William Smith against Herbert Harris Cannan and Robert Bevan, Assignees of George Garnham, a Bankrupt
| Jurisdiction | England & Wales |
| Judgment Date | 29 April 1853 |
| Date | 29 April 1853 |
| Court | Court of the Queen's Bench |
English Reports Citation: 118 E.R. 682
IN THE EXCHEQUER CHAMBER.
S. C. 22 L. J. Q. B. 290; 17 Jur. 911. See Woodhouse v. Murray, 1867-68, L. R. 2 Q. B. 641; L. R. 4 Q. B. 27. Discussed, Ex parte Foxley, 1868, L. R. 3 Ch. 519; Bew v. Bill, 1868, 16 W. R. 761. Applied, The Heart of Oak, 1869, 39 L. J. Adm. 19; In re Wood, 1872, L. R. 7 Ch. 308. Crawcour v. Salter, 1881, 18 Ch. D. 46. Referred to, Shears v. Goddard, [1896] 1 Q. B. 410.
[35] in the exchequer chamber. (error from the queen's bench.) i(7 willfam smith against herbert harris cannan and robert bevan, Assignees of George Garnham, a Bankrupt. Friday, April 29th, 1853. G., a farmer, conveyed all his farming stock and goods to S. by bill of sale, by way of security for about 9001., with a power of sale. The property comprised in the bill of sale was of about the value of 2,8001. ; and there was a trust for G. of the surplus of the property comprehended in the bill of sale, which was the whole of G.'s property, with the exception of two shares in a joint stock bank, of the value of 171. 10s. each. S. seized and sold enough of the stock to pay the amount secured. G. was declared a bankrupt, as a banker. The bill of sale was bona fide given under pressure ; and the trade of the bank was not affected by giving it. On trover by G.'s assignees against S., issues being joined on pleas of Not guilty and Not possessed, and the Judge at Nisi prius having ruled that these facts were evidence on which the jury might find a verdict for the plaintiff: - Held, by the Exchequer Chamber, on a bill of exceptions, that the necessary consequence of an assignment of what is substantially all the trader's property is to delay his creditors, and that the existence of a resulting trust, and of a substantial surplus, does not prevent its having that effect ; and that a conveyance necessarily delaying a trader's creditors is an act of bankruptcy, though it has not the effect of stopping his trade ; and that a transaction, being itself an act of bankruptcy, is not protected, though made with a party who has no notice of the circumstances making it an act of bankruptcy ; and consequently that the facts in this case were evidence on which the jury might find for the plaintiffs, aud the direction was therefore right. [S. C. 22 L. J. Q. B. 290; 17 Jur. 911. See Woodkmise v. Murray, 1867-68, L. R. 2 Q. B. 641 ; L. R. 4 Q. B. 27. Discussed, Ex parte Foxley, 1868, L. R. 3 Ch. 519 ; Bew v. Bill, 1868, 16 W. R. 761. Applied, The Heart of Oak, 1869, 39 L. J. Adm. 19; In re Wood, 1872, L. R. 7 Ch. 308. Crawcmr v. Halter, 1881, 18 Ch. D. 46. Referred to, Shears v. Goddard, [1896] 1 Q. B. 410.] Trover by defendants in error, plaintiffs below, assignees of Garnham, a bankrupt. There were two counts, one laying the conversion before and the other after the bankruptcy. Pleas : Not guilty ; Not possessed. Issues thereon. At the trial, before Adams Serjt., at the Bury Spring assizes, 1852, the verdict passed for the plaintiffs below, defendants in error, on all the issues, subject to a bill of exceptions. Error was now brought. The bill of exceptions set out the evidence given at the trial, consisting mainly of admissions. The material facts were [36] these. Garnham was a farmer : Smith was bis creditor, to the amount of 2401., and was alao his surety to a bank to the amount of 7001. Garnham, under pressure from Smith, bonfi, fide executed, on 7th February 1851, a bill of sale. By this he conveyed to Smith, by way of security for the debt of 2401., and indemnity against loss on the guarantee for 7001., all his household goods, crops, farming stock and effects then being upon his farm, or which should or might be or be growing thereafter in or upon the same, by way of mortgage ; with a power, on default of payment, and notice given by Smith in writing, for Smith to seize and sell the same, and out of the moneys to pay himself and the debt for which he was surety, pay the expences of sale, &c., and " render to and account for the surplus (if any) of the said money arising from SEL&BL.37. SMITH V. CANNAN 683 such gale or sales aa...
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- William Smith against Herbert Harris Cannan and Robert Bevan, Assignees of George Garnham, a Bankrupt
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