Wainwright and Another, Assignees of Edward Shakell, an Insolvent, v Clement and Another
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1838 |
| Date | 01 January 1838 |
| Court | Exchequer |
English Reports Citation: 150 E.R. 1478
EXCH. OF PLEAS.
S. C. 1 H. & H. 395; 8 L. J. Ex. 25.
[385] wainwright and another, Assignees of Edward Shakell, an Insolvent, v. clement and another. Exch. of Pleas. 1838.-Where a person in insolvent circumstances, being pressed by particular creditors, employed an attorney to endeavour to effect an arrangement with all his creditors, but that failing, the attorney advised that his goods should be sold by auction, and that he should go through the Insolvent Debtors' Court, in order that his effects might be rateably divided amongst his creditors ; and the goods were sold accordingly, and the proceeds were, with the insolvent's assent, paid over by the auctioneer to the attorney, who (after making several payments to and on account of the insolvent) retained against the assignees the whole amount of his bill for the business done for the insolvent:-Held, that this was not a voluntary transfer or delivery of that sum by the insolvent to the attorney within the 7 (jr. 4, c. 57, s. 32, there being do proof that it was intended that he should hold the proceeds for his own benefit, cjr for the benefit of any particular creditors, or otherwise than as the agent of the insolvent. 1 [S. C. 1 H. & H. 395; 8 L. J. Ex. 25.] Assumpsit for money had and received to the use of the plaintiffs as assignees, and on an account stated between them. Pleas, 1st, non asaumpserunt; 2ndly, as to the sum of ;3781. 3s. 6d., parcel of the monies in the first count mentioned, payment of that sum to the provisional assignee of the Insolvent Debtors' Court; 3rdly, as to the sum of 841. 19s. lid., further parcel of the monies in the first count mentioned, actioneni non, because the defendants say that that sum was a sum of money belonging to the said Edward Shakell, and being and remaining in the hands of the defendants at the time when he subscribed his petition and executed the assignment of his estate and effects as such insolvent debtor as aforesaid, and now remaining in the hands of the defendants; and that the said Edward Shakell, before and at the time when he so *M.&W.3ffl. WATNWRIGHT V. CLEMENT 1479 subscribed his petition and executed such assignment as aforesaid, was indebted to the defendants in a large sum of money, to wit, 1001., for work and labour then done, and materials for the same provided by the defendants as the attorneys, solicitors, and agents of and for the said Edward Shakell, and on his retainer, and for journeys and other attendances made and given by the defendants for the said Edward Shakell, at his request, &c. &c. [proceeding in the ordinary form of a plea of set-off]. Fourth plea, as to the same sum of 841. 19s. lid., that, long before and at the time of the defendants' receiving the said sum of money, they had been and were the attorneys and solicitors of and for the said Edward Shakell, and that the said Edward Shakell, before and at the several times [386] when they the defendants received the said sum of money, and when he the said Edward Shakell subscribed his petition and executed the assignment of his estate arid effects as aforesaid, was indebted to the defendants as his attorneys and solicitors aforesaid, in a large sum of money, to wit, 1001., for and on account of work and labour done, &c. &c. [as in the third plea]; and the defendants further say, that the said sum of money, parcel &c., was and is a sum of money received by the defendants, as such attorneys and solicitors of and for the siid Edward Shakell, before he subscribed his petition &c., in the way of the profession and business of the defendants as such attorneys and solicitors, and not otherwise ; and that the said last-mentioned sum of money remained, and was and still ia, in the hands of the defendants, as such attornies and solicitors of and for the said Edward Shakell as aforesaid; wherefore the defendants, as such attorneys and solicitors, still detaia the same as a lien and security for the said sum of money so due and owing to them from the said Edward Shakell as aforesaid, which still remains due and in arrear to the defendants. Verification. The plaintiff, as to the 3781. 3s. 6cl. mentioned in the second plea, entered a nolle prosequi; and to the third and fourth pleas, replied that the 841. 19s. lid. came to the hands oi the defendants by means of a voluntary transfer and delivery thereof by the said Edward Shakell theretofore, and, within three months next before the commencement of his imprisonment, he the said Edward Shakell being then in insolvent circumstances, made to the defendants, they the defendants then being creditors of the said Edward Shakell, and with the view and intention by the said Edward Shakell Ç(f petitioning the Court for the relief of Insolvent Debtors in England for bis discharge from custody, according to the statute; whereby and by reason of the ajforesaid premises, and of the statute in that case made and provided, the said transfer aind deliver^ [387] became void as against the plaintiffs as assignees. Verification. I The rejoinder denied the allegation of the replication in its terms : and thereupon ipsue was joined. i At the trial before Gurney, B., at the Middlesex sittings after last term,, the plaintiffs, in order to prove their case, put in the general bill of costs delivered by the defendants, Messrs. Clement and Newman, who were attorneys at Southampton, to Shakell, who had carried on business as an upholsterer there; and which was the Subject of their set-off. It commenced on the 14th of March, 1837, and the first two items were as follows :- : "Attending you, when you informed us that you had been much pressed by your Creditors ; that you had been arrested on the preceding day, and had two other actions at the suit of Messrs. Nutt & Co. and Messrs. Stedman & Co., pending against you, $nd that you had five actions brought against...
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