Between Arthur Onslow, Esq., Plaintiff; and Thomas Corrie and Abraham Mellin, Defendants
| Jurisdiction | England & Wales |
| Judgment Date | 18 November 1817 |
| Date | 18 November 1817 |
| Court | High Court of Chancery |
English Reports Citation: 56 E.R. 357
COURT OF THE VICE-CHANCELLOR OF ENGLAND
See Hopkinson v. Lovering, 1883, 11 Q. B. D. 97.
aMABBiSSO. ONSLOW V. COKRIE '357 [330] Between arthur onslow, Esq., Plaintiff; and thomas corrie and abraham i mellin, Defendants. Nov. 8, 18, 1817. [See HapUnsm v. Lovering, 1883, 11 Q. B. D. 97.] Assignees of a bankrupt lessee, though by accepting the lease they discharge tho bankrupt from atiy claim upon him for rent, may assign the lease to an insolvent person, to exonerate themselves from future claims for rent. The facts in this case, as stated in the bill, and admitted by the answer, were thes&:- By a lease, 26th February 1808, between the Plaintiff of the one part, and Robert Buchanan of the other part, the Plaintiff demised to Buchanan, his executors, administrators and assigns a messuage in Clayton Square, Liverpool, with the appurtenances and two seats or pews, to hold to Buchanan, his executors, administrators and assigns, from the 1st of March then next, for the terms of seven years, at an annual rent of £120, payable half-yearly ; and Buchanan covenanted with the Plaintiff, that he, his executors, admiustrators or assigns, would pay to the Plaintiff said rent of £120, and that he, his executors or administrators, should not nor would set, let, assign, alien, demise, or exchange said premises, or any part thereof, for all or any part of the said term, to or with any person or persons whomsoever, without the consent of Plaintiff, his executors, administrators or assigns, first had and obtained in writing for that purpose :-Buchanan [331] occupied said messuage from the time of the date and execution of the lease until the beginning of 1811 ; and during that time paid to the Plaintiff the rent reserved. In the month of February 1811 a commission of bankruptcy issued against said Buchanan, and he was declared a bankrupt; and the Defendants, Thomas Corrie and Abraham Mellin, were chosen assignees, and the usual assignment of the estate and effects of Buchanan was made to them. Soon after Corrie and Mellin had so become assignees, a letter was sent to the Plaintiff by Messrs. Statham and Hughes, as the solicitors of Corrie and Mellin, dated the 26th day of February 1811, wherein the Plaintiff was informed that Buchanan had become a bankrupt, and that they were desired by the assignees to inform the Plaintiff that possession of the demised premises, together with the indenture of lease, would be given up to the Plaintiff on the 1st day of March 1811. This letter was received by the Plaintiff in London on the last day of February 1811, previous to which time the Plaintiff had not received; any notice or intimation of the issuing of the commission against Buchanan; and, having reason to believe that such commission had been issued at Buchanan's own instance, he, soon after receiving said letter, sent a letter to Statham and Hughes, signifying his refusal to accept of the lease, or of the possession of the demised premises, and informing them that the bankruptcy of Buchanan, even if the commission were lawfully issued, did not discharge him from his covenant in the lease, unless the assignees should themselves accept of the lease for the benefit of the bankrupt's estate. Corrie and Mellin afterwards determined to accept the lease; and in the spring of 1811 Statham and Hughes, as the attornies of the [332] assignees, wrote to their agent in London, desiring him to call upon and inform Plaintiff that if he would not take a surrender of the lease, the assignees must and would accept of the same; and, accordingly, such agent called upon Plaintiff and shewed him the letter, or part thereof, to the effect aforesaid; and Buchanan, on the 6th August 1811, wrote to the Plaintiff, informing him that his, Buchanan's, assignees had accepted the lease, and that he, Buchanan, was authorized by them so to inform the Plaintiff. Corrie, as one of the assignees, in May 1811 paid to the Plaintiff £60, half a year's rent for the premises, which became due on the 1st day of March in that year. On the 19th of August 1811 the Defendants assigned the lease to one, Flood, a prisoner for debt in the gaol of Liverpool, who afterwards took the benefit of the Insolvent Debtors Act and went abroad. The Plaintiff brought an action at law against the Defendants for the rent claimed by the bill, but failed in such action. The Plaintiff, stating these facts, by his bill insisted, that Corrie and Mellin having accepted the lease for the benefit of 358 ONSLOW V. CORRIE 2 MADD. 333. the bankrupt's estate, the Plaintiff became entitled to receive from them the rent reserved by the lease, until a legal assignment should be made by them of such lease to a real and bond fide purchaser, or some proper purchaser who would accept of such assignment, and would be capable of [answering and paying the rent for the premises ; and which assignment had not hitherto been made by Corrie and Mellin, nor had they hitherto paid to the Plaintiff any money for or in respect of the rent reserved by the lease, which had accrued due from the 1st of March 1811 to the 1st of March 1812, the Plaintiff having soon after that time resumed possession of the premises, which were then deserted and abandoned; [333] and that Flood was an unfit and improper person to be the tenant of the premises, or to be the assignee of said lease ; and that the assignment to him was merely colourable and fictitious, and made to exonerate Corrie and Mellin from all liability to pay any future rent to the Plaintiff, and to deprive and defraud Plaintiff of every benefit and advantage of the covenants contained in said indenture of lease on the lessee's part. The prayer of the bill was that the Defendants might be declared to be liable in equity to pay to the Plaintiff the rent reserved by the lease for the year ending 1st March 1812, and that the Defendants might be decreed to pay the same. The Defendants by their answer, admitting all the material statements in the bill, submitted that by means of the assignment to Flood they were discharged from all liability to the Plaintiff for rent which accrued due after such assignment. Sir Samuel Komilly and Mr. Barber...
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