Robert Cardwell Topping and Another, Appellant; William Keysell, Respondent
| Jurisdiction | England & Wales |
| Judgment Date | 25 April 1864 |
| Date | 25 April 1864 |
| Court | Court of Common Pleas |
English Reports Citation: 143 E.R. 1127
IN THE COURT OF COMMON PLEAS AND IN THE EXCHEQUER CHAMBER
S. C. 33 L. J. C. P. 225; 10 L. T. 526; 10 Jur. N. S. 774; 12 W. R. 756. See In re Vizard's Trusts, 1866, L. R. 1 Ch. 593; Exley v. Inglis, 1868, L. R. 3 Ex. 253.
[258] eobebt cardwell topping and another, Appellants; keysell, Respondent. April 25th, 1864. [S. C. 33 L. J. C. P. 225; 10 L. T. 526; 10 Jur. N. S. 774; 12 W. E. 75fi. See In re Vizard's Trusts, 1866, L. R. 1 Ch. 593 ; Exleyv. Inglin, 1868, L R. 3 Ex. 253.] 1. A. trader, by a bill of sale dated the 24th of April, 1860,-reciting that he was indebted to M. in the sum of 981. for goods already delivered, and that he was desirous of obtaining a further supply to the extent of 821., which M. had declined to furnish without security,-assigned to M. all his household furniture, stock-in-trade, and effects for securing the 1801. and any further advances which M. might make to him,-with a proviso for redemption on payment, and a power to M. to seize and sell if the money should not be paid on demand. No further advance beyond the 981. either in money or goods was made by M. At the time of the execution of this deed, the trader was indebted to several other creditors in sums sufficient to constitute good petitioning-creditors' debts:-Held, that the execution of the deed was an act of bankruptcy.-2. Three days after the date of the bill of sale, K., another creditor, applied to the trader for payment of his debt, and by pressure obtained from him goods to the value of 391, 9s., being part of those comprised in M.'s bill of sale,-having notice at the time that the whole had been already assigned to M.-On the 7th of May, one W., to whom the trader owed 741. at the time he gave the bill of sale to M., petitioned for an adjudication of bankruptcy against him. A meeting of the creditors took place, and, M. having consented to give up the proceeds of the goods which he had sold under the bill of sale, it was agreed that the trader should execute a deed of assignment for the ; benefit of all his creditors under the Bankruptcy Act, 1861, which was accordingly done, and the appellants were appointed trustees, and the deed duly registered:- Held, that the title of the trustees under the deed of assignment by virtue of the 197th section related back to the execution of the bill of sale, and so overrode the transaction of the 27th of April, and consequently that they were entitled to recover from K. the value of the goods which he had obtained after notice of the act of bankruptcy. This was an action brought in the Staffordshire county-court to recover the aum of 501.,-first, "for that the defendant, on the 27th of April, 1863, possessed himself of certain goods belonging to the plaintiffs as trustees and assignees of the estate of William Knight, by virtue of a deed of assignment duly executed, registered, and completed pursuant to the Bankruptcy Act, 1861, namely, certain hams, bacon, cheese, and butter, specified in certain memoranda or invoices then delivered to him by the said Williitm Knight, and which goods the defendant had converted and disposed of to hia own use,"-secondly, " for that the said William Knight did, on the 27th of April, 1863 (having previously thereto committed an act of bankruptcy) give and i deliver to the defendant certain goods, namely, certain hams, bacon, cjieesp, and i butter, specified in certain memoranda or invoices then delivered by the said William j Knight t ) the defendant, in order to give, and did thereby in fact give, to thejdefen- : dant a fraudulent preference over the other [259] creditors of the said William Knight,-the defendant having had notice of the said act of bankruptcy before the said gooda were so delivered to him as aforesaid." The plaintiffs brought this action by virtue of the provisions of the Bankruptcy Act, 1861, as trustees and assigtiees under a deed of assignment of all the estate and effects of the said William Knight, dated the 16th of May, 1863, duly executed by the said William Knight, and executed or assented to in writing by the requisite majority of creditors, and registered on the 1st of June, 1863, by the chief registrar of the court of bankruptcy, gazetted, and otherwise perfected according to the provisions of the Bankruptcy Act, 1861. 1128 TOl'PING r. KEYSELL 16 C. B. (N. S.) 260. The plaint was heard on the 21st of November, 1803, before the judge of the Staffordshire county-court, and a jury, when the following facts were proved :- William. Knight, the debtor, of whose estate the plaintiffs were trustees and assignees, was for some time previous to the 28th of April, 1863, a retail provision-dealer residing and carrying on his business at a shop in High Street, Walaall; and the defendant was a wholesale provision-dealer residing at Wolverhampton. On the 24th of April, 1863, Knight was in respect of goods previously supplied to him indebted as follows, viz. to the defendant in the sum of 421., to a Mr. May, provision-dealer, Dudley, in the sum of 981. 3s., and to the whole of his creditors in the aggregate sum of 398L On the 24th of April, 1863, Knight asked May for other goods. May then asked for security ; and Knight executed a bill of sale to him, of which the following is a copy:- "This indenture, made the 24th of April, 1803, be-[260]-twecn William Knight, of, &c., of the one part, and Daniel May, of, &c., of the other part: Whereas, the said William Knight is justly and truly indebted to the said Daniel May in the sum of 981. 3s. for goods and provisions supplied at different times by the said Daniel May, as he the said William Knight doth hereby acknowledge; and, the said William Knight having applied to the said Daniel May for more goods to the amount of 811. 17s., the said Daniel May hath declined to furnish the same, unless the said William Knight gives to him the security hereinafter contained, to secure the two several sums of 981. 3s. and 811. 17s., making together the sum of 1801., and also such sums of money as may from time to time be duo from him to the said Daniel May on his current account, and which security the said William Knight hath agreed to give to the said Daniel May in manner as hereinafter appearing : and the said Daniel May hath consequently agreed to supply the said William Knight at once with goods to the amount of 811. 17s. as aforesaid: Now this indenture witnesseth that, in consideration of the premises, the said William Knight, for himself, his heirs, executors, and administrators, doth hereby covenant with the said Daniel May, that he the said William Knight, his heirs, executors, or administrators, will immediately upon demand thereof in writing signed by or on behalf of the said Daniel May, his executors, administrators, or assigns, being delivered to him or them, or left at his or their last known place of abode in England, pay to the said Daniel May the sum of 1801., or such sum as may at the time of such demand be owing from the said Wrilliam Knight to the said Daniel May on the running balance of account between the said parties: And this indenture further witnesseth that, for the considerations aforesaid, the said William Knight doth [261] hereby grant and assign unto the said Daniel May and his heirs all the household furniture, stock in trade, goods, effects, and things of him the said William Knight, now being in and about and upon the premises occupied by him the said William Knight, and situate in High Street, Walsall, aforesaid ; and all the estate and interest of him the said William Knight therein or thereto, to hold, receive, and take the premises hereby granted and assured unto the said Daniel May, his executors, administrators, and assigns; and, for the more effectually securing the said sum of 1801. and the amount owing from time to time on such running balance of account as aforesaid, the said William Knight doth by these presents appoint the said Daniel May, his executors and administrators, the true and lawful attornies of him the said William Knight in his or their name or names to sign, seal, and deliver, or make any assignment or delivery of any goods, chattels, and effects not passing by the effect of these presents, and which the said William Knight shall before the satisfaction of this security become entitled to or enabled to appoint, bind, or affect, either to the said Daniel May, his executors, administrators, or assigns, or to a purchaser or purchasers, or otherwise; and also to sue for, release, and give discharges for all or any of the goods, chattels, effects, and premises, and to do such other acts as the said attorneys may deem expedient to be done for the purposes of these presents, -he the said William Knight hereby ratifying and confirming, and agreeing to ratify and confirm, all and whatsoever the said attorney shall lawfully do or cause to be done in the premises: Provided always that, if the said William Knight, his heirs, executors, administrators, or assigns, shall pay or cause to be paid unto the said Daniel May, his executors, administrators, or assigns, the said principal sum [262] of 1801., or such sum as for the time being shall be owing upon the security of these presents, then the grant and assignment hereinbefore contained shall cease, determine, 16 C.B.(.,gJ283. TOPPING V. KBYSBLL 1129 and be void : Provided also that, if the said William Knight, his executors or administrators, do not immediately upon demand thereof in writing as aforesaid being delivered to the said William Knight, his executors or administrators, or left for him or them at or affixed to any part of hia, their, or either of their usual or last known place or places of abode in England, pay all the principal and interest moneys for the time being owing on the security of these presents, then or at any time or times thereafter, it. shall be lawful for the said...
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