George Garland, Esq., - Plaintiff in Error; Thomas Carlisle, Assignee of the Estate and Effects of George Valentine Leonard, a Bankrupt, - Defendant in Error
| Jurisdiction | England & Wales |
| Judgment Date | 14 August 1838 |
| Date | 14 August 1838 |
| Court | House of Lords |
English Reports Citation: 6 E.R. 386
House of Lords
Mews' Dig. i. 363, 461; ii. 940; vi. 646. S.C. 4 Cl. and F. 693; 5 Cl. and F. 354; 4 Scott 587; 4 Bing. N.C. 7; 3 M. and W. 152. Cited with approval in Hollins v. Fowler, 1875, L.R. 7 H.L. 764.
[421] ENGLAND. (exchequer chambbe.) GEORGE GAELAND, Esq.,--Plaintiff m Error; THOMAS CARLISLE, Assignee of the Estate and Effects of GEORGE VALENTINE LEONARD, a Bankrupt - Defendant in Error. [Mews' Dig. i. 363, 461; ii. 940; vi. 646. S.C. 4 Cl. and F. 693 ; 5 Cl. and F. 354; 4 Scott 587; 4 Bing. N.C. 7; 3 M. and W. 152. Cited with approval in Rollins v. Fowler, 1875, L.R. 7 H.L. 764.] 386 OAKLAND V. CARLISLE [1837] XI BLIGH N.S. In an action of trover, brought by the assignees of a bankrupt against a sheriff to recover the value of goods seized under an execution, the, following facts (among others) were found by special verdict: On the 16th of December, 1824, a writ of fieri facias against L., and at the suit of P., was delivered to the under sheriff. On the 17th of December, the goods on the premises of the debtor were seized. On the 24th of December, in consequence of an arrangement between the debtor and creditor, the execution was withdrawn; and, under the agreement, the goods: were removed by the direction of W., an agent for the attornies of the execution creditor. How they were disposed of does not appear; but the fees, poundage, etc. of the sheriff's officer were paid. On the 8th of January, 1825, a commission of bankruptcy issued against L., founded on an act of bankruptcy committed on the 15th of October, 1824. It did not appear that the sheriff at the date of the seizure had notice that an act of bankruptcy had been committed. On the 29th of January, the usual assignment of the bankrupt's estate and effects was made to the Plaintiff. The action was brought in June, 1825, and a verdict found for the Plaintiff: upon a new trial, a special verdict was found, comprising the facts before-mentioned. Upon argument of the special verdict, the Court, was of opinion, 1. That there was a sufficient conversion by the sheriff whereon to maintain the action of trover. [422] 2. That the sheriff was liable for such conversion, notwithstanding his total ignorance at the time that an act of bankruptcy had been committed ; and judgment was given accordingly. Upon writ of error to' the Exchequer Chamber, the judges being equally divided in the opinions, the judgment stood; and upon further writ of error to the House of Lords, the judgment was affirmed. This writ of error was brought by the Plaintiff in error, to reverse a judgment of the Court of Exchequer Chamber, of Michaelmas term, 1833. The action was in trover, brought in his Majesty's Court of Common Pleas, by Thomas Carlisle, the Defendant in error, as assignee of the estate and effects of George Valentine Leonard, a bankrupt, against George Garland, Esquire, the Plaintiff in, error, late sheriff of the county of Dorset.. The cause was tried before Mr. Justice Littledale, at the Summer assizes at Dorchester, in the year 1825, when a verdict was found for the Plaintiff. Damages £450. This verdict was set aside; and upon a. new trial, before the same learned Judge, the jury found the following facts by a special verdict: " That the within named George Valentine Leonard, at the time of the committing the act. of bankruptcy, and the issuing of the commission hereinafter mentioned, was a. trader within the intent and meaning of and subject to the statutes made and then in force concerning bankrupts; and that there was then a good petitioning creditor's debt: That the said George Valentine Leonard, on the 15th of October, 1824, committed an act of bankruptcy: That on the 15thi of December, in the same year, a writ of fieri facias issued out of his Ma-[423]-jesty's Court of King's Bench, tested the last day of Michaelmas term preceding, returnable on Monday next, after eight days of St. Hilary then next, and directed to- the sheriff of Dorset, commanding him, that of the goods and chattels of the said George Valentine Leonard, he should cause to be levied as well a certain debt of £604, which Joshua Payne had recovered against him in the Court of King's Bench, as, also 65s. for his damages, as well by reason of the detaining of that debt, as for his costs, and charges; which said writ was endorsed to levy £306 Is. 6d, besides sheriff's fees, poundage, officers' fees, and all incidental expenses: That on the 16th day of the same month of December the said writ was delivered to Mr. William Parr (at that time under-sheriff to the Defendant, who was then sheriff of Dorset,) by John Williams, an agent of the said Joshua Payne, together with a letter from Green and Ashhurst, his attorneys; a copy whereof is as follows : " Sambrook Court, Basinghall Street, " 15th December, 1824. " Sir: The bearer, Mr. Williams, will deliver a writ of fieri fac-ias to. you, which 387 XI BLIGH N.S. GARLAND V. CARLISLE [1837] we ha,ve issued against the goods of Mr. George Valentine Leonard, and upon which you will be pleased to grant a warrant to an officer living near to Lyme. We authorise you and the officer to- take Mr. Williams's directions on the subject of this execution, and to withdraw from possession if he shall think fit to request you so to do. (We are) Green and Ashurst. " Mr. Parr." [424] And on the 17th of that month the Defendant issued his warrant, directed to William Restarick, his bailiff, reciting the said writ, and commanding him to levy of the goods and chattels of the said George Valentine Leonard, as required by the said writ, that the said sheriff might have the money as by the same he was commanded : That the warrant was, by the said John Williams, the agent of the said Joshua Payne, delivered to the said William Restarick, together with a letter from the said William Parr, as under-sheriff as aforesaid, to the said William Restarick; a copy of which is as follows: " Payne v. Leonard. " Poole, 16th December, 1824. "' Sir : Inclosed is a warrant to levy on the Defendant's property, which I send you by Mr. Williams, whose directions you will take in the execution of the warrant; and if he requests you to withdraw the execution, you will do so on his giving you a written authority. Wm. Parr." Who afterwards, o n the 17th of December, in the year last aforesaid, entered the said George Valentine Leonard's house and premises at Lyme, in the county of Dorset, and there seized and took divers goods in the declaration, mentioned, which were the goods of the said George Valentine Leonard, but which, by the subsequent commission of bankrupt and aiSsignment, became the property of the Plaintiff, by relation from the act of bankruptcy, of the value of £450, under and by virtue of the same writ, putting Robert Gascoigne, his assistant, [425] in possession, and leaving with him the warrant, and kept possession of the same till the 24th of the same month : That whilst said Robert Gascoigne was s,o in possession, as the assistant to the said William Restarick, divers goods, parcel of the said goods in the said declaration mentioned, of the value of £445, which were the goods of the said George Valentine Leonard, but which, by the subsequent commission of bankrupt and assignment, became the property of the Plaintiff, by relation, from the act of bankruptcy, were made up into thirteen packages., which the said William Restarick understood were packed for the purpose of satisfying the levy, in pursuance of an arrangement made between the said John Williams and the said George Valentine Leonard, eight of them to- pay the debt due from the said George Valentine Leonard to the said Joshua Payne, and the remaining five of them to be sold by the said Joshua Payne, for the sheriff's poundage, officers' fees:, and other expense, which the said John Williams, as such agent, should have incurred, or might incur, in and about the said levy, the surplus balance to be remitted to' the said George Valentine Leonard; the greatest part of these goods had been originally purchased, by the said George Valentine Leonard, of the said Joshua Payne, but some few of the goods, so- purchased, having been sold, the value of them was made up1 out of the said George Valentine Leonard's stock, but the said Joshua, Payne had not, by this arrangement, any more than his just debt: That after such arrangement had been so1 made between them, on the 24th of the same month of December, the said John Williams, agent for the said Joshua Payne, delivered to1 the said [426] William Restarick two letters, one dated the 23d of December, signed by the said George Valentine Leonard, and directed to' the said William Restarick, as follows: " ' I request and empower you to take goods instead of cash, to the amount of the levy in the above cause.' " And the other, dated Lyme, 24th of December, 1824, signed by John Williams, as follows: " ' I hereby authorise, and request you to quit possession, the Plaintiff having been satisfied the whole debt and costs in this action.' " The execution was afterwards, on the last-mentioned day, wholly abandoned; 388 GARLAND V. CARLISLE [1837] XI BLIGH N.S. and the said Robert Gascoigne, and the said William Restarick, quitted the premises of the said George Valentine Leonard, leaving all the said goods thereon; the said Robert Gascoigne going to Bridport, and taking the said warrant with him, and the said William Restarick to- the Cups Inn at Lyme: That, two hours after, the said John Williams, the agent of the said Joshua Paynei, came to the said William Restarick, at the Cups Inn, to settle with him for the sheriff's poundage, and his, thte said William Restarick'si, expenses for inventory, holding possession, levying, and other expenses, which was done, and was the first time they had been...
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