Bayly against Bunning
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1793 |
| Date | 01 January 1793 |
| Court | Court of the King's Bench |
English Reports Citation: 83 E.R. 355
COURT OF KING'S BENCH
bayly agaiiist sunning. Officer executes a writ on the goods of one who before that was a bankrupt. S. C. 1 Sid. 173, 171. 1 Keb. 638, 930, 932. 2 Keb. 32. In trover, ob not guilty, a special verdict found, that J. S. did an act of bankruptcy the sixth of June ; J. D. sued a fieri facias, tested the 4th of June, but really sued out the llth of June; and by virtue thereof, the defendant, being a bailiff, took the goods, and afterwards a commission of bankruptcy was sued, and the goods were assigned by the commissioners to the plaintiff: and if the taking by the defendant was lawful, they find for the defendant, and if not, for the plaintiff. And two points were argued, 1st. That the goods were bound and subject to the commission by the act done, for the statute subjects all goods to their disposal, whereof no execution ia sued and executed ; and here the act of bankruptcy was done, not only before the execution executed, but even before the suing of the writ; and altho' by common law, the goods are said to be bound by the teste of the writ, yet that 'tis here in case of a statute, which gives the disposition of all goods, whereof no execution is sued and executed; and tho' in fiction of law, the writ is supposed to be sued at the time it bears teste; yet that shall not prevail against an Act of Parliament; but the word sued in the Act shall be understood actually sued. 2dly. The special conclusion here shall not hurt the plaintiff, but he shall maintain his action (notwithstanding;) for be it so, that the first taking by the bailiff was lawful, in respect that the writ shall be supposed sued according to the teste, which was before the act of bankruptcy done; yet the execution was afterwards, and therefore tho' the taking were legal, yet the detainer is illegal; and 'tis here found, that they were demanded of the bailiff and denied to be delivered, which makes the conversion; and trover will lie, altho1 the party came lawfully to the goods at first, if he detains them afterwards ; as Mo. 103, 2 Cro. 244, for the detaining of a pawn, and 1 Cro. Chapman against Allen for goods agisted ; [174] so 3 Cro. 495, F. N. B. 169. Whereto 'twas answered for the defendant, that the taste, of the writ is matter of record, and it cannot be said to be sued at any time after the teste. And suppose it might be said to be sued after, yet the bailiff shall be justified thereby, for he...
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Garland v Carlisle
...The first case which is relied upon, in the judgment in the Court of Exchequer, is that of Bailey v. Bunning. This is reported, 1 Levinz, 173 ; 1 Siderfin, 271 ; 2 Keble, 32, 33. This case is very imperfectly and confusedly reported. It was an action of trovar; yet, if we can trust the Repo......
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George Garland, Esq., - Plaintiff in Error; Thomas Carlisle, Assignee of the Estate and Effects of George Valentine Leonard, a Bankrupt, - Defendant in Error
...so,, if (as / believe) time was taken to' consider the decision. The cases to, which I have been alluding are, of course, Bayly v. Bunning [1 Lev. 173], Leclt-mere v. Thoro-yood [3 Mod. 236], and Cole v. Davis [1 Ld. Raym. 724], upon which the judgment of the Court of Exchequer in the case ......
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