIV.

L

1814. March 23.

ELDON, L.C. [230]

[231]

[232]

SCOTLAND.-APPEAL FROM THE COURT OF SESSION.

SELKRIG (TRUSTEE FOR CREDITORS OF FAIRHOLMES) v. DAVIES AND SALT (ASSIGNEES UNDER A COMMISSION AGAINST GARBETT, A BANKRUPT).

(2 Dow, App. Cas. 230-250; S. C. reported in 2 Rose, 291.)

It is now settled law in Scotland, founded on a principle of international law, that the assignment under an English commission of bankrupt vests in the assignees, ipso jure, and without the necessity of intimation, the whole of the bankrupt's personal or moveable property in Scotland.

If a Scotch creditor chooses to come in under the English commission, he must do so on the terms of the English Bankrupt law, giving up, for the benefit of the general creditors, any security he has obtained, by means of the Scotch law.†

MR. SAMUEL GARBETT, one of the founders of the Carron iron works, carried on considerable trading concerns both in England and Scotland. Mr. Garbett being indebted to the estate of Messrs. Fairholmes, bankrupts, Mr. Grant, trustee for the Fairholmes' creditors, in 1773, arrested certain shares of Carron stock, belonging to Mr. Garbett. In 1774, it was agreed that the arrestments should be withdrawn, in consequence of an arrangement from which the Fairholmes' creditors derived some advantage, but not the whole that was stipulated.

The arrestment, instead of being formally vacated, was made over by Mr. Grant to the trustee for the creditors of Mr. Garbett's son and son-in-law, bankrupts, for the alleged purpose of extricating their concerns, which were involved with those of Mr. Garbett. No process of forthcoming was instituted; but the arrestments were founded upon in certain subsequent proceedings, which, as was contended, prevented the prescription.

*

In March, 1782, a commission of bankrupt in England issued against Mr. Garbett, and in April of the same year, his effects in Scotland were, on his own application, sequestrated, with the consent of, or without any opposition from, the assignees under the commission. No formal intimation of the assignment was given to the Carron Company; but as the assignees (one of + The case is cited as an authority for this principle, in Banco de Portugal v. Waddell (1880) 5 App. Cas.

161, 167, 49 L. J. Bk. 33, 42 L. T. 698.-R. C.

whom was a trustee under the sequestration) corresponded with the Company on the subject of the shares, and continued to deal with, or to claim the right to deal with, these shares after the sequestration had expired, the question was raised, Whether this was, or was not, sufficient intimation?

Mr. Grant offered to prove under the English commission, upon affidavit of the debt remaining due to the Fairholmes' creditors, and that he held no other security for it, except a decree of adjudication, not mentioning the arrestment. The proof was opposed, but a claim for 15,000l. was allowed to be entered. Mr. Selkrig, the appellant, having succeeded Mr. Grant in 1793, renewed the application to be permitted to prove under the English commission, and made an affidavit, stating the agreement for withdrawing the arrestment of 1773, and produced certificates from the Signet Office, with a view to show that the arrestment had expired.

The Commissioners were ordered to report on the state of the facts in regard to this claim, but before the proceedings under the order were terminated, Mr. Selkrig, finding that the sequestration of 1782, *not having been renewed in terms of the Bankrupt Acts, 23 Geo. III. c. 18,† and 33 Geo. III. c. 74,† had expired, raised an action against Mr. Garbett in Scotland, and, in 1798, arrested the shares of Carron stock.

In an action of multiple-poinding, soon after brought at the instance of the Carron Company, the question of preference, as between the English commission and the Scottish arrestments, came before the Court.

The Court of Session was unanimous in favour of the general principle, that the English assignment transferred the whole of the bankrupt's personal property, wherever situated; and that the effect of the subsequent arrestment of 1798 was thereby barred. All, except Lord ARMADALE, appeared to have been of opinion, that the appellant was, by the agreement of 1774 precluded from founding on the arrestments of 1773. Lord MEADOWBANK said, that if he reprobated the agreement, he must refund the benefit received under it; and (in regard to the intimation of the English assignment) that legal assignments, like those of marriage, operated without intimation. Lord BALMUTO

† Rep. Stat. Law Rev. Act, 1871.