Ryall v Rowles
| Jurisdiction | England & Wales |
| Judgment Date | 27 January 1749 |
| Date | 27 January 1749 |
| Court | High Court of Chancery |
English Reports Citation: 27 E.R. 1074
HIGH COURT OF CHANCERY
S. C. 1 Wh. & T. L. G. (7th ed.) 96. See Dearle v. Hall, 1823, 3 Russ. 22; Donald v. Suckling, 1866, L. R. 1 Q. B. 601; Cooke v. Hemming, 1868, L. R. 3 C. P. 342. Considered, In re Bainbridge, ex parte Fletcher, 1878, 8 Ch. D. 218. See In re West of England, &c., Bank, ex parte Dale & Co., 1879, 11 Ch. D. 776. Not followed on point as to separated money falling into bankrupt's estate, In re Hallet's estate, Knatchbull v. Hallet, 1879, 13 Ch. D. 714. See also Colonial Bank v. Whinney, 1886, 11 App. Cas. 435; In re, Richards, Humber v. Richards, 1890, 45 Ch. D. 595; and on point as to "choses in action" see Bankruptcy Act, 1883 (46 & 47 Vict. c. 52), ss. 44, 50 (5).
eyall v. bowles, Jan. 27, 1749-50. [S. C. 1 Wh. & T. L. G. (7th ed.) 96. See Dearie v. Hall, 1823, 3 Euss. 22 -Donald v. Suckling, 1866, L. E. 1 Q. B. 601 ; Cooke v. Hemming, 1868, L. B, 3 C. P. 342. Considered, In re Bainbridge, ex parte Fletcher, 1878, 8 Ch. D. 218. See In re West of England, &c., Bank,"ex parte Dale & Co., 1879, 11 Ch. D. 776. Not followed on point as to separated money falling into bankrupt's estate, In re Ballet's estate, Knatchbull v. Ballet, 1879, 13 Ch. D. 714. See also Colonial Bank v. Whinney, 1886, 11 App. Cas. 435; In re,Richards, Humber v. Richards, 1890, 45 Ch. D. 595; and on point as to " choses in action" see Bankruptcy Act, 1883 (46 & 47 Viet. c. 52), ss. 44, 50 (5).] Lord Hardwicke, Lord Chancellor; Lord Chief Justice Lee; Lord Chief Baron Parker; Mr. Justice Burnet. Pawnees of goods, &c., permitting bankrupts to continue in possession, or in the order and disposition of them, have no specific lien on them against the assignees. (Vide Supplement, p. 165.) Assignments of debts. Equities as between partners. (1 Atk. 165, S. C. 1 Brown, 99. See p. 353,. and Supplement, p. 165.) William Harvest, a trader within the several statutes concerning bankrupts, in June 1732, borrowed from Benjamin and Joseph Tomkins 1500, and as a security conveyed and assigned his dwelling-house and brew-house at Kingston, and all the coppers and utensils in trade belonging thereto, by way of mortgage, subject to redemption. He afterward took Jonathan Stephens into partnership with him; and in less than a month after the partnership, December 22, 1736, made a second mortgage to Potter in trust for Jonathan Stephens of his moiety of not only the utensils, 1VES. SEN. 349. RYALL V. .EOWLES 1075 but the stock in trade, debts, profits, &c., for securing a sum of money, then lent to him by Jonathan Stephens, and any future sums that should be lent. December 10, 1737, he made a third mortgage, of the seventh part of his undivided moiety of all the stock in trade, [349] utensils, debts due or to grow due, to Sir James Beynel. April 24, 1738, he made a fourth mortgage of the seventh part of his undivided moiety, with the same description, to Skip. September 7, 1738, he made a fifth mortgage to Jonathan Stephens, for securing to him 2000 which Stephens had paid to one Baugh, who had the original mortgage on the freehold estate : the real premises which were conveyed by way of lease to Tomkins, having been mortgaged to Philip Stone in 1725, and assigned to Baugh, who assigned to Stephens upon being paid the 2000. He afterward made a sixth mortgage to George Harvest his son, of the seventh part of his undivided moiety of the partnership, stock in trade, debt, utensils, and profits, in consideration of a sum of money lent. Notwithstanding these several mortgages, he continued in possession of the utensils and stock in trade as before; altered, disposed and mortgaged them as his own, and received the debts in partnership with Stephens, without any controul from any of the mortgagees till 1740, when he failed and became bankrupt. Then the assignees and mortgagees insisted on the right of the several goods, stock, &c., comprised in their several assignments, in opposition to the general creditors claiming under the commission. The cause was heard before Lord Chancellor, the Seals after .Michaelmas 1747; and it being a new case, his Lordship ordered it to be argued by two counsel on each side, assisted by the Judges, upon the question whether all, or any and which.of, these mortgages came within the stat. 21 /. 1, c. 19, particularly the latter part of the tenth, and the whole of the eleventh section or not 1 It was argued February 24, 1747-8. Solicitor-General and Mr. Noel, for the Assignees under the Commission. The questions upon the construction of this statute are two. First, whether any conveyance of goods,or chattels by way of mortgage, or with condition of redemption, is within that statute 1 The second, if the court should think so, whether any of these six mortgages are within the clause as to any of the goods comprised therein ; the consequence of which is, that they must be as creditors under the commission, and not be preferred to the other creditors 1 [350] The first will depend on the true construction of the act itself; to find out which three things are to be resorted to. The circumstances at the time of making the act; for to them the law was adapted:. the remedy intended, and the mischief designed to be prevented thereby : and judicial explanations of the act since. It will appear, that some conditions of redemption are within this clause, and that it was calculated for this. When this act was made, fraudulent conveyances were sufficiently guarded against by 13 Eliz. c. 5, s. 7. Twine's case, 3 Co. 80, upon the construction of that act, was considered so strongly within it, that the party was punished criminally : and particular provisions are made by that statute in case of bankruptcy. Fraudulent conveyances then, being provided for before, were never intended by the act now in construction : but the thing intended was an equal distribution amongst creditors : which was very unequal, some creditors getting prior hens several ways : as by bond, judgment, &c., to take away which priority, unless where satisfaction by execution and recovery before the bankruptcy, was the intention of the act; and to reduce creditors, who had trusted the bankrupt generally, to equality. Another way creditors had of gaining a priority, was by pledged goods ; and after that a new way, by conveyance without delivery of the goods. Anciently, as appears from the year books, 5 H. 7, f. 1, delivery was necessary to a sale : and was often done by parol: the pledge must be delivered over to the pawnee himself at the time of borrowing, otherwise no property vested in him. But that doctrine was afterward exploded : as in Yel. 164, and 2 Leon. 30, Clarke's case, where the property was held vested, though no delivery at the time. And Owen, 124, held, that such pawnee might assign over his property; so that wherever the conveyance was under hand and seal, it was not necessary to vest the property by delivery of goods pledged : there is no real distinction between the words mortgaging and pledging; the first being generally applied to lands, the other to goods; and they are in effect synonymous terms. As to lands, the mortgagee holds by title : and the title deeds always are, or should be in his possession ; but as to goods there is no hold, where the pawnor keeps them in his possession. The end of the act therefore being to reduce creditors to equality, it is but reasonable 1076 RYALL V. .BOWLES 1VES. SEN. 351. to put such creditors, who took pledges and left them in the hands of the bankrupt or pledger, to dispose of and alter them as he pleased, upon equality with other creditors ; for the mortgagees give the bankrupt a general credit. Suppose a diamond pledged for a large sum, and pawnor keeps possession of it: if he sells the diamond, as he may do the next day, the creditor must come in under a commission. The inconvenience in allowing a preferenee in cases of these secret conveyances, is greater than that of judgments, which are public and open : not that the act intended to restrain the pawning and selling goods [351] generally: and there might be a sale of goods where possession could not be given : as of ships at sea, and goods, and merchandise that are bringing home. Such conveyances then by way of mortgage are within the reason of the act: and the question is whether within the letter 1 The word convey hi the preamble extends to all conveyances in general, whether absolute or by condition ; mortgages of lands or goods are in this act called conveyances : and where a general word is mentioned to take in all, it is not usual afterward to specify particular words, which come after it. The mischief recited in the preamble is material, often happening. It never was a frequent practice to buy goods absolutely and to leave them in possession of the vendor to do as he would with his own, which case never happens without fraud : and the preamble supposes a good consideration, not upon fraud : against which case, vif the legislature had intended a provision, it would have put it upon that. But they knew that would be void by 13 Eliz. and were therefore providing against conveyances by way of mortgage, the mortgagor keeping possession and exercising all acts of ownership. The enacting part is very carefully penned; and every word deserves to be weighed; the goods must be originally the property of the bankrupt, and conveyed by him, and must continue in the order and disposition of the bankrupt. It is objected, that mortgagee or grantee on redemption cannot be called owner or proprietor : but the act considers him as such : the words take in all ownerships whatsoever ; some for greater interests, others for less ; and the pawnee or mortgagee is in point of law considered as proprietor, and may maintain trover upon it, although that action is founded in property. Such conveyance by pledge has been held to be good against extent of the crown, because the property is altered. 3 Bui. 17, shews...
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