Re Hickey, A Bankrupt

• Jurisdiction: Ireland
• Judgment Date: 04 December 1875
• Date: 04 December 1875
• Court: Court of Appeal in Chancery (Ireland)

Ch. App.

IN RE HICKEY, A BANKRUPT.

Ex parte Stevens, in re Stevens 4 D. & C. 117.

Ex parte Rose, re Ross 2 M. D. & De G. 131.

Re Porter 23 Eng. Law Times Rep. 40.

Ex parte Dobson, re Boult 2 M. D. & De G. 691.

Edwards v. ScottUNK 1 M. & G. 962.

Belcher v. BellamyENR 2 Exch. 303.

Ex parte Cohen, re Sparke 40 L. J. Bktcy. 14.

Cote, in re DevezeELR L. R. 9 Ch. App. 27.

Brewin v. Short 5 Ell. & Bl. 227.

Ex parte Ward, in re CoustonELR L. R. 8 Ch. App. 144.

Browne v. SavageENR 4 Drew, 640.

The North British Insurance Company v. Hallett 7 Jur. (N. S.) 1263.

Smith v. Smith 2 Cr. & Mees. 231.

Tibbits v. George 5 A. & E. 115.

Ex parte Agra Bank, in re WorcesterELR L. R. 3 Ch. App. 555.

In re Barr's TrustsENR 4 K. & J. 219.

In re Brown's TrustsELR L. R. 5 Eq. 88.

Stuart v. CockerellELR L. R. 8 Eq. 607.

Ex parte Caldwell, in re CurrieELR L. R. 13 Eq. 188.

Ryall v. Rowles 2 Wh. & Tud. L. C. 803.

Bartlett v. Bartlett 1 De G. & Jo. 141.

Ex parte Carbis, in re Croggon 4 Dea. & Ch. 354.

Smith v. Smith 2 Cr. & Mees. 231.

Ex parte Hennessy 1 Conn. & Law. 559; 2 Dr. & War. 555.

Thompson v. SpeirsENR 13 Sim. 469.

West v. ReidENR 2 Hare, 249.

Re TichenerENR 35 Beav. 317.

Edwards v. MartinELR L. R. 1 Eq. 121.

Lloyd v. BanksELR L. R. 3 Ch. App. 488.

Webb's Policy 36 L. J. (Ch.) 341.

Joy v. Campbell 1 Sch. & Lef. 336.

Smith v. ToppingENR 5 B. & Ad. 677.

Load v. GreenENR 15 M. & W. 216.

Woodcock v. HouldsworthENR 16 M. & W. 124.

Dunlop v. HigginsENR 1 H. L. C. 381.

Alletson v. ChichesterELR L. R. 10 C. P. 391.

In re Domvile, a bankrupt I. R. 9 Eq. 456.

Smith v. ToppingENR 5 B. & Ad. 674.

Ex parte Ward, re CoustonELR L. R. 8 Ch. App. 144.

In re Rawbone's TrustsENR 3 Kay & Johns. 476.

Dunlop v. HigginsENR 1 H. L. C. 381.

Woodcock v. HouldsworthENR 16 M. & W. 124.

Belcher v. BellamyENR 2 Exch. 303.

Smith v. ToppingENR 5 B. & Ad. 674.

Policy of Assurance — "Order or disposition" of bankrupt — "Consent and permission of the true owner" — 20 & 21 Vict. c. 60, s. 313 — Notice of asignment (30 & 31 Vict. c. 144, s 3) — Transmission through Post-office — Official and particular assignees — Priority.

Vol,. X.] • EQUITY SERIES. such order as the Court may make at the hearing, to remove any portions of the buildings in course of erection by them, which the Court shall consider to obstruct the due access of light and air to the windows of the Plaintiff. Solicitors for the Plaintiff : Messrs. D'..4.1ton and Smith. Solicitor for the Defendants : Mr. Whitney. IN RE HICKEY, A BANKRUPT. ment (30 0 31 Vict. c. 144, s. 3)-Transmission through Post-officeÂÂOfficial and particular assignees-Priority. - On the 28th June, 1873, M. H. by deed agreed to assign for value a policy effected with the Reliance Assurance Society on his own life to his father W. H., who, on the same day, by a separate deed assigned it to D. by way of equitable mortgage to secure a present loan and. future advances. The parties were all rssident in Ireland, and a memorandum at foot of the policy (which had been issued from the Dublin branch office) directed that notice of assignments should be given at the head office in London. Immediately upon the execution of the deeds of the 28th June, D. prepared a formal notice of the assignment to W. H., in whose name and at whose request it was signed by him and addressed, and posted in Dublin, to B., the Society's secretary, at the London office. M. H. was adjudicated a bankrupt in January, 1874, and died in the following August, when his assignees in bankruptcy gave notice to the London office, and claimed the proceeds of the policy as having been in his " order or disposition" at the time of his adjudication, B. deposing that D.'s notice had never reached the London office :- Reid (upon the law and facts together, reversing the decision of MILLER, J.), per BALL, C., that the notice, having been duly posted, must be presumed to have reached its destination, and, per CHRISTIAN, L. J., that, irrespective of the question whether the notice was actually received at the office, the mere posting of it was effectual to prevent the policy from being in the " order or disposition" of M. H. at the date of his bankruptcy " by the consent and permission of the true owner," within the meaning of s. 313 of " The Irish Bankrupt and InsolÂÂvent Act, 1857" (20 & 21 Viet. c. 60). Per CHRISTIAN, L. J.-Senzble, however, that, as between particular assignees, perfected notice would be necessary. APPEAL by Thomas C. Dyer, a dischargeint below; from an THE IRISH REPORTS. [I. R. order of Judge Miller of the 25th of June, 1875, declaring (inter alia) the Respondents, the official and trade assignees of Michael Hickey, late a bankrupt, entitled to the proceeds of a policy a insurance effected on his life. The petition of appeal stated that on the 20th of August, 1867, M. Hickey effected the policy with " The Reliance Mutual Life Assurance Society" of London for £300, at an annual premium of £11 1.1s. 8d., payable by half-yearly instalments of £5 15s. 10d. He was adjudicated a bankrupt on the 9th of January, 1874, and died on the 18th of August following, when, the Appellant and Respondents making adverse claims to the policy, the Society, in pursuance of a consent made in the bankruptcy matter, brought the net proceeds into Court, pending the ascertainment of the rights of the parties. On the 3rd of February, 1875, the Respondents, pursuant to the consent, filed their charge in the bankruptcy matter, whereby they alleged that neither the policy nor the bankrupt's indebtedÂÂness to his father or to the Appellant was mentioned in his accounting statement, and that no notice of any assignment of the policy had been given to the Society at the date of the bankrupt's adjudication; that the policy was then his exclusive property, or in his order and disposition, and should be sold for the benefit of his creditors ; and that the first valid and complete notice of an assignment was served by the agent to the bankruptcy on the 19th of September, 1874. The Appellant filed his discharge on the 2nd of March, 1875, and thereby stated that a considerable time before the 20th of June, 1873, the bankrupt, being indebted to his father William Hickey in a sum of £160, handed over the policy to him in disÂÂcharge of that debt ; that in June, 1873, William Hickey applied to the Appellant for a loan of £80, offering him the policy as secuÂÂrity for that and any further advances the Appellant might make to him, which terms the Appellant agreed to accept, provided the bankrupt would execute an instrument assigning the policy to William Hickey ; and that in pursuance of an arrangement to this effect the bankrupt, by a memorandum under his hand and seal, dated the 20th of June, 1873, agreed to assign all his interest in.the policy to William Hickey, and. undertook, when required, to VoL. X.] EQUITY SERIES. execute any further instrument to carry out the objects of the Ch. .etpp. deed. 1875. The discharge also stated that by deed of the 28th of June, In re 1873, reciting, as the fact was, that the Appellant had on that day HICKEY. advanced to him £80, and had agreed to advance to him, if reÂÂquired, a further sum not exceeding £150, William Hickey, in consideration thereof, thereby deposited the policy with the AppelÂÂlant, and charged it in his favour with, and agreed that it should be a security to him for the payment of, the sums so advanced or to be advanced; and William Hickey thereby agreed to execute, if required, any other instrument for carrying into effect the inÂÂtention of that deed. The discharge further stated that the policy was delivered to the Appellant on the occasion of the execution of this deed, and remained in his possession till the 7th of March, 1874 ; and that on the same 28th June, the Appellant, at the request of William Hickey, who was then suffering from great dimness of sight, signed with his name the following notice :- " RUSH, COUNTY DUBLIN, "28th June, 1873. Sin,-Take notice that I beg leave to inform you that my son Michael Hickey has assigned unto me all his interest in the policy of assurance on his life in your office, No. 8297, under memorandum of agreement dated 20th June, 1873, for the considerations therein mentioned. " Yours obediently, " WILLIAM HICHXY, "per T. C. D. " To EDWARD BUTLER, ESQ., " Secretary, Reliance Mutual Life Assurance Society, " 71, King William-street, London, E. C." The discharge stated that this notice was suggested, prepared, and written by the Appellant, read over by him to Wm. Hickey, before it was signed, and thereupon enclosed in an envelope, which the Appellant stamped and addressed to " Edward Butler, Esq., Secretary, Reliance Mutual Assurance Society, 71, King William-street, London, E.C.," and that on the same day he posted it in the General Post-office, Dublin. The discharge further stated that in August, 1873, the AppelÂÂ. THE IRISH REPORTS. [I. R. lant called at the Society's head. office in Ireland, 48, Upper Sackville-street, Dublin, to pay the premium then due, and having previously received from Wm. Hickey a circular issued by the Society, relating to a reversionary bonus of £13 7s., declared on the policy, the Appellant there saw Mr. James M`Blain, their resident secreÂÂtary, and told him that the policy had been assigned to William Hickey, and by him assigned to the Appellant as security for the advances the latter had made to, him ; and that the Appellant having asked M'Blain to get the value of the reversionary bonus in cash, M`Blain informed him that for that purpose it would be necessary for the policy to be deposited with him in order that it might be forwarded to the head office in London ; that the Appellant then said that he would bring the policy with him for this purpose the next time he came to the office, and that accordÂÂingly, on the 7th March, 1874, having gone to pay the premium...