Goldsmith v Russell
| Jurisdiction | England & Wales |
| Judgment Date | 14 February 1855 |
| Date | 14 February 1855 |
| Court | High Court of Chancery |
English Reports Citation: 43 E.R. 982
BEFORE THE LORD CHANCELLOR LORD CRANWORTH.
S. C. 25 L. J. Ch. 232; 1 Jur. (N. S.) 985; 3 W. R. 218. See Reese River Mininy Company v. Atwell, 1869, L. R. 7 Eq. 352.
[547] goldsmith v. russell. Before the Lord Chancellor Lord Cranworth. Jan. 16, 17, 19, 20, 22, 31, Feb. 14, 1855. [S. C. 25 L. J. Ch. 232; 1 Jur. (N. S.) 985 ; 3 W. R. 218. (See Reese River Minimi Company v. Atwell, 1869, L. R. 7 Eq. 352.] In December 1845 the Plaintiff obtained a judgment against his debtor, who in the same month, being otherwise largely indebted, conveyed his reversionary interest in certain real estate to trustees, upon trust for sale, and to hold the proceeds in default of a joint appointment by himself and his wife, for the benefit of his wife .and child : in May 1846 a settlement of the proceeds of the sale was made in favour of his wife and child. Previously to the execution of the settlement, the Plaintiff had sued out a writ of outlawry against the debtor who had absconded, and on his return in May 1852 the Plaintiff filed the present bill against him, the ^esluis que (rust and trustees of the settlement of May 1846, for the purpose of impeaching it as voluntary. After the institution of the suit the debtor was declared insolvent, and his assignee was made a party to the cause. The Defendants, the trustees and cesluis que trust of the settlement, alleged in their answers that the settlement of May 1846 was in pursuance of the previous deed of December 1845, and at the Bar objected, that having regard to the outlawry, the Plaintiff ought to have clothed himself with the legal title by a grant from the Crown ; that he ought also to have obtained a charging order under the 12th section of the Act 1 & 2 Viet. c. 110; and that the judgment debtor having become insolvent, the right of suit was in his assignee. Held, declaring that the settlement of May 1846 was void against creditors, first, that the objection as to the want of a grant from the Crown was invalid, because the Plaintiff's claim was paramount to the settlement, which was good as against the insolvent, whose estate only vested in the Crown ; secondly, that inasmuch as the funds which formed the subject of the settlement were in the names of trustees, not for the insolvent but for others, the proceeding by charging order would have been nugatory ; and thirdly, that the insolvency having occurred after the institution of the suit, the frame of the suit was right. The bill in this suit was filed on the 4th March 1852, by George Goldsmith, on behalf of himself and all other the creditors of John Henry Cromwell Russell, to impeach a settlement executed by him in favour of his wife Eliza Russell, and Eliza Clementine Frances C. Russell his daughter. The bill stated that the Plaintiff, in December 1845, lent J. H. C. Russell 200 on his I. 0. U., and that he was at that time indebted to various other parties; that in November 1845 the Plaintiff commenced an action against him, and that in December 1845 a verdict was found for the Plaintiff, on which occasion J. H. C. Russell applied to stay execution, which was consented to by the Plaintiff until the fourth clay of Hilary term then next, the DE 0. M. & a. 048. GOLDSMITH V. EUSSELL 983 costs of that action being taxed at 64; that on the 28th December the Plaintiff entered up judgment for the debt, damages and costs, and afterwards aued out a writ oifi.fa., to which [548] there was a return of nulla bona; that on the 17th December 1845, J. H C. Russell filed a bill, praying the delivery up of the I. O. U., and on the loth April 1846, on the application of the present Plaintiff, the bill was dismissed with costs. The bill stated that, pending such stay of execution, J. H. C, Russell sold all his household goods and furniture and left the country, and that at the time he left he had large sums of money in Government funds, and that he was also entitled to a reversionary interest in a real estate in Herts, and that on the 9th February 1846 he purchased various sums of money in the long annuities and consols, and that on the 16th May 1846, he caused a settlement to be made in favour of his wife and child, for the purpose of protecting the same from the judgment debts. Shortly before the execution of this settlement, the Plaintiff sued out a writ of outlawry against J. H. C. Russell. The bill was subsequently amended, and stated that J. H. C...
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Kearns v Doyle. [HIGH COURT of CHANCERY]
...could only tax strictly where the solicitor is an express trustee. Douglas v. Archbutt (2 De G. & J. 148); Goldsmith v. Eussell (5 De G. M. & G. 547, 556); Brown v. Butter (21 Beav. 615); LarUns v. Paxton (2 Beav. 219). Mr. Bazalgette was not called upon for a reply. the vice-chancellor [Si......