Gass, A Bankrupt

• Jurisdiction: Ireland
• Judgment Date: 27 January 1868
• Date: 27 January 1868
• Court: Court of Appeal in Chancery (Ireland)

Ch. App.

IN THE MATTER OF GASS, A BANKRUPT.

Lindon v. SharpUNK 7 Scott, N. R. 730.

Young v. WaudENR 8 Ex. 221.

Graham v. ChapmanENR 12 C. B. 85.

Smith v. CannanENR 2 E. & B. 35.

Worsley v. De Mattos 1 Bur. 467.

Stanger v. WilkinsENR 19 Beav. 626.

Johnson v. FesenmeyerENR 25 Beav. 88.

Smith v. CannanENR 2 E. & B. 35.

Ex parte Bailey 1 D.M. & G. Bank. App. 302.

Ex parte Bland 1 D. M. & G. Bank. App. 557.

Ex parte sparrow 2 D. M. G. 201.

Smith v. TimmsENR 1 h. & C. 849.

Pennell v. ReynoldsENR 11 C. B. N. S. 709.

Goodricke v. TaylorENR 2 De G. J. & S. 135.

Young v. FletcherENR 3 H. & C. 732.

Bills v. SmithENR 6 B. & S. 314, 319.

Brown v. KemptonUNK 19 L. J. C. P. 169.

Strachan v. BartonENR 11 Ex. 647.

Van Castell v. BookerENR 2 Ex. 691.

Morgan v. BrundrettENR 5 B. & Ad. 289.

Belcher v. PrittieENR 10 Bing. 408.

Atkinson v. BrindallENR 2 Sc. 369.

Gibson v. Muskett 4 M. & Gr. 160.

Ex parte Simpson 1 De G. (Bank.) 9.

Hutton v. CruttwellENR 1 E. & B. 15.

Mather v. FraserENR 2 K. & J. 536.

Fisher v. Dixon 12 Cl. & F. 312.

Hellawell v. EastwoodENR 6 Ex. 295; overruled, Archbold, i., 446, note.

Metropolitan Counties Insurance Society v. BrownENR 26 Beav. 454.

Oriental Bank v. ColemanENR 3 Giff. 11.

Lindon v. SharpUNK 7 Scott, N. R. 730.

Worsley v. De Mattos 1 Bur. 467.

Smith v. CannanENR 2 E. & B. 35.

Stanger v. WilkinsENR 19 Beav. 626.

Ex parte Simpson 1 De G. (Bank.) 9.

Leake v. YoungENR 5 E. & B. 955.

Ex parte WensleyENR 1 De G. J. & S. 273, p. 281.

Roylance v. LightfootENR 8 M. & W. 553.

Holroyd v. WhiteheadENR 3 Camp. 530.

Graham v. ChapmanENR 12 C. B. 85.

Gibson v. Boutts 3 Scott, 229.

Morgan v. BrundrettENR 5 B. & Ad. 289.

Atkinson v. BrindallENR 2 Sc. 369.

Gibson v. BouttsENR 3 Sc. 229.

Bills v. SmithENR 6 B. & S. 314.

Strachan v. BartonENR 11 Ex. 647, 650.

Brown v. KemptonUNK 19 L. J. C. P. 169.

Van Castell v. BookerENR 2 Ex. 691.

Baxter v. Pritchard 1 A. & E. 456.

Rose v. Haycock 1 A. & E. 460, note.

Graham v. ChapmanENR 12 C. B. 85.

Doe d. Spearing v. BucknerENR 6 T. R. 610.

Trappes v. HarterENR 2 Cr. & M. 153.

Spackman v. MillerENR 12 C. B. N. S. 659.

Shrubsole v. Sussams 16 C. B. N. S.

Bittlestone v. CookeENR 6 E. & B. 296.

Leake v. YoungENR 5 E. & B. 955.

Johnson v. FesenmeyerENR 25 Beav. 88.

Bittlestone v. CookeENR 6 E. & B. 296.

Carr v. BurdissENR 1 Cr. M. & R. 443.

Young v. WaudENR 8 Ex. 221.

Graham v. ChapmanENR 12 C. B. 85.

Hutton v. CruttwellENR 1 E. & B. 15.

Pennell v. ReynoldsENR 11 C. B. N. S. 709.

Bankruptcy — Fraudulent Preference — Assignment — Colourable Exception.

284 THE IRISH REPORTS. L. E. Court. I think a purchaser is entitled to get reasonable proof of facts 1868. stated on the rental, but here the purchaser has that in his own statement. Still, in my mind, the onus of the proof does not now In re WOLFE'S lie on the purchaser, for, I think, without arriving at any conclusion ESTATE. from the affidavits, that enough appears to throw the onus on the Petitioner to prove this fact against the purchaser. I will, thereÂÂfore, give the parties the opportunity of fully investigating this question, and if the Petitioner accepts it, I will direct an issue to try the question whether there is issue now living of the marriage of William Standish Wolfe with Frances Jackson. Or, if the parties both desire that (to save expense) the matter should be investigated here before me without a jury, I will do so, but I would greatly prefer that an issue should be taken, as I think it would in the end be more satisfactory to all parties. Ch. App. 1867. Dec. 10, 11, 12. 1868. Jan. 27. IN THE MATTER OF GA SS, A BANKRUPT. Bankruptcy-Fraudulent Preference-Assignment-Colourable Exception. Whether an assignment by a trader amounts to an assignment of all his property, with a colourable exception, and is made with a view to defeat and delay creditors, is a question depending altogether upon the circumstances of the case. Held, in the present case, under all the circumstances, and upon the conÂÂstruction of the deed, that an assignment by a trader was good against his assignees in bankruptcy. THIS was an appeal from a decision of Miller, J., holding that the deed hereafter mentioned was void as against the assignees in bankruptcy. The facts of the case were as follows : The bankrupt was a flax spinner and linen manufacturer, carÂÂrying on his business near Armagh. For the purposes of his busiÂÂness he had purchased certain premises, which he held under fee EQUITY SERIES. farm grants, and on which he had erected large quantities of maÂÂchinery. Previously to any of the transactions after mentioned he had deposited the title deeds of these premises with the Northern Banking Company, to secure future advances to the amount of £2000. Mr. Orr, the Appellant, was a linen manufacturer, with whom the bankrupt had large dealings in the way of his trade, on foot of which the bankrupt, previous to the month of February, 1867, was indebted in a sum of £3317 1 1 s. 6d. In the month of February, 1867, the bankrupt found it necesÂÂsary to call a meeting of his creditors ; and accordingly, on the 27th of February, 1868, that meeting was held. The Appellant did not attend it. At the meeting the bankrupt proposed a composiÂÂtion of fifteen shillings in the pound, payable by instalments at six, twelve, and eighteen months, which offer was accepted by a majority of the creditors. On the 28th of February, 1867, a deed was executed by the bankrupt, Mr. Gass, which purported to be made between the Appellant, Mr. Orr, and the other creditors, and the bankrupt ; and which witnessed that the parties whose names were subscribed to the deed agreed to accept the composition in disÂÂcharge of the debt due to them, and that upon payment thereof the said parties would release Mr. Gass ; and by the deed Mr. Gass purported to covenant to pay the composition. The AppelÂÂlant never executed or assented to this deed, and was never asked to execute it. His impression was, that Gass's estate was suffiÂÂcient to pay off all his liabilities ; he was of opinion that it should be sold for that purpose ; and he always declined to entertain the proposition for a composition, and openly expressed his dissent from and disapproval of it. Subsequently to the execution of the composition deed, the Northern Bank refused to discount Gass's bills ; and three of the creditors, who had agreed as to the amount of composition, deÂÂclined to execute the deed without getting security for the third instalment of the composition. Thereupon Mr. Gass frequently applied to Mr. Orr to discount his bills for him, and to become seÂÂcurity for him to the creditors who required security ; and he proÂÂposed to indemnify Mr. Orr, and secure the payment of all the debt due to him, and any further advances, or any loss he might 286 THE IRISH REPORTS. Ch. App. come to, by a mortgage of his property. Mr. Orr at first refused 1867-8. to entertain the proposition, but at last did discount Gass's bills to In re a large amount, supplied him with goods, and became security for GASS. him to the three creditors who required security ; and in April 1867, gave those creditors his promissory notes, payable on the 1st of September, 1868, amounting in the whole to £865 15s. 6d. In pursuance, then, of the proposal of Gass, a deed was executed, bearing date the 1st of May, 1867, and made between Mr. Gass of the one part, and Mr. Orr of the other part. That deed recited the leases under which Mr. Gass held the premises occupied by him, and then proceeded :- " And whereas the said John Gass has laid out and expended a considerable sum of money on said hereinbefore-mentioned several tenements and premises, in the erection of buildings and machinery; And whereas the said John Gass is indebted to the said Jacob Orr in a large sum of money, and the said Jacob Orr has also joined as security for the said John Gass in several composition bills or proÂÂmissory notes to several creditors of the said John Gass ; and it has been agreed that the said John Gass shall grant the said hereÂÂinbefore-mentioned several tenements and premises unto the said Jacob Orr for the slim of £4500, in order to secure the said Jacob Orr not only the amount now due and owing to the said Jacob Orr as aforesaid, but also to indemnify him against any loss he may incur or sustain in becoming security for the said John Gass as aforesaid, and also to secure to the said Jacob Orr any balance which may be due from time to time to the said Jacob Orr, on foot of any bill of exchange, promissory note, contract, transaction, or dealings, or in any other way whatsoever, not exceeding in exÂÂtent the said sum of £4500 sterling ; now this indenture witnessÂÂeth, that in pursuance of said agreement, and for and in consideraÂÂtion of the money now due and owing by the said John Gass to the said Jacob Orr as aforesaid, and for effectually securing unto the said Jacob Orr all sum and sums which may at any time beÂÂcome due to him, as hereinbefore-mentioned, not exceeding the said sum of £4500, and in consideration of ten shillings sterling by the said Jacob Orr to the said John Gass in hand paid, at or immediately before the sealing and delivery of these presents, the, receipt whereof is hereby acknowledged, he, the said John Gass,, EQUITY SERIES, hath granted, bargained, sold, aliened, released, and conveyed, and by these presents doth grant, bargain, sell, alien, release, and convey unto the said Jacob Orr, his heirs and assigns, All that and those the said hereinbefore-mentioned" premises, " together with the buildings and machinery on the said premises, and all the estate, right, title, interest, inheritance, use, trust property, profit, possession, claim, and demand whatsoever, both at law and in equity, of him, the said John Gass, of, in, to, out of, or upon the said several tenements, lands...