O'Connor, Assignee of Christopher Wilson and George Beere v John Harris and Others

• Jurisdiction: Ireland
• Judgment Date: 23 January 1846
• Date: 23 January 1846
• Court: Queen's Bench Division (Ireland)

Queen's Bench.

O'CONNOR, Assignee of CHRISTOPHER WILSON and GEORGE BEERE

and

JOHN HARRIS and others.

Ex parte Botten 1 Mont. & Bligh, 412.

Ex parte Smith 3 M. D. & De. Gex. 341.

Buckland v. NewsomeENR 1 Taunt. 476.

Ex parte Peels Buck. B. C. 457.

Teed v. ElworthyENR 14 East, 210.

Goode v. HarrisonENR 5 B. & Al. 147.

Ex parte StyanENR 1 Phil. 105.

Pariente v. PennellENR 2 M. & Rob. 517.

Lackington v. ElliottUNK 8 Scott, N. R. 275.

Wright v. Fearnley 6 Scott, 813.

England v. DownsENR 6 Beav. 269.

Doe v. Mitchell 2 Mau. & Sel. 446.

Glaister v. HewerUNK 7 Term Rep. 498.

Medlicott's case 2 Stra. 899.

Ryall v. RowlesENRENR 1 Ves. sen. 348; S. C. 1 Atk. 165.

Horn v. BakerENR 9 East, 215.

Clark v. CrownshawENR 3 B. & Ad. 804.

Hickenbotham v. GrovesENR 2 c. & P. 493.

Lingham v. BiggsENR 1 Bos. & P. 82.

Belcher v. MagnayENR 1 D. & Low. 442; S. C. 12 M. & W. 111.

Pearson v. Graham 6 A. & E. 899.

Elkin v. JansonENR 13 M. & W. 655.

Martindale v. BoothENR 3 B. & Ad. 498.

Darley v. SmithENR 1 Br. & B. 272.

Bevan v. Nunn 2 Moor. & Scott, 134.

Carke v. Crownshaw; Soames v. WattsENR 1 C. & P. 400.

Lyon v. WeldonENR 3 Bing. 334.

Trimblestown v. Kemmis 1 J. & Sy. 609.

Pariente v. PennellENR 2 M. & Rob. 517.

O'CONNOR, Assignee of CHRISTOPHER WILSON and GEORGE BEERE, v. JOHN HARRIS and others. (Queen's Bench.) TnovEn, tried before CRAMPTON, J., at the After-sittings of Hilary Term 1845. The case came before the Court on bill of exceptions. The action was brought by Valentine O'Connor, as assignee of Christopher Wilson and George Beere, bankrupts, against John Harris and two other defendants, to recover certain articles of furniture and some wines alleged to be the property of the bankÂÂrupts. The declaration contained three counts. The first count was for goods of the bankrupts before they had become bankrupts, taken and converted by the defendants ; the second count was for goods of the bankrupts taken by the defendants, and converted since the bankÂÂruptcy ; and the third count was for goods of the assignee, taken and converted. Plea-the general issue. It appeared that the bankrupts had traded and carried on the business of hotel-keepers in a house called Gresham's Hotel in the city of Dublin, before and in the year 1841. In January 1836, Gresham, the then proprietor of the hotel, had agreed to sell his interest in the hotel, and the furniture and wines therein, to Wilson, for a sum of 130,000-10,000 to be paid in cash, and the remainÂÂing 20,000 to be a lien on the premises, and to be secured by Wilson's bond, and a re-assignment by way of mortgage of the hotel and furniture. For these considerations Gresham conveyed the hotel and furniture, by deed dated the 2nd of June 1836, to Wilson, who, by deed of the same date, assigned over to Gresham the house and furniÂÂture by way of mortgage, with a clause of redemption on the payment of the 20,000, and interest half-yearly ; and in case of default made for twenty-one days in the payment of interest, Gresham was to enter and sell the house and furniture, Wilson to remain in possession until default. Wilson entered into partnership with Beere and continued in possession. Gresham had been paid off all but 10,000, and he in the year 1840, with the assent of the bankrupts, assigned his interest to the defendants, subject to redemption by the bankrupts. It also appeared that the bankrupts were indebted to the plaintiff (the firm of O'Connor and Co.) in various sums (the shares of the profits of this Company were entered in their books to the credit of plaintiff's nephews, who were infants), for wines from June 1841, until September following, and on plaintiff's own draft on the bankÂÂrupts for 161 for value received in wines, payable to his own order at two months after date, drawn 15th July 1841, endorsed by the plaintiff, and accepted by the defendants, and also on bills unpaid, one of which was for 161. 10s., dated 20th September 1841. It further appeared that the bankrupts committed an act of bankruptcy on the 4th of September 1841, and that they were at that time in possession and occupation of the hotel and furniture as apparent owners thereof ; that on the 27th September one-half year's interest on the mortgage, due on 16th June, being in arrear, the defendants on that day took possession of the hotel and property therein, and on the 28th had an inventory made of the property and furniture, and had all placed in the hands of an auctioneer for sale.. That on the 27th September an officer of the Borough Court seized the goods in the hotel (then in possession of an agent of the defendants) under an attachment at the suit of one Henry Anderson. That a commission of bankruptcy had issued on the 1st of April 1842, upon a supposed act of bankruptcy, in March 1842, on petition of the plaintiff, on which Wilson and Beere were adjudged bankrupts on the 4th of April, and plaintiff was certified the assignee on the 20th of April. In the deed of 2nd June 1836, executed by Gresham to Wilson, amid other articles recited as agreed to be sold, were, " the stock or cellar of wines, liqueures and spirits," &c. ; and in the testatum part thereof they were again referred to as "wines, liqueures, spirits, and "other articles, all which are particularly specified in a schedule to " the said indented deed of mortgage annexed," &c. The wines were not specified in this schedule. By a deed of the 16th June 1840, between Gresham of the first part, Wilson of the second part, Beere of the third part, and the defendants of the fourth part, reciting the dealing between Gresham and Wilson, the partnership between Wilson and Beere, that 10,000 remained due to Gresham, which the defendants agreed to advance at the request of Wilson and Beere, and that thereby Gresham assigned to the defendants, as did Wilson and Beere, the hotel, also H. T. 1846. the stock, furniture and effects therein, in a schedule annexed, sub- Queen'sBench. ject to redemption by Wilson and Beere on payment of 10,000, with O'CONNOR interest at 6 per cent., on the 16th day of June 1845, it was provided that, so long as said interest on 10,000 should be regularly paid HARRIS. within thirty days from the 16th day of December and 16th day of June half-yearly, defendants would not require payment of the prinÂÂcipal without giving six months' notice ; but if interest was in default for forty days after either day of payment, the defendants might sell and dispose by auction of the hotel and of the furniture and effects, to defray expenses and satisfy the 10,000 and arrears, and pay the surplus to Wilson and Beere, and till default in payment of principal or interest, Wilson and Beere might remain in possession of the hotel, furniture and effects. The wines were not specified in the schedule to this deed either. The defendants, having closed their case, called on the learned , Judge to give certain directions to the jury. First, that there was no sufficient evidence of a petitioning creditor's debt to support the commission ; second, that at the time of the alleged bankruptcy the debt claimed to be due from the bankrupts to the plaintiff, was due to him and other persons as his partners ; third, that on the 27th of September 1841, the defendants were entitled to take possession of all the goods and chattels, of which they did take possession ; and that the commission of bankruptcy not having issued within two calendar months after the 27th September 1841, the plaintiff was not entitled to recover ; fourth, that, supposing the defendants were not entitled to all the goods, yet they were entitled to such as were, assigned by the deed of 2nd June 1836 ; fifth, that if not entitled to all, they were entitled to those that passed by the mortgage of 2nd June 1836 ; sixth, that they were entitled to those specified in the schedule of that mortgage ; seventh, that if not entitled to all, they were entitled to the wines, spirits, &c., which were in Gresham's hotel on the 27th of September 1841 ; eighth, that they were entitled to them by the deed of 16th June 1840 ; ninth, that they were entitled to those mentioned in the schedule to that deed ; tenth, that they were entitled to the wines, spirits, &c., in the hotel on the 16th June 1840 ; eleventh, that they were entitled to such furniture as was brought into the hotel by the bankrupts between the 16th June 1840, and 27th September 1841. The learned Judge refused to give such directions, and told the jury to find for plaintiff for the value of all goods, &c., as well those comprised in the several indentures and the schedules thereto, as those which were not so comprised ; and the H. T. 1846. jury accordingly found for the plaintiff. Thereupon the defendants Queen'sBench. excepted, and the bill of exceptions being set down for argument O'CONNOR Christian, with whom was Radcliff e, for the exceptions. The first exception arises on the evidence given by the plaintiff, namely, that there was not sufficient evidence of a petitioning creditor's debt, the demand being on foot of a bill of exchange drawn and accepted prior to the act of bankruptcy, but not due until after such act of bankruptcy : Ex parte Botten (a); there the bankrupt had given the petitioning creditor his acceptance for goods, which the petitioning creditor had indorsed and negotiated, and which was At the time the fiat issued in the hands of the indorsee and not due ; and it was held the debt was clearly insufficient to support a commission : Ex parte Smith (b). PERRIN, J.-The evidence not having been objected to, you cannot go into this matter on the exception. The next exception is, that the debt due to the plaintiff was due to him as a partner with others, and, therefore, that he alone could not sue out a commission on this debt : Buckland v. Newsome (c); Ex parte Peele (d); Teed v. Elworthy (e); Goode v. Harrison (f). The third exception, however, raises the question as to the plaintiff being at all...