Re Barr's Trusts
| Jurisdiction | England & Wales |
| Judgment Date | 31 March 1858 |
| Date | 31 March 1858 |
| Court | High Court of Chancery |
English Reports Citation: 70 E.R. 92
HIGH COURT OF CHANCERY
S. C. 27 L. J. Ch. 548; 4 Jur. (N. S.) 1013. See Semphill v. Queensland Sheep Investment Company, 1873, 29 L. T. 741; Palmer v. Locke, 1881, 18 Ch. D. 385.
Bankruptcy. Commission under the old law of 13 Eliz. c. 7. 1 Jac. 1, c. 15. 46 Geo. 3, c. 135. Chose in Action. Equitable Interest in. Particular Assignee giving Notice. Assignee in Bankruptcy giving None. Priority. Evidence.
92 in re babe's trusts *k. &j. 219. [219] In re barb's trusts. March 6, 29, 31, 1858. .[S. C. 27 L. J. Ch. 548; 4 Jur. (N. S.) 1013. See Semphill v. Queensland Sheep - Investment Company, 1873, 29 L. T. 741; .Palmer v. Locke, 1881, 18 Ch. D. 385.] Bankruptcy. Commission under the old law of. 13 Eliz^ c. 7. 1 Jac. 1, c. 15. 46 (r0. 3, c. 135. Chose in Action. Equitable Interest in. Particular Assignee giving Notice. Assignee in Bankruptcy giving None. Priority. Evidence. The doctrine in Dearie v. Hall (3 Euss. 1) as to the importance of notice of an assignment of an equitable interest in a chose in action, applies to assignees under a commission in bankruptcy, equally with particular assignees. Assignees under a commission in bankruptcy omitting to give such notice postponed to a subsequent assignee for value, who gave due notice of his assignment. The bankrupt deposed that, at the time of his bankruptcy, one of four trustees of a fund, in which he had a contingent reversionary interest, was his intimate friend, and was consulted by him in reference thereto, and to the course he should adopt; that upon the occasion of the sale, by order of the assignees in bankruptcy, of the leasehold premises where the bankrupt's business had been carried on, such trustee lent him money to purchase the premises, and that the money lent was secured upon such lease. Sen/Me, these circumstances, if believed by the Court, would not have constituted such notice of the rights of the assignees in bankruptcy as to give them priority over a subsequent assignee for value who gave due notice of his assignment. Where any question of fact depends upon the testimony of a single witness, and any inconsistency is apparent between such testimony and the previous conduct of the witness, the Court will look rather to the acts done by him at the time than to his statements when called as a witness. William Barr, since deceased, by his will in 1800 bequeathed £10,000 3 per cent, consols to four trustees, one of whom was a Mr. Kemble, upon trust, to pay the interest to his wife for life, and after her decease, upon trust, in the events which happened, to transfer the principal equally between the testator's four children therein named, of whom Ann Barr was one. The testator died in 18Q3. In 1805 Ann Barr married Thomas Slade. In February 1810 a commission of bankruptcy was is-£220]-sued against Thomas Slade, under which he was declared bankrupt. By an indenture, dated 1818, Slade and Ann, his wife, in consideration of £1000 to them paid by one Dowell, now represented by the Petitioners, granted to Dowell an annuity of £100 for three lives and the life of the survivor, who was still living at the hearing of the petition, and assigned their share in the £10,000 upon trusts for securing such annuity. Notice of this indenture was given to the four trustees of the £10,000 consols immediately after its execution, and, at the same time, an attested copy of the instrument was delivered to the trustees, which copy was subsequently found in the possession of the surviving trustee. Dowell had no notice of the bankruptcy when the indenture was executed. Kemble survived his co-trustees and died in 1821. Ann Slade died in February 1856 ; the testator's widow died in November in the same year. In March 1857 the 10,000 consols was paid into Court under the Trustee Relief Act by the representative of Kemble, the surviving trustee, and £3022, 11s. 8d. consols, part of that sum, was now standing to an account intitled " The Separate Account of the Share of Thomas Slade as Administrator of his late Wife, Ann Slade, and the Incumbrancers (if any) on such Share." No part of the annuity secured by the indenture of 1818 was paid ; and upwards of £3300 being now due to the Petitioners in respect of such annuity, they presented *e. &J.221. in re barr's trusts 93 a petition, praying that the residue of the £3022, lls. 8d., [221] after payment of costs as therein mentioned, might be paid to them as the legal personal representatives of Dowell. Slade filed an affidavit in reply to the evidence in support of the petition, by which he deposed that Kemble was the trustee who took the active part in managing the trusts of the will; that Kemble was deponent's intimate friend and deponent at the time of his bankruptcy, consulted him in relation thereto, and took his opinion and advice as to the course deponent should adopt: that Kemble, then being aware of the bankruptcy, promised to assist him with money to establish himself in business. That the lease of the premises in which deponent's business had been carried on was put up for sale by auction by the direction of the assignees in 1811; that deponent was desirous of buying such lease, with the view of carrying on business again ; and having received from Kemble and from another friend promises of assistance, he attended the sale and purchased the lease for £600; that, to enable him to pay the deposit and complete the purchase, Kemble lent him the £600, and deponent completed the purchase, and the said sum was secured upon the lease and the premises therein comprised ; and that, at the time of the loan, Kemble was fully informed for what purpose and under what circumstances it was wanted. It did not appear that any notice was given to the trustees by the assignees in bankruptcy until the year 1835. Mr. Eolt, Q.C., and Mr. Nalder, for the Petitioners, contended that the assignee òfor value under the indenture of 1818, having given notice of his assignment to the trustees of the fund immediately upon the execution of the assignment, had a better title than the assignees in bankruptcy who had given no such notice. [222] Precisely the same question arose in reference to the Act for the Relief of Insolvent Debtors (7 Geo. 4, c. 57), in Re Atkinson (4 De G. & Sm. 548; S. C. on appeal, 2 De G-. M. & G-. 140),|where Lord St. Leonards held that an assignee for value of an equitable interest, giving notice, has a better title than the assignees in insolvency who have given no notice, the assignee for value having no notice of the insolvency at the date of his assignment; and the law is the same with regard to bankruptcy. It will be argued contra, that the trustees had notice of the rights of the assignees in bankruptcy, one of them, Kemble, having, according to the bankrupt's affidavit, been his friend, and consulted by him in reference to his bankruptcy. But such notice of the fact of bankruptcy is not notice of its consequences as regards the rights of assignees; at the best, it is but...
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