Elias Moss v Smith, Esq and Another, Late Sheriff of Middlesex
| Jurisdiction | England & Wales |
| Judgment Date | 08 December 1808 |
| Date | 08 December 1808 |
| Court | High Court |
English Reports Citation: 170 E.R. 1031
IN THE COURTS OF KING'S BENCH AND COMMON PLEAS
[489] Thursday, Dec 8, 1808. elias Moss v smith, esq and another, late sheriff of middlesex (To smpport a commissission of bankrupt, it is still necessary since the passing of stat. 46 Geo. Ill c. 135 (Sir Samuel Romilly's Act), that there should have been husband,-it was held, that the property in the note vested in the husband by the delivery to the wife, and that no interest passed by her indorsement in her own name to the plaintiff. But there, the defendant had made no promise to the indorsee after the indorsement. Except in the instance of a fente covert, it is no defence to an action on a bill or note, that the plaintiff derives title through one who would not himself have been liable upon it.-Taylor v. Croker, 4 Esp. Gas. 187 ; Holy v. Lane, 2 Atk 182. (a) The words of the statute are-" all such effects, of which the party was possessed or interested in, or whereby he hath or may expect, any profit, possibility of profit, benefit or advantage whatsoever." * However, the possibility, to pass under the commission, must be such as the bankrupt himself could have assigned or released -Moth v. Frame, Ambler, 394 ; Dommet v Bedford, 6 T. R. 684. I(f&2 MOSS V. SSCmi i camp. good petitioning creditor's debt subsisting when the act of bankruptcy was committed ; and it is not sufficient that the petitioning creditor's debt accrued before the suing out of the commission ) Action for a false return of nulla bona to a writ of Ji fa against the goods of one David Moss - The defence was. that before the delivery of the writ to the shenft, David Moss had committed an act of baakruptcy, on which a commission was afterwards sued out against him On the 8th of December, 1807, D M who was proved to be a trader, departed from his house, leaving no directions where he was to be found, and never returned to it afterwards The petitioning creditor s debt was for goods sold upon a credit which did not expire till the llth of December. On the 25th of the same month, several of D M.'s creditors called at his house for payment of their debts On the 29th his goods were seized by the sheriff under the Ji fa , but the execution was withdrawn upon notice of the bankruptcy. Lord Ellenborough said the commission could not be supported, as there was no debt due to the petitioning creditor when the act of bankruptcy was committed...
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