Stanger v Wilkins
| Jurisdiction | England & Wales |
| Judgment Date | 13 January 1855 |
| Date | 13 January 1855 |
| Court | High Court of Chancery |
English Reports Citation: 52 E.R. 493
ROLLS COURT
[626] stanger v. wilkinh. Nov. 20, 21, 22, 1854; Jan. 13, 1855. Security given by a trader to a bond fide creditor on a bond fide, pressure, set aside under the Bankrupt Act, the trader being either insolvent or in such circumstances that the enforcement of the security would render him insolvent, and both parties having actual or constructive notice of the state of his circumstances. A., a trader, being indebted to B., another trader, assigned to him certain property to secure it. A. was either actually insolvent at the time or in such circumstances 494 STANGEE V. WILK.1NS 1 BEAV. 827. that enforcement of the provisions of the deed would have stopped the business; and both A. and B. knew that it was only by preserving the goodwill and by careful management that A. could hope to pay his debts, for which time atd the forbearance of B. were necessary. A., and probably B. also, knew that the former was insolvent. B.'s debt, however, was bond fide, and the security was executed under bond fide pressure, and contemplated the continuance of the business by A. and his ultimate extrication from his difficulties by the aid of B. Held, that the assignment came within the words of the 12 & 13 Viet. c. 106, s. 67, and could not be supported against the claims of the assignees of A., who, soon after the assignment, had become bankrupt; but it was set aside, without costs against B. This was a suit by the assignees of Benjamin Redhead "\Vaite, a bankrupt, to set aside an assignment by him of certain property to the Defendant, John Samuel Wilkins, as being within the provisions of the 12 & 13 Viet. c. 106, a fraudulent preference of the Defendant, executed with intent to delay or defeat his other creditors. Waite carried on trade as a butcher in Wormwood Street, in the City of London, and in the course of his business had become indebted to the Defendant, a wholesale butcher or meat salesman, in certain sums of money, which, in the end of the month of February 1854, [627] amounted to .£1034, 2s. 6d., according to the Defendant's account. The Defendant having pressed Waite for payment of the debt, and Waite being in embarrassed circumstances and unable to satisfy it, he proposed to give the Defendant security, and, accordingly, an agreement in writing was come to between them by which Waite, having deposited the lease of his premises in Wormwood Street, agreed that it was so deposited to secure the .£1034, 2s. 6d., and that he would assign all the fixtures, goods and utensils belonging to him, whether in his house or outhouses, and the lease of the house and the goodwill of the business, to Wilkins, as a security for the sum due to him. On the 14th of March the lease and all the fixtures, furniture, utensila and other matters used for his trade, and the goodwill were assigned to the Defendant, to secure the .£1034, 2s. 6d., then due, or what might thereafter become due to him on the balance of the account between them. At this time the property of Mr. Waite consisted of the following particulars:-First, the lease for twenty-one years, of which nearly sixteen years were unexpired, subject to a rent of .£50 per annum, the value of which was estimated by some witnesses at £500 and by others at .£700. Secondly, the goods and furtiiture, estimated by one witness at £478, but which actually sold at a forced sale under the bankruptcy for £312, Is. lOd. Thirdly, the lease of stables and outhouses in Helmet Court, used by Waite for the purposes of his trade, and which were valued at £300. Fourthly, certain book debts, amounting to £280, 5s. 4d.; and lastly, a balance of £18 at his bankers. The premises in Helmet Court, the book debts and the balance at the bankers, were not included in the assignment; but, shortly after the assignment, Waite [628] deposited the lease of the premises in Helmet Court, to secure the amount due. He, therefore, had no property untouched, except the book debts and a balance at the bankers, scarcely more than nominal. This indenture of assignment was not prepared by the regular solicitor of either party but in the office of a firm of solicitors then employed for the first time. The liabilities of Waite at that time to other creditors, independently of the debt to the Defendant, amounted to £666, 10s. 4d. The amount due to the...
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