Kaye v Fosbrooke
| Jurisdiction | England & Wales |
| Judgment Date | 21 April 1836 |
| Date | 21 April 1836 |
| Court | High Court of Chancery |
English Reports Citation: 59 E.R. 12
HIGH COURT OF CHANCERY
Demurrer. Insolvent Debtor.
[28] kaye v. fosbkookb. April 21, 1836. Demurrer. Insolvent Debtor. A bill was filed by an insolvent debtor, against A. (who was in possession of an estate claimed by him) and his assignees, alleging that the assignees had refused to sue for the estate, because they were oppressive of incurring personal expenses, but that they were willing to concur in a sale of it for the benefit of the Plaintiff and his creditors, and that, if the estate were sold, the proceeds would be sufficient to-pay the creditors and to leave a considerable surplus; and praying that A. might be declared to be a trustee of the estate for the Plaintiff' and his creditors, and that it might be sold and the proceeds paid to the assignees, and that A. might be-restrained from proceeding with an action which he had brought against the Plaintiff. A demurrer to the bill was allowed. The case made by the bill was that the mortgagee of an estate belonging to tha Plaintiff having advertised the estate to be sold under a power of sale contained in the mortgage deed, the Plaintiff instructed the Defendant Fosbrooke to attend at the sale, and, if £5000 should not be bid for the estate, to buy it in for him; that £3650 only having been bid, Fosbrooke bought in the estate for £3700, and had it conveyed to himself in fee ; that, at and for some time before the sale, the Plaintiff was imprisoned for debt, and had since taken the benefit of the Insolvent Debtors Act; that the Plaintiff and his assignees had requested Fosbrooke to join in a sale of the estate for the benefit of the Plaintiff and his creditors; and that the Plaintiff had requested his assignees either to institute a suit or to allow the Plaintiff to sue in their names, for the same relief as was sought by the bill; but that the assignees, being apprehensive of incurring personal expenses, had refused so to do; that the estate, if sold, would not only produce sufficient to [29] pay the Plaintiff's debts, but would leave a considerable surplus for the Plaintiff. The bill prayed that Fosbrooke might be declared a trustee of the estate for the Plaintiff and his creditors, subject to a lien thereon for the £3700; that the estate might be sold and the proceeds. applied in payment of that sum (the Plaintiff and his assignees being uniting to confirm any mortgage made by Fosbrooke on the estate to enable him to pay the £3700)...
To continue reading
Request your trial
-
Harrison v Ancketell
...and sue, so that the benefit of the present proceedings may not be entirely lost. r. w. l (1) 1 Russ. & Mylne, 638. (2) 2 Ph. 650. (3) 8 Sim. 28. (4) 3 Ha. (5) 2 H. L. Cas. 388. (6) 7 D. M. & G. 1. (7) L. R. 14 Eq. 208. (8) 10 App. Cas. 210. (9) 10 Q. B. D. 114. (10) 10 Ch. D. 393, 397. (11......
-
Borell v Dann
...v. Nash (3 Madd. 232), Fox v. Wright (6 Id. Ill), Barton v. Tattersall (1 E. & M. 237), Barton v. Jayne (1 Sim. 25), Kaye v. Fosbrocike (8 Sim. 28), Lautour v. Hokombe (8 Sim. 76), Tyers v. Stunt (7 Scott, 349), Yewens v. Robinson (11 Sim. 105), Earl of Aldborough v. Trye (7 Cl. & Fin. 436)......
-
Cook v Sturgis
...statute 1 & 2 Viet. c. 110, s. 92. the lobd justice turner referred to Bochfwt v. Battersby (2 H. of L. Cas. 388), and Kaye v. Fosbrooke, (8 Sim. 28). Mr. Malins and Mr. Eogers, for Mr. Cook, referred to Tucker v. Hernaman (4 De G. M. & G. 395). Judgment reserved. May 8, 1855. the lord just......
-
M'Nally v Gradwell
...14 Ves. 641. Dyson v. Hornsby 7 D. M. & G. 9. Crosbie v. Tooke 1 M. & K. 431. Sturgis v. MorseENR 2 De G. & J. 1. Kaye v. FosbrookeENR 8 Sim. 28. Major v. AuklandENR 3 Hare 77. Battersby v. Rochford 2 H. of L. Cas. 408. Dyson v. Hornsby 7 D. M. & J. 9. Heath v. ChadwickENR 2 Phil. 649. Tidw......