Strachan and Others, Assignees of Overbury, a Bankrupt v Barton
| Jurisdiction | England & Wales |
| Judgment Date | 25 January 1856 |
| Date | 25 January 1856 |
| Court | Exchequer |
English Reports Citation: 156 E.R. 990
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C. 25 L. J. Ex. 182; 4 W. R. 292.
990 STRACHAN V. BARTON 11EX.M7. [647] strachan and others, Assignees of Overbury, a Bankrupt v. barton. Jan. 25, 1856.-Payment by a trader, who contemplates bankruptcy, of a debt not then due, upon a bona fide request of the creditor, is not in law a voluntary payment; the fact of the debt not being due is merely a circumstance for the jury in considering the question of fraudulent preference. [S. C. 25 L. J. Ex. 182 - 4 W. R. 292.] Trover for a bill of exchange. Pleas : Not guilty and not possessed ; upon which issues were joined. At the trial, before Wightman, J., at the last Surrey Assizes, it appeared that the plaintiffs were the assignees of one Overbury, a bankrupt, who had carried on the business of a cloth manufacturer at Woolton-under-Edge, in Surrey In November, 1855, the bankrupt was under acceptances to a large amount, which he was unable to meet. The defendant had supplied the bankrupt with goods on credit, and on the 13th of November the defendant came to the bankrupt and asked him for cash on account. The bankrupt told him he had none. The defendant then said that his demands for cash were urgent, and he pressed the bankrupt to give him something he could negotiate for cash. The bankrupt thereupon gave him the bill in question. At that time the credit for the goods had not expired. On the 22nd of December the bankrupt filed a declaration of insolvency, upon which a fiat issued. The learned Judge directed the jury in conformity with the law as laid down in the case of Brown v. Kempson (19 L. J. C P. 169), and his Lordship left it to them to say whether the payment was both voluntary and in contemplation of bankruptcy. The jury found that the bankrupt contemplated bankruptcy, but that he gave the bill in consequence of the urgency of the defendant for payment; and thereupon a verdict was found for the defendant. Bramwell, in the following Term, obtained a rule nisi for a new trial, on the ground of misdirection ; against which [648] Petersdorff now shewed cause. The finding of the jury is conclusive. The fact of the debt not being due is merely an element in the case for the consideration of the jury, and does not, in point of law, render the payment voluntary. The Court then called on Hannen to support the rule. The direction of the learned Judge, which proceeded on the authority of Brown v. Kempson (19 L. J. C P. 169), was incorrect; because in this case the debt was not due at the time the bankrupt gave the hill to the defendant. There is no case which decides that a simple request to pay a debt not then dufi will prevent the payment from being voluntary. It is not...
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