Freshney and Another v Carrick and Another, Assignees of Hagestadt, a Bankrupt

JurisdictionEngland & Wales
Judgment Date27 January 1857
Date27 January 1857
CourtExchequer

English Reports Citation: 156 E.R. 1363

IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER

Freshney and Another
and
Carrick and Another, Assignees of Hagestadt, a Bankrupt

S. C 26 L J Ex. 129. Discussed, Cooke v. Hemming, 1868, L. R. 3 C P. 349 Referred to, Hollinshead v. Egan, [1913] A. C 574

[653] freshney and another v carrick and another,, Assignees of Hagestadt, a, Bankrupt Jan 27, 1857 -A trader' by deed assigned his goods by way of mortgage, subject to a proviso, that it should be lawful for him to hold and make use oi the goods, until default in payment of the money secured, after demand in writing The mortgagee allowed the trader to continue in possession of the goods until aftei his bankruptcy -Held, that the goods were at the time of the bankruptcy in the order and disposition of the bankrupt, with the consent of the true owner, within the meaning of the 125th section of the Bankrupt Law Consolidation Act.-An action of trover having been brought against the assignees of a bankrupt, who had taken goods out of the possession of the plaintiffs, the defendants proved that before the mortgage to the plaintiffs the bankrupt had assigned certain goods, included in the mortgage to the plaintiffs, to W , and that \V. having allowed the goods to remain in the order and disposition of the bank- 1364 FRESHNEY V. CARRICK 1 H. & N. 654. rupt until after the date of the fiat, an order was made by the Commissioner in Bankruptcy for a sale of the goods, under the 125th section of the Bankrupt Law Consolidation Act, 1849:-Held, that W. was the true owner, and that the assignees, having a good title as against the true owner, had a right as against the plaintiffs to set up W.'s deed, and the title acquired by them by reason of the goods having been left by W in the order and disposition of the bankrupt. -An order under the 125th section of the 12 & 13 Viet c. 10G, is sufficient, if it specifies the goods ordered to be sold, without refeinng by name to the persons, supposed to be the true owners of such goods. [8. C 26 L J Ex. 129. Discussed, Oooke v. Hemming, 1868, L R. 3 C P. 349 Eeferred to, Hdlittsltead v. Egcm, [1913] A. C 574 ] Trover for a billiard table, household furniture, the furniture of a dram shop,, shelves, gas fittings, counters, linen, ale, biaudy, gin and wine Plea not possessed. Whereupon issue w.is joined At the trial before Willes, J, at the last Yorkshire Summer Assizes, it appeared that the defendants were the assignees of one John Arendt Hagestadt, a bankrupt. The plaintiffs proved that the bankrupt was indebted to them on an account foi wines uud spirits sold and money lent; and that, being so indebted, he did by indenture dated the 2nd of January, 1855, bargain, sell and assign to the plaintiffs the goods, utensils, implements and things enumerated in a schedule thereunder written, and all the goods, &c , in and about a certain public-house (being the goods and fixtures for which the action was brought), to have and to hold to the plaintiffs, their executors,. &c., subject to the proviso for redemption thereinafter contained, that is to say, " that if, on demand in writing, to be signed by the plaintiffs or the survivor of them, &c , to be given to the bankrupt, his executors, &c., 01 left at his usual or last place of abode in England, or at any other time, the bank-[654]-tupt should pay, 01 cause to be paid, to the plaintiffs the sum of 1001, with interest, &c , and the balance that might be due from the bankrupt to the plaintiffs on the account current for wines, &c., and should in the mean time pay the interest half-yearly, &c., then upon such payment or payments the said indenture, and every article, clause and thing theiem contained, should cease and determine and be absolutely void, anything thereinbefore contained to the contrary notwithstanding." The deed contained a covenant for the payment of the...

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9 cases
  • Holderness v Rankin
    • United Kingdom
    • High Court of Chancery
    • 3 Agosto 1860
    ...Lingard v. Messiter (1 B. & C. 308); Knowles v. Horsfall (5 B. & Aid. 134) ; Ex parte Batten (3 D. & Chitty, 328); Freshney v. Carrick (1 H. & N. 653); Hornsby v. Miller (28 L. J. Q. B. 99). The doctrine, it is true, does not apply where goods of other persons are in the possession of a ban......
  • Re Harvey, A Bankrupt
    • Ireland
    • Court of Appeal (Ireland)
    • 14 Febrero 1912
    ...C. B. (N. S.) 659. (4) 17 L. R. Ir. 487. (1) 17 L. R. I. 487. (2) [1897] 2 Q. B. 461. (1) 17 L. R. I. 487. (2) 12 C. B. (N. S.) 659. (3) 1 H. & N. 653. (1) [1897] 2 Q. B. 461. (2) 12 C. B. (N. S.) 659. (3) [1899] 2 I. R. 206. (1) [1897] 2 Q. B. 461. (1) 17 L. R. I. 487. (1) [1897] 2 Q. B. 4......
  • Richard Hornsby and Richard Hornsby the Younger against Edward Mant Miller and Henry Alexander
    • United Kingdom
    • High Court
    • 20 Noviembre 1858
    ...this would seem enough to prevent the [199] case from being one of apparent possession, except for the authority of Freshney v. Carrick (1 H. & N. 653). There it was held that, goods being, after a deed of assignment much like the present, left in the hands of the assignor, they, upon his b......
  • Reynolds and Others, Assignees of Bate, a Bankrupt v Hall
    • United Kingdom
    • Exchequer
    • 20 Abril 1859
    ...goods are in his order and disposition with the consent of the true owner, and will therefore pass to his assignees. Freshney v. Garrick (1 H. & N. 653), Harnsby v. Miller (1 El. & El. 192). The assignment of all his goods 4H. & N. 522. WITBER8 V. PARKER 945 by Bate on the 22nd of June was ......
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