Smith and Another, Assignees of the Estate and Effects of Wherry, a Bankrupt v Timms and Stanton
| Jurisdiction | England & Wales |
| Judgment Date | 06 February 1863 |
| Date | 06 February 1863 |
| Court | Exchequer |
English Reports Citation: 158 E.R. 1127
IN THE EXCHEQUER CHAMBER. APPEAL FROM THE COURT OF EXCHEQUER.
S. C. 32 L. J. Ex. 215; 9 Jur. (N. S.) 1285; 11 W. R. 381; 7 L T. 859.
1h.&ci30, smith v. timms 1127 in the exchequer chamber. (Appeal from the Court of Exchequer.) smith and another, Assignees of the Estate and Effects of Wherry, a Bankrupt t. TlMMS AND stanton. Feb 6, 1863.-An assignment, under pressure, by a trader to certain creditors, not of the whole of his property, but with a substantial exception, is not an act of bankruptcy. Therefore, where a trader, under pressure, assigned to two creditors who were aware of his insolvency, his household furniture, stock-in-trade, and goods, chattels, and effects in his dwelling-house, which on their sale realized 1931., and the trader also had book debts and tea in bond of the value of 931 : Held, in the Exchequer Chamber (affirming the judgment of the Court of Exchequer), that the assignment was not an act of bankruptcy. [S. C. 32 L. J. Ex. 215 ; 9 jut. (N. S ) 1285; 11 W. K. 381 ; 7 L T. 859.] This was an appeal against the judgment of the Court of Exchequer in discharging a rule ta enter the verdict for the plaintiff, pursuant to leave reserved at the trial. The case stated on appeal was as follows :- Trover by the assignees of a bankrupt, with a count for money had and received. [850] Pleas : to the first count, not guilty, and not possessed : to the second count, never indebted. Issues thereon. 1. The plaintiffs are the assignees of E. Wherry, a grocer, who was adjudicated bankrupt on a creditor's petition on September 10th, 1860. 2. The defendants are the assignees under a bill of sale, executed by the bankrupt on June 27th, I860, of property claimed by the plaintiffs on the ground that the execution of the bill of sale was an act of bankruptcy, as a " fraudulent transfer," within sect. 67 of the Bankrupt Law Consolidation Act, 1849. 3. The defendant Timms had lent 501. to the bankrupt in November, 1858, and in respect of that loan, and of goods supplied in the course of business, he was, at the time of the execution of the bill of sale, a creditor for the sum of 881. 4. The defendant Stanton, on the 13th June, 1860, lent the bankrupt SOI., which was secured by a promissory note payable on demand, signed by the bankrupt and two other persons, the bankrupt at the same time stating that he would repay the money on the 19th of the same mouth. 5. Two or three days before the bill of sale was given, the bankrupt, being much pressed for money, applied to the defendant Tinims for a further loan, and shewed him a statement of his affairs, by which he represented himself to be worth a consider able surplus, after payment of all his debts. Timms, however, before making any further advance, insisted on examining for himself into the state of the bankrupt's affairs , and, for that purpose, he, on the 26th June, came from London to Market Deeping, where the bankrupt lived. He theie made an investigation which satisfied him that the...
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