Charles Middleton Kernot v Francis Pittis
| Jurisdiction | England & Wales |
| Judgment Date | 28 May 1853 |
| Date | 28 May 1853 |
| Court | Court of the Queen's Bench |
English Reports Citation: 118 E.R. 819
COURTS OF QUEENS BENCH AND THE COURT OF EXCHEQUER CHAMBER.
S.C. In Exchequer Chamber, 2 El.& Bl.421; 23 L.J.Q.B.33; 17 Jur.932.
2EL.&BL.408. K.ERNOT V. PITTI8 819 [406] chables middleton kernot against francis pittis. [Friday, -Tune 18th, 1852.] Where an insolvent, after a vesting order has been made on his own petition, is discharged, without adjudication, by the default or consent of creditors, and sues a party detaining goods which came to the provisional assignee before the discharge, no order of the Insolvent Debtors' Court having been made for delivering them up:-Held, by Lord Campbell C, J. and Coleridge J., that, whether or not the property revested in the insolvent by such discharge, the action, cannot by sect. 44 of stat. 1 & 2 Viet. c. 110, be brought against a person acting by authority of the provisional assignee, though the authority was not given till after the discharge.-Held, by Erie J., that the property does not so revest in the insolvent, and therefore that the action cannot be brought by him against any party.-On error in the Exchequer Chamber :-Held : that the property does not so revest, and therefore that the action cannot be brought by the insolvent against any party, [S. C. in Exchequer Chamber, 2 El. & Bl. 421; 23 L. J. Q. B. 33; 17 Jur. 932.] Detinue, sur trover, for goods. Plea: That, before the accruing of the causes of action, plaintiff, then being a prisoner in actual custody in the Queen's Prison, detained at the suit of John Peacock under a writ of attachment, and also at the suit of Thomas Magnus Cattlin under a detainer, petitioned the Court for the relief of Insolvent Debtors: the plea, in the ordinary form, set out the effect of the petition, that it was subscribed and filed, and that the Court in the usual form made an order vesting all the plaintiff's property in the provisional assignee for the time being, and his successors : and that, by virtue thereof, the goods in the declaration mentioned, whilst the plaintiff was in actual custody, and before the accruing of the causes of action, vested in Samuel Sturgis, then being provisional assignee. Averment: that the vesting order still remains in full force, and that "defendant, as servant and by the authority and command of the said S. Sturgis, as and so being such provisional assignee as aforesaid, after the making of the said vesting order as aforesaid, detained the said goods ;"" which are the said supposed causes, &c. Verification. [407] Replication : That, after the making of the vesting order, and before the detention of the goods, plaintiff was discharged out of the custody in the plea mentioned by the default of the said John Peacock, and by the consent of the said T. M. Cattlin, the said detaining creditors of the plaintiff, without any adjudication being made on the said petition of the plaintiff by the Court; and that defendant detained and detains the said goods after plaintiff had been so discharged, and did not detain nor does he detain the same or either of them " by virtue of any order, authority or command of the said S. Sturgis, made or given to the defendant before the plaintiff was so discharged as aforesaid." Verification. Demurrer (assigning causes on which the decision of the Court did not turn). Joinder. The case was argued in Trinity Term, 1852 (a). Willes, for the defendant. This case is in one respect distinguishable from Grange v. Trickett (ante, p. 395), for the plea here alleges that the defendant acted under the orders of the provisional assignee; and stat. 1 & 2 Viet. c. 110, s. 44, on which the decision in Grange v. Trickett (ante, p. 395) turned, expressly enacts that no action shall be brought against the provisional assignee, or any one acting under his authority, except to recover any property " detained after an order made by the Court for the delivery thereof, and demand made thereupon." The replication meets this by saying that there was no authority given by the provisional assignee [408] before the discharge of the plaintiff ; but it is clear that the object of the enactment was to protect those icting under the provisional assignee from the necessity of ascertaining, at their peril, whether the prisoner was discharged or not. On this ground the defendant may have judgment without impeaching Grange v. Triekett (ante, p. 395): but one object of defending the present action is to have that decision reviewed. That case appears to have been argued entirely on stat. 1 & 2 Viet. c. 110; but the provisions of the former Insolvent Acts throw light upon the construction of that Act. Stat, 53 G. 3, c. 102, s. 10, required a conveyance to be executed by the prisoner, on adjudication, (a) June 4th, before Lord Campbell C.J., Coleridge, Erie and Crompton Js.; and June 8th, before Lord Campbell C.J., Coleridge and Erie Js. 820 KEBNOT V. PITTIS 2 EL. ft BL. 9. by which his property was conveyed to an assignee for the benefit of those as to whom he was discharged. Sect. 13 enabled the court to avoid his discharge; in which case it is provided that the property shall be reconveyed to the prisoner. By the next Act, stat. 1 G. 4, c. 119, s. 4, there is to be an actual assignment; but, instead of being made at the time of adjudication, it is to be made at the time of petitioning; and the assignment is to be " subject to a proviso that in case such prisoner shall not obtain his discharge by virtue of this Act, such conveyance and assignment shall, from and after the dismission of the petition of such prisoner praying for his discharge, be null and void to all intents and purposes." Both under this proviso, and under stat. 53 G. 3, c. 102, the property remained in the assignee until the doing of an act by the Court, viz. dismissing the petition ; in neither was the revesting at the option of the detaining creditor. Then came stat. [409] 7 G-. 4, c. 57. Sect. 11 of that Act required an assignment to be executed at the time of petitioning, subject to a proviso in the same words as those of stat. 1 G. 4, c. 119, s. 4, already noticed. Sect. 18 of stat. 7 G. 4, c. 57, enacts: "That in case of the dismission of the petition of any such prisoner seeking relief under this Act, all the acts done before such dismission by the said provisional assignee, or other assignee or assignees, appointed as hereinafter provided, or other person or persons acting under his or their authority, according to the provisions of this Act, shall be good and valid ; and that in such case, or in case the conveyance and assignment made by such prisoner as aforesaid shall be avoided by any commission of bankrupt thereafter issuing against such prisoner, as hereinbefore provided, no action or suit shall be commenced against such provisional assignee, nor against any assignee or assignees appointed under this Act, nor against any person duly acting under his or their authority, except to recover any property, estate, money or effects of such prisoner, detained after an order made by the said Court for the delivery thereof, and demand made thereupon." From these enactments, the clauses in question of stat. 1 & 2 Viet. c. 110 were compiled. Sect. 37 of this Act substitutes a vesting order for the assignment required to be executed by stat. 7 G. 4, c. 57, s. 11 ; and sect. 44...
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