Johnson v Fesenmeyer
| Jurisdiction | England & Wales |
| Judgment Date | 10 February 1858 |
| Date | 10 February 1858 |
| Court | High Court of Chancery |
English Reports Citation: 53 E.R. 569
ROLLS COURT
S. C. affirmed of appeal, 3 De G. & J. 13; 44 E. R. 1174. On point as to assignment, see Ex parts Foxley, 1868, L. R. 3 Ch. 522; Heart of Oak, 1869, 39 L. J. Adm. 19; Smith v. Pilgrim, 1876, 2 Ch. D. 135. See now Bankruptcy Act, 1883 (46 & 47 Vict. c. 52), s. 48. On point as to whether Plaintiff entitled to decree for redemption, see National Bank of Australasia v. United Hand-in-Hand and Band of Hope Company, 1879, 4 App. Cas. 400.
[88] johnson v. fesenmeyer. Feb. 8, 9, 10, 1858. [S. C. affirmed on appeal, 3 De G. & J. 13 ; 44 E. R. 1174. On point as to assignment, see Exparte Foxhty, 1868, L. R. 3 Ch. 522 ; Heart of Oak, 1869, 39 L. J. Adm. 19 ; Smith v. Pilgrim, 1876, 2 Ch. D. 135. See now Bankruptcy Act, 1883 (46 & 47 Viet c. 52), s. 48. On point as to whether Plaintiff entitled to decree for redemption, see National Bank of Australasia, v. United Hand-in-Hand and Band of Hope Company, 1879, 4 App. Gas. 400.] Remarks on the doctrine of fraudulent preference. If a trader, on the eve of bankruptcy, yielding to the bond fide pressure of a creditor, give him a security on part of his property, this is not a fraudulent preference, although both parties may be aware of the impending bankruptcy ; but if the debtor, even on pressure, assign the whole of his property to a creditor, so as to disable him from continuing to carry on his business, this is a fraudulent preference and invalid against the other creditors upon a bankruptcy. The same result follows, where an exception from the whole property assigned is merely colorable. The case of Stanger v. Wilkins, 19 Beav. 626, explained. A bill by assignees of a bankrupt prayed to set aside a mortgage executed to a creditor by a bankrupt on the eve of bankruptcy, as being " in fraud of his general body of creditors," and it also prayed general relief. The bill failing on the ground of fraud, Held, that the Plaintiffs were not entitled to a decree for redemption. The suit was instituted by the assignees of Thomas Archbutt, a bankrupt, against the Defendant Fesenmeyer, his former solicitor. The bill prayed that an assignment, dated the 8th of October 1855, and made between Thomas Archbutt of the one part, and the Defendant John Frederick William Fesenmeyer of the other part, might, " under the circumstances therein appearing, be declared to have been procured by 570 JOHNSON V. FESENMEYEB 25 BEAV. 89. the Defendant and executed by Thomas Archbutt in fraud of the general body of the creditors of Thomas Archbutt," and that the Defendant might be decreed to deliver up the same to be cancelled, and that the Plaintiffs might have " such further or other relief as the nature of the case might require." [89] The circumstances were these :-Fesenmeyer was the solicitor of Archbutt, a timber merchant. In 1854 Archbutt was in very embarrassed circumstances and had compounded with his creditors, whose debts exceeded £5800, for 12s. 6d. in the pound, but he made default in payment of the last instalment of 2s. 6d. Fesenmeyer had a claim against Archbutt for costs, and the latter, while his pressing necessities were still continuing, executed the indenture in question, dated the 8th of October 1855, by which, after reciting the title of Archbutt to two leaseholds (No. 1 and No. 2 Cranfleld Villas), and...
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