Fyson, Administratrix of Croft, Deceased v Chambers
| Jurisdiction | England & Wales |
| Judgment Date | 28 January 1837 |
| Date | 28 January 1837 |
| Court | Exchequer |
English Reports Citation: 152 E.R. 195
EXCHEQUER OF PLEAS.
S. C. 11 L. J. Ex. 190. Referred to, In re Clark, [1894] 2 Q. B. 393.
Administratrix of Croft, Deceased v. chambers. Exch. of Pleas. Jan. 28, 1837.-A certificate under the Bankrupt Act is evidence, as against the bankrupt, of a valid bankruptcy, without proof of the petitioning creditor's debt, &c.-A party who has taken possession of the goods of an intestate after his death, cannot set up as a defence to an action of trover by the administrator, that the intestate had been tirst insolvent and then bankrupt, and had not paid 15s. in the pound under the fiat, and that therefore the property in the goods vested absolutely in the assignees; the goods having been acquired by the intestate after the bankruptcy, and he having been allowed by the assignees to retain possession of them. [S. C. 11 L. J. Ex. 190. Eeferred to, In re Clark, [1894] 2 Q. B. 393.] Trover for goods, brought by the plaintiff as administratrix of John Croft. Pleaa, first, not guilty ; secondly, a denial of the plaintiff's possession as administratrix : on which issues were joined. At the trial before Lord Abinger, C. B., at the London Sittings after Trinity Term, the following facts appeared in evidence. The intestate, John Croft, died on the 21st of January, 1839, possessed of certain household furniture and effects, the subject of the present action. No administration having been taken out by the next of kin, the plaintiff, who was a creditor of the intestate^ applied for and ob-[461]-tained letters of administration, dated 10th October, 1840. In January 1841, the plaintiff discovered that the defendant, who was an auctioneer, had sold the goods by direction of the next of kin, who had made himself exequtor de son tort. For the defendant it was proved, that in 1828 the intestate took the benefit of the Insolvent Debtors' Act, and it was proposed also to shew that he tad subsequently become a bankrupt, for which purpose the depositions and the certificate were put in, but no specific evidence was given of a petitioning creditor's debt, or of the other previous requisites to a valid bankruptcy; and on the face of the depositions there was some ambiguity in the statement as to the date of the petitioning creditor's debt. It was proved also, that the intestate did not pay 15s. in the pound under the alleged commission, and that he acquired the goods in question subsequently to the date of the certificate, so that the property in them vested absolutely in the assignees under the Bankrupt Act, 6 Geo. 4, c. 16, s. 127. No evidence was given to shew the application of the proceeds of the sale. It was contended for the plaintiff, first, that the .depositions and certificate were no sufficient proof of the issuing of a fiat^ or of the ^xistence of a petitioning creditor's debt; and secondly, that the defen-dan;t could no^, in this action, set up the title of the assignees against the plaintiff's claim as administrator. The Lord Chief Baron reserved the points, and a verdict passed for the plaintiff for the value of the goods, with leave to the defendant to move to qnter a verdict for him on the second issue. In Michaelmas Term, Erie obtained a rule nisi accordingly, against which, in the same term (Nov. 23), Kelly and Butt shewed cause. First, the defendant was bound, in order to establish the;propoaed defence, to prove a valid commission of bankruptcy issued against the inttjs-[462]-tate, and he did not prove it by merely shewing the existence of a certifi-catf. The petitioning creditor's debt, the trading, &c., ought to have been proved by specific evidence. It is impossible for the alleged bankrupt to defeat such a prima 196 FYRON I'. CHAMBERS 9 M. & W. 463. f^icie case, if it he one, by shewing that he has not committee...
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