Links: Home | swarblaw - law discussions

swarb.co.uk - law index


These cases are from the lawindexpro database. They are now being transferred to the swarb.co.uk website in a better form. As a case is published there, an entry here will link to it. The swarb.co.uk site includes many later cases.  














Insolvency - From: 1200 To: 1799

This page lists 24 cases, and was prepared on 08 August 2015.


 
 Abbot of Paislay -v- Adam Wallace; SCS 6-Jul-1518 - [1518] Mor 784

 
 A -v- B; SCS 4-Jul-1533 - [1533] Mor 787

 
 Wallace -v- Scot; SCS 1583 - [1583] Mor 807
 
Smith -v- Mills [1584] EngR 15; (1584) 2 Co Rep 25; (1584) 76 ER 441
1584


Insolvency
A. became bankrupt, and, after a commission awarded against him, sold part of his goods to one of his creditors in part satisfaction of his debt ; and afterwards the comissioners by indenture sold those goods jointly to the plaintiffs, who were the other creditors : Held that the sale by the commissioners was good, for the intent of the statute 13 Eliz. c. 7, is to relieve the creditors equally in distribution of the bankrupt's estate, and he himself cannot dispose of his property after the commission awarded ; and if a creditor refuse or neglect to come in under the commission, and the property is assigned to others, it is aIso good.
[ Commonlii ]

 
 Muirhead and M'Mitchell -v- Miller; SCS 1600 - [1600] Mor 732

 
 Douglas -v- Douglas; SCS 19-Jun-1605 - [1605] Mor 1288

 
 Thomas Wardlaw -v- Robert Gray; SCS 11-Jul-1611 - [1611] Mor 786

 
 Speir -v- Mure and Mureson; SCS 18-Dec-1611 - [1611] Mor 808
 
Harvey -v- Sir George Reynolds [1669] EngR 271; (1669) Noy 93; (1669) 74 ER 1059 (A)
1669


Insolvency
H brought debt upon an escape, and counts that he had recovered, &c. in Lond. against A. and had him in execution in Lond. and that from thence he was by hab. carp. remov’d and also committed to the Marshalsea, where the defendant was keeper.
And that he, &c. had suffered him to go at large voluntarily, &C. The defendant confesses, &c. and said that he had broken prison, and so escap’d contrary to his will ; and that upon fresh sute he had retaken A. (viz.) 18 day of May, before the bill exhibited also. But in truth that 18 day of May was after the bill exhibited, and an imparlance had, yet it was before any plea pleaded. And hy the Court that the reprisaI is found tarde, 13 E. 4. 9. for it shall be mischievous to the party to attend for a reprisal, which if in truth had been before, &c. it had been a good excuse and plea. As reparation of waste, before the writ brought is a good plea in waste. Also there needs not any traverse to a voluntary escape, where he confesses in voluntary escape ; for that is a good cause of action. And by the Court the plaintiff had judgement.
[ Commonlii ]
 
Wagstaff -v- Read [1683] EngR 80; (1683) 2 Chan Cas 156; (1683) 22 ER 892 (C)
20 Nov 1683


Equity, Insolvency
Purchaser not hurt in Chancery - Portman became bankrupt, the commissioners assign his Estate, whereof the Plaintiff made Title to some Goods, and exhibits his Bill. against the Defendant to discover the Goods, and their Value, and what and how much he paid for them, because the Plaintiff charges, they came to the Defendant's possession after the bankrupt broke : The Defendant sets forth, for what Goods did ever come to his Hands, he bought of Portman bona fide, for a full and valuable consideration, nor did not know, nor had any Notice that at the Time of buying until the now Bill, was a bankrupt, or of any Account of his Bankruptcy, and pleads this Matter against any Discovery.
[ Commonlii ]

 
 Copeman -v- Gallant; 1716 - [1716] EngR 13; (1716) 1 P Wms 314; (1716) 24 ER 404

 
 Anonymus (on Petition); 1726 - [1726] EngR 45; (1726) 2 P Wms 394; (1726) 24 ER 782
 
Ireland -v- Neilson (1755) 5 Br Supp 828
1755


Scotland, Insolvency
A debtor had acquired the land by fraud. Held: the adjudgers were affected by the debtor's fraud, even if a purchaser would not have been.
1 Citers


 
Cooper -v- Chitty (1756) 1 Burr 19
1756

Lord Mansfield
Insolvency
An action of trover was brought by the assignees of the bankrupt against the Sheriffs of London who had taken and sold the bankrupt's goods under a writ of fi. fa. The debtor committed an act of bankruptcy on 4th. December 1753. On the 5th. December a creditor obtained judgment against the debtor and issued a writ of execution. The sheriff thereupon seized goods belonging to the debtor. On 8th. December the debtor was declared bankrupt and the commissioners executed an assignment. The sheriff afterwards sold the goods. Counsel for the plaintiffs posed two questions: (1) whose property the goods were when they were seized by the sheriffs? and (2) whose property they were when sold by the sheriffs? As to the first he submitted that "After the act of bankruptcy, they ceased to be the property of the bankrupt himself; wheresoever else the property might be between the act of bankruptcy and the assignment.… Here the plaintiffs have declared as assignees under the commission of bankruptcy: therefore their interest vests as from the time of the act of bankruptcy." Counsel for the defendants submitted that "The property is in the bankrupt till assignment: and the subsequent sale cannot make the sheriff a wrong-doer by a fictitious relation." Held: In favour of the plaintiffs. "Two things are necessary to be proved to entitle the plaintiff to recover in this kind of action: 1st, property in the plaintiff; and 2dly a wrongful conversion by the defendant. As to the first, it is admitted in the present case that the property was in the plaintiffs as on and from the 4th. December (which was before the seizure) by relation. This relation the statutes concerning bankrupts introduced to avoid frauds. They vest in the assignees all the property that the bankrupt had at the time of what I may call the crime committed (for the old statutes consider him a criminal): they make the sale by the commissioners good against all persons who claim by, from, or under the bankrupt after the act of bankruptcy and against all executions not served and executed before the act of bankruptcy. Dispositions by process of law are put on the same foot with dispositions by the party: to be valid, they must be completed before the act of bankruptcy. Therefore as to the first point, it is most clear that the property was in the plaintiffs as on and from the 4th. December when the act of bankruptcy was committed"
1 Citers


 
Solomons -v- Ross (1764) 1 H Bl 131n
1764

Bathurst J
Insolvency, International
A firm in Amsterdam was declared bankrupt and assignees were appointed. An English creditor brought garnishee proceedings in London to attach £1200 owing to the Dutch firm. Held: The court decreed that the bankruptcy had vested all the firm's moveable assets, including debts owed by English debtors, in the Dutch assignees. The English creditor had to surrender the fruits of the garnishee proceedings and prove in the Dutch bankruptcy. The Dutch curator was entitled to recover the English debt in priority to an English creditor of the merchants who had attached the debt after the bankruptcy.
1 Citers


 
Fox -v- Hanbury (1776) 2 Cowp 445
1776

Lord Mansfield
Insolvency
One of two partners committed an act of bankruptcy. The solvent partner later disposed of partnership property to the defendant. A commission was afterwards issued against the bankrupt partner, and the plaintiffs as assignees under the commission brought an action of trover against the defendant. The partners were joint tenants at law (though not in equity) of partnership property. The defendants submitted that the plaintiffs could not recover on either count. If at the date of the sale to the defendant the goods were the property of both partners as alleged in the first count (ie. if the joint tenancy had not been severed by the act of bankruptcy) then each partner had the right to dispose of the whole, and the disposal of one partner was the disposal of both: but if the partnership was dissolved by the act of bankruptcy of one partner (so that the joint tenancy was severed) the action still could not be maintained; for then the assignees under the commission and the solvent partner would be tenants in common, and trover and detinue did not lie at the suit of one tenant in common against another. Held: The act of bankruptcy dissolved the partnership and severed the joint tenancy. "An act of bankruptcy by one partner, is to many purposes a dissolution of the partnership, by virtue of the relation in the statutes, which avoid all the acts of a bankrupt from the day of his bankruptcy; and from the necessity of the thing, all his property being vested in the assignees, who cannot carry on a trade."
1 Citers


 
Ballantine -v- Golding (1784) Cooke's Bankrupt Laws 419
1784

Lord Mansfield
Insolvency, Jurisdiction, Litigation Practice

1 Citers


 
Wilkins -v- Aikin [1789] EngR 2270; (1789-1817) 2 Ves Jun Supp 488; (1789) 34 ER 1192 (D)
1789


Insolvency, Banking

[ Commonlii ]

 
 Hassal -v- Smithers; 1789 - [1789] EngR 1185; (1789-1817) 2 Ves Jun Supp 289; (1789) 34 ER 1098 (C)
 
Utterson -v- Vernon And Others (1790) 3 Term Reports 539; [1790] EngR 2276; (1790) 3 TR 539; (1790) 100 ER 721
5 Feb 1790

Lord Kenyon Ch J, Grose, Buller, Ashurst JJ
Insolvency
There had been an agreement to lend to the bankrupt some stock which she undertook to replace. The act of bankruptcy and the declaration of her bankruptcy took place before the stock was replaced. The parties disputed whether the agreement created a provable debt. It was argued that the agreement did not provide for payment of a sum certain but only for the replacement of the stock at some indefinite point in the future. It was therefore a claim for unliquidated damages. Held: (Majority) There was a provable debt.
Lord Kenyon thought that there was a provable debt in an amount equal to the value of the stock on the day of bankruptcy.
Ashurst J said that the only provable debts were those which could be recovered in the form of an indebitatus assumpsit, thus excluding any claim in damages.
Buller J said that the form of action was not determinative and the real question was whether the amount of the debt could be ascertained without the intervention of a jury.
Grose J said that a creditor could prove for a claim in damages provided that they were in a liquidated sum.
Lord Kenyon CJ said: "The question in this case depends on a simple principle of law, which cannot be doubted. It is clear, that where one person, previous to his bankruptcy, is indebted to another in a precise sum which is ascertained, the latter may prove his debt under the commission: but it is as clear, that where there is only a cause of action existing, where the debt is to arise on a stipulation which has not been broken previous to the time of the bankruptcy, and where the debt remains to be inquired into, there the creditor cannot prove his debt under the commission, and the demand will remain undischarged by the certificate."
1 Citers

[ Commonlii ]
 
Geston -v- Buller And Seris [1792] EngR 915; (1792) 2 Bulst 286; (1792) 80 ER 1127 (A)
1792


Insolvency

[ Commonlii ]
 
Russell -v- Ross's Creditors; Pierse -v- Ross 31 January 1792 FC; 1792 M 10300; 3 Ross's LC 177
31 Jan 1792

Lord Braxfield, Lord Monboddo's
Scotland, Insolvency

1 Cites

1 Citers


 
Aston -v- Sherman [1795] EngR 352; (1795) 1 Salk 298; (1795) 91 ER 265 (A)
1795


Insolvency
A plea by an executor that six judgmerits are recovered against him, each for 20l. and that he has only 10l. assets, is a confession of assets beyond the sums recovered by five of them.
[ Commonlii ]
 
Buchan -v- Farquharson 24 May 1797 FC; 1797 M 2905; 3 Ross's LC 137
24 May 1797


Scotland, Insolvency
On 28 June 1788 Robert Gordon assigned a personal bond for 3000 merks to the Reverend Robert Farquharson. Gordon was sequestrated on 19 July and the assignation was intimated on 4 August, but Gordon's estate did not vest in the trustee in bankruptcy until after that. The trustee brought an action against Farquharson to reduce the assignation, inter alia because it had not been intimated until after the sequestration. The court assoilzied Farquharson on the ground that the assignation had been completed by intimation before Gordon's estate had vested in the trustee. A sequestration did not prevent a creditor from completing his right by any act independent of the consent of the debtor, such as intimating a previous assignation. But: "The trustee on a bankrupt estate will be preferred to a creditor claiming on a voluntary disposition, granted before the sequestration, if the right of the trustee be first completed. And therefore, the propriety of the decision, 8 December 1795, Taylor and Smith against Marshall, in so far as it went upon the supposition that the trustee in such case is bound to make good the previous voluntary disposition, may be doubted."
1 Citers


 
Copyright 2014 David Swarbrick, 10 Halifax Road, Brighouse, West Yorkshire HD6 2AG.