Clarke and Another, Assignees of Scrivener, a Bankrupt, v Gilbert
| Jurisdiction | England & Wales |
| Judgment Date | 24 November 1835 |
| Date | 24 November 1835 |
| Court | Court of Common Pleas |
English Reports Citation: 132 E.R. 135
IN THE COURT OF COMMON PLEAS
S. c. 2 Scott, 520; 1 Hodges, 347; 5 L. J. C. P. 61.
clark and another, Assignees of Scrivener, a Bankrupt, v. gilbert. Nov. 24, 1835. [S. 0. 2 Scott, 520; 1 Hodges, 347; 5 L. J. 0. P. 61.] Defendant held a certain deed of lease on which he had a lien for 3001. as attorney of S.: a commission of bankrupt was issued against S. in December 1829 ; Defendant acted as attorney under that commission; and in 1831, after notice of a petition to supersede it, he joined with the assignee under the commission in a sale of the lease, and out of the proceeds was paid the 3001. due to him from S.-The commission of bankrupt having been superseded in 1832 for want of a sufficient petitioning creditor's debt, and a new commission having issued, Held, that Defendant was liable to refund the 3001. in an action for money had and received to the use of the assignee under the second commission, and also money received in 1831 for rent, &c. accruing to S. This was an action of assumpsit, brought to recover certain sums of money alleged to have been had and received by the Defendant to the use of Scrivener before his bankruptcy, and to the use of the Plaintiffs as Ms assignees since the bankruptcy. A general verdict was found for the Plaintiffs, damages 3311. 16s., subject to the opinion of the Court on the following case:- By indenture of lease, bearing date the 17th of November 1828, certain premises in Eatcliffe Highway, in the county of Middlesex, were demised by Abraham G-ole and Thomas Gole to Scrivener the bankrupt, for the term of eighty-one years, at a rent of 1001. At the time of issuing the commission against Scrivener the [344] bankrupt, he was indebted to the Defendant, an attorney, in 2341. or thereabouts, for monies advanced ,to him by the Defendant, and for professional business done; and the Defendant had possession of the lease as Scrivener's attorney. Whilst the Defendant was in possession of the lease, namely, on the 5th of December 1829, Scrivener, by indenture bearing date on that day, mortgaged by way of demise part of the said premises to his father Abraham Scrivener, to secure 6001. and interest. ò . - On the 30th of December 1829, a commission of bankrupt was issued against the mortgagor, the said Scrivener, upon the petition of one William Stevens, who was afterwards appointed sole assignee of the estate and effects of the bankrupt; and an assignment thereof was made to him accordingly. The Defendant was Stevens's attorney, both as petitioning creditor and assignee under that commission, which commission was afterwards superseded as hereinafter mentioned. On the 26th of March 1830, a petition to the Great Seal was presented by Augustus White, a creditor, to supersede the commission of bankrupt, on the ground of the insufficiency of the petitioning creditor's debt; upon which petition the Defendant appeared as solicitor for the petitioning creditor and assignee, W. Stephens; and after some time an order was made upon that petition to supersede the commission. After notice of the petition, and whilst the same was pending, Stevens, as assignee, with the concurrence of the Defendant, caused the interest of jthe bankrupt in the premises comprised in the said lease, subject to the mortgage, to Jbe sold by auction; and one George Pound became the purchaser at the price of 3501. At the time of the 136 CLARK V. GILBERT 2 BINS. (N. C.) 345. purchase Pound paid 501. into the hands of the auctioneer by way of deposit, who, after retaining 461. 6s. for the expenses of the sale, paid over the [345] balance, amounting to 31. 14s., by his check to Stevens, which check Stevens immediately paid to the Defendant on account of his costs, and the lien which he claimed on the deeds. By indenture bearing date the 8th of June 1830, made between Stevens as assignee of the first part, the bankrupt of the second part, and the said G-. Pound of the third part, reciting (inter alia) the mortgage to Abraham Scrivener, and also that, in consideration thereof, it had been agreed between Stevens and Pound, that Pound should take the premises subject thereto, and should pay Stevens 3501. and no more, Stevens and the bankrupt assigned the lease before mentioned and the premises thereby demised, to Pound for that sum, subject to the before mentioned mortgage, and also subject to certain under leases which had been granted. The deed of assignment to Pound was prepared by his attorney, and was approved of on Stevens's behalf by the Defendant, and executed in his office. At the time of the execution of the said indenture of assignment, viz. June 1830, the residue of the consideration money, after allowing the 501. paid by way of deposit to the auctioneer, being 300L, was paid by the attorney of Pound to Stevens the assignee, and by him to the Defendant, by whom it was received generally, the Defendant having a claim for such lien as aforesaid, and Stevens being indebted to him for costs. In the course of the year 1830 the Defendant, by Stevens's authority as assignee, received three further sums of money, viz. 101., a debt due to the bankrupt from the owner of a house adjoining the said premises of the bankrupt in Eatcliffe Highway, for contribution towards the expense of erecting a party-wall between the house of such owner and the said premises of the bankrupt, such sum of 101. being the share of the expense of erecting such party-wall to be borne by the [346} said owner according to an agreement to that effect made between such owner and the bankrupt before his bankruptcy; and 61. 10s. and 111. 18s. for rent in respect of the demised premises. At the time of the receipt by the Defendant of the said sums of 31. 14s., 3001., 101., 61. 10s., and 111. 18s., he had also a claim against Stevens for his professional bill for business, in suing out and...
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