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Exeter and Plymouth Gazette. Daily Telegram. Monday 02 Feb 1880
Page 3 Column 3
THE WEST OF ENGLAND AND SOUTH WALES DISTRICT BANK.
CLAIMS AGAINST LIQUIDATORS.
Two adjourned summonses with respect to claims made against the liquidators appointed by the Court in the winding-up of this Bank came before Vice-Chancellor MALINS, on Saturday, sitting in the Chancery Division of the High Court of Justice. The Court did not sit until nearly twelve o'clock, owing to the inability of his Lordship to reach the Court in consequence of the dense fog which has overspread London and the suburbs for the last week. He, however, despatched a telegram to the learned counsel engaged in the case, stating that he had made an attempt to come, but in consequence of the density of the fog in the neighbourhood of Lowndes-square, where his Lordship resides, he had been compelled to return home until the weather improved. He, however, arrived about two hours after the usual time for the sitting of the Court, and expressed his regret at the delay caused. Mr. GLASSE, Q.C., who was retained for the liquidator, said that he was very glad that he was not punctual, as he (Mr. GLASSE) would not have been there. (Laughter.) He managed to get a cab, and then he had to hire a small boy to shew him the way with a torch. (Renewed laughter.)
Mr. J. Napier HIGGINS, Q.C. (with whom was Mr. Northmore LAWRENCE) then opened the first summons. He said that his client, Mrs. BRAUND, of Clifton-terrace, Exeter, applied to be declared a creditor of the Bank for three separate sums deposited with the Exeter Branch of the West of England Bank. Mrs. BRAUND was a widow lady, and had attained the extraordinary age of ninety-three, and she seeks to be ranked as a creditor of the Bank with respect to a sum of £298 17s. paid into the current account, and two further sums of £250 and £100 which she had deposited with the Bank, and for which she had received deposit notes. The reason that the claim was not acceded to by the liquidator was that the moneys stood in the name of Miss Ellen Elizabeth Kelly BRAUND, who acted as her mother's trustee. The whole dispute would turn on the point whether Miss BRAUND was a trustee or not.
The Vice-Chancellor inquired whether Mrs. BRAUND was a shareholder?
Mr. GLASSE, Q.C., said that she was not, but her daughter was.
Mr. HIGGINS, continuing, said that Mrs. BRAUND's husband died in the year 1874, and with his consent she had for many years kept an account at the Bank. The lady who possessed of a small fortune; and, as difficulties sometimes occurred when married ladies deposited money in their own names, the amounts were placed to her daughter's credit, and she acted as her mother's trustee for them. There were two propositions that he should submit to the Court, both of which were clearly and undeniably supported by the evidence adduced in support of the application. The first was that both the money claimed and paid into the current account, as well as the two deposit notes, were the property of Mrs. BRAUND. The evidence on this point was not contradicted. The second was that ample notice was given to the Bank officials that this was a trust account, and that Miss BRAUND was merely the trustee of her mother. It was needless for him to cite authority on the point that a parole declaration was sufficient, and that there was no need for written authority. The decisions on this point of the case were so clear and so numerous that he should assume that this would not be seriously argued by the liquidators' counsel. He should prove that Mr. TOMBS, the then manager of the Exeter Branch, was perfectly well acquainted with the arrangement.
The Vice-Chancellor: If the facts, as you have detailed them, are accurate and uncontested, I should think that the liquidator would hardly desire to oppose the claim of Mrs. BRAUND.
Mr. GLASSE: We do contest them. They mention an official who is dead and buried, and we have no means of finding out the accuracy of the statement.
Mr. HIGGINS said that he would now deal with the affidavit filed by Mrs. BRAUND in support of her claim. In it she expressly swears that she was in the habit of receiving the interest on mortgages, &c., from her son, Mr. Marwood Kelly BRAUND, who acted as her solicitor. These sums, to avoid confusion that might occur if paid into the Bank in her own name, were deposited in the name of her daughter Ellen, who she distinctly swears had no interest in the amounts so deposited.
The Vice-Chancellor; There seems no doubt that this money belonged to the old lady. It does seem a pity that people will not do their business in a business-like way. If Mrs. BRAUND had only notified the fact in writing of her daughter's trusteeship, this troublesome litigation would not have arisen.
Mr. HIGGINS contended that this was not necessary. The authorities all shewed that a parole agreement was sufficient. It was well known by the Bank officials that Miss BRAUND was acting for her mother. The £250 left in the current account was so placed that, in the event of Mrs. BRAUND dying, her children would have a supply of money ready for any immediate necessities. It was a curious point in the case that there was a memorandum attached to the £100 deposit-note in Mrs. BRAUND's own handwriting. This note specified that the sum was deposited to pay her funeral expenses; and in order that she might keep a promise she made to her servants, and, at her death, they should each receive a £1 for every year they passed in her service up to the time of her death.
The Vice-Chancellor said that he understood that Miss BRAUND was a contributory under the winding-up.
Mr. HIGGINS said that Miss BRAUND had been a shareholder in the Bank, but nothing turned upon that point.
The Vice-Chancellor inquired the amount of her liability.
A gentleman from the solicitor's office said that he believed it was about £600.
Mr. HIGGINS said that the statements made in the mother's affidavit were confirmed by the daughter. Miss BRAUND had made an affidavit, saying that, beyond signing cheques, she knew nothing about her mother's affairs. She did not claim the sums as her property, and the officials of the Bank were well aware that she was her mother's trustee. The liquidator would be furnished with the names of these officials. They were Messrs. HEARD and MARSH, who were successively the cashiers at the Exeter Branch, and Mr. TREMAYNE, the late manager of that branch. These gentlemen were all alive.
Mr. GLASSE remarked that it would have been open to Mrs. BRAUND to call all these gentlemen in support of her claim, but she had not done so.
Mr. HIGGINS said she had not done so because it would have been unnecessary. They had ample evidence in support of their claim, and it was for the liquidator to disprove that, if he could.
Mr. GLASSE, Q.C., (and Mr. NORTON) then addressed the Court, contending that Mrs. BRAUND was not entitled to rank among the creditors of the Bank. The liquidator desired to do justice to everyone, but he was bound to exercise a careful scrutiny of the claims coming before him in justice to the other creditors. The Court was in full possession of the facts which it was his duty to lay before it, and he, on behalf of the liquidator, was quite willing to abide by its decision.
The Vice-Chancellor came to the conclusion that the moneys were held in trust by the daughter for Mrs. BRAUND, and, therefore, directed that she should be considered a creditor with respect to the three sums deposited in Miss BRAUND's name, the costs of both sides to come out of the assets of the Bank.
The claim of Mr. MacDOUGALL, the former manager of the Ross Bank (a branch of the West of England Bank) was then proceeded with. The applicant was formerly a partner in the Old Ross Bank, in Herefordshire, the business of which had been taken over by the West of England branch. When the business was taken over he was appointed manager, and had received a salary of £600 per annum, and now claimed £2,500 for compensation for the loss of his position as manager.
Mr. PEARSON, Q.C. (and Mr. Northmore LAWRENCE), contended that the applicant was entitled to this sum. Since the loss of his post as manger of the Ross Bank he had obtained another appointment, at £300 per annum. He was 63 years of age, and from a calculation by an actuary, it was likely that he would live 13 years longer. He however only claimed 8½ years' at £300 per annum, amounting to £2,500. The learned counsel argued that the appointment of Mr. MacDOUGALL had been for life, and, therefore, he was entitled to compensation.
Mr. GLASSE, Q.C., for the liquidator, agreed that it was a case for settlement, but declined to give more than £1,200.
The Vice-Chancellor said that it was a most difficult case to decide. He was of opinion that the appointment was for life, and, therefore, directed the summons to be adjourned, to see if the parties could come to terms.