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Colonial Cases

Cheshire v. Olyphant and Co., 1869

[bankruptcy]

Cheshire v. Olyphant and Co.

United States Consular Court, China
2 April 1869
Source: The North-China Herald, 3 April 1869

 

UNITED STATES CONSULAR COURT.

April 2nd, 1869.

Before G. F. SEWARD, Esq., and Messrs. H. G. BRIDGES and C. C. KENDALL, Associates.

W. CHESHIRE, assignee in the estate of G. W. ANTHONY, bankrupt,

v.

OLYPHANT & CO.

Claim for Taels 914.65.

Mr. HANNEN appeared for the defendants.  This was a petition to compel the defendants to hand over the amount claimed, being the proceeds of a sale of books belonging to the bankrupt, and which it was alleged had been voluntarily handed over to the defendants by the bankrupt when he knew he was insolvent, benefitting them to the exclusion of the other creditors of the estate.

Mr. CHESHIRE stated that his chief witness, on whose testimony he depended for the success of his case, had unexpectedly left Shanghai.

Mr. WEBB was examined, and proved that Roman & Co., of San Francisco, were  creditors against Mr. Anthony to the extent of $571, and that Fogg & Co., acting by power of attorney, had warned defendants that they were selling property of that firm against which they had no claim.

Mr. Geary, of Messrs. Olyphant & Co., for the defence stated that they were acting for Bancroft & Co., of San Francisco, and that the conveyance to them of the books and stationery by trhe bankrupt was not voluntary, but the result of a threat of legal proceedings being taken.

Judgment.

This is a cause in which the Assignee of a Bankrupt Estate seeks to recover the value of certain merchandise, given by the Bankrupt to the defendants, to receive the payment of a debt due to the defendants' principals.

There seems to be two conditions necessary to enable an Assignee to recover in such a case.

1st. - That the assignment made by the Bankrupt shall have been voluntary, that is to say, not in consequence of pressure or threats of the creditors.

2nd. - Whether the creditors had reasonable cause to believe that the debtor was a Bankrupt at the time of making his assignment.

I do not find either of these conditions existing in this instance, the defendants declare that they had the assurance of the debtor that he was solvent, and I do not find any sufficient reason why they should have doubted his declaration.  The assignment or grant of security was given in consequence of pressure exercised.

I therefore dismiss the plea, with costs against the petitioner.

GEO. F. SEWARD. U.S. Consul Acting Judicially.

Assented to: - H. G. BRIDGES, C. C. KENDAL.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School