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Colonial Cases

Standard Bank of British South Africa v. John Owen Smith and Company, 1870

[insolvency]

Standard Bank of British South Africa v. John Owen Smith and Company


Judicial Committee of the Privy Council
1 July 1870
Source: The Times, 2 July, 1870

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL, July 1.
(Present - Lord Cairns, Sir J. Colville, Sir R. Phillimore, Sir J. Napier, and Sir L. Peel.)
THE STANDARD BANK OF BRITISH SOUTH AFRICA v. JOHN OWEN SMITH AND CO.
  This was an appeal from a judgment pronounced by the Supreme Court of the Colony of the Cape of Good Hope on the 16th of December, 1868, whereby the bank (having offices in London) were held to be liable to the present respondents in the sum of 398 l. 16s. 5d., including interest, which debt was owing by Messrs. Kirkwood, Holland, and Co., trading at Port Elizabeth.
  Mr. Mellish, Q.C., and Mr. C. Russell were for the appellants; Sir Roundell Palmer, Q.C., and Mr. Archibald for the respondents.
  The respondents were plaintiffs to recover of the present appellants, the defendants in the action, damages for breach of an alleged agreement made on the 6th of May, 1865, by which an agent of the bank agreed, it was stated, with the respondents to pay them a composition of 15s. in the pound on their claim against the firm of Kirkwood, Holland, and Co., who failed and called a meeting of their creditors in 1865. Two of the Judges of the Supreme Court held that Messrs. Owen Smith and Co. could recover on the agreement, and Mr. Justice Dwyer dissented. The bank then appealed to Her Majesty, and among the reasons alleged was the delay in bringing the action, as also that all the creditors had not agreed to the composition, and further, that the estate did not pass, but was administered by the Insolvent Debtors' Court of the Cape of Good Hope. The learned Judges in favour of the claim by the respondents, who were the original plaintiffs in the action, were Mr. Justice Dennysen and Mr. Justice Bell; Mr. Justice Dwyer dissenting.
  Lord Cairns, after a long legal argument, at the end of the day delivered the judgment of their Lordships. They held that the terms of the agreement had not been carried out, and that the respondents, who had obtained judgment, in the court below, had no cause of action. Their Lordships would, therefore, humbly recommend to Her Majesty that the appeal be allowed with costs, as also the costs of the action in the Court below.
  The Committee adjourned to Monday.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School