1853. WINCH, App., WINCH, Resp. discretion to compound or to give time for the payment of any debt. [Maule, J. That would be very good evidence on the question of devastavit.] JERVIS, C. J. There must be a new trial. The judge, whatever doubt he might have entertained, would have acted more discreetly if he had tried the cause. It is much to be lamented that counsel were not employed in such a case. Byles, Serjt., asked for costs of the appeal. JERVIS, C. J. As the question was raised by the judge himself, we think there should be no costs. The rest of the court concurring, Rule absolute for a new trial, without costs. 1853. QUARTERMAINE and PLEWS v. BITTLESTON and Others. THIS the The cause came on for trial before Maule, J., at last Spring Assizes for Leicester, when a verdict was found for the plaintiffs, damages 6217. 16s. 10d., subject to the following case : The plaintiffs claim the goods in question as trustees under an indenture of assignment and settlement, dated the 29th of January, 1851, and made between Elizabeth Cuff of the one part, and the plaintiffs of the other part, whereby the furniture and effects in question were assigned by Elizabeth Cuff to the plaintiffs, upon certain trusts in the indenture mentioned. The defendants were the official and trade assignees of the estate of Edward George Cuff, a bankrupt, and had sold the goods as such assignees. The question was, whether the defendants were entitled to sell the goods, under the 125th section of the bankrupt law consolidation act, 12 & 13 Vict. c. 106, as having been, by the consent and permission of the plaintiffs, the true owners thereof, in the possession, order, or disposition of the bankrupt as reputed owner. The goods in question formed part of the furniture and effects of the Bell Hotel at Leicester; and the greater part of them were formerly the property of Mr. Arthur Boyer, who kept and carried on the hotel before and until the early part of 1847, when he contracted to let the hotel to the bankrupt, and to sell him the furni Jan. 20. An order by a commissioner in bankruptcy "that all goods and chattels which at the time the said A. B. became bankrupt, were, by the consent and permission of the true owner thereof, in the possession, order, or disposition of whereof the the said A. B., said A. B. was reputed owner, or whereof he himself the sale, alteration, or disposition as owner," should be sold for the benefit of the creditors, is not a com- 12 & 13 Vict. specify the par- so sold. 1853. QUARTER MAINE v. ture and effects at a valuation; the purchase-money to be paid by instalments, and to be secured by a mortgage of the furniture and effects as hereinafter mentioned. BITTLESTON. The goods were accordingly valued at 37637., and the indenture next hereinafter mentioned was executed by and between the parties at the time it bears date. Indenture of the 2nd of February, 1847, between Edward George Cuff, the bankrupt, of the one part, and Arthur Boyer of the other part; whereby, after reciting that an agreement had been made between the said parties for the sale of the goodwill of the business of the said hotel for 12501., and the furniture and effects at a valuation, which had been made at the sum of 37631., making together 50137., and that it had been agreed that the last-mentioned sum, with interest, should be paid by certain instalments, and secured by certain bills therein mentioned, and that 2013., part thereof, should be secured by the covenant of the said Edward George Cuff, the bankrupt, and by a conditional bill of sale or assignment of the said goods and effects; and reciting that part of the purchase-money had been paid, and certain bills of exchange for other part given, and possession delivered to Edward George Cuff, the bankrupt, of the said hotel, with the furniture and effects,-it was witnessed, that, in pursuance of the said agreement, and in consideration of the said sum of 20131. so due from the said Edward George Cuff, the bankrupt, to the said Arthur Boyer, the said Edward George Cuff, the bankrupt, bargained, sold, and assigned all the said goods and furniture and effects (contained in a certain inventory and valuation referred to in the said indenture), to the said Arthur Boyer, his executors, &c., to hold to him as his own goods and chattels, with a proviso for redemption on payment by the said Edward George Cuff, the bankrupt, to the said Arthur Boyer, of the said sum of 20137. by the instal ments and at the times therein mentioned, with interest as therein mentioned: And the said Edward George Cuff, the bankrupt, thereby covenanted to pay the same by the instalments and at the times therein mentioned : And the said indenture contained a proviso, that, in case of default, the said Arthur Boyer might peaceably take possession of the said goods, and sell the same, and thereby reimburse himself all costs of sale, and the said 20131., or so much as should be unpaid, and pay or account for any surplus to the said Edward George Cuff, the bankrupt: And the said indenture also contained a covenant for quiet enjoyment by Edward George Cuff, the bankrupt, until default. he After the execution of this assignment by way of mortgage of the said goods and effects, the bankrupt continued in possession of the said hotel, and the goods and effects therein, and carried on the business of the said hotel, and made additions to the said furniture and effects. In November, 1848, the bankrupt's father, John Jackson Cuff, died, having previously made his will, whereby, after certain specific legacies and bequests, gave and bequeathed the residue of his estate and effects, upon trust to permit his wife, Elizabeth Cuff, to receive the interest and proceeds of the said residuary estate during her life; and directed that his sons John Cuff and the said Edward George Cuff, the bankrupt, should pay his wife interest during her life upon all the sums of money in which they might be indebted to him. at the time of his decease; and, after her death, the testator directed that the said debt of his said sons should be released to them respectively, and that the said residue of his said estates should be held in trust for all his children (eight in number) in equal shares and propor tions. At the time of his father's death, the bankrupt was indebted to his father in the sum of 64757., upon which 1853. QUARTER MAINE v. BITTLESTON. 1853. QUARTER MAINE v. sum interest was payable to his step-mother, Elizabeth Cuff, during her life. By an indenture between the said Edward George BITTLESTON. Cuff, the bankrupt, of the first part, the said Elizabeth Cuff and John Cuff, executors and executrix of John Jackson Cuff, of the second part, and the said Elizabeth Cuff of the third part,-after reciting the existence of the said debt of 64751., and that the said Edward George Cuff, the bankrupt, having occasion for the sum of 10007., had applied to the said executrix and executor to lend him the same out of the residuary personal estate of John Jackson Cuff, to which they had agreed, on having the re-payment thereof secured as thereinafter mentioned; and that the said Elizabeth Cuff had consented thereto, on having the payment of the interest thereon at 5 per cent., and also the interest thenceforth to accrue due during her life on the said debt of 64751., secured by the delivery and indorsement to her of a promissory note for 13751., made by one Thomas Bacon, which had accordingly been done, and by the covenant of the said Edward George Cuff, the bankrupt, and otherwise, as therein mentioned,-it was thereby witnessed, that, in consideration of the said 1000l. then advanced and paid to Edward George Cuff, the bankrupt, and for securing the re-payment thereof, he granted, assigned, released, and confirmed unto the said Elizabeth Cuff and John Cuff, their heirs, executors, &c., all his share and interest of and in the said residuary estate and effects of the said John Jackson Cuff so devised and bequeathed by his said will as aforesaid, subject to a certain proviso for redemption upon payment by the said Edward George Cuff, the bankrupt, on the 30th of October then next, to the said Elizabeth Cuff and John Cuff, of the said sum of 10007., and on payment to the said Elizabeth Cuff of the interest thereon and on the said debt of 64757., in manner therein particularly mentioned. |