Re The Estate of Robert Kennedy, Owner; James Reid, Petitioner

• Jurisdiction: Ireland
• Judgment Date: 06 May 1865
• Date: 06 May 1865
• Court: Court of Appeal in Chancery (Ireland)

Ch. Appeal.

In re the Estate of ROBERT KENNEDY,

Owner;

JAMES REID,

Petitioner.

Eyre v. M'Dowell 9 H. of L. Cas. 619.

Re Hills 32 Law Times, 213.

In re DobsonUNK 8 Ir. Ch. Rep. 388.

In re Craig Drury's Rep. 394.

Blackmore's caseUNK 8 Rep. 157.

Naylor v. MortimoreENR 10 C. B., N. S. 566.

Ex parte BoyleENR 3 De G. M. & G. 515.

Fleuster v. M'ClellandENR 8 C. B., N. S. 357.

M'Auley v. Clarendon 8 Ir. Chan. Rep. 121.

Allcard v. WessonENR 7 Exch. 753.

104 CHANCERY REPORTS. 1865. Ch. Appeal. In re the Estate of ROBERT KENNEDY, Owner; JAMES REID, Petitioner. May 5, 6. On the 19th Tins was an appeal from an absolute order for the sale of lands of April 1864, the Court of belonging to the appellant, made by Judge Longfield, in the Landed Bankruptcy and Insolvency Estates Court, on the 16th of January 1-865. made an order The facts, which are more fully stated in the judgment of the under the 343rd section LORD CHANCELLOR, were shortly as follows :-Robert Kennedy, of the Bank ruptcy and In- the appellant, and owner of the lands sought to be sold, being solvency Act (20 & 21 Vie., indebted to James Reid, the respondent, the latter commenced an c. 60), declar ing the person action against him, and was about to obtain judgment, but a few and property of K. (a trader days previously Kennedy, who was then a trader unable to fulfil unable to fulfil his engage. his engagements with his creditors, petitioned the Court of Bank ments with his and creditors) pro- ruptcy under the Arrangement Clauses of the Bankuptcy tested from all . On Insolvency Act (20 & 21 Vie., c. 60). On the 19th of April 1864, process the 1st of April 1864, the Court of Bankruptcy made an order vesting Kennedy's property while the said in the Official Assignee ; and also an order under the 343rd section order was in full force, and of the Act, declaring Kennedy's person and property protected whilst K.'s property was from all process until the 13th of May following, or until further in possession of the Official order. That order was afterwards extended to the 24th of May, Assignee, R., one . of K.'s and afterwards to the 14th of June. On the 21st of April Reid creditors, with full notice of had notice of the previous proceedings. He, however, marked the previous J on the 22nd of April ; and on the 23rd of April re- proceedings, entered judg ment against K., in an action which R. had commenced previously to the 19th of April. On the 23rd of April, R. registered that judgment as a mortgage. On the 14th of June K.'s proposal for a composition was accepted by his creditors, and apÂÂproved by the Judge. On the 11th of October, the arrangement proceedings not having been finally completed, R. presented a petition in the Landed Estates Court for a sale of the lands mentioned in the judgment mortgage, and obtained a condiÂÂtional order for a sale, which was made absolute on the 16th of January 1865. Held that, as at the time of the registration of the judgment as a mortgage, the estate was in the possession of the Official Assignee, and under the protection of the Court of Bankruptcy; and as the arrangement proceedings were still pending, the making absolute the conditional order for a sale by the Landed Estates Court was premature, and such absolute order should therefore be set aside without prejudice to R.'s right to renew his application to have said conditional order made absolute, as soon as the Court of Bankruptcy and Insolvency should have decided upon K.'s application for a certificate under the provisions of the Bankruptcy and Insolvency Act. CHANCERY REPORTS. 105 gistered that judgment as a mortgage. Kennedy soon` after wards 1865. continued his proceedings under the arrangement clauses, and on Ch. Appeal. In re the 14th of June his proposal for a composition was affirmed and KENNEDY'S approved by the Judge in the Court of Bankruptcy. The payments ESTATE. of the composition were to be secured by Kennedy's promissory Statement. notes, payable at certain dates, the last payment being also colÂÂlaterally secured. On the 11th of October 1864 Reid presented a petition in the Landed Estates Court for a sale of the lands mentioned in the judgment mortgage, and obtained a conditional order for a sale, which, on the 16th of January 1865, was made absolute by Judge Longfield. Against that order Kennedy now appealed, on the ground that the...