Tappenden, Favene, Miller, Crallan, and Milllson, Assignees of Blinkhorn and Masgrave, Bankrupts, against Burgess
| Jurisdiction | England & Wales |
| Judgment Date | 11 November 1803 |
| Date | 11 November 1803 |
| Court | Court of the King's Bench |
English Reports Citation: 102 E.R. 818
IN THE COURT OF KING'S BENCH.
[230] tappenden, favene, miller, cballan, and millson, Assignees of Blink-horn and Musgrave, Bankrupts, against BuEGESS. Saturday, Nov. llth, 1803. A deed whereby a bankrupt conveys all his property in trust to divide amongst his creditors, is an act of bankruptcy, though the creditors with whom such de.ed was in the first instance concerted, afterwards, and when it was executed, changed their purpose unknown to the bankrupt, and intended to set it up as an act of bankruptcy. And such deed is operative though it contain a proviso to be void if the trustees think fit. And a commission of bankrupt being afterwards sued out thereon upon the petition of a creditor who had not concurred in such fraudulent deed, and who, together with-others who had so concurred, was chosen assignee : Held that it was no objection to an action brought by them as assignees for the recovery of part of the bankrupt's estate, that some of them had concurred in such fraudulent deed set up as the act of bankruptcy; for such estoppel applies not to assignees who are mere trustees for the creditors at large, but only to a petitioning creditor who originates the commission. In assumpsit for money had and received to the use of the plaintiffs as assignees of the bankrupts, the only questions turned upon the validity of the act of bankruptcy, 4 EAST, 231. TAPPENDEN V. BURGESS 819 and the right of the plaintiffs to insist upon it. As to which, the facts appeared to be, that Blinkhorn and Musgrave, traders, finding themselves in failing circumstances, called a meeting of their creditors together on the 1st of February 1802, and laid before them the state of their affairs. Nothing was resolved upon them; but at a subsequent meeting on the 12th of February, at which Tappendetf one of the plaintiffs was not present, it was resolved that Blinkhorn and Musgrave should make an assignment of all their estate and effects to trustees for the benefit of all their creditors; and Tappenden and the other plaintiffs (all of whom except Tappenden were present and concurring) were nominated trustees. Accordingly a trust-deed was prepared, which was dated and executed on the 22d of March by Blinkhorn and Musgrave, and by all the creditors, including the plaintiffs, except Tappenden, who as a creditor was adverse to the1 proposal from the first, and always refused, when applied to, to execute the deed. It appeared however that between the 12th of February and the execution of the deed on the 22d ,of March, the principal creditors who had on the 12th of February pro-[231]-posed the execution of that deed to the insolvent traders, and who then intended that it should have been executed by them as a valid operative deed for the purpose of making an equal distribution of their effects amongst all the creditors, bad changed their purpose (probably upon finding that Tappenden, one of the principal creditors, would not come into the proposal), and had resolved to procure the...
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