Balme and Others, Assignees of Bankhart and Benson, Bankrupts, v Hutton, Jewison, Ingham, Wood, and Others
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1833 |
| Date | 01 January 1833 |
| Court | Exchequer |
English Reports Citation: 131 E.R. 689
IN THE EXCHEQUER CHAMBER.
S. C. 3 Moo. & Sc. 1; 2 Tyr. 620; 2 L. J. Ex. 116. Dictum discussed, Tharpe v. Stallwood, 1843, 5 Man. & G. 775.
(!n the exchequer chamber.) balme and others, Assignees of Bankhart and Benson, Bankrupts, v. hutton, jewison, ingham, wood, and others. 1833. [S. C. 3 Moo. & Sc. 1; 2 Tyr. 620; 2 L. J. Ex. 116. Dictum discussed, Tharpe v. Stallwood, 1843, 5 Man. & G, 775.] A sheriff who has seized goods under a fi. fa., and has sold and delivered them after a secret act of bankruptcy committed by the Defendant, but before a commission issues against him, is liable in trover to the assignees under the commission. Upon error from the Court of Exchequer, the judgment of this Court was now delivered as follows (a)2:- (a)1 Bull. N. P. 289. (of This case was argued in Trinity vacation. The arguments are so fully stated in the judgment, that it would be improper to repeat them here. 690 BALME V. BUTTON 9 BING. 472. patteson J. This was an action of trover by the assignees of a bankrupt firm, in which the jury found a special verdict as follows :- C. Bankhart and W. Benson, the bankrupts, for several years before and up to the time of the issuing the commis-[472]-sion hereinafter mentioned, carried on the business of worsted spinners, in partnership, at Bowling, within the honor of Pontefract, in the county of York. On the 27th of October 1825, Bankhart and Benson were indebted to the Defendants H. W, Wood, J. W. Wood, and M. W. Wood, in a sum of money exceeding 35001. for wool sold and delivered, and upon that day, at the request of the said Messrs. Wood, executed a warrant of attorney for securing that sum, and such further advances as in the whole should amount'to a sum not exceeding 50001., which warrant of attorney was filed within twenty-one days from the date thereof, pursuant to the statute 6 G. 4, c. 16; and judgment by nil dicit was entered up thereon on the 14th of November following. On the 31st of December 1825, the said C. Bankhart and William Benson, being traders, and indebted to the petitioning creditor in a debt sufficient to support the after mentioned commission, committed an act of bankruptcy. On the 25th of January 1826, the Defendant Ingham (Jewison then being chief bailiff of the honor of Pontefraet, within which honor he has the execution of all writs, and appoints his own deputies, from whom he takes bonds with sufficient sureties to indemnify him from the.acts of such deputies), by virtue of a warrant directed to Jewison and his deputy (Defendant Ingham), by Defendant Button, the then sheriff of the county of York, founded on a writ of fieri facias issued at the suit of the said Defendants H. W. Wood, J. W. Wood, and M. W. Wood against the said bankrupts, under the judgment aforesaid returnable on Monday next after eight days of the Purification, and indorsed to levy 15211. 12s. 10d., besides, &c., seized in execution certain machinery and utensils of the said bankrupts, in a mill occupied by them at Bowling aforesaid. On the same day a valuation of the said machinery and utensils, together with the said bankrupt's tenant-right in the said [473] mill, was made by the Defendant Ingham, amounting altogether to the sum of 14851., and the said machinery and utensils, and tenant-right, were, on that day, purchased at such valuation from the said Ingham, acting on behalf of the chief bailiff, by one Barker, a clerk or bookkeeper of the said Messrs. Wood, but no money was paid by Barker or Wood to Ingham, except the sheriff's poundage and other costs of the levy. Immediately upon the sale, Barker took possession of the mill, machinery, and utensils on behalf of Messrs. Wood, and retained possession until the 17th of February following, when the machinery and utensils were sold by public auction for the sum of 9641. 14s. 6d., the tenant-right in the mill remaining unsold, but being of little or no value, and the proceeds of such sale were paid over by Barker to Messrs. Wood. On the day of the sale to Barker, Messrs. Wood agreed to indemnify the Defendant Ingham from any action for making the levy, and a bond of indemnity was afterwards executed. On the 21st of February 1826, a commission of bankrupt issued against Bankhart and Benson, under which they were declared bankrupts, on the 24th of the same month. Neither the sheriff nor the chief bailiff, nor Ingham knew or had any notice of any act of bankruptcy by Bankhart and Benson before the return of the writ of fieri facias. The Court of Exchequer has given a very elaborate judgment, and has decided that the verdict should be entered for the Defendant Jewison, and against the Defendant Ingham. Upon which judgment a writ of error has been brought. The decision against the Defendant Ingham proceeds on the ground that he, being the bailiff who executed the writ of fieri facias, took an indemnity from the execution creditor, and is therefore identified with him. But the Court held that the Defendant Jewison, the chief bailiff, whose officer Ingham [474] was, is not affected by this circumstance. I confess it appears to ine, as at present advised, that if Ingham be identified with the execution creditor in consequence of what he has done in the course of executing the writ, Jewison is so likewise. Jewison would be liable for all acts done by Ingham as officer, even for any extortion committed by Ingham, although contrary to his express orders. Jewison can have the benefit of the indemnity taken by Ingham, and is, in my apprehension, exactly in the same condition as Ingham. However, as the other point in this case is the most important one, I will proceed to examine it, having stated only this much upon the point of indemnity, lest I should be supposed to agree entirely with the Court of Exchequer upon it. The principal question, then, is this, Is a sheriff liable to an action of trover at the ? KING. 475. BALME V. HTJTTON 691 suit of the assignees of a bankrupt, where, upon a fieri facias against a trader who has committed a secret act of bankruptcy, of which the sheriff is wholly ignorant, he seizes and sells'? I am of opinion that he is liable. It has been so considered for a great length of timej and though I admit that the case of Cooper v. Ghitty, reported in 1 Burrow, 20, and much more intelligibly, as I think, in Lord Kenyon's notes, 395, does not, necessarily, decide the point, because, in that case, the sheriif sold the goods after a commission of bankrupt had issued; yet the general understanding of the profession has long, treated that case and the subsequent practice as decisive of this question. Accordingly, in the case of Lazarus v. Waithman (5 B. Moore, 313), the Court of Common Pleas expressly so held; and in that case the old authorities, and particu larly Baily v. Bunning (1 Lev. 173), were cited by counsel. Afterwards in Price v. Helyar (4 Bingh. 597. 1 Mo. & P. 541) the Court of Common Pleas again decided in the same [475] manner on the same ground, and according to the report in Moore and Payne the counsel for the Defendants cited Baily v. Bunning. The Court of Exchequer had also held the same doctrine some-time before in the case of Potter v. Starkie (4 M. & S. 260), and also in Lazarus v. Waithman. I do not think it necessary to enter into a full examination of the reasoning of Lord Mansfield in Cooper v. Ghitty. I agree in much, though not in all, that is said on that subject, in the judgment of the Court of Exchequer in this case, but I dissent from the conclusion which is drawn in that judgment. Looking at the subsequent authorities, and at the uniform practice in modern times, I cannot consider this question as res Integra, and should not think myself justified in overruling the decisions of so many learned Judges, even if I felt that in the absence of such decisions my view of the law would probably be different. But I by no means say that it would be different. The first authority, namely, Baily y. Bunning, is cited as having determined this point the other way. Now, if I am not bound by the several modern decisions on the subject, I certainly am not bound by the authority of Baily v. Bunning, badly and imperfectly reported as it is in Levinz, Siderfin, and in Comberbach; and impossible as I find it to satisfy my mind on what ground the Court in that case really did proceed. The special verdict in that case, which was an action of trover against the judgment creditor and the bailiff of a liberty having the return of writs, is plainly imperfect, for it finds only a demand and refusal, but not a conversion, whereas it is common learning that a demand and refusal are evidence only of a conversion, and that the jury must themselves draw the conclusion. Again, the verdict puts the question on the taking, and according [476] to the Reports it should seem that the Court proceeded on the ground that the "taking was not unlawful, which is frequently not the real point in trover, for the taking may be lawful, and yet there may be a subsequent unlawful conversion. The verdict is general, not guilty, as regards the execution creditor, and rightly so, for it is not found that he interposed in the seizure; and it is expressly found that the goods still remained in the bailiffs hands, not sold nor delivered over to the execution creditor; and yet Baily v. Bunning has been mentioned by Levinz as an authority to shew that the officer shall not be charged, when perhaps the party shall;-so inaccurate are the Reports of that day respecting this case, and so conclusive to my mind that no reliance can be placed on Baily v. Bunning as establishing any point at all. Letchmere v. Thorowgood (3 Mod. 326, and other places) has been cited; but, if possible, it is worse reported than Baily v. Bunning: the only point was there, that a man shall not be made trespasser by relation; a...
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