Fenn and Another v Bittleston and Others, Assignees of Malpas, a Bankrupt
| Jurisdiction | England & Wales |
| Judgment Date | 05 December 1851 |
| Date | 05 December 1851 |
| Court | Exchequer |
English Reports Citation: 155 E.R. 895
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C 21 L J Ex 41 Referred to, Donald v Suckling, 1866, L R 1 Q B 614, 7 B & S 785, Mullnier v Florence, 1878, 3 Q B D 490 Applied, Nyberg v Handelaar, [1892] 2 Q B 202
[|52] fenn and another bcttleston and others, Assignees of Malpas, a Bankrupt Dec 5, 1851 - A, by deed, dated the 28th of Septembet, 1845, conveyed certain goods to B , subject to a proviso, that if he should pay B the sum thereby secured on the 22nd of Maieh, 1850, or at such earliei day or time as B should appoint, by giving A fourteen days notice, and should pay inteiest in the meantime half-yearly, the conveyance should be void , and it was thereby agreed between the parties, that, until default should lie made in the payment of the piincipal sum secured at the time thetein specified, 01 the interest, aftet foul teen days notice, it should be lawful for A, his executois or administrators, to hold and enjoy the chattels A continued in possession of the chattels according to the agreement until the 13th of Decembei, 1849, when he became 896 FENN r BITTLESTON 7 EX 153 bankrupt, and his assignees (the defendants') on the 19th of Febtiuiiy, 1850, sold the whole of the chattels absolute!}, and not merely the bankrupt's inteiest nr them No demand hod been made on A by B , or by the plaintiffs (the assignees of B,), for the puncipal money or interest in the meantime -Held, fhat, that the deed did not give a, mere possession and use of the goods to A , as bailee or tenant at will, but the right of possession and use for the term ending the 22nd of March, 1850, defeasible by nonpayment of the principal or of the interest, according to the terms of the deed , but, secondly, that the sale by the assignees of A, the bankrupt, destioyed the bailment, and, thirdly, that the sale by the assignees was equivalent to a sale by the bailee himself, and consequently, that trover would he by the assignees of the moitgagee against the assignees in bankruptcy of the moitgagoi, for the conversion by the sale of the goods during the term [S. C 21 L J Ex 41 Referred to, DunaU v tiucklmy, 1866, L R 1 Q B 614, 7 B & S 785, Muttma v Flmence, 1878, 3 Q B D 490 Applied, Nybenj v Ha.ndda.ar, [1892] 2 Q B 202 ] Trover for certain household goods and furniture Pleas, not guilty and not possessed , upon which issues were joined At the trial, befoie Pollock, 0 B , at the London Sittings after Hilaiy Term last, the following facts appeared -The property in question had originally belonged to a Mrs Clarke, who kept an hotel at Nottingham, and, upon het death, the property came to her two daughters, one of whom married a person of the name of Rhoades, and the other Malpas On the 20th of March, 1845, an arrangement as to the division of the property was come to between the two biotheis-ur-law, Malpas and Rhoades, when the formei, being indebted to Rhoades in a large sum, mortgaged the goods in question to him This deed, dated the 20th of September, 1845, and made between Malpas of the one part, and Rhoades of the other pait, after lecrtrng that Malpas was indebted to Rhoades in 16781 17s 7d , and was unable to pay the same, in order to secure the payment thereof, witnessed that Malpas did thereby hat gain, sell, and assign unto Rhoades, his executors, administrators, and assigns, all the stock in trade, fixtures, goods, arid chattels described in the schedule to the instrument, with a proviso that, in case Malpas or his executors, &c , should pay to Khoades the sum of 16781 17s 7d on the [153] 22nd of March, 1850, or at such earliei day 01 times as Ehoades or his executors, &c , should appoint foi the payment thereof, by a notice in writing, to be given to Malpas or his executors, &c, fourteen days at least befoie such day or time, the deed should be void, and that, in the meantime, interest should be...
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