Provincial Bank of Ireland v Tallon

• Jurisdiction: Ireland
• Judgment Date: 24 November 1938
• Date: 24 November 1938
• Court: High Court

Provincial Bank v. Tallon.

PROVINCIAL BANK OF IRELAND, LIMITED

Plaintiffs

and

PATRICK TALLON, ELIZABETH TALLON, ALFRED HOLLINSHEAD and CHARLES E. RICHARDSON

Defendants.

Partnership - Partners joint tenants of business premises - Registered judgment mortgage - Effect of, on interest of one partner in the premises - Bankruptcy of other partner - Effect of the bankruptcy on the partnership - Rights of non-bankrupt partner - Irish Bankrupt and Insolvent Act,1857 (20 & 21 Vict. c. 60), sects. 122, 266 and 278 - Rules of the Supreme Court (Ir.), 1905, Or. LXXXVIII, r. 88.

Motion by the defendants, Alfred Hollinshoad and Charles E. Richardson, the Official Assignee and Creditors' Assignee, respectively, that certain moneys standing in Court to the credit of this matter and being the balance of the proceeds of the sale of certain property formerly owned by the other two defendants, Patrick Tallon and his wife, Elizabeth Tallon, as joint tenants, should be paid out to them, the said Official Assignee and Creditors' Assignee, to be administered in the bankruptcy proceedings of Patrick Tallon. One half of the said balance was claimed by Thomas O'Connor in respect of a debt due to him by the defendant Elizabeth Tallon, on foot of a judgment mortgage which he had registered against the said premises. The further facts are stated sufficiently for the purposes of this report in the judgment of Johnston J.

Provided that be himself is solvent, a partner in a firm, one partner of which is bankrupt, has a personal right to collect the assets of the firm, and may, on giving an indemnity to the Official Assignee, avail himself of the Official Assignee's name for that purpose.

In 1933 P. T. and his wife, who carried on business in partnership, jointly deposited the title deeds of leasehold business premises owned by them as joint tenants with a Bank as security for a loan. They also owed a large and increasing debt to one, O'C., for goods supplied by him. P. T.'s wife made an abortive attempt with O'C. for the discharge of this debt. On February 10th, 1934, P. T. presented a petition for an arrangement with his creditors in which it was stated that he had been dealing as a sole trader, though at a meeting of creditors held on February 15th, 1934, it was indicated that he and his wife were trading jointly. Subsequently a resolution, which was seconded by O'C., was passed by P. T.'s creditors turning his arrangement into bankruptcy.

On the 9th of March, 1934, O'C. marked judgment against P. T.'s wife for the amount of his debt, and ten days later registered his judgment as a mortgage against the said premises.

The said premises were sold in this action, all the parties consenting, for £2,650, and the Bank's debt and costs were paid in full and the balance of the proceeds of the sale was lodged in Court.

On an application by the Official Assignee and the Creditors' Assignee, that the said balance should be paid out to them:

Held that the said balance should be paid to the Official Assignee, less such sum as the Court should allow for costs.

Held also, applying M'Ilroy v. Edgar, 7 L. R. Ir. 521, that the effect of the registration of O'C.'s judgment against the premises was...