Bowes v Foster
| Jurisdiction | England & Wales |
| Judgment Date | 29 January 1858 |
| Date | 29 January 1858 |
| Court | Exchequer |
English Reports Citation: 157 E.R. 322
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C. 27 L. J. Ex 262; 4 Jur (N S) 95, 6 W R 257. Discussed, Lee v Lancashire and Yorkshire Railway, 1871, L. R. 6 Ch. Ap. 535. Applied, Taylor v. Bowers, 1876, 1 Q. B. D. 298
322 BOWES V. FOSTER 2 H. & N. 780. Bow&i v. foster. Jan 29, 1858.-The plaintiff, being in difficulties and fearing that some of his creditors would issue execution against his goods, agreed with the defendant, who was also a creditor, that there should be a pretended sale of them to him. For this purpose tin invoice was made out and a receipt given to the defendant for a sum therein stilted to be the purchase money, and possession of the goods was delivered to the defendant. Aftei wards the defendant sold the goods as his own, whereupon the plaintiff brought tiover Held, that no property in the goods passed to the defendant, and that the plaintiff was not precluded from shewing that no payment was in fact made and that the transaction was not a real, but a pretended sale. [S. C. 27 L. ,7. Ex 262 ; 4 Jur (N S ) 95 , 6 W H 257. Discussed, Lee v Lanaashue and Ymkshire Uailway, 1871, L. K 6 Ch. Ap. 5.35. Applied, Taylot v Bmvei*, 1876, 1 Q B. D. 298 ] Trover Pleas . Not guilty, and not possessed. Issues thereon At the trial before the Assessor of the Court of Passage at Liverpool, the facts, according to the plaintiff's evidence, were, that in June List, being in difficulties, he was desirous of disposing of his stock in trade and business of a chemist, but fearing that some of his creditors would issue execution against his goods, he agreed with the defendant, who was also a chemist, and a creditoi of the plaintiff for 401., that there should be a pretended sale of them to him For this purpose an invoice of the goods was made out to the defendant, and a receipt was given to him by the plaintiff for the sum of 401, which was therein stated to be the purchase money of the goods. The plaintiff then delivered possession to the defendant and left the neighbourhood, and an assistant of the defendant took charge of the shop and carried on the business. The defendant afterwards sent the goods to an auctioneer for sale, and the plaintiff, having heard of it, gave notice to the auctioneer that they were his property. The goods were sold, and the plaintiff brought an action [780] against the auctioneer, who obtained an interpleader order, under which he paid the proceeds into Court, and the defendant was admitted to defend the action At the conclusion of the plaintiff's case, it was submitted by the defendant's counsel that he ought to be nonsuited, inasmuch as it was not competent for him to allege that the agreement under which he had given the invoice and receipt, and had delivered possession of the goods, was intended as between him and the defendant as a fraud on other creditors. The Assessor overruled the objection, and the defendant's counsel then adduced evidence to prove that the goods were delivered to the defendant in satisfaction of the 401. which the plaintiff owed him. The Assessor left it to the jury to say whether the transaction was a bona fide sale, or a mere colourable one for the purpose of protecting the goods against any creditor who might issue execution : that in the former case they should find for the defendant, and m the latter for the plaintiff. The jury found a verdict for the plaintiff, and leave was reserved to the defendant to move to enter a nonsuit Brett, in the present term, obtained a rule nisi accordingly, against which H. James shewed cause. The plaintiff was not precluded from shewing the real nature of the transaction between him and the defendant. The question is what were the rights of the parties inter se ? The effect of the transaction as regards third parties is immaterial. It is said that the sale was fraudulent within the 13 Eliz. c 5, s. 2, and therefore the plaintiff was estopped. But under that statute fraudulent gifts are only void as against purchaseis and creditors: Hawes v. Leadet (Cro. Jac. 270). An assignment of goods in fraud of cieditors is valid as between parties to the deed, and as between either party and a stranger. Bessey v. Jfantlham (6 Q B 166) [781] [Watson, B., referred to White v Mm rig (11 C. B. 1015) ] The jury have found that there was no sale, but only a pretended one, in order to protect the goods against creditors in general, consequently no property in the goods passed to the defendant. The Court then called on Brett, to support the rule. There was no question for the jury, and the plaintiff ought to have been nonsuited. Possession of the goods having been delivered under the invoice, the plaintiff is estopped from saying that there was no sale, and that the transaction was a mere fraudulent pretence for the purpose of deceiving creditoi s In Sims v. Tuffs (6 C & P. 207), a tenant who had paid all his rent, and got his landlord's receipt for it, fearing that his goods would be taken on legal process, agreed 2 H. &N 782. BOWES V. FOSTER 3'23 with his landlord to destroy the receipt, and that the latter should put in a distress for rent, to protect the goods The landlord did so, sold the goods and kept the proceeds The tenant having brought trover for the goods, Paike, B , who tried the cause, said, " The paities ate in pan delicto I cannot assist the plaintiff' in the lecoveiy of the proceeds of this sale They were both contemplating a fraud The transaction must be taken as valid between these parties " [Watson, B. There the plaintiff had authorized the sale of the goods, and he could not afterwards maintain...
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