Ex parte Joseph Boyle and Charles Boyle
| Jurisdiction | England & Wales |
| Judgment Date | 22 March 1853 |
| Date | 22 March 1853 |
| Court | High Court of Chancery |
English Reports Citation: 43 E.R. 202
BEFORE THE LORDS JUSTICES.
[815] Ex parte joseph boyle and charles boyle, In the Matter of samuel boyle, a Bankrupt. Before the Lords Justices. March 21, 22, 1853. Two creditors had entered up judgment against a trader on a warrant of attorney, but had not registered it according to the 1 & 2 Viet. c. 110. They attended a meeting for investigating the affairs of the debtor, and were there informed by a solicitor, who attended on behalf of the general creditors, that he had in his pocket the means of preventing them from obtaining any preference. The solicitor bad with him at the time a declaration of insolvency which he had previously obtained from the trader. Having made the above statement, he inquired (as he deposed) of the judgment creditors whether they intended to seek any preference by means of their judgment, and received an answer from them in the negative, but he purposely abstained from mentioning registration. On the investigation taking place it had appeared that the trader had freehold property of considerable value, and the further investigation was adjourned to an appointed day. The solicitor forbore to file the declaration of insolvency, but the judgment creditors registered their judgment a few days after that of the meeting. On the trader becoming bankrupt some months afterwards: Held, 1. That the judgment creditors had not precluded themselves from registering their judgment, and that the promise made by them (if any) was nudurn pactum, and one into which they had been drawn, and not a representation acted upon by another party by which they were equally bound. 2. That the general creditors having allowed so long a time to pass without taking any step to set aside the proceeding could not resist the priority thereby obtained. 3. That since the passing of the Bankrupt Law Consolidation Act, the law as laid down in Re Perrin (2 Drury & Warren, 147) is inapplicable, and that a registered judgment, although entered up on a warrant of attorney, and although not followed by execution, now constitutes a valid lien on the lands of a bankrupt after the lapse of a year from the time when it was entered up. This was an appeal from the dismissal by Mr. Commissioner Balguy of the Appellant's petition claiming a lien upon the proceeds of certain freehold hereditaments of the bankrupt at Fenton in Staffordshire, under the 1 & 2 Viet. c. 110, s. 13,(1) in respect of a judg-[616]-ment debt, and praying for the usual order in the case of an equitable mortgage. The bankrupt up to the year 1847 carried on business as an earthenware manufacturer at Fenton, in co-[617]-partnership with George Eugene Mayer and Eobert 3DEO,M.isQ. 818. EX PARTE BOYLE 203 Brown. The partnership was in that year dissolved, and the bankrupt took to the òconcern. The business had formerly belonged to the father of the bankrupt, and at the time of the dissolution there was owing from the bankrupt to his brothers Joseph Boyle .and Charles Boyle, the present Appellants, as trustees under the father's will the sum of .£8600. To secure the payment of this sum by instalments, the bankrupt gave the Appellants a warrant of attorney dated the 24th of April 1848, on which judgment was entered up on the 27th April 1848. Default having been made in payment of the instalments, the bankrupt received in 1851 several letters from the Appellants, òcomplaining of the non-payment, and threatening that unless the money were paid they would issue execution. On the 2d of February 1852 Mr. Ward, a solicitor of Newcastle, was consulted by creditors of the bankrupt, whose debts amounted to £3000, and had their instructions to make a full investigation into the bankrupt's affairs, and ascertain his true position and prospects. He accordingly came to London on the 6th of February 1852, and having ascertained that the Appellants had not registered their judgment, he obtained a declaration of insolvency from the bankrupt as a preparatory step. On the 9th of February Mr. Ward again came to London, and on the 10th of February 1852, Mr. Ward, the bankrupt, the Appellants, and Messrs. Mayer and Brown, who were creditors of the bankrupt, met by appointment at Bacon's Hotel in òGreat Queen Street, Lincoln's Inn Fields. Soon after they had assembled Mr. Ward .asked the bankrupt to retire, arid when he had done so, Mr. Ward told the Appellants, one of whom (Mr. Charles [518] Boyle) was in practice as a solicitor, that a partial inquiry had been made into the bankrupt's affairs, which appeared to be in a critical position. Mr. Ward then asked the Appellants whether they would assist in making -a thorough investigation into the state of the bankrupt's affairs, and upon their assenting to this course, Mr. Ward said that before he proceeded any further he should require an assurance from the Appellants that they would not seek to obtain .any preference by virtue of their judgment. He pointed to hi& pocket in which he had the declaration of insolvency, and said he had there the means of preventing them obtaining any preference, but should not say what they were; but he added, "Mr. òCharles Boyle knows." To this the Appellant Joseph Boyle replied, " Certainly not; we should never think of doing so under such circumstances as these." Mr. Ward then said, "What do you say, Mr. Charles'?" Charles Boyle replied, "Certainly not." The bankrupt was then called into the room, and a full inquiry was made into the nature and extent of his debts and liabilities, and also of his assets; and the Appellants then learned for the first time that the bankrupt was entitled to freehold lands of the value of £2000, which were wholly unencumbered, besides other lands which were subject to mortgages. At the conclusion of the investigation another meeting was appointed for the 9th of March. The account which the Appellants gave of this meeting only differed from that of the Respondent as to the words of Mr. Ward's question, which the Appellants stated were not generally whether they would take any preference, but whether they would issue execution. Mr. Ward stated in his affidavit that he had intentionally abstained from saying anything about registration. On the 13th of February the Appellants registered their judgment. [519] A meeting of creditors was held on the 9th of March as it had been appointed, and certain proposals were then submitted to the creditors. At this meeting the propriety of the conduct of the Appellants in registering the judgment after the assurances which they had given on the 10th of February was attacked, and was defended by the Appellants. No arrangement was then come to. Another meeting was subsequently held, but without any result. In the early part of May the bankrupt filed a petition in the Bankruptcy Court under the arrangement clauses of the Bankrupt Law Consolidation Act. The petition was however dismissed by the Court, and upon this dismissal as an act of bankruptcy, a creditor on the 7th of June 1852 obtained an adjudication. Th& Appellants then presented the petition from the dismissal of which they now appealed. Mr. Swanston and Mr. T. H. Terrell, for the Appellants. The Commissioner's decision proceeded upon the ground that the Appellants had entered into an engagement with Mr. Ward not to register their judgment. That, however, is not the 204 EX PARTE BOYLE 3 DE 0. M. tc 0.520. result of the evidence. According to the affidavits of the Appellants the engagement was not to issue execution, and Mr. Ward states that...
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...refers to the Judgment creditor's interest crystallizingfrom the time of registering the Judgment. 24 Turner LJ in theex parte Boyle (1853) 43 ER 202 case22 understood the English Act to create a Charge "…at the time of entering the memorandum…" The Petitioners money Judgment then, would af......
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