Cotton v James, Gent. One, &
| Jurisdiction | England & Wales |
| Judgment Date | 18 January 1829 |
| Date | 18 January 1829 |
| Court | High Court |
English Reports Citation: 172 E.R. 522
IN THE COURTS OF KING'S BENCH AND COMMON PLEAS
Jan. 18th, 1829. cotton v. james, gent. one, &c. (In trespass for taking goods, the defendant pleaded (without the general issue) a justification under the warrant of commissioners of bankrupt, and averred, that the plaintiff " had become bankrupt within the true intent and meaning of the stat 6 Geo IV. c 16." Replication, denying that the plaintiff became bankrupt ò-Held, that on these pleadings the defendant had the right to begin. If a plea contain distinct allegations of a trading and petitioning creditor's debt and then go on to state, that the plaintiff " became bankrupt," and in the replication the plaintiff protest the trading and petitioning creditor's debt, and deny that the plaintiff '' became bankrupt," this merely puts in issue the act of bankruptcy, and the words " became bankrupt," coupled with the other two allegations, will be held to extend to the act of bankruptcy only ) [S. C. Mood. & M. 273. See 1 B. & Ad 128 Approved, Mercer v Whall, 1845, 5 Q. B. 447 Followed, Fish v. Travers, 1829, post, p. 578 , Isitl v Beeston, 1868, L. R. 4 Ex. 159.] Trespass. The first count of the declaration was for breaking and entering the plaintiffs house, and taking his goods ,-Second count, for taking and carrying away [506] the goods and converting them. Plea (a)-That before the time when, &c. the plaintiff was a trader, and became indebted to the defendant in a sum upwards of £100, and that he " became a bankrupt within the true intent and meaning of the statute," then and still in force concerning bankrupts. That the defendant petitioned the Lord Chancellor, and that a commission issued, upon which the plaintiff was declared a bankrupt, whereupon the commissioners granted their warrant, directed to Charles Cutten, their messenger, to seize, &c. ; and that he did so seize, &c. The plea went on to state, that the trespasses were committed before the choice of an assignee, and that the defendant was the petitioning creditor Replication, protesting the petitioning creditor's debt, the trading, the commission and adjudication, and the warrant, and denying that the plaintiff " did become a bankrupt within the true intent and meaning of the said statute " (b). (a) There was no plea of the general issue. It seems that, under sect. 44 of the Bankrupt Act, 6 Geo. IV. c. 16, a plea of the general issue would have been sufficient without any special plea ; and that the defendant chose to plead specially, merely for the purpose of obtaining the reply. (b) By sect. 27 of the Bankrupt Act, 6 Geo IV c. 16, the commissioners may grant a warrant to the messenger to break open any house, &c. where any property of tie bankrupt shall be reputed to be, and to seize it; and by sect 31, no action shall be brought against the messenger for anything done under the commissioners' warrant, prior to the choice of assignees, unless perusal and a copy of the warrant have been demanded ; and if such demand has been complied with, the petitioning creditor must be made defendant in any action brought for anything done under the warrant. These sections of the Bankrupt Act are set out in Arch Bank Law, pp. xxxh, xxxiii. As these forms of plea and replication are not to be found in any printed collection, copies of them will no doubt be acceptable ; more especially as in the plea there is a statement of the trading, commission, &c. in the proper form under the new Bankrupt 3 CAR. ft P. 807. COTTON V. JAMES 523 [507] As soon aa the pleadings had been opened, F. Pollock, for the defendant, claimed the right to begin, as the [508] affirmative was on the defendant. And he relied on the case of Cooper v. Wakhy, ante, p. 474. Act, which will be found useful in drawing a plea by a bankrupt who has obtained his certificate after action brought, as well as in cases like the present Plea.-And the said defendant, m his own proper person, conies and defends the foroe and injury when, &c., and says that the said plaintiff ought not to have or maintain his aforesaid action thereof against him, because he says, that the said goods, chattels, and effects in the said first count of the said declaration mentioned, and the said goods, chattels, and effects in the said second count mentioned, are and were one and the same goods, chattels, and effects, and not other or different; and that the seizing and taking, &c. of the said goods, chattels, and effects m the said first count mentioned, and the seizing and taking, &c. in the said second count mentioned, are and were one and the same seizing and taking, and not other or different. And the said defendant further saith, that long before, and continually thence until, and at the time of the suing out of the commission of bankrupt hereinafter mentioned, and thence until the time of committing the said supposed trespasses in ihe said declaration mentioned, the said plaintiff was a builder and trader, within the true intent and meaning of the statute made, and then and still in force concerning bankrupts, to wit, at the parish aforesaid, in the county aforesaid, and during all the time aforesaid, there sought his livelihood thereby And the said plaintiff so being a builder and trader as aforesaid, and so seeking his livelihood as aforesaid, afterwards, to wit, on the 8th day of January, in the year of our Lord 1828 aforesaid, at the parish aforesaid, in the county aforesaid, became and was indebted in Ihe way f hia said trade to the said defendant, a subject of this realm, in a certain sum upwards of £100, to wit, in the sum of £218, 19s. of lawful money of Great Britain, for a true and just debt due and owing from the said plaintiff to the said defendant. And the said plaintiff being so indebted, and being such builder, and so seeking Ms livelihood as aforesaid, and being a subject of this realm, he, the said plaintiff, afterwards and before the issuing of the commission hereinafter mentioned, to wit, on the 10th day of October, in the year aforesaid, at the parish aforesaid, in the county aforesaid, became a bankrupt within the true intent and meaning of the said statute made and in force concerning bankrupts. And the said defendant so being a creditor of the said plaintiff, and being wholly unsatisfied and unpaid his said defet, he^ the said defendant, afterwards, to wit, on the 16th day of October...
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