Benfield v Solomons

JurisdictionEngland & Wales
Judgment Date30 July 1803
Date30 July 1803
CourtHigh Court of Chancery

English Reports Citation: 32 E.R. 530

HIGH COURT OF CHANCERY

Benfield
and
Solomons

See Heath v. Chadwick, 1848, 2 Ph. 652; Smith v. Moffatt, 1865, L. R. 1 Eq. 401.

[77] benfield v. solomons. July 29th and Mth, 180;i. [See Heath v. Chadwick, 1848, 2 Ph. G52 ; Smith v. Moffatt, 1865, L. R. 1 Eq. 401.] Bill by a bankrupt against a mortgagee of estates in England and Berbice for an account and payment of the balance to the assignees, also Defendants ; charging collusion generally ; but not averring, that there will be a surplus ; nor charging a direct application to the assignees to sue. Demurrer allowed. The bill stated, that during the partnership of the Plaintiff, and Boyd and Drum-mond, as merchants, various money dealings and transactions took place between the partnership and the Defendant Solomons. Upon a loan to the partnership thePlaintiff gave a bond, dated the 27th of October 1797, in the penal sum of £200,000, to secure the payment of all such sums as the partnership then was or might become indebted to Solomons, not exceeding £100,000 ; and by indentures of lease and release, dated the 12th and 13th of December 1797, the Plaintiff conveyed estates in the Counties of Hertford and Dorset as a farther security. That mortgage was by a subsequent agreement reduced to the sum of £25,000 ; and the Plaintiff in June 1798, executed a mortgage of an estate iti Berbice, hi South America, to Solomons, to secure £50,000. The Plaintiff also assigned to Solomons some shares in the British Plate Glass Company, to secure the sum of £19,000. The bill further stated, that the Plaintiff executed these securities upon the faith, that £94,000 was due to Solomons from the partnership ; but the Plaintiff had discovered, that Solomons had omitted to give credit for large sums received from the partnership ; and also had charged several bills or notes, for which no consideration was paid ; and that the demand was grossly fabricated ; and is wholly unfounded ; and upon a fair account a large balance would appear due to the partnership. On the 25th of March 1800, a Commission of Bankruptcy issued against the Plaintiff and his partners ; and they were declared bankrupts. The bill contained a general charge, that the Defendants are acting in collusion, and several charges in [78] support of the allegation, as to the transactions of Solomons with the partnership ; and prayed an account of all dealings and transactions between them ; and that Solomons may be decreed to pay to the assignees under the Commission, who were also made Defendants, what should appear due to the partnership on taking such account ; that the securities may be delivered up ; and that Solomons may be restrained from proceeding at law or otherwise against the Defendant Turnbull upon any securities given for the consideration of the assignment of the mortgage of the Serbice estate, and may be decreed to get up any bills, &c., negotiated ; and th&tTurnbull may be restrained from making any payment to him on that account, and from disposing of the estate at Berbice. To this bill the Defendant Solomons, and the Defendants Turnbull and Forbes, neither of whom were assignees, put in general demurrers. Mr. Alexander, Mr. Romilly, and Mr. Hart, in support of the Demurrer. This is a demurrer for want of Equity. All the rights, interests, and remedies, legal and equitable, of a bankrupt are transferred to his assignees. Then can this Plaintiff, an uncertificated bankrupt, who can give no security for the costs, file a bill against every debtor and every creditor to and upon his estate ; alleging merely, as to the assignees, that they do not choose to institute a suit t There is no instance of such a bill. The bankrupt laws originally treated the bankrupt as a criminal; and even yet, though he has an interest in the surplus and his allowance, the law considers him as unfit to be entrusted with the management of his estate ; and the Statutes contain anxious provisions as to the recovery of the debts. The assignees have power to compromise, refer, release, &c. Is not that power absolutely incon- 9VES. JUN, 79. BENFIELD V. SOLOMONS 531 sistent with such a suit as this by the bankrupt himself ? [79] It is considered clear by Lord Redesdale (Mitf. G2), that a...

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3 cases
  • Heath v Tang ; Stevens v Peacock
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 26 July 1993
    ...thinks fit." 9But the jurisdiction goes back many years, to the decisions of Lord Alvanley M.R. in Spragg v Binkes 5 and Lord Eldon in Benfield v. Solomons 6. In the latter case the bankrupt alleged collusion between his assignees in bankruptcy and persons by whom he said he had been owed s......
  • Heath v Tang ; Stevens v Peacock
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 26 July 1993
    ...thinks fit." 9But the jurisdiction goes back many years, to the decisions of Lord Alvanley M.R. in Spragg v Binkes 5 and Lord Eldon in Benfield v. Solomons 6. In the latter case the bankrupt alleged collusion between his assignees in bankruptcy and persons by whom he said he had been owed s......
  • Khadpekar v Official Trustee in Bankruptcy (No 2)
    • Australia
    • Federal Court
    • Invalid date

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