Fawcett against Fearne and Others
| Jurisdiction | England & Wales |
| Judgment Date | 25 May 1844 |
| Date | 25 May 1844 |
| Court | Court of the Queen's Bench |
English Reports Citation: 115 E.R. 8
QUEEN'S BENCH
S. C. 13 L. J. Q. B. 300; 8 Jur. 645. Followed, In re James, 1874, L. R. 19 Eq. 255.
[20] fawcett against fearne AND others. Friday, May 25tb, 1844. Under stat. 6 G. 4, c. 16, s. 72, which empowers the commissioners in bankruptcy to dispose of goods being in the possession, order or disposition of the bankrupt as reputed owner "at the time he becomes bankrupt," the time meant is that of committing the act of bankruptcy, not the time when the fiat issued; stat. 2 & 3 Viet. c. 29, s. 1, making no alteration in this respect. A trader assigned his effects to a trustee, thereby committing an act of bankruptcy. Afterwards a creditor, ignorant of the act of bankruptcy, took in execution the trader's goods comprised in the assignment. The trustee paid off the execution, and took an assignment of the goods from the sheriff. A fiat in bankruptcy having afterwards issued against the trader, Held, that, although the levy made by the execution creditor might have been protected by stat. 6 G. 4, e. 16, s. 81, or 2 & 3 Viet. c. 29, the party who had become assignee of the sheriff with knowledge of the act of bankruptcy, could not avail himself of that protection, and that the assignees in the bankruptcy might bring trover against him for the goods. [S. C. 13 L. J. Q. B. 300; 8 Jur. 645. Followed, In re James, 1874, L. R. 19 Eq. 255.] Trover for cattle, goods and chattels. Pleas. 1. That plaintiff was not nor is possessed, &c. 2. Not guilty. Issues thereon. The cause was tried before Wightman J., at the York Summer Assizes, 1843. The material facts of the case are fully detailed in the following statement, which forms part of the judgment delivered by the Court on disposing of the after-mentioned rule. " This was an action of trover against the defendants, who are the assignees of a bankrupt of the name of Bradwell, to recover damages for the conversion of certain cattle, goods and chattels which the defendants had seized, upon the issuing: of the fiat, as part of the bankrupt's estate, but which the plaintiff claimed as hia property. " The plaintiff was uncle to the bankrupt, and a creditor to a considerable amount: and, on the 15th of August 1842, the bankrupt made an assignment to him and a person of the name of Simpson for the benefit of creditors. This assignment was produced by the defendants, and was the only act of bankruptcy proved in the cause. The fiat was issued on the 25th of January 1843. [21] " On the 15th of August 1842, being the same day upon which the act of bankruptcy was committed, but some hours before the assignment was executed, and therefore before the act of bankruptcy, the Sheriff of Yorkshire seized certain of the bankrupt's goods under a fi. fa. at the suit of the Low Moor Company, indorsed to levy 4621. 12s. and 131. for costs, upon a hostile judgment obtained by them against Bradwell the bankrupt. On the 17th of August the sheriff assigned the goods seized to the Low Moor Company by bill of sale in satisfaction of their execution; and the plaintiff, having paid to the Low Moor Company the amount for which the goods were assigned to them by the sheriff under their execution, took an assignment from them on the 12th of October of the property seized by the sheriff under their execution. Formal possession was given under both assignments. "On the 23d of August 1842 three other writs of fi. fa., at the suit of bona fide and hostile judgment creditors, were delivered to the sheriff, who, on or about that day, 0-B.M. FAWCETT V. FEAftNE 9 seized certain goods of the bankrupt under them. The amount of these three executions altogether was about 2821. "On the 15th September these executions were paid off by the plaintiff, who took an assignment from the sheriff of the goods seized under these executions. The plaintiff wished the sheriff to include in the inventory all the goods of the bankrupt not included in the seizure under the execution at the suit of the Low Moor Company, alleging that, as he would pay the creditors 20s. in the pound, it would not signify. This, however, was not done; but goods, which afterwards sold for 5841., were pub into the inventory to the assignment under the three [22] executions. The sheriff then retired...
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