Page images
PDF
EPUB

1817.

der the transaction invalid.

Crosby v. Crouch, 11 E. R. ARBOUIN 256. Urgency on the part of

0. the creditor for a security, pro HANBURY vided there be po suspicion of and Another

collusion, has been held suffi. cient. In Smith v. Paine, 6 T. R. 154, Lord Kenyon says, “ There is no occasion for a creditor under such circumstances to threaten an actual arrest;" and in Crosby v. Crouch, Lord Ellenborough says, “ that bonâ fide urgency for a security will exclude the security from being considered as a voluntary one : and it is immaterial whether the debtor had or had not an act of bankruptcy in contemplation at the time, if the creditor pressed for payment or security, and thereby obtained such payment or security.”

Where a trader, being pressed by a creditor for pay. ment or security, one or other of which, he said, he would have, gave a bill of sale of certain wools and cloths in a mill, apparently, the whole of his stock, and immediately left his business and home, and be came a bankrupt; this, inas. much as the act done did not redeem the trader even from any present difficulty, which is the ordinary motive for such an act, when really done under the pressure of a threat, is

evidence that it was not done under such pressure, but voluntarily, and with a view to prefer the particular creditor, in conteinplation of bankrupt. cy; and is therefore void, as against the assignees of the bankrupt. Thornton v. Har. greaves, 7 E. R. 544. Sed quære this case, which depends upon the particular cir. cumstances.

But, in a case where A. on the 8th of October purchased goods of B. for the purpose of exportation, but finding that he must stop payment, and that he could not apply the goods to the purpose for which they were bought, he returned them to B. on October 16th : on the 17th, he stopt payment; but, expecting remittances from abroad more than sufficient to pay his debts, conceived that his creditors would give him time : they refused; and he was made bankrupt on No. vember 2nd. In an action by the assignees against B., for the value of the goods; it was hold. en by the Court of C. P.that the jury were warranted in find. ing, that the delivery of the goods to B. was not made in contemplation of bankruptcy. Fidgeon v. Sharp, 1 Marsh, 196.

So, where a creditor ob tains a preference in contem

plation of an intended deed of a commission of bankrupt 1817. composition, which would be subsequently issued, and not fraudulent against the credi. contemplated at the time of ARBOUIN tors under that deed: the com- the preference. Wheelwright

HANBURY position going off, the creditor P. Jackson, 5 Taunt. 109.

and Another may hold his securities against

[merged small][ocr errors]
[blocks in formation]

rects B. and

not to order

A. B. and C. THIS was an action for the repair of a ship. are part owners in a

1 Wilkinson, one of the defendants, had let ship. A. di

ac judgment go by default; Thorney, another of the

defendants, had pleaded his bankruptcy; and a any repairs in their joint nolle prosequi was entered as to him. The quespames, and informs them tion was, whether Tinkler was liable to the rethat he will

" pairs. It was in evidence that he was the owner consider them

of a third part in the ship.

third most in as manag.

The Captain, who was employed by Wilkinson and Thorney, had ordone in their dered the repairs; and the ship was debited, genejoint names, upon the di- rally, in the plaintiff's books : no mention whatrection of the Captain em. ever was made of the name of Tinkler, but the ployed by B.

names of Wilkinson and Thorney, the other partthat A. was inintlo liable ners, appeared specifically.

ners, Repairs were

[ocr errors]
[ocr errors]

The plaintiff's counsel, after liaving proved the repairs done, and that T'inkler had on several occasions acted as a part owner, rested their case here. The defendant's counsel then proposed to shew, that 'Tinkler had never personally con

cerned himself in ordering the repairs, and that 1817. Wilkinson and Thorney were the managing

GLEADON owners. They proposed likewise to give in evidence personal directions by Tinkler to Wil- TINKLER kinson and Thorney, by which he discharged them and o from acting as managing owners for the future; directing them not to pledge his credit for any repairs; adding, that he would not be answerable for any which they might order in the joint name. .

Littledale and Williams, for the plaintiff, objected to the admission of this evidence.

Hullock, serjeant, and Parke, for the defendants. Unless this evidence be admitted, how can the defendant, who is not liable upon an express undertaking, but merely as legal owner, shew that he revoked the authority of Wilkinson and Thorney to pledge his credit ? This evidence is offered to shew a determination of the agency of the other two defendants, by the act of Tinkler, who was competent so to do.

Lord Chief Baron RICHARDS.—The plaintiff has no notice given to him that Tinkler had discharged the other defendants from pledging their joint credit. One partner, by the necessary relation of law, may bind the other in matters relating to their common interest. A court of equity will sometimes interfere to restrain one partner from using the name of the firm in certain transactions. But, in general, he

1817.

has this right. I do not think the evidence admissible.

Verdict for Plaintiff.

GLEADON

TINKLER and Others.

Littledale and Williams for plaintiff.

Hullock, serjeant, and Parke, for defendants.

« PreviousContinue »