Cheston and Others, Assignees of Charles Savin and Eugene Le Roy, Bankrupts v Gibbs and Another
| Jurisdiction | England & Wales |
| Judgment Date | 23 November 1843 |
| Date | 23 November 1843 |
| Court | Exchequer |
English Reports Citation: 152 E.R. 1132
EXCHEQUER OF PLEAS.
S. C. 1 D. & L. 420; 13 L. J. Ex. 53. Followed, Graham v. Witherby, 1845, 7 Q. B. 491. Explained, Congreve v. Evetts, 1854, 1 Ex. 298. Not applied, Ex parte Crosthwaite; In re Pearce, 1885, 14 Q. B. D. 966.
I L32 CHESTON V. GIBBS 12 M. it W. 111. [Ill] cheston and others, Assignees of Charles Savin and Eugene Le Roy, Bankrupts v. gidbh and anothuk. Exch. of Fleas. Nov. 2,'i, 1843.-Trover lies against a sheriff', who, having seized goods under an execution upon a judgment founded on a warrant of attorney, after an act of bankruptcy by the debtor, but before the fiat, sells them subsequently to the issuing of the Bat.-The effect of the 108th section of 6 Geo. 4, c. 16, is to vary the legal operation of the writ of execution itself, and to prevent such an execution from being carried into effect foe the benefit of creditors.-In trover by the assignees of a bankrupt, the defendants pleaded, that the plaintiffs, by relation of their title as assignees to the act of bankruptcy, were entitled to the possession of the goods ; that a writ of fi. fa. upon a judgment was directed to the defendants as sheriff'; and that, before the fiat, the defendants executed and levied execution under the writ against the goods, and thereby committed the grievances, &c. ; that the execution was really and bona fide executed and levied ; and that at the time of executing and levying it, neither the defendants nor the execution creditor had notice of a prior act of bankruptcy.-Replication, that before the recovery of the judgment against the bankrupts, they executed a warrant of attorney, upon which judgment was entered up, and that the said writ of fi. fa. was issued thereon ; that before the execution of the fi. fa., and the entering up of judgment thereon, the bankrupts committed an act of bankruptcy ; that a fiat issued within less than two mouths of the execution and sale; and that after the fiat, and before the sale the sheriff had notice of the act of bankruptcy and fiat; that the defendants did afterwards, and after the issuing of the fiat, and after notice thereof, sell and dispose of the goods, which is the same conversion as in the declaration mentioned. - Held, on special demurrer to the replication, that the words "executed" and "levied" were synonymous, and signified a seizure in execution; and therefore that the replication did not amount to an argumentative denial of the averment in the plea, that the defendants executed and levied the execution before the date and issuing of the fiat, but was good by way of confession and avoidance. [S.;C. 1 D. & L. 420; 13 L. J. Ex. 53. Followed, Graham v. Wilherby, 1845, 7 Q. B. 491. Explained, Gongreve v. Emits, 1854, 10 Ex. 298. Not applied, Ex parts Vrost/iwuite ; In re Pearce, 1885, 14 Q. B. D. 966.] Trover by the assignees of bankrupts. The declaration contained one count, laying the property in the assignees. Plea, that after the said C. Savin & E. Le Koy became bankrupt, and after the passing of a certain act of Parliament passed in the third year of Queen Victoria, intituled, " An Act for the better protection of parties dealing with persons liable to the bankrupt laws," and before the date and issuing of the fiat of bankruptcy against the said C. Savin & E. Le Roy, under which fiat the plaintiffs have been appointed and are such assignees as in the declaration mentioned, and before the committing of the grievances in the declaration mentioned, to wit, on, &c., the plaintiffs, as assignees of the said C. Savin & E. Le Roy, (to wit, by reason of the relation of their the said plaintiffs' title as such assignees, to the time of the bankruptcy of the said C. Savin & E. Le Roy, though not then appointed to be such assignees), were the owners of, and entitled to the possession of, the cattle, goods, and chattels in the declaration mentioned, as of their property [112] as such assignees as aforesaid, and the said C. Saviu & E. Le Roy were then (subject only to such title of the said plaintiffs as aforesaid, as such assignees, by such relation as aforesaid) possessed of and entitled to the said cattle, goods, and chattels, and thereupon, after the bankruptcy of the said C. Savin & E. Le Roy, and after the passing of the aforesaid act of Parliament, and before the date and issuing of the said fiat, and while the plaintiffs were such owners so entitled as in the introductory part of this plea mentioned, and while the said C. Savin & E Le Roy were so possessed and entitled as aforesaid, subject as aforesaid, and before the committing oE the grievances in the said declaration mentioned, to wit, on, &c., one Charles Lewis, by the consideration and judgment of the Court of our lady the (Jueon, before the barons of her Exchequer at Westminster, recovered against the said C. Savin & JL Le Roy, as well a certain debt of 3781. 12s. 8d. as also 31. 10s., which in and by the said Court were then adjudged to the said C. Lewis, for his damages, which he had sustained by reason of detaining the said debt, whereof the said C. Savin & E Lo 13 M. &W.113. CHESTON V. GTBBS 1133 ltoy were convicted ; that afterwards, and before the elate and issuing of the said fiat, and while the plaintiff's were such owners and so entitled, as in the introductory part of this plea mentioned, and while the said C. Savin & E. Le Koy were so possessed and entitled as aforesaid, and before the committing of the said grievances as in the said declaration mentioned, to wit, on, &c., the said C. Lewis, for obtaining satisfaction of the said debt and damages, sued out and prosecuted out of the said Court a certain writ of our lady the Queen, called a writ of fieri facias, directed to the sheriff of Middlesex, whereby the said sheriff' was commanded &c., [setting forth the fi. fa. and alleging the delivery of it to the sheriff to be executed ;] under arid by virtue of which writ, arid for the purpose of satisfying the monies as directed to be satisfied by the indorsement on the said writ, the defendants, as such [113] sheriff as aforesaid, afterwards and before the date and issuing of the said fiat, and while the plaintiffs were such owners and so entitled as in the introductory part of this plea mentioned, and while the said C. Savin & E. Le Koy were so possessed and entitled as aforesaid, subject as aforesaid, to wit, on, &c., executed and levied execution under and by virtue of the said writ, against the cattle, goods, and chattels in the declaration mentioned, and thereby committed the said alleged grievances in the declaration mentioned : and the defendants aver, that the said execution was really and bona fide executed and levied, and that at the time of the executing and levying such execution as aforesaid, they the defendants had not, nor had either of them, nor had the said C. Lewis, any notice of any prior act of bankruptcy by the said C. Savin & E. Le Roy, or either of them, committed. Verification. Replication, that before the said judgment was recovered against the said C. Savin & E. Le -Koy, to wit, on, &c., the said C. Savin & E. Le Koy respectively signed, sealed, and delivered, and executed a certain warrant of attorney, directed and addressed to one .1. Lewis and one T. Koberts, therein described as attorneys of the Court of Exchequer of Pleas at Westminster, jointly and severally, or to any other attorney of the same Court, and thereby desired and authorized them the said attorneys above named, or any one of them, or any other attorney of the said Court of Exchequer of Pleas, to appear for them the said G. Savin & E. Le Roy in the said Court, and then and there to receive a declaration for them in an action of debt at the...
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