Hickman v Cox and Wheatcroft
| Jurisdiction | England & Wales |
| Judgment Date | 25 November 1857 |
| Date | 25 November 1857 |
| Court | Court of Common Pleas |
English Reports Citation: 139 E.R. 1512
IN THE COURT OF COMMON PLEAS AND IN THE EXCHEQUER CHAMBER
See S. C. in Exchequer Chamber, 3 C. B. N. S. 523; and in House of Lords, 9 C. B. N. S. 47; 8 H. L. C. 268; 11 E. R. 431 (with note).
1512 HICKMAN V. COX MC.B.617. [617] hickman -v. Cox and wheatckoft. May 30, 1856. [See S. C. in Exchequer Chamber, 3 C. B. 1ST. S. 523: and in House of Lords, 9 'C. B. N; S. 47; 8 H. L. C. 268; HE. B. 43 r (with note).] A. and B., who carried on "the business of iron-masters in co-partnership, by a deed, purporting to be made between A. and B. of the first part, five persons named as trustees of the second part, and the several persons whose names were contained in a. schedule as creditors for the sums therein mentioned, and who should execute the deed,, of the third part, -reciting that the said A. and B. were indebted to the several persons parties thereto of the third part; and that they had agreed to assign allitheir estate and effects for the benefib'of such creditors,-assigned the works and all their property and effects to the trustees, upon trust, amongst other things, to arry on the business under the name of "The Stanton Iron Company," and out of the profits to pay interest on mortgages, &c,, and to "pay and divide the net income of the business remaining after answering the purposes aforesaid, unto and among all:and singular the creditors x f A. and B., in rateable proportions according to the amount of their: respective debts :'WHeld, that,- under this deed, the creditors executing it became liable as partners,for debts contracted by the trustees in carrying on the trade. Benjamin Smith,,and Josiah Timmis Smith carried on business as iron-merchants at the Stanton Iron Worts, in the county of Derby, under the name of the Stanton Iron Company, In the year 1849, the Smiths, .feeing in difficulties, executed a deed under which all their property was conveyed to trustees ,|or the benefit .of their creditors. ,] . V ; , . ; . -. . : . The deed bore date the 13th of November, 1849, and purported to- be made between rBehjamin Smith and Josiah Timmis/Smith (describee! as carryingora business in co-partnership as iron-merchants at the Stajiton Iron Works,.in the county of Derby), of the first part, Francis Sandars, John Thompson, James Hay wood, David Wheatcroft, and Samuel Walker Cox, of the second part; and the, said John Thompson, James Hay-wood, David Wheatcroft, and the several otter persons and public companies whose names were set forth in the schedule thereunder .written, and whose hands or names and seals were thereunto subscribed and affixed by themselves or their respective partners, directors, trustees, public officers, agents, or attorneys (being respectively joint creditors of the said Benjamin Smith and Josiah Timmis Smith, or separate creditors of the said Benjamin Smith and Josiah Timmis Smith, respectively), of the third part. It then recited that the said Benjamin Smith and Josiah :Timmis Smith had for some time [618] past carried on business in co-partnership a.s ironTinasters and iron-merchants under the firm of Benjamin Smith & Son, at;the Stanton Iron,Works aforesaid, erected and being in or upon^ certain lands, held (together with, the, ironstone thereunder) under a lease thereof granted to the said Benjamin Smith and Josiah Timmis Smith for the term of twenty-one, years from the 25th .of March, 1846, by an indenture dated the 27th of April, ,1846, and made between the Bt- Hon. Philip Henry, Earl of Stanhope, of the one part, and the said Benjamin Smi|h and Josiah Timmis Smith of the other part: and that tihe said Benjamin Smith and Josiah Timmis Smith, were jointly, and they respectively, or one of. them, were or was separately, indebted to the persons and companies parties thereto of the third part, in the several sums set opposite their respective names in the schedule thereunder written,-the first part of which schedule contained the names of creditors of Benjamin Smith separately, the second part thereof the names of creditors of Josiah Timmis Smith separately, and phe third part the names of creditors of the said Benjamiri Smith and Josiah; Timmis Smith jointly : and that the said Benjamin Smith and Josiah Timmis Smith, for the purpose of satisfying their creditors, so far as they might be able, had agreedrto assign all their estate and effects unto the said parties thereto of the second part, their executors and assigns, in manner thereinafter mentioned, upon the trusts and with and subject to the powers and provisions thereinafter expressed and contained: and that it had also been agreed that the several creditors parties thereto of the third part should enter into such covenant not to sue the said Benjamin Smith and Josiah Timmis Smith as thereinafter contained. The indenture then witnessed, that, in pursuance of the said agreement, and in consideration of the premises, they the said Benjamin Smith and Josiah Timmis Smith, and 18C.B.619. HICK-MAS' .& 'COX 1513 [619] each of them, did assign unto Sandars^ Thompson, Haywood, Wheateroft, and Cox, and their executors, administrators, and assigns, all and singular the lands, iron stone, coal, church, or fire-clay and hereditaments comprised in the said indenture of lease of the 27th of April, 1846, and all other the lands, tenements, and hereditaments of or to which the said Benjamin Smith and Josiah Timmis Smith, or either of them, are or is possessed or entitled in reversion, expectancy, or otherwise, for any term or terms of years, either absolute or determinable On any life or lives or other wise, together with all mines and minerals belonging, erections, works, and fixtures thereon or therein respectively, and all rights, privileges, easements, and appurten ances thereto respectively belonging, either actually or by reputation enjoyed, or otherwise; and also all and singular the engines; nlachine'ry, gearing^ plant, moveable fixtures, tools, stock in trade, iron, ironstone, limestone, goods, Wares, and merchandise, household furniture, plate, linen, china,! books of account, book and "other debts, sum and sums of money, securities for money, policies of insurance; shares, 'rights^ and interests; and all other the estate and effects whatsoever and wheresoever of them the said Benjamin Smiths and Josiah Timmis Smith, and each of- them, in possession, reversion, expectancy,- or otherwise; and all the estate, right, and interest, claim and demand whatsoever, at law or in equity, of them the said ^Benjamin Smith and Josiah Timmis Smith, and each of them, into, out ofj or upon the said premises respectively, or any of them, or any part thereof respectively,- ^To have ^and ;to hold all such and such parts of the premises expressed to be thereby assigned, as were holden for any term of terms of years, unto the said Sandars, Thompson, Haywood, Wheatcroft, and Cox, and their executors, administrators, and 'assigns, :f of all the residue or respective residues then to come of [620] the term or respective terms for which the same respec tively were then holden, under and subject to the refits, covenants, conditions, and agreements thenceforth on the part of the lessee or respective lessees to be paid, observed, and performed ; and to have and t0 hold all other the premises expressed to be thereby assignedy unto the said Bandars, Thompson, Haywood, Wheatcroft, and Cox, and their heirs, ~ executors, administrators, and assigns, absolutely,- nevertheless, as to all and singular the premises expressed to" be thereby assigned, subject to the legal mortgages and incumbrances then affecting the same, - and upon the trusts, and with and subject to the powers and provisions thereinafter expressed and contained. The trustees, Sandafs, Thompson, Haywood, Wheatcroft, and Cox, were then appointed attorneys for the Smiths, to get in their debts, &c. And it was thereby agreed and declared, that the said Sandars, Thompson, Haywood, Wheatcroft, and Cox, and the survivors and survivor -of them, and the executors or administrators of such survivor, should stand and be possessed of and interested in all such and such parts of the premises thereby expressed to be assigned as constituted separate property of the said Benjamin Smith and Josiah Timmis Smith respectively, upon trust that the said trustees or trustee should forthwith, or as soon as circumstances would allow, take possession of, collect, and receive the same, and sell and dispose of and Convert into money such parts thereof as did not -consist of money, and should pay and divide the moneys to arise from such taking possession, collection, receipt, sale, disposition, and conversion (after defraying thereout all expenses attending the same), and also the net rents, issues, and profits of the said separate property until sale and conversion thereof, unto and among all and singular the separate: creditors of each of them the said Benjamin Smith and Josiah Timmis Smith respectively, in rate-[621]-able proportions, according to the amount of their respective debts, and to pay over and apply any surplus arising therefrom in manner thereinafter directed with respect to the joint property of the said Benjamin Smith and Josiah Timmis Smith, subject, nevertheless, to the provisions thereinafter contained. And it was thereby agreed and declared that the said trustees, and the survivors and survivor of them, and their and his assigns, and the executors and administrators of such survivor, should stand and be possessed of and interested in all such and :such parts of the premises expressed to be thereby assigned, as constituted joint property of the said Benjamin Smith and Josiah Timmis Smith, upon trust that the said trustees or trustee did and should forthwith, or as soon as circumstances would allow, take possession of the same, and sell, dispose of, and convert into money such parts thereof as should not be necessary to carry on the said...
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