Re Harvey, A Bankrupt

JurisdictionIreland
CourtCourt of Appeal (Ireland)
Judgment Date14 February 1912
Date14 February 1912

Appeal.

Before THE LORD CHANCELLOR, and LORDS JUSTICES HOLMES and CHERRY.

IN RE HARVEY, A BANKRUPT

Ex parte London and Universal BankELR [1897] 2 Q. B. 461.

Freshney v. CarrickENR 1 H. & N. 653.

In re Ginger, Ex parte London and Universal BankELR [1897] 2 Q. B. 461.

In re GingerELR [1897] 2 Q. B. 461.

In re HayesIR [1899] 2 I. R. 206.

In re StanleyUNK 17 L. R. Ir. 487.

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

Bill of sale — Bankruptcy of grantor before first instalment accrues due ———

THE IRISH REPORTS. [1912. which the payments of the limited company were made contained items of two classes, viz.—(1) items on which they were not liable ; (2) items on which they were liable. Paymen is on such an account may and (in the absence of strong evidence to the contrary) ought to be attributed by a jury, as the jury have attributed them here, not necessarily to the earliest items of the account, but to those to which the persons paying were liable : Burland v. Nash (1). The verdict should stand, and the present motion should be refused with costs. Solicitors for plaintiffs : Crawford 4 Lockhart. Solicitors fur defendant : Daniel O'Borke 4 Son. J. M. (1) 2 F. & F. 687. Appeal. IN RE HARVEY, A BANKRUPT (1). 1912. Feb. 12, 14. Bill of sale—Bankruptcy of grantor before first instalment accrues due—Property whether in his order and disposition with consent of grantee—Irish Bankrupt and Insolvent Act, 1857 (20 & 21 Pict c. 60), 8. 313—Bills of Sale (Ireland) Act, 1879, Amendment Act, 1883 (46 Pict. c. 7), s. 7. The grantor in a bill of sale which was in the form prescribed by 46 Viet. e. 7, and was duly registered, was adjudicated a bankrupt before the first instalment under the bill of sale became due. The grantee thereupon took possession of the property comprised in the bill of sale, and remained in possession thereof until displaced later in the same day by the messenger of the Court of Bankruptcy. Held, reversing the order of Boyd, J., that the property was not in the order and disposition of the bankrupt with the consent of the true owner. In re Stanley (17 L. R. I. 487) approved of and followed. In re Hayes ([1899] 2 I. R. 206) overruled. In re Ginger ; Ex parte London and Universal Bank ([1897] 2 Q. B. 461) distinguished. APPEAL from an order of Boyd, J., declaring that certain property claimed by the appellants was in the order and disposition (1) Before THE LORD CHANCELLOR and LORDS JUSTICES HOLMES and CHERRY. VOL. II.] KING'S BENCH DIVISION. 171 of the bankrupt at the time of his bankruptcy with their consent, Appeal. and directing the sale thereof for the benefit of the creditors of 1912. the bankrupt. In re HARVEY. By a bill of sale in the statutory form prescribed by 46 Viet. c. 7, dated the 2nd June, 1911, this property, consisting chiefly of household furniture, was assigned by William H. Harvey to P. and H. Egan (the appellants) to secure a debt of £75, payable by two instalments of £37 108., payable on the 1st December, 1911, and the 1st June, 1912, respectively, with a proviso that the property was not to be liable to seizure for any cause other than those specified in section 7 of the Act. This bill of sale was duly registered. Harvey, the grantor, was adjudicated a bankrupt on the 15th August, 1911. On the 16th August the Egans put a bailiff in possession of the property, who remained in such possession until the messenger of the Court of Bankruptcy arrived and required the bailiff to withdraw. On the motion of the assignees Boyd, J., made the order appealed from. A. F. Blood, KC., and Stephen O'Brien, for the appellants : In In re Stanley (1) a case decided shortly after the Bills of Sale Act, 1883 (46 Viet. c. 7), the late Judge Miller held that goods assigned by a bill of sale were not in the order and disposition of a bankrupt, if his retention of the possession of them as grantor was consistent with the terms of the bill of sale. In this ease the adjudication took place months before the first instalment became payable. The law as established by that case was followed in Ireland for twelve years without question until the decision of the English Queen's Bench Division in In re Ginger ; Ex parte London and Universal Bank (2), which Boyd, J., thought he was bound to follow in In re Hayes (3) and in the present case. But there is a remarkable distinction between section 44 of the English Bankruptcy Act, 1883 (46 & 47 Viet. c. 52), and section 313 of the Irish Bankrupt and Insolvent Act, 1857. The English reputed ownership clause is limited to " goods . . . in the possession of the bankrupt in his trade (1) 17 L. It. Ir. 487. (3) [1899] 2 I. It. 206. (2) [1897] 2 Q. B. 461. THE IRISH REPORTS. [1912. or business." Thus in England, notwithstanding the judicial conÂstruction applied in In re Ginger (1), there would or might be something as to which a bill of sale under the circumstances would be operative. This indeed is mentioned by Vaughan-Williams, J. (p. 465 of the report), as part of the ratio decidendi. But this ground of distinction appears to have been overlooked in In re Hayes (2). Spackman v. Miller (3), relied on in In re Ginger (1), has no application to the principle laid down in In re Stanley (4), for there the grantee could take possession by giving twenty-four hours' notice. That fact is the foundation of the judgments of Williams and Willes, JJ. The commentary of the two learned Judges on this case in In re Ginger (1) is scarcely warranted by the facts, the arguments, or the judgments. R. Doyle, K. and Denning, for the assignees. If bankruptcy was the only event upon which the grantee could take possession, there might be some foundation for the argument which has been addressed to the Court for the appellants. But there are several others. [Counsel read section 7 of the Bills of Sale Act, 1883.] Section 20 of the Bills of Sale Act, 1879, which protected goods granted by a bill of sale from the order and disposition clause, has been repealed, except in the case of absolute assignments, by the Act of 1883, which was avowedly passed for the purpose of indirectly abolishing bills of sale as securities in the hands of money-lenders. If the parties desired to guard against the risk of bankruptcy, it would have been easy to make the first instalment payable at a much earlier date. If a grantee agrees to a deferred payment, it amounts to a consent on his part to let the property remain in the possession of the bankrupt for the intervening period of time, and the grantees must take the risk of the grantor's bankruptcy during that period. The same observations as have been made as to bankruptcy would. apply to the power to seize upon distraint. (1) [1897] 2 Q. B. 461. (3) 12 C. B. (N. S.) 659. (2) [1899] 2 I. R. 206. (4) 17 L. R. Ir. 487. Tor,. II.] KING'S BENCH DIVISION. THE LORD CHANCELLOR :- The law in Ireland upon the question raised in the appeal was elaborately considered in the year 1886, in the case of In re Stanley (1). The judgment was given by the late Judge Miller, and after an exhaustive examination of the statutes and authorities bearing on the subject, the learned Judge clearly and without qualification decided that certain hotel furniture granted on a bill of sale, dated June 16th, 1885, to the cabinetmakers who had made and provided it, in order to secure payment of its price, and meanwhile retained under the bill of sale in the possession of the grantor, was not covered by the reputed ownership section (313) of the Irish Bankrupt and Insolvent Act, 1857. The first instalment was payable on July 8th, 1885, but the owner was on his own petition adjudicated a bankrupt a few days before that date. A contest was raised, regarding the property in the furniture, between the grantees and the assignees in bankruptcy. A reference to the arguments of counsel will show that the contentions put forward on the present appeal were in all substance anticipated there, but the result was a decision to the effect I have indicated. Apart even from the special provisions iu the Bills of Sale Act, 1833, the learned Judge found, in the circumstances, that the possession of the property by the owner could not be said to be by the consent and permission of the true owner. He described the grantees under bill of sale as restricted owners, who, unless in the events specified...

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1 cases
  • Hollingshead and Another, Appellants; P. and H. Egan, Ltd, Respondents
    • Ireland
    • House of Lords (Ireland)
    • 3 July 1913
    ...Act, 1879, AmendÂment Act, 1883 (46 Viet. c. 7), s. 7. APPEAL by the petitioners from the judgment of the Court of Appeal reported [1912] 2 I. R. 170, sub nom., In re HARVEY, a bankrupt. Ronan, EC., and Clayton, K.C. (the latter of the English Bar) (with them, Robert Doyle, K. and F. Dennin......

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