Whitmore v Turquand
| Jurisdiction | England & Wales |
| Judgment Date | 06 March 1861 |
| Date | 06 March 1861 |
| Court | High Court of Chancery |
English Reports Citation: 45 E.R. 819
BEFORE THE LORD CHANCELLOR LORD CAMPBELL.
S. C. 1 J. & H. 444; 30 L. J. Ch. 345; 4 L. T. 38; 7 Jur. (N. S.), 377; 9 W. R. 488. See Durant v. Robinson, 1876, 34 L. T. 626; Ex parte Mendelsshon [1903], 1 K. B. 220.
[107] whitmore v. turquand. Before the Lord Chancellor Lord Campbell. March 2, 6, 1861. [S. C. 1J. & H. 444 ; 30 L. J. Ch. 345 ; 4 L. T. 38 ; 7 Jur. (N. S.), 377 ; 9 W. R. 488. See Durant v. Robi-nswi, 1876, 34 L. T. 626 ; Ex parts Mendeisshon [1903], 1 K. B. 220.] Under a composition deed, the benefits of which were in terms limited to creditors who should come in and accede to the deed within a limited time, certain creditors, who neither assented to nor dissented from the deed during such time were, under the circumstances, afterwards admitted to share in the benefit of the composition together with those who had acceded before the expiration of the stipulated tinle. Although the deed contained no release or stipulation that the dividend was to be taken in full satisfaction of the debts : Held, that satisfaction ought to be inferred as the deed constituted a cessio bonarum. This was an appeal from the decision of Vice-Chancellor Wood, reported in Messrs. Johnson and Hemming's Reports (vol. 1, p. 444). The principal question argued upon the original hearing and upon the appeal was, whether, under a composition deed, the benefits of which were in terms limited to creditors who should execute or accede to the deed within a limited time, certain creditors who neither assented to, nor dissented from, the deed during such tirjie, could afterwards be admitted to share in the benefits of the composition, together with those who acceded before the stipulated time. : Besides this question of law, there was also an issue of fact, whether the Plaintiffs did or did not in fact accede within the limited time. The bill was filed by the trustees of an assurance company, who were mortgage creditors of John Lawford and Edward Lawford on behalf of themselves and all the other creditors. On the 15th November 1854 the two debtors, John and Edward Lawford, being in a hopeless state of insolvency, and on the eve of leaving the country, executed two deeds, similar in form, by which they respectively assigned all their property to the Defendant Turquand, upon trust for such of their creditors as should execute or accede to the deeds respectively within three calendar months. Iti those deeds the [108] creditors who should execute were made the parties of the second part, but it did not appear that any creditor had executed either of the deeds. Several creditors, however, distinctly acceded to them within three months. Neither of the indentures contained any release, letter of licence or covenant not to sue. The bill prayed for the execution of the trusts of the deed. The nature of the evidence upon the issue of fact sufficiently appears from the judgment appealed from. The principal arguments of counsel are considered in the judgments of the Vice- Chancellor and of his Lordship. ', The following authorities were referred to : - Dunch v. Kent (1 Vern. 260) ; Spottiswoode y. Stockdale (G. Coop. 102) ; Garrard v. Lord Lauderdale (3 Sim. 1 ; 2 Rusa. & Myl. 451) ; Walwyn v. Coutes (3 Mer. 707) ; Field v. Lard Donoughmore (1 Dr. & War. 227) Lane v. Husband (14 Sim. 656) ; Collins v. Reece (1 Coll. 675) ; 820 WHITMOEE V. TURQUAND 3 DE Q. F. 4 J. 109. Johnson v. Kershaw (1 De G. & Sm. 260); Broadbent v. Thornton (4 De G. & Sm. 65); Nicholson v. Tutin (2 Kay & J. 18); Raworth v. Parker (2 Kay & J. 163); Forbes v. Limond (4 De G. M. & G. 298); Biron v. Mount (24 Beav. 642); Davis v. AzWtwe (2 Euss. & Myl. 76). Sir H. Cairns and Mr. Dauney, for the Plaintiffs. Mr. Bolt and Mr. C. Hall, for Defendant Turquand. [109] Mr. W. M. James and Mr. Batten, for the other Defendants, the Appellants. Sir H. Cairns replied. Judgment reserved. March 6. the lokd chancellor. I agree with the opinion of Vice-Chancellor Page Wood on both the questions raised by this appeal. In the first place, I think he was quite right in holding that the Plaintiffs had not acceded to the composition deed within three calendar months after the date thereoi. They had not executed it, nor in any respect acted under it. Sir Hugh Cairns admitted, that to constitute "accession to the deed," there must be some overt act done by the creditor within the specified period, denoting that he was willing and intended to come in under the deed. The learned counsel relied on the signing of the letter of licence by the Plaintiffs. But this document made no allusion to the deed, and it was signed with a view of obtaining information as to the state of John Lawford's affairs, not for the purpose of carrying out the proposal contained in the deed, but to enable the creditors to judge whether it would be prudent to accept the terms of the deed or to make him a bankrupt. After carefully reading the minutes of the meetings held respecting the letter of licence, the correspondence on the subject, and the affidavits detailing the transaction, I come to the conclusion that the signing of the letter of licence was no accession to the deed. It is quite clear that after the letter of licence had [110] been signed, the rights of the Plaintiffs as creditors of John Lawford were in no respect altered. They were still at liberty to take any steps which it was before competent to them to take for the purpose of obtaining payment of the debt due to them from him, and they had acquired no interest under the composition deed. When, aft&r the lapse of some years, they did accede to the composition deed, their rights were the same under it as if the letter of licence never had existed. But when we come to the second question to be decided, considering that the Plaintiffs had done nothing to repudiate the composition deed; that the debtor remained in the same situation as when the composition deed was executed; that there had been no dividend under it, and that no rights or liabilities were affected by the delay, I am of opinion that the Plaintiffs were still entitled to accede to the deed, and to claim the benefit of it. Since the case of Dunch v. Kent (1 Vern. 2GO), the doctrine of this Court has been that the time limited by such a deed for the creditors to come in is not of the essence of the deed. Although this deed contains no release nor declaration that the dividend is to be taken in full satisfaction of the debt, the arrangement is in the nature of a cessia bonorum under the Roman civil law; and I think that when the dividend has been received, satisfaction is to be inferred. The insolvent cedes for the benefit of his creditors all that he has in the world " with the exception of the wearing apparel of himself arid his wife." The counsel at the Bar admitted that it would be rather foolish for a [111] creditor, after having executed the composition deed, and after the debtor had acted fairly under it, to sue out a fieri facias, there being no goods on which it could operate, and that it would be rather harsh to proceed by capias ad satisfaciendum to imprison the debtor when imprisonment could not by possibility lead to the disclosure of any property, but they argued that it would be in the power of the creditor to do so. I am, however, of opinion that if the debtor acted honestly under the composition deed, and retained nothing that he could call his own beside the clothes worn by himself and his wife, the law would interpose to protect him from the supposed wanton oppression. By the express terms of this deed, it is declared that the arrangement stall be conducted on the principles of the bankrupt law. It contains a proviso " that the trust-monies applicable to the payment of...
To continue reading
Request your trial
-
Ex parte Charles Morgan, Francis Bryant Adams, Francis Bryant Adams the Younger, and Charles Morgan the Younger
...Broadbent v. Thornton (4 De G. & Sm. 65); Nicholson v. Tutin (2 K. & J. 18); Rawort/t v. Parker (Ibid. 163). And in Whitmare v. Turquand (1 J. & H. 444 ; 3 De G. F. & J. 107) it was held, that a trust so framed was a trust for all the creditors of the debtors. Harris v. Pettitt (31 L. J. N.......
-
Ex parte Jones Spyer
...and even where a time is fixed for the execution of the deed, a creditor is not excluded who comes in afterwards; Whitmore v. Turquand (1 J. & H. 444 ; 3 De G. F. & J. 107). As no creditor is excluded, the deed is within the terms of the 192d section; and any of this debtor's creditors coul......
-
Dunch v Kent and Al'
...[See Baworth v. Parker, 1855, 2 K. & J. 169; Whitmore v. Turquand, 1860, 30 L. J. Ch. 345,-7 Jur. N. S. 377-4 L. T. 38,-9 W. E. 488-3 De G. F. & J. 107; Durant v. Robinson, sub nom. Dunch v. Keats, 1876, 34 L. T. 626.] Eodem die. In Court, Lord Keeper. [1] Eq. Ca. Ab. 147, pi. 12 ; post, 31......