Smith and Others, Assignees of Eustace, a Bankrupt, against Coffin and Ux
| Jurisdiction | England & Wales |
| Judgment Date | 28 April 1795 |
| Date | 28 April 1795 |
| Court | Court of Common Pleas |
English Reports Citation: 126 E.R. 641
IN THE COURTS OF COMMON PLEAS AND EXCHEQUER CHAMBER
Considered, Doe v. Gilbert, 1821, 3 Br. & B. 89. Distinguished, Monk v. Mawdsley, 1827, 1 Sim. 290. Applied, Wilce v. Wilce, 1831, 7 Bing. 672.
[444] smith and others, Assignees of Eustace, a Bankrupt, against coffin AND Ux. Tuesday, April 28th, 1795. [Considered, Doe v. Gilbert, 1821, 3 Br. & B. 89. Distinguished, Monk v. Mawdsley, 1827, 1 Sim. 290. Applied, Wilce v. Wike, 1831, 7 Bing. 672.] A. by his will reciting " as to such worldly estate as God has pleased to bless me with " made a provision for his heir at law, and "devised all the rest and residue of his goods, chattels, rights, credits, personal and testamentary estate whatsoever to B. for his own use, benefit, and disposal." Under this clause, B. took an estate in fee in the lands of the testator (a)2. The right to bring a real action, ex. gr. a writ of entry sur abatement, passes to the assignees of a bankrupt, by the usual words of the deed of assignment (b). This was a writ of entry sur abatement, and the count was as follows (c). " Comity of the City of Exeter, to wit, Henry Smith, Joseph Hunt, and William Spicer, assignees of the estate and effects of Thomas Eustace deceased, a bankrupt, according to the form of the statutes made concerning bankrupts, by Nathaniel Batten their attorney, demand against Edmund Coffin and Sarah his wife, one messuage with the appurtenances, and six acres of land in the parish of Saint Sidwell in the County of the City of Exeter, which they claim to be their right and inheritance as such assignees as aforesaid, and into which the said Edmund and Sarah have not entry, but. by Hannah Eustace, who devised the said tenements with the appurtenances to th& said Edmund and Sarah, and who unjustly abated into the same after the death of Thomas Eustace father of the said Thomas Eustace the bankrupt, who was heir of the said Thomas Eustace the father within fifty years now last past, and thereupon the said Henry Smith, Joseph Hunt, and William Spicer, assignees as aforesaid, say that the said Thomas Eustace the father was seised of the tenements aforesaid, with the appurtenances in his demesne as of fee and right, in time of peace, in the time of our lord the now king, to wit, within fifty years last past, by taking the esplees thereof to the value, and on the first day of June in the year of our Lord 1767, died to seised thereof, upon whose death the said Hannah Eustace abated into the said tenements with the appurtenances, and was seined thereof, and died so thereof seised on the 12th day of December 1792, and from the said Thomas Eustace the father, the right descended to the said Thomas Eustace the bankrupt, then being of the age of sixteen years, as son and heir of the said Thomas Eustace (a)1 [That a master is not liable in trespass for the wil'ful act of his servant, though he is answerable in an action on the caee for his negligence, vide M'Manus v. Crickett, 1 East, 106. Leame v. Bray, 3 East, 601.] (a}lji [Vide Dally v. King, ante, vol. i. page 1, and the note there.] (i) [Vide Clarke v. Galvert, 8 Taunt. 750, 3 B. Moore, 111, S. C.J (c) Which not being in daily practice, is stated at length. C. P. IV.-21 642 SMITH V. COFFIN 2 H. BL. MB- the father, and remained and continued in the said Thomas Eustace the bankrupt, till the time of his bankruptcy hereinafter mentioned." It was then stated, that after the right so descended to the said Thomas Eus-[445]-tace the bankrupt as aforesaid, and while the same so as aforesaid remained and continued in him, to wit, on the 25th of March 1774, he was a trader, and became a bankrupt on the 3d February 1789. The issuing the commission, and the proceedings under it were then set forth, the assignment by the commissioners being stated to have been made by an indenture of bargain and sale, by which they did " order, grant, bargain and sell, unto them the said Henry Smith, Joseph Hunt and William Spicer, their heirs arid assigns, all and singular the messuages, lands, tenements and hereditaments, whatsoever and wheresoever, of or belonging to the said Thomas Eustace the bankrupt, in fee simple, fee tail or for life, or otherwise, with their respective rights, members and appurtenances, and all the estate, right, title, interest, property, profit, benefit, and equity of redemption, claim and demand, whatsoever, which he the said Thomas Eustace the bankrupt at the time of bis becoming bankrupt as aforesaid, had of, in or to all and singular the said messuages, lands, tenements and hereditaments, respectively, to have and to hold all and singular the said messuages, lands, tenements and hereditaments, with their and every of their rights, members and appurtenances, unto them the said Henry Smith, Joseph Hunt and William Spicer (the assignees), their heirs and assigns, to and for the only benefit and advantage of them the said Henry Smith, Joseph Hunt and William Spicer, their heirs and assigns for ever, or according to the said Thomas Eustace tie bankrupt's right and interest therein, subject to such mortgage or mortgagee, or other charges and incumbrances, if any such there should be, as the same were rightfully charged with and liable to, in trust nevertheless, &c." (a). It was then stated that the bankrupt obtained his certificate, atid afterwards died: "and so the right of the said Thomas Eustace the bankrupt of and in the tenements aforesaid, with the appurtenances, came to and vested in the said Henry Smith, Joseph Hunt and William Spicer, as such assignees as aforesaid, who now demand the sam& as such assignees aforesaid, and into which, &c. and who after the death, &e., and therefore they bring suit, &c." The Defendants came and defended their right when, &c. and pleaded, 1st. That Thomas,Eustace did not become a bankrupt; [446] on which issue was joined. And 2dly, by leave of the Court, &c. that the said Thomas Eustace the father being seised iu fee of tie tenements aforesaid, made his will, and thereby devised the said tenements, with the appurtenances, to his wife the said Hannah Eustace in fee, and died; by virtue of which devise she the said Hannah, after the death of the said Thomas Eustace the father, entered into and was seised in fee of the premises, and being so seised, before tbe intermarriage of the said Edmund and Sarah, duly made her will, and devised the said tenements, with the appurtenances, to the said Sarah Coffin, by her then name and description of her daughter Sarah Eustace, her heirs and assigns for evtr, and afterwards, and after the intermarriage of the said Edmund and Sarah died so seised. By virtue of which said devise the said Edmund and Sarah, in right of the said Sarah, after the death of tbe said Hannah, to wit, on the same day and year last aforesaid, entered into the said tenements, with the appurtenances, and became and were, and continually from thence hitherto have been, and still are seised thereof, in their demesne as of fee in right of the said Sarah, &c. The replication, as to so much of the plea as related to the messuage with the appurtanances, part of the tenements in the declaration mentioned, was that Thomas Eustace, the, father, did not devise the same to his wife Hannah Eustace and her heirs, Bodo at form&, &c., on which issue was joined. And as to so much of the plea aa telated t@ (he six acres of land, residue of tbe tenements, &c., that Thomas Eustace the father, it the time of making his will, was not seised in fee of those six aeres, &c., en which also issue was joined. This capse was tried at Exeter, at the Summer Assizes 1794, when the only question left to the jury wa,s, whether Thomas Eustace the son committed an act of bankruptcy! which was found in the affirmative, every other fact respecting the first issue being admitted. It was also agreed that a verdict should be taken for the Plaintiffs (a) This deed appears to be in the usual form used by commissioners of bankrupts, but as stress was laid upon it in the argument, it is particularly stated. JH.1L.447. SMITH V. COFFIN 643 on the third issue, and the following case made for the opinion of the court, on the second. Thomas Eustace the father, being seised in fee of the messuage in Saint Sidwell's mentioned in the declaration, atid also having an interest in a house in another parish, in which he then lived, made his will hearing date the third day of May, 1763, in the following words; " As to such worldly estate, as God in his kind providence has been pleased to bless and [447] favour me with, I give and dispose of the same in manner and form following, that is to say ; First, I give and bequeath unto my son Thomas Eustace the sum of two hundred pounds of lawful money of Great Britain, to be paid unto him out of ray residuary estate and effects, by my executrix hereinafter named, when and if he shall attain the age of twenty-one years; but my will is, that if he shall happen to die under that age, that the said sum of two hundred pounds shall sink In my residuary estate, for the benefit of ray said executrix. Also my will is, that my said son shall as soon after my decease, as my said executrix shall think fit and convenient, be by her placed and bound out to some trade, profession or business, and that she do and shall by and out of my said residuary estate, pay the consideration-money to be paid or given with him on that occasion, and also provide for, maintain and educate my said son, until he shall be so placed and bound out as aforesaid, in a decent and suitable manner, and during the time of such his apprenticeship, and until he shall attain his said age of twenty-one years or die, which shall first happen, find and provide for, and allow and give unto him proper and suitable oloaths, and wearing apparel, and all other necessaries whatsoever, except such as the master with whom he may be placed...
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