Wishart and Another v Fowler
| Jurisdiction | England & Wales |
| Judgment Date | 12 January 1864 |
| Date | 12 January 1864 |
| Court | Court of the Queen's Bench |
English Reports Citation: 122 E.R. 613
IN THE COURT OF QUEEN'S BENCH AND THE EXCHEQUER CHAMBER
4B.*S.74. WISH A KT I'. FOWLER 613 [674] cases argued and determined in the queen's bench, in hilary term, XXVII. victoria. The Judges who usually sat in Bane in this Term were: Cockburn C.J., Cromp-ton J., Blackburn J., Mellor J. wishaet and another against fowler. Tuesday, January I2tb, 1864.-Bankruptcy Act, 1861, 24 & 25 Viet. c. 134, s. 194. Deed of assignment. Registration.-The Bankruptcy Act, 1861, 24 & 25 Viet. c. 134, s. 194, enacts that every deed by which a debtor, not being a bankrupt, makes any arrangement with his creditors for the distribution &c. of his estate, " shall, within twenty-eight days from and after the execution thereof by such debtor, or within such further time as the Court in London shall allow, be registered in the Court of Bankruptcy; and in default thereof shall not be received in evidence." Held, that the Court of Bankruptcy has power to allow further time for registration after the twenty-eight days have elapsed; and that a deed so registered is admissible in evidence. Interpleader issue to try whether certain goods seized by the sheriff of London on the 27th January, 1863, under a writ of fieri facias, at the suit, of the plaintiff's against one Samuel Griffiths, were at the time [675] of the seizure the property of the plaintiffs aa against the defendant, On the trial, before Wightman J., at the London Sittings, in Easter Term, 1863, it appeared that the plaintiffs claimed under a deed of arrangement, dated the 26th January, 1863, and made between Samuel Griffiths, the debtor, of the first part, Frederick Augustus Wishart and James Jonathan Griffiths, trustees, of the second part, and the several other creditors of the debtor of the third part: by which the debtor assigned all his stock in trade, furniture and other personal estate to F. A. Wishart and J, J. Griffiths, trustees, upon trust for the benefit of his creditors. The deed was executed by the debtor on the 26th January, and by the plaintiffs, as trustees, on the 27th ; but the assent and approval of the deed by a majority in number representing three-fourths in value of the creditors of the defendant whose debts respectively amounted to 101., was not obtained until the 23rd February, the last of the twenty-eight days within which the deed ought to have been registered pursuant to sects. 192 and 194 of The Bankruptcy Act, 1861, 24 & 25 Viet. o. 134. An application was made on that clay to Commissioner Goulburn that the Chief Registrar should be at liberty to register the deed upon the verification thereof by affidavit, without requiring the account of the debts to be verified by the oath of the debtor himself, on the ground that he had absconded shortly after the execution of the deed, and that his place of abode was unknown. This application was refused, as well as another made at the same time to enlarge the time for registering the deed. On the 25th another application to enlarge the time was made to Commissioner Holroyd, on which it was ordered, " That the said Frederick Augustus Wishart and James Jonathan [676] Griffiths shall be allowed further time until the 2nd March next inclusive for the registration of the deed of assignment, so that it may be receivable in evidence under the 194th section of the said Act; but this order is in no way to interfere with the 4th condition of the 192d section of the Act." The deed was accordingly registered on the 2nd March, 1863. There was also an affidavit in the Court of Bankruptcy that the value of the property, credits, estate and effects mentioned in the deed did not exceed 3001. It was objected for the defendant that the deed, not having been duly registered, was inadmissible in evidence; and thereupon a verdict was entered for the defendant, leave being reserved to move to enter a verdict for the plaintiffs if the Court should be of opinion that the deed was properly receivable in evidence. In the same Term, Sir G. Honyman obtained a rule accordingly, citing Lord Ward v. Lumley (5 H. & N. 656). Barnard and Ernest Reed shewed cause.-The Bankruptcy Act, 1861, 24 & 25 Viet. c. 134, s. 194, enacts that "every deed, instrument or agreement whatsoever, by which a debtor, not being a bankrupt, conveys or covenants or agrees to convey his estate and effects, or the principal part thereof, for the benefit of hia creditors, or makes any arrangement or agreement with his creditors, or any person on their bebalf, for the 614 WISH ART V. FOWLER 4 B. * 8. 7T. distribution, inspection, conduct, management, or...
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