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1838.

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the three parties, i. e. Hunt & Jenkinson as one of the

parties, the defendants as another, and Royds & Co. a third, HUTCHINSON and another all concurred in the arrangement; and that Hunt & Jenkinson HEYWORTH

were aware that the defendants meant to require the guaand others. rantee of Messrs. Royds, inasmuch as the defendants' letter

to Messrs. Royds of the 25d of September, requiring the guarantee, was contained in the letter of that date from the defendants to Hunt & Jenkinson. It appears, therefore, on the whole, that Hunt & Jenkinson being indebted to their bankers, Messrs. Royds and Co., and in the common course of things expecting further advances or else a for. bearance of pressure for the payment of what was due, authorize the defendants to pay money out of certain funds to the extent of 5000l. to Messrs. Royds in liquidation of the whole or part of their debt, the defendants give to Messrs. Royds an undertaking to do so, but conditionally that a guarantee of indemnity shall be given by them, which guarantee Messrs. Royds do give, and accept the undertaking of defendants. The whole of this taken together appears to us to constitute an appropriation of funds to the extent of 50001. to Messrs. Royds, or else to an equitable assignment of these funds; but whether it be an appropriation of funds

or an equitable assignment, it is not in either case, in our opinion, revoked by the bankruptcy of Hunt. But it is contended, by the plaintiffs, that an arrangement of this sort ought to form part of the original transaction. But there does not appear any original transaction to which this can be referred, the dealing between Hunt & Jenkinson and the defendants begau twelve years before 1831, when it began between Messrs. Royds and Hunt & Jenkinson does not appear; but the dealing of Hunt & Jenkinson with these respective houses had been quite distinct, and had nothing to do with each other; the transaction in question was the first in which all the parties were originally concerned. It is said there is no consideration for this arrangement, but we think there is, for Hunt & Jenkinson were indebted to Messrs. Royds in upwards of 50001., and

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the latter, on receiving this contingent security for 50001., of 1838. the probability of realizing which they would no doubt in

HUTCHINSON quire, would be more inclined to give additional credit to and another Hunt & Jenkinson, and the latter would be less likely to

HEYWORTH be proceeded against for the recovery of the money by and others. Messrs. Royds & Co. Then it is said, that the defendants did not pay this money on the authority of Hunt & Jenkinson, but on the guarantee of Messrs. Royds; but though they would not have paid it without the guarantee of Messrs. Royds, they paid it principally on the authority of Messrs. Hunt & Jenkinson, and, in fact, they paid it on both together. It is said also, that as to some of the cases there was a specific ascertained debt, to which the appropriation or assignment of the funds was to be applied. But we think it not necessary that the debt to which the

appropriation was to be made should be ascertained. The funds to be appropriated were not to exceed 50001., and if the debt due to Royds was less, the money to be paid to them would be less; but it can make no difference whether the debt due to Royds was a specific sum of 10001, or any indefinite sum, but so that whatever their debt was, they should get no more than 50001. A great many cases have been cited on the argument, and we may refer to Row v. Dawson (a), Yeates v. Groves (6), Fisher v. Miller (c), Hodgson v. Anderson (d), Wharton y. Walker (e), Fairlie v. Denton (f), Bailey v. Culverwell (g), Hunt v. Mortimer (h), Crowfoot v. Gurney (i), Tibbitts v. George (k), Smith v. Smith (1), Williams v. Everett (m), Carvalho v. Burn (n), Scott v. Porcher (o). Not indeed that any of these cases are precisely (a) 1 Vesey, 331.

(h) 10 B.& C. 44; S. C. 5 Mann. (b) 1 Vesey, jun. 280.

& R. 12. (c) 1 Bing. 150.

(i) 9 Bing. 372. (d) 3 B. & C. 842; S. C. 5 D. (k) 5 A. & E. 107; S. C. 6 N. & R. 735.

& M. 804. (e) 4 B. & C. 163; S.C. 6 D. (1) 2 Cro. & Mees. 231. & R. 288.

(m) 14 East, 582. (f) 8 B. & C. 395; S. C. 2 (n) 4 B. & Ad. 382. Mann. & R. 353.

(0) 3 Mer. 652; 1 A. & E. 883; (9) 8 B. & C.448; S. C. 2 Mann, S.C. 1 N. & M. 700. & R. 564.

1838.

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the same as the present; but the principles on which they

were decided we think apply to the view we have taken of HUTCHINSON and another this case. In Carvalho v. Burn, first in this Court, 4 B. HEYWORTH

& Ad. 382, and afterwards in the Exchequer Chamber (u), and others. the assignees of the bankrupt were held entitled to recover

under circumstances bearing some resemblance to this; but that was an action of trover for goods, and the two Courts of Law held that the assignees had the legal property in the goods, leaving the equitable rights of the parties to be considered in a Court of Equity; and in the same case (6) the Vice-Chancellor, on demurrer to a bill in equity, seems to have considered that the defendant at law, who stood in the same situation as the defendants here, was entitled to the benefit of the arrangement against the assignees of the bankrupt; and that decision of the Vice-Chancellor's was afterwards confirmed by the Lords Commissioners. In the case of Scott v. Porcher (c), Sir Wm. Grant, Master of the Rolls, says, “the case is stripped of almost every circumstance that has ever been relied upon as constituting an irrevocable appropriation;" and amongst other things there had been no communication made by Porcher (who stood in the same relative situation as Royds) of the directions that had been given; but here every thing has been done that could be, and it seems, from the whole remarks made by the Master of the Rolls, that under circumstances like the present he would have been of opinion with the defendants. Upon the whole of this case then, we are of opinion that a nonsuit should be entered.

Nonsuit to be entered.

* (a) 1 A. & E. 883.

(c) 3 Mer. 652. (6) 7 Sim. 109.

AFTER MICHAELMAS TERM, II VICT.

287

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249

DANGERFIELD v. THOMAS.

Friday,

Nov. 30ih. 31 DEBT on bond for 12501., bearing date the 25th August, To debt on 1835. Plea; that on the 20th January, 1836, a fiat of bond the de

fendant pleadbankruptcy issued against the plaintiff, and that by reason ed that a fiat of the premises his assignees had become entitled to the had issued

of bankruptcy debt in the declaration mentioned.

against the Replication; that before the bankruptcy of the plaintiff which certain

plaintiff, under and fiat, by indenture of the 1st September, 1835,-made persons had

been appointbetween the plaintiff and J. A. Gardiner and M. Elgie, ed his assigsurviving executors of John Allcott, and reciting that the nees, and that

by reason of plaintiff was indebted to them in 15801. upon a cognovit, the premises and sol. for costs; and that by a certain bond, namely, the they had bebond declared upon, the defendant had become bound to to sue upon

the bond. Rethe plaintiff in 12501., conditioned for the payment of plication, that 6251.,—the plaintiff assigned to them the said bond and all by an inden

ture, reciting his interest therein, as a further security for the 16601. due the plaintiff to to them, subject to a proviso for redemption on payment of be indebted to the 16601. on the 1st March then next ensuing; that they sons upon a were appointed the plaintiff's attornies to sue on the bond; more than the that the defendant, before the plaintiff became a bankrupt, amount of the

bond, the and before the issuing of the fiat, had notice of the assign- plaintiff had ment; that plaintiff did not, on the said Ist March, pay to assigned the

bond to them J. G. and M. E. the 1660l.; and that at the commence- as a further ment of the present action there was owing to them 8001.- security, with

a proviso for a sum exceeding the amount due upon the bond; and that redemption;

and that the the action was prosecuted in the plaintiff's name at their balance of the instance, and for their sole benefit.

debt remain

ing unpaid was Special demurrer, on the ground, 1, that plaintiff had not larger than

the amount of such bond; and that the action was brought for their benefit:-Held, on special demurrer, 1. That the plaintiff was not bound to make profert of the indenture. 2. That the replication was right in setting out facts to shew in what way the bond was prevented from vesting in the bankrupt’s assignees, and that it was not bad for argumentativeness in not traversing that the bond did vest in them. 3. That although the bond was stated to have been given only as a further security, and there was a proviso for its redemption on payment of the debt, the bankrupt had no possibility of interest to pass to his assignees, as the balance of the unpaid debt exceeded the amount of the bond, and it did not appear that any other valuable security had been given.

1838.

brought the indenture mentioned in the replication into

Court, or made any profert thereof, or alleged any excuse DANGERFIELD

for not having done so. 2. Also, that plaintiff had not THOMAS.

confessed and avoided, or traversed, any of the matters of fact set forth in the plea, and that, for any thing appearing in the replication, the plaintiff left it uncertain whether he intended to admit or deny that the debt mentioned in the declaration passed to the assignees appointed, as in the plea mentioned. 3. Also that the plaintiff, by the replication, attempted to put in issue, to be tried by the country, mere inference and matter of law, namely, whether the debt in the declaration mentioned, by means of the bankruptcy of the plaintiff and the appointment of assignees in the plea mentioned, became legally vested in such assignees, the same replication admitting all the facts stated in the plea: 4. Also that the replication was argumentative, and no certain issue could be taken thereon, and was in other respects insufficient, &c. &c.

The following statement was given of the points intended to be argued :

For the plaintiff:-1. That the replication was good, because it was shewn therein that the plaintiff assigned the bond debt sought to be recovered, for a valuable consideration, before his bankruptcy; and that the amount of the debt, as a security for which the bond was assigned by him as therein mentioned, greatly exceeded the amount due upon the bond ; and that it was shewn that the assignees of the plaintiff under the fiat could take no beneficial interest in the debt sued for, and that therefore the action was correctly brought in the name of the plaintiff for the benefit of the assignee of the bond. 2. That profert of the indenture was unnecessary, inasmuch as it appeared that he was not the party entitled to the indenture or to the possession thereof, or that the same was left in his possession or power; and because the statement of the indenture was merely matter of inducement and collateral to the cause of action.

For the defendant :- That the debt secured by the bond

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