Earl of Bristol against Wilsmore and Page
| Jurisdiction | England & Wales |
| Judgment Date | 24 April 1823 |
| Date | 24 April 1823 |
| Court | Court of the King's Bench |
English Reports Citation: 107 E.R. 190
IN THE COURT OF KING'S BENCH.
S. C. 2 D. & R. 755; 1 L. J. K. B. O. S. 178. Referred to, Dixon v. Hewetson, 1867, 16 L. T. 296.
eael of bkistol against wilsmoke and page. Thursday, April 24th, 1823. By a contract of sale, the property sold was to be paid for by ready money. The vendee induced the servant of the vendor to deliver it for a check upon a banker, by representing it to be as good as money; in fact he had overdrawn his account for many months, and when the check was presented, payment was refused. On the same day that the goods were purchased, the vendee gave a warrant of attorney to a creditor, under which judgment was immediately entered up, and execution issued, arid the property in question seized by the bailiff of a liberty. While it was in his custody, the original owner rescued it: Held, in an action brought against the latter by the bailiff of the liberty for the rescue, that the question whether the contract of sale .was so vitiated by fraud as to prevent the property in the goods passing to the vendee, depended upon a question of fact, which ought to have been submitted to the jury, viz., whether the vendee had obtained possession of the goods with a preconceived design not to pay for them. [S. C. 2D. &R. 755; 1 L. J. K. B. 0. S. 178. Eeferred to, Dixon v. Hewetson, 1867, 16 L. T. 296.] Declaration by the plaintiff, as chief steward of the liberty of Bury St. Edmunds, stated that Elizabeth Carver had recovered 4001. and costs against [515] Wm. Miller, by the judgment of the Court of King's Bench, and had sued out a testatum fi. fa. directed to the Sheriff of Suffolk, to levy the amount, who made out his mandate to the plaintiff, as steward of the liberty, to levy that sum; that the plaintiff, by virtue of the mandate took 100 sheep, which were then feeding in a field belonging to Miller : that while the sheep were in the custody of the plaintiff, the defendants wrongfully rescued them; by means whereof plaintiff was prevented from satisfying the debt and costs, and Elizabeth Carver commenced an action against him to obtain payment, and plaintiff was obliged to expend 1001. in compromising that action. There was also a count in trover. Plea, not guilty. At the trial, before Abbott C.J., at the Middlesex sittings after last Trinity term, it was proved, on the part of the plaintiff, that the sheep were taken in execution by an officer of the plaintiff, under a mandate of the Sheriff of Suffolk, as stated in the declaration. In the course of, the night after they were seized in execution, and while they were in the custody of the officer, in a field belonging to Miller, next adjoining to a meadow belonging to the defendant Wilsmore, Page made a passage for the sheep into Wilsmore's field. The latter impounded them, and the next morning delivered them to Page, upon his paying the alleged amount of the damage done. This appeared to have been a...
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