Kearsey, Assignee of the Estate of Haviside, a Bankrupt against Carstairs and Others
| Jurisdiction | England & Wales |
| Judgment Date | 11 June 1831 |
| Date | 11 June 1831 |
| Court | Court of the King's Bench |
English Reports Citation: 109 E.R. 1310
IN THE COURT OF KING'S BENCH.
S. C. 9 L. J. K. B. O. S. 323.
keaksey, Assignee of the Estate of Haviside, a Bankrupt against carstairs and others. Saturday, June llth, 1831. By indenture of demise, reciting that the lessee had purchased certain fixtures on the premises, on condition of their being repurchased as after mentioned, it was agreed between the lessor and lessee, and the lessor covenanted, that on the expiration or other sooner determination of the term, he, the lessor, should and would take the fixtures at such price as they should be appraised at by two competent persons, one to be named on each side. The lessee became bankrupt, and his assignee declined the lease (which was delivered up), but he required the fixtures to be repurchased, and brought an action of covenant against the lessor for not appointing an appraiser: Held, that as by 6 G. 4, c. 16, s. 75, the bankrupt, on delivering up the lease, was discharged from all the covenants on his part, performance of the covenant in question could not be enforced by the assignee against the lessor. [S. C. 9 L. J. K. B. O. S. 323.] Covenant. The declaration stated that by indenture made between the defendants and Haviside before his bankruptcy, the defendants demised premises to Haviside for a term of years ; and that by a covenant [717] in the said indenture, reciting that H. had purchased certain fixtures on the said premises, on condition of their being repurchased as after mentioned, it was agreed between the parties, and the defendants covenanted, that immediately on the expiration or other sooner determination of the term, they, the defendants, should and would take the said fixtures, and pay such price for them to H., his executors, or assigns, as they should be appraised at by two competent persons, (one to be named on each side,) or by an umpire to be named by such two persons if they could not agree; that H. purchased and paid for the fixtures, and afterwards, during the term, became bankrupt, and the plaintiff was appointed his assignee; that the plaintiff declined to accept the lease, and H., within fourteen days after notice thereof, delivered up the lease and premises, pursuant to the statute (a), to the defendants, who accepted the same, and the term granted to H. was thereby determined; that the plaintiff afterwards appointed a competent person (a) 6 G. 4, c. 16, s. 75. See the judgment, page 726, post. ZBi&AD. 718. KEARSEY V. CARSTAIRS 1311 to appraise the fixtures, and requested the defendants to do the same; but that they did not nor would, immediately on the determination of the term, accept the fixtures, and pay such price for the same as they should have been appraised at according to the covenant, but, on the contrary, would not appoint a competent person to appraise the fixtures, and neglected and refused so to do, and did not nor would pay the price or value of the same either to H., before,his bankruptcy, or to the plaintiff as assignee. There was a second count, setting out a similar demise by indenture of certain premises, in that indenture mentioned, and alleging a like breach of covenant, only omitting to aver that the [718] plaintiff declined the lease, and stating that, after the expiration of the term, the plaintiff appointed a competent appraiser, who valued the fixtures at 1081.; but the defendants would not name an appraiser, nor accept the fixtures, or pay the value. The defendants pleaded, among other pleas, the following:-1. That the bankrupt did not nor would, after the determination of the term, appoint an appraiser. 2. That the indentures mentioned in the two counts were the same and not different; that the premises in the two counts mentioned were also the same; and that before the issuing of the commission, and before notice to the defendants of an act of bankruptcy, a part of the rent in the said indenture mentioned, to an amount exceeding that of the damages, became due from the plaintiff to...
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Thursby and Others v Plant
...8 Taunt. 325, Hill v. Dobie. 2 B. Moore, 242, S. C. [If the assignees do not accept the lease, they cannot sue on any of the covenants. 2 B. & Ad. 716, Kearsey v. Garstairs. 6 M. & W. 679, Fairburn v. Eastwood. During the interval between the fiat and the acceptance of the lease by the assi......
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Ex parte Henry Philip Hope, William Henry Aston and Joseph Schofield Joshua Hanson and James Hanson
...such proceedings as they might have been advised to recover it. They referred to Exparte Ladd (3 Dea. & C. 647), Kearsey v. Carstairs (2 B. & Ad. 716). Mr. Daniel and Mr. G. L. Russell, for the Respondents, were not called upon. [94] the lord justice knight bruce. I am surprised,that any as......