Re M'Parland; ex parte Murphy

• Jurisdiction: Ireland
• Judgment Date: 13 March 1893
• Date: 13 March 1893
• Court: Chancery Division (Ireland)

Appeal.

Before WALKER, C., and FITZ-GIBBON and BARRY, L. JJ.

IN RE M'PARLAND; EX PARTE MURPHY

Ex parte TurquandELR 14 Q. B. Div. 636.

Lingham v. BiggsUNK 1 B. & P. 82.

Hamilton v. BellENR 10 Ex. 545.

Webb v. Whinney 16 W. R. 973.

Lingard v. MessiterENR 1 B. & C. 306.

Ex parte Lovering, Re JonesELRL. R. 9 Ch. App. 621.

Ex parte Loving, Re MurrellELR 24 Ch. D. 31.

Joy v. Campbell 1 Sch. & Lef. 328.

Lingham v. BiggsUNK 1 B. & P. 82.

Re TurquandELR 14 Q. B. Div. 643.

Ex parte Brooke; Re Fowler 23 Ch. Div. 261.

Lingham v. BiggsUNK 1 B. & P. 82.

Hamilton v. BellENR 10 Ex. 545.

Joy v. Campbell 2 Sch. & Lef. 337.

Acraman v. Bates 2 E. & 456, 471.

Ex parte LoveringELR L. R. 9 Ch. App. 621.

Lingham v. BiggsUNK 1 B. & P. 82.

Walker v. BurnellENR 9 East, 234.

Lingard v. MessiterENR 1 B. & C. 308.

Ex parte LoveringELR L. R. 9 Ch. App. 621.

Ex parte TurquandELR 14 Q. B. Div. 636.

Ashton v. BlackshawELR L. R. 9 Eq 517.

Webb v. Whinney 16 W. R. 973.

Newport v. HollingsENR 3 C. & P. 223.

Hamilton v. BellENR 10 Ex. 545.

Joy v. Campbell 1 Sch. & Lef. 337.

Ex parte Dover 2 M. D. & De G. 259.

Ex parte Lovering, Re Murrell 24 Ch. Div. 31.

Bankruptcy Order and disposition Gratuitous bailee 20 & 21 Vict. c. 60, section 313.

Vol,. XXXI.] CHANCERY DIVISION. 465 mation of the deed . . . but the evidence satisfies me, as it satisfied V.-C. the jury, that there was a mistake; and I think the plea is a good, 1893. substantial plea, for the purpose of raising the question without any "1"81" counterclaim asking for the rectification of the deed. We are now ANNEBLE Y in the position of a Court of equity as well as a court of law ; and as a Court of equity we are not obliged to rectify an instruÂÂment." On these grounds, I am of opinion that the pin-money is well charged by the instrument as it stands, and I shall therefore make a declaration in the way asked in the prayer. There is no necesÂÂsity for any more special declaration (1). Solicitors for the plaintiff : Casey Clay. Solicitor for the defendant George Annesley : E. W. Harris. D. M'C. M. IN RE MPARLAND ; Ex PARTE MURPHY (2). Appeal. 1893. Bankruptcy-Order and disposition-Gratuitous bailee-20 4. 21 Vict. c. 60, section 313. Goods left in the custody of a gratuitous bailee do not pass to the assignees on his being adjudicated bankrupt in the absence of any evidence that he obtained credit by being in possession of them. Mrs. M., a lady who resided in A., went to London, for the purpose of her son's education. On her departure she left a piano with a Mrs. W., a friend of hers, for custody. Mrs. W. died in 1891, and MT., one of the executors of the will of W., offered to store the piano for Mrs. M. in his own house, and the offer was accepted. MT. was adjudicated bankrupt in 1892 :- Held (reversing the decision of Boyd, J.), that the piano was not in the order and disposition of the bankrupt, within section 313 of 20 & 21 Vict. c. 60. March 13. (1) George Annesley appealed from the judgment, and also from an order refusing him liberty to deliver a new defence. By consent the appeals were dismissed, with costs, time being given for payment of the amount of the judgment and costs.-[REP.] (2) Before WALKER, C., and FITZÂÂGIBBON and BARRY, L.JJ. Appeal. APPEAL from an order of Boyd, J., dated the 14th February, 1893. 1893, refusing an application of Mrs. Kate Murphy to deliver to In re her a piano, which was in the possession of the bankrupt at the MTARLAND; Ex parte date of the adjudication, the Court- being of opinion that it was MURPHY. in the order and disposition of the bankrupt. Mrs. Murphy resided at Armagh until 1889, when she gave up her residence there for the purpose of accompanying her son to London for his education. On her departure she left a piano with Mrs. Kate Wynne for safe keeping ; the piano had been purchased by her for her mother, and was her property. Kate Wynne died in 1891, and Joseph M'Parland, who was one of the executors under her husband's will, offered to store the piano for Mrs.. Murphy in his own house, and this offer was accepted, as Mrs. Wynne's furniture was being sold. M'Parland kept the piano in one of the rooms of his private house, and Mrs. Murphy, in her affidavit, stated that most of the persons who visited at his house knew that the piano was hers, as they had been friends of hers. B. F. Todd, for the appellant : The doctrine of reputed ownership does not apply to a case like this, because in the case of furniture, whether hired under the three-years' system or not, customs are known to exist which will exclude the doctrine : Ex parte Turquand (1). No doubt furniture may pass to the assignees, as being in the order and disposition of a bankrupt : Lingham v. Biggs (2) ; but the assignees should prove that it was used by the bankrupt for his trade, or that he might have got credit on the strength of it. If the goods are such that it is not to be inferred that they belong to the bankrupt by being in his possession, the doctrine does not apply : Hamilton v. Bell (3). Nobody saw this piano in the possession of the bankÂÂrupt, or gave him credit on the strength of it. Webb v. W hinney (4) is, perhaps, the nearest case to this.' Lingard v. Messiter (5) ; Ex parte Lovering, Be Jones (6) ; Ex parte Lovering, Re Murrell (7). (1) 14 Q. B. Div. 636. (2) 1 B. & P. 82. (3) 10 Ex. 545. (4) 16 W. R. 973. (5) 1 B. & C. 306. (6) L. R. 9 Ch. App. 621. (7) 24 Ch. D. 31. Vox.. XXXI.] CHANCERY DIVISION. 467 A. F. Blood, for the assignees : Furniture, like any other chattels, will pass to the assignees, as being in the order and disposition of a bankrupt : Joy v. CampÂÂbell (1) ; Lingham v. Biggs -(2), unless excluded by a custom of trade. There is no custom proved here. The appellant, in order to exclude the piano from the doctrine of reputed ownership, ought to have gone on to show that it was in some way kept apart by the bankrupt, or not used as an ordinary piece of furniture. The onus is not on the assignees. WALKER, C. :- The facts of this case are that Kate Murphy, a resident in Armagh, had a piano in 1889. She was giving up her residence,. and she left it in the care (gratuitously) of Kate Wynne, till she should require it again. She had had it twenty years. Kate Wynne died in 1891. Joseph M'Parland, a baker, and who was executor of the will of Kate Wynne's husband, offered to store it in his own house for Kate Murphy. She assented. He had it as gratuitous bailee, and she states has " since had the care of it." She says in paragraph 4 of her affidavit :-" M'Parland had not any authority to sell or in any way dispose of the said piano,. but simply to store it for me. It was left in one of the rooms of his private house, and most of the persons who visited at his house knew that the piano was mine, as they had also been friends of mine when in Armagh, and had seen the piano in my house." M'Parland became bankrupt, and on the 3rd February Kate Murphy applied to him for the piano to be delivered up to her. This application was refused ; and the Court, being of opinion that the piano was at the date of the adjudication in the order and disposition of the bankrupt, ordered the piano to be sold for the benefit of the creditors. [His Lordship read the 313th section of the Irish Bankruptcy Act, 1857.] Mr. Todd...