Follett and Another, Assignees of J. G. Ufford, a Bankrupt, v Hoppe and Others
| Jurisdiction | England & Wales |
| Judgment Date | 19 November 1847 |
| Date | 19 November 1847 |
| Court | Court of Common Pleas |
English Reports Citation: 136 E.R. 863
IN THE COURT OF COMMON PLEAS
[226] follett and another, Assignees of J. G. Ufford, a Bankrupt, v. hoppe and others. Nov. 19, 1847. [S. C. 17 L. J.' 0. P. 76; 11 Jur. 974. Eeferred to, Bailey v. Johnson, 1871-72, L. E. 6 Ex. 286; L. B. 7 Ex. 263.] A. in an action, on a bill of exchange against B. a trader, signed final judgment under a judge's order on the 7th of March. On the 9th, B. signed and filed in the office of the Lord Chancellor's secretary of bankrupts a declaration of insolvency, and on the same day a notice of having so filed such declaration of insolvency, was served both on A. and on his attorney. On the 9th of April, a ca. sa. was issued against B. in the action, indorsed to take 461. Is. 6d., and was delivered to an officer of the sheriff of Middlesex, who, on the same day, took B. in execution. B. being taken in the custody of the officer to. a lock-up house, on the said 9th of April paid one of the assistants of such officer the amount indorsed on the ca. sa. This sum was part of the assets of B. when so paid, and it was on the llth of April handed over by the assistant who received it-to the officer, who paid it to A.'s attorney, who afterwards paid it to A. On the 30th of April, a fiat in bankruptcy issued against B. founded on the declaration of insolvency, under which B. was, on the 1st of May, duly declared a bankrupt:-Held, that the assignees of B. were entitled to recover the 461. Is. 6d. in an action for money had and received. Assumpsit, for money had and received, and for money due upon an account stated. Pleas,-first, except as to 211. Is. 6d, parcel, &c., non-assumpsit,-secondly, as to the said 211. Is. 6d., parcel, &c. payment into court. Eeplication, joining issue on the first plea, and taking the money out of court on the second. The action was brought by the plaintiffs as assignees of J. Gr. Ufford, a bankrupt, to recover the sum of 671. 3s. received by the defendants, of which 461. Is. 6d. was received under a ca. sa. issued against the person of the bankrupt, and 211. Is. 6d. under a testatum fi. fa. issued against his goods. by the queritur, and therefore, pro. tanto, excluded from the judgment; whereas, in the latter case, no such difficulty would arise. And see Makarell v. Batchelor, Cro. Eliz. 583 ; Gmmpton v. Smith, Yelv. 5 ; Pemberton v. Shelton, Cro. Jac. 498; Baylye v. Hughes, Cro. Car. 137; Holt v. Sambach, Hutt. 96; Hulme v. Saunders, 2 Lev. 4; Didxnson v. Harrison, 4 Price, 282; Com. Dig tit' Pleader (C. 84), (2 W. 7), (2 W. 14). However, in Gardner v. Bowman, 4 Tyrwh. 412, the court of Exchequer held, that insufficiency in the sum mentioned in the queritur, to cover the amount demanded by the counts, was no ground of demurrer,-relying upon M'Quillin v. Cox, as having established the position, that variance between the queritur and the counts, was in no case material. 864 FOLLETT V. HOPPE 5 C. B. 227. The following case was stated, under a judge's order, for the opinion of the court:- In February, 1846, and before his bankruptcy, J. G-. Ufford was indebted to the present defendants in two several sums of 361. and 91. 12s., that is to say, 361. upon a [227] bill of exchange drawn by them upon, and accepted by, him, which became due on the 14th of that month, and in 91. 12s. for goods sold and delivered. On the 13th of that month, the present defendants commenced an action against the said J. G. Ufford, in the court of Exchequer, for the said sum of 91. 12s., for which they held no security : and, on the 18th of the same month, the present defendants commenced another action against Ufford, in the same court, to recover the amount of the said bill of exchange. In the former of these actions, the present defendants delivered their declaration on the 20th of February; and; a plea having been pleaded thereto, .and issue joined thereon, notice of trial before the sheriff was given on the 27th of February ; but, upon the 4th of March, a judge's order was made, by consent, for a stay of proceedings in that action, upon payment of 91. 12s., the debt therein claimed, and costs, to be taxed; the payment to be made on the 9th of March; the present defendants having liberty to sign final judgment therein forthwith : and final judgment was accordingly signed in that action on the 4th of March, 1846. In the second action, viz. that for the amount of the bill of exchange, the present defendants delivered their declaration on the 26th of February, and a plea was pleaded ; but the present defendants were allowed afterwards to sign final judgment under a judge's order: and judgment was accordingly signed in that action, on the 7th of March, 1846. On the 9th of March, 1846, Ufford signed, and filed in the office of the Lord Chancellor's secretary of bankrupts, a paper writing, attested by one Henry Swan, in the following form :- "I, the undersigned, John George Ufford, of Highbury Brewery, Holloway, in the county of Middlesex, common brewer, do hereby declare that I am unable to [228] meet my engagements. Dated, this 9th day of March, 1846." (Signed) "john geokge uffokd. " Witness, Henry Swan, Attorney of the court of Queen's Bench at Westminster, &c." On the same day, a notice in writing was served upon the present defendants, at their office, Pigs' Quay, Bridewell Precinct, William -Street, Blackfriars Bridge, in the city of London, and also on their attorney, of which notice the following is a copy :- " In the Exchequer of Pleas. " Between C. Hoppe, C. E. Hoppe, and J. Hoppe, plaintiffs, and John George Ufford, defendant. "Take notice that I have this day filed in the office of the secretary of bankrupts, in Quality Court, Chancery Lane, in the county of Middlesex, a declaration of insolvency, a true copy of which is hereto annexed; and I, being a trader, have thereby committed an act of bankruptcy within the true intent and meaning of some or one of the statutes now in force concerning bankrupts. Dated, &c." (Signed) " J. G. ufford, the above-named defendant, Highbury Brewery, Holloway. " To Messrs. C. Hoppe, C. E. Hoppe, and J. Hoppe, the above-named plaintiffs, and to Mr. W. H. Engleheart, their attorney or agent, &c." On the 9th of April, 1846, a writ of testatum fi. fa. was issued on behalf of the present defendants, on the judgment obtained in the first action, indorsed to levy 211. Is. 6d., the amount of the debt and costs in that action: and this writ was delivered to an officer of the sheriff of Middlesex on the same day. [229] On the said 9th of April, a writ of ea. sa. was also issued, on behalf of the present defendants, against the said J. G. Ufford, in the second action, indorsed to 50. B. 230. FOLLETT V. HOPPE 865 take 461. Is. 6d., the amount of the debt and costs in that action : and this writ was also delivered to an officer of the sheriff of Middlesex on the same day. On the said 9th of April, 1846, the officer of the sheriff levied upon the goods of Ufford, under the said writ of testatum fi. fa., the said sum of 211. Is. 6d., which was afterwards paid over to the present defendants, and which sum they have paid into court in the present action. On the same day, the officer to whom the writ of ca. sa. had been delivered, took Ufford in execution under that writ; and, at the time of the said arrest, Ufford informed the officer of his having filed the said declaration of...
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