Ex parte Charles Morgan, Francis Bryant Adams, Francis Bryant Adams the Younger, and Charles Morgan the Younger
| Jurisdiction | England & Wales |
| Judgment Date | 30 January 1863 |
| Date | 30 January 1863 |
| Court | High Court of Chancery |
English Reports Citation: 46 E.R. 116
BEFORE THE LORD CHANCELLOR LORD WESTBURY.
S. C. 32 L. J. Bk. 15. Followed, Pearson, 1866, L. R. 1 Ex. 308. See In re Vizard's Trusts, 1866, L. R. 1 Ch. 593; Hobson v. Thellusson, 1867, L. R. 2 Q. B. 649; Williams v. Swansea Canal Navigation Company, 1868, L. R. 3 Ex. 161; Durant v. Robinson 1876, 34 L. T. 625; Benecke v. Whittall, 1877, 2 App. Cas. 610.
[288] Ex parte charles morgan, francis bryant adams, francis bryant adams the Younger, and charles morgan the Younger. In the Matter of william henry woodhouse, a Bankrupt. Before the Lord Chancellor Lord Westbury. Jan. 28, 30, 1863. [S. C. 32 L. J. Bk. 15. Followed, Pearson v. Pearson, 1866, L. E. 1 Ex. 308. See In re Wizard's Trusts, 1866, L. R. 1 Ch. 593; Hobson v. Tfielhisson, 1867, L. R. 2 Q. B. 649 ; Williams v. Swansea Canal Navigation Company, 1868, L. R. 3 Ex. 161 ; Durant v. Robinsm, 1876, 34 L. T. 625 ; SenecJce v. Whittall, 1877, 2 App. Cas. 610.] The registrations of trust deeds under the 192d and under the 194th sections of the Bankruptcy Act, 1861, although in practice performed by the same officer, are distinct, and have different operations; and where for the want of the papers required by the orders registration under the former section had been refused by the officer, and the applicant had registered the deed under the 194th section : Held, that the registration did not prevent the deed, which was an assignment of all the debtor's property, from being an act of bankruptcy. The 192d section applies only to deeds which contain provisions for the benefit of all the debtor's creditors, and this requisite is not fulfilled by a deed the trusts of which, are for the benefit of such of the debtor's creditors as shall execute the deed within a limited time. Semble, that a deed, to be entitled to the benefit of the provisions of the 192d section, need not comprise the whole of the debtor's property. Semble, also, that the creditors under a trust deed are placed in eodem stain with creditors under a bankruptcy, and that as the latter cannot, prove, without allowing for the value of their securities, the former are subjected to the same obligation. This was an appeal from an order of Mr. Commissioner West, of the Court of Bankruptcy for the Leeds District, dismissing the Appellant's petition for an adjudication of bankruptcy against the Respondent. By an indenture dated the 25th of October 1862, and expressed to be made between the Respondent of the first part, Richard Brook, Joseph Woodhead and George Milthorp, trustees for themselves and the rest of the creditors of the Respondent, parties thereto of the second part, and the several other persons whose names and seals were thereunto subscribed and set, being respectively creditors of the Respondent, of the thfrd part, after reciting that the Respondent being justly and truly [289] indebted unto the said parties thereto of the second arid third parts in the several sums iet opposite to their respective names in the schedule thereunder written which be was unable to pay in full, had therefore proposed and agreed to assign all his tDEO.J.fc5.S90. EX PARTE MORGAN 117 estate and effects unto the said trustees for the benefit of his creditors, as thereinafter mentioned, the Respondent assigned unto the said trustees, their executors, administrators and assigns, all and every the stock-in-trade, goods, wares, merchandises, household furniture, fixtures, plate, linen, china, books of account, debts, sum and sums of money, and all securities for money, vouchers, and other documents, and writings, and all other the personal estate and effects whatsoever and wheresoever of him, the Respondent, in possession, reversion, remainder or expectancy, upon trust to collect, receive or sell and dispose of the said thereby assigned premises and every part thereof, either by public sale or private contract, and in one or more lot or lots, with liberty to give any credit for the same, or to take any security for the purchase-money or any part thereof, as to the said trustees, their executors or administrators should seem proper; and, upon trust, out of the moneys to be received by virtue of the deed, to pay all costs and expenses of proposing, preparing, ingrossing and executing the deed, and attending or relating to the said thereby assigned premises or the trusts created by the deed; and in the next place to pay, retain and satisfy, rateably and proportionably, and without any preference or priority to themselves, the said trustees and their partners, and the other persons, parties to the deed, of the third part, who should execute the deed within twenty-eight days from the date thereof, the several debts or sums set opposite to their respective names in the said schedule to the deed, subject to the covenant thereinafter contained for verifying the amounts thereof, and to pay the residue (if any) of the said [290] moneys unto the Respondent, his executors, administrators and assigns : provided always, that it should be lawful for the said trustees to make to the Respondent such allowance or return to him such part of his household furniture or effects not exceeding the value of 20, as they might deem expedient; and also to employ the Respondent, or any other person or persons, in winding up the affairs of the Respondent, and in collecting and getting in hia estate and effects thereby assigned and in carrying on his trade, if thought expedient by them, and to. allow to the Respondent, or any other person or persons so employed as aforesaid, out of the said trust estate, such sum and sums as to the said trustees should seem proper. Then followed a power of attorney from the Respondent to the trustees, and a clause empowering them to give receipts, which were followed by a proviso, covenant and agreement by and between the said several parties to the deed that it should be lawful for the said trustees, at the expense of the said trust estate, to require the amount of any debt or debts of any or either of the several creditors parties to the deed to be verified by solemn declaration, or in such manner as to the said trustees should seem expedient; and in the event of any such creditor or creditors refusing or failing so to verify his, her or their debt or debts, then such creditor or creditors so refusing or failing as aforesaid should lose all benefit, dividends and advantage to be derived from or otherwise claimed under the deed, anything therein contained to the contrary notwithstanding; and thereupon the said trustees were thereby authorised and empowered to pay such last-mentioned dividends or dividend unto the Respondent. And the trustees were authorised and empowered to pay or make such arrangements with the creditors whose debts were under 10, as they the said trustees might deem expedient. [291] It was then provided, declared and agreed, that any resolution signed by the majority in number and value of the creditors, parties to the deed, should be binding on all the several parties thereto, and should be effectual for the allowance and passing of the accounts of the trustees, and for discharging them from the trusts thereof, and from all claims and demands in respect thereof; and that all questions relating to the trust estate should be decided according to English bankrupt law. Then followed a trustees' indemnity clause, and provisions for the deposit of the trust moneys in bankers' hands and for drawing cheques ; and the deed closed with a general release of the Respondent by the "said several creditors, parties"...
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