Spackman v Miller
| Jurisdiction | England & Wales |
| Judgment Date | 27 June 1863 |
| Date | 27 June 1863 |
| Court | Court of Common Pleas |
English Reports Citation: 142 E.R. 1301
IN THE COURT OF COMMON PLEAS AND IN THE EXCHEQUER CHAMBER
S. C. 31 L. J. C. P. 309; 9 Jur. N. S. 50. Followed, In re Ginger, [1897] 2 Q. B. 466; Hollinshead v. Egan, [1913] A. C. 574.
[659] spaokman -a. miller. June '27th, 180-2. [S. C. 3L L. J. C. P. 309 ; 9 Jur. N". S. SO. Followed, In re (hiujo; 2 q. B. 4(i6 ; Holimxhevul v. tiga.it, [I9l:j] A. C. 574.] W., a trader, by bill of sale, dated the 14th of July, 185(i, assigned all his stock and household furniture to the plaintiff as security for an advance of 1001. The deed contained a proviso that, in case W., his executors, &c., should pay to the plaintiff, his executors, &c., the 1001. on the 14th of July, IMG, or at such earlier day or : time as the plaintiff, his executors, &c., should appoint for payment thereof in and by a notice in writing given to W., his executors, &c., twenty-four hours before the day or time so to be appointed for payment as aforesaid, and should in the meantime pay the interest half-yearly to the plaintiff, his executors, &c., the deed should cease snirl be void. There was also a covenant by \V. for payment of the 1001. and interest; and, a further proviso that, until default should have been made in payment of the 1001. at the day appointed for payment, or of the interest, after notice, it should be lawful for W., his executors, &c., to hold, make use of, and possess the goods assigned, without any hindrance or disturbance by the plaintiff, his executors, &c. - W. continued in possession of the goods until the I9thof January, 1862, when he committed an act of bankruptcy. On the '21st, the plaintiff left at his dwelling-house a notice in writing requiring payment of the 1001. and interest on the '23rd. On the 22nd, W. was adjudicated a bankrupt, and on the same day the messenger 1302 SPACKMAN V. MILLER 12 C. B. (N. S.) 6bQ. entered and took possession of the goods :-Held, that the goods passed to the assignees of W., as goods in his possession, order, and disposition, at the time of the bankruptcy, with the consent of the true owner, within the l'J5th section of the 12 & 13 Viet. c. 106. This was an action for the conversion of certain goods; and by the consent of the parties, and by a judges' order, the following case was stated for the opinion of the court, without any pleadings :- 1. The plaintiff iu this action is a grocer at Little Hinton, iti Wiltshire. The defendant is the official assignee (duly appointed) of Charles Whiteman, a bankrupt. 2. From the 1st of January, 1855, until the time of his bankruptcy, Whitemau was, a grocer at Wanborough, in Wiltshire, and also carried on the business of a earlier. 3. The same business in its several branches had been previously carried on by Whiteman's brother, of whom Whiteman had purchased the good-will, stock in trade, horses, carts, and some household furniture for 1701. : and Whiteman had paid down 701. on taking possession in January, 1855. 4. In June, 1856, the brother required payment of the balance, namely 1001. ; and Whitemaa, being unable to pay the same, applied to the plaintiff, who consented to lend him 1001. for the purpose of this payment, on his giving as security a bill of sale of all the horses, carts, and stock in trade with which White-[660]-man then carried on his business, and also of his household furniture. The bill of sale was executed by the plaintiff and Whiteman on the 14th of July, 1856 (the day it bears date); and at the time of execution the 1001. was paid by the plaintiff to Whiteman, and the 1001. was shortly afterwards paid to his brother by Whiteman, in completion of his purchase. The following is a copy of the bill of sale, which was duly stamped and filed under the statute 17 & 18 Viet. e. 36 :- "This indenture, made the 14th of July, 1856, between Charles Whiteman of Wauhorough, in the county of Wilts, grocer, of the one part, and Thomas Spackman, of Little Hinton, ill the said county, grocer, of thu other part: Wrhereas the said Thomas Spackman, at the request of the said Charles Whiteman, has agreed to leud him the sum of 1001., and the said Charles Whiteman has agreed to secure the repayment of the same with interest to the said Thomas Spackman by the assignment atid in the manned- hereinafter appearing; Now this indenture witnesseth that, in consideration of the sum of 1001. paid by the said Thomas Spackman to the said Charles Whiteman at or before the execution of this indenture, the receipt of which sum the said Charles Whiteman hereby acknowledges, and discharges the said Thomas Spackman, his executors, administrators, and assigns from the payment thereof, he the said Charles Wrhiteman doth by this present indenture bargain, sell, and assign unto the said Thomas Spackman, his executors, administrators, and assigns all and every tho goods, chattels, implements, utensils, and things which are now in, about, and belonging to;the dwelling-house, shop, stables, outbuildings, yards, gardens, and land of the said Charles Whiteman, situate and being at Wanborough aforesaid, now iu his occupation ; and all the [661] right, title, interest, property, claim, and demand of the said Charles Wlritemaii to, in, and upon the said goods, chattels, and premises, and every part thereof, to have, take, receive, and enjoy the goods, chattels, and premises expressed toibe hereby assigned unto the said Thomas Spackman, his executors, administrators, and assigns, as hia and their owti property and effects : Provided, nevertheless, that, in case the aaid Charles Whiteman, his executors or administrators, shall well and truly pay or cause to be paid unto the said Thomas Spackman, his executors, administrators, or assigns, the said sum of 1001. on the 14th of July, 186(5, or at such earlier diiy or time 4s the said Thomas Spackman, his executors, administrators, or assigns shall appoint for payment thereof in and by notice In writing to be given to the said Charles Whiteman, his executors or administrators, or left at his or their usual or last-known place of abode in England twenty-four hours lie/ore the /lay /r time, so to lie. appointed-far fayment- as aforesaul, and do and shall in the meantime until the re-payment of the said principal sum of 1001. at either of the periods aforesaid, well and truly pay or cause to be paid unto the said Thomas Spackman, his executors, administrators, or assigns, interest thereon at the rate of 51. per centum per annum, by equal half-yearly payments, on the 14th of January aud the 14th of July in every year, and also a proportional part of such interest for the fractional period of the half-year (if any 12 C. B. (N.S.)2. Si'ACKMAN V. MILLER 1303 which shall elapse between the last half-yearly day of payment and the expiration of th& notice so to be given by the said Thoinus Spackman, his executors, administrators, or assigns, for the payment of the said principal sum of 1001. as aforesaid, such proportional part to lie paid immediately on the expiration of such notice, and such several payments to be made without any deduction [662] or abatement whatsoever ; and in case the said Charles Whiteman, his executors, administrators, or assigns, shall pay the costs aad expenses of any sale which tho said Thomas Spaokman, his executors, administrators, or assigns, shall or may have begun or made in exercise of the power of sale hereinafter contained,-then and in such case this present indenture, and every power and provision herein contained, shall cease and be void : And tho said Charles Whiteman, for himself, his executors and administrators, doth hereby covenant, promise, and agree to and with the said Thomas Spackman, his executors, administrators, and assigns, that he the said Charles Whiteman, his executors, administrators, or assigns, will, after notice given by the said Thomas Spackman, his executors, administrators, or assigns, according to the terms of the proviso for making void the present indenture hereinbefore contained, well and truly pay or cause to be paid unto the said Thomas Spackman, his executors, administrators, or assigns, the said sum of 1001. and interest thereon at the rate of 51. per centum per annum, and, until such demand shall be made, will pay interest to the said Thomas Spackman, his executors, administrators, or assigns, at the rate of 51. per centum per annum, by equal half-yearly payments, on the 14th of January and 14th of July in every year: Provided also, and it is...
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