Graham and Another, Assignees of Larke, a Bankrupt, v Chapman
| Jurisdiction | England & Wales |
| Judgment Date | 07 May 1852 |
| Date | 07 May 1852 |
| Court | Court of Common Pleas |
English Reports Citation: 138 E.R. 833
IN THE COURT OF COMMON PLEAS, AND IN THE EXCHEQUER CHAMBER
S. C. 21 L. J. C. P. 173. Discussed, Bew v. Bill, 1868, 16 W. R. 761. Applied, The Heart of Oak, 1869, 39 L. J. Adm. 19. See Allen v. Bonnett, 1870, L. R. 5 Ch. 580. Distinguished, Kevan v. Mawson 1871, 24 L. T. 397; Ex parte Bolland, 1872, 41 L. J. Bky. 62. Commented on, Lomax c. Buxton, 1871, L. R. 6 C. P. 107. Overruled, Ex parte Hauxwell, 1883, 23 Ch. D. 626.
graham and another, -Assignees of Larke, a Bankrupt, v. chapman. May 7, 1852. . ' . [S. C. 21 L. J. C. P. 173. -Discussed, Bew v. Bill, 1868, 16 W. B. 761. Applied, The Heart of Oak, 1869, 39 L. J. Adm. 1;9. See Allen v. Bonnett, 1870, L. E. 5 Ch. .580. Distinguished, Kevan v. Mawson, 1871, 24 L. T, 397; Exparte Bolland, 1872, 41 L. J. Bky. 62. Commented on, Lomax v. Buxtm, 1871, L. B. 6 C. P. 107. Overruled, Exparte Hauxwett, 1883, 23 Ch, D. 626.] A trader, in consideration of a past debt, of 2401., and a present advance of 2001., conveyed by deed substantially the whole of his property, giving the transferee a right to seize and take all future acquired property, even though it should be purchased with the money which was alleged to be the consideration for the transfer :-Held, that, inasmuch as .the trader got no equivalent for any part of the stock transferred, and such transfer necessarily defeated and delayed his creditors, though without fraud in fact, it constituted an act of bankruptcy within the statute 12 & 13 Viet. c. 106,:s. 67. This was an action :of trover .brought by the plaintiffs as assignees of one James Bensley Larke, a bankrupt, to recover the value of certain goods of the bankrupt; the first count of the declaration alleging a conversion before, and the second a conversion after the bankruptcy, of. Larke. ....... The defendant pleaded; amongst other pleas, not guilty,-that Larke was not possessed,-rand that the [86] plaintiffs as- assignees were not possessed; and upon these pleas issues were joined. The cause was tried before Jervis, C. J,, at the sittings in London after the last term. The facts which appeared in evidence were as follows:-The bankrupt, Larke, had carried on business as a linen and: woollen-draper at Norwich. In the month of March, 1850, being then indebted to the defendant for goods sold, to the extent of 2391. 18s,, and in great' pecuniary difficulty, Larke applied to him for a further advance of 20QL, which the-defendant agreed^to make oncondition that: Larke would assign to him, as a security for both, sums, all his stock in trade and other effects.. These terms being assented-to. by. Larke, the-2.001. was advanced-to him by the defendant on 1st of April, 1850, :and on the 8th the following deed was executed :- "This indenture, made, the 8th :of April,.1850, between James Bensley Larke, of, &c., of the one part,, and James Denny Chapman, of, &c., of, the other part: Whereas the said J. B. Larke,-on the: 1st of April:instant, stood justly indebted, to the said J. D. Chapman, and on the.day of. the date hereof still stands, justly indebted to the said J,, D. Chapmans:in-the sumrof 2391. 18s., for goods sold and delivered to the said J. B. .Larfce previously to the. 31st day of March last: .And. whereas the said J. B. ,Larkfi,:on the.saipUlst of April instant, having had particular occasion for the siim of 2001., ;had applied to the said'J; D, Chapman to advance and lend him the same ;'.which the said; J- I). Chapman agreed to do upon the said J. B. Larke promising and agreeing to :secure to;'. him .the said, J. ,.D.-- Chapman, in.::manner hereinafter mentioned,: as well the re-payment.of'the said sum of 200L, as also to secure the payment of the said sum of 2391. :-18s. (and: which said sum of 2001. the said J. D. Chapman did, in consideration of the aforesaid promise and agreement advance and lend to. the said J. B. Larke [87] on the said 1st of April instant, as he .doth hereby acknowledge)..: Now, this indentureiwitnesseth, that, in consideration-of- the said sum of 2391. :18s.:so'due:and owing by the said J. B.^Larke to the said J. D. Chapman for goods.sold and delivered a&. aforesaid,-and:also in consideration of :the said sum of 2001. so due and owingi.taithg. said;J.r-D; Chapman for money lent^and.advanced by him to the said J. B.^Larke .-n-'the said'1st of April instant as aforesaid,-making together the sum. of 43SJL ISs. now:dae:andrawiHg to:the said J. D. Chapman by the C. P. XVI.-27 834 GRAHAM, V. CHAPMAN 12 C, K 88. said J. B. Larke, testified by his executing these presents,-he, the said J. B. Larke, doth hereby grant, ^bargain, sell, and assign unto the said J. D. Chapman,, his executors, administrators, and assigns, all the stock in trade, goods, implements, and utensils in trade, household furniture, plate, linen, china, glass, books, and also all the chattels real, and all the goods, chattels, and personal estate and effects whatsoever of him the said J. B. Larke, wheresoever being, and whether in possession, reversion, remainder, or expectancy, and all securities therefor (save and except the wearing apparel of the said J. B. Larke and his family, and his household furniture, not exceeding in the whole the sum of 201., arid also save and .except the book and other debts owing to the said J. B. Larke); and all the estate, right, title, interest, term and terms of years, claim, and demand whatsoever of him the said J. B. Larke therein and thereto; to have, hold, receive, and take tJie hereby assigned premises, (except as before excepted) unto the said J. D. Chapman, his executors, administrators, and assigns, with full power for him and them to use the name or names, and act as the attorney or attorneys irreovcable of him the said J. B. Larke," his executors or administrators, in demanding, suing for, recovering, receiving, and giving discharges for the hereby assigned premises, or any part thereof, and for him the said J. D. [88] Chapman, his executors, administrators, and assigns, to depute one or more attorney or attorneys for the like purpose: And it is hereby declared that the said J. D. Chapman, his executors, administrators, and assigns,.shall stand possessed of the said hereby assigned premises, upon trust to convert the same into money, and for that purpose, according to the respective natures thereof, to collect and get in and make sale thereof, whenever he or they shall think proper, either .together or in lots, and either by public auction or private contract, with power to buy in the same, or any part thereof, at any auction or auctions, and afterwards to sell the part so bought in, without being liable for any loss to be occasioned thereby, and to convey, assign, or deliver the said premises to the purchaser or purchasers thereof, his, her, or their executors, administrators, or assigns: And, it is hereby declared that the said J. D. Chapman, his executors, administrators, or assigns, shall stand possessed of the money to arise by the means aforesaid, upon trust to pay thereout the costs of preparing and perfecting these presents, the charges and 'expenses attending the conversion into money of the hereby assigned premises, and all other expenses attending the execution of the trusts hereby created, and then to pay or retain unto himself and themselves the said sum of 4391. 18s., with interest therefor at 5 per cent, per annum, to be computed from the date hereof until the time of payment, and then to pay the .surplus (if any) unto the said J. B. Larke, his executors, administrators, or assigns: And it is hereby declared, that every receipt of the said J. D. Chapman, his executors, administrators, or assigns, for any of the said purchase-money, shall be a valid discharge to the person or persons paying the same, and shall exempt such person or persons from all responsibility thereabout: And it is hereby expressly declared that the principal sum hereby secured is not to exceed the sum [89] of 4391. 18s., and that any assignee or assignees of the said J. D. Chapman, his executors, administrators, or assigns, shall be equally competent to execute the aforesaid trusts, or any of them, as if such trusts had been executed by the said J. D. Chapman, his executors or administrators : And it is hereby further declared, that it shall be lawful for the said J. D. Chapman, his executors, administrators, or assigns, or any person or persons authorized by him or them, and either with or without any peace officer, to enter upon and take possession of all the chattels real hereby assigned, or intended so to fee, and therefrom to eject and remove the said J. B. Larke, his executors, administrators, or assigns, and all other persons, and also to enter upon and continue in possession of any hereditaments and premises upon which any part of the goods, chattels, and personal estate hereby assigned may happen to be, and to take possession of such goods, chattels, and personal estate, upon the trusts aforesaid; and that, for the purpose of taking possession of such chattels real, and personal estate as aforesaid, it shall be lawful for him or them to break open...
To continue reading
Request your trial
-
Gass, A Bankrupt
...App. IN THE MATTER OF GASS, A BANKRUPT. Lindon v. SharpUNK 7 Scott, N. R. 730. Young v. WaudENR 8 Ex. 221. Graham v. ChapmanENR 12 C. B. 85. Smith v. CannanENR 2 E. & B. 35. Worsley v. De Mattos 1 Bur. 467. Stanger v. WilkinsENR 19 Beav. 626. Johnson v. FesenmeyerENR 25 Beav. 88. Smith v. C......
-
James and Others, Assignees of Young, A Bankrupt, v Moriarty
...& B. 955. Bittlestone v. CookeENR 6 E. & B. 296. In re WoodELR L. R. 7 Ch. App. 302. Compton v. Bedford 1 W. Bl. 362. Graham v. ChapmanENR 12 C. B. 85. Newton v. ChantlerENR 7 East, 138. James v. EbbitUNKIR I. R. 6 C. L. 553. In re NurseELR L. R. 3 Ch. App. 515. Woodhouse v. MurraryELR L. R......
-
Ex parte the Rev John Hopkins Bailey and William Carter
...930; Young v. Ward, 8 Exch. 221; Huttm v. Cruttwell, 1 Ell. & Bl. 15. See also Ex parte Sparrow, 2 De G. Mac. & G. 907 ; Uraham v. Chapman 12 C. B. 85 ; Smith v. Cannan, 2 Ell. & Bl. 35. English Reports Citation: 43 E.R. 210 BEFORE THE LORDS JUSTICES. Ex parte the Re and John Hopkins Baile......
-
MacDona v Swiney
...Jezeph v. IngramENR 3 B. & Ad. 498. Kidd v. RawlinsonUNK 2 B. & P. 59. Twyne's case Supra Kidd v. Rawlinson Supra. Graham v. ChapmanENR 12 C. B. 85; S. C., 21 L. J, C. P., 173. Avery v. BowdenENR 6 El. & Bl. 953; S. C., 3 Jur., N.S., 238; 26 Law Jour., Q. B., 3. Twyne'case Supra. Steward v.......