Giles v Smith
| Jurisdiction | England & Wales |
| Judgment Date | 02 December 1834 |
| Date | 02 December 1834 |
| Court | Exchequer |
English Reports Citation: 149 E.R. 1161
EXCH. OF PLEAS.
S. C. 5 Tyr. 15; 4 L. J. Ex. 17.
1 [462] GjtLEN v. smith. Exch. of Pleas. 1834.-In an action by a bankrupt against his assignees to try the validity of his commission : -Held, that the assignment haviilg been lost before it had been entered of record pursuant to the 6 Geo. 4, c. 16, s. 96, secondary evidence of its contents might be given. [S. C. 5 Tyr. 15; 4 L. J. Ex. 17.] This was an action of trover brought by the plaintiff to try the validity of a commission of bankruptcy issued against him, under which the defendant had been Ex. Div. v.-37* 11(52 (HLES 1'. SMITH 1 C. M. & R. 463. appointed assignee. At the trial, before Parke, B., at the Middlesex Sittings after Trinity Term, the defendant proved his title as assignee in the usual manner, with the exception that he did not produce either the commission, or the assignment; both those documents being proved to have been lost (n)1 in the course of certain proceedings which had taken place in the Court of Review. To supply this defect, the defendant gave in evidence a copy of the commission, which had been entered of record,(b) and a coun-[463]-terpart of the assignment which had been entered of record, the assignment itself having been lost before it was entered of record. Evidence was also given of the proceedings which had taken place in the Court of Review upon a petition by the plaintiff' to supersede the commission,(a)'2 upon which occasion that Court dismissed the petition. The defendant likewise produced and proved two receipts signed by the plaintiff', and dated the '2nd of July, 1830, and the 14th of October, 1831, for money allowed him by the defendant as assignee. It was also in evidence that the defendant had acted as assignee. This evidence was objected to as insufficient; but the learned Baron thought that it amounted to prima facie proof of the defendant's title as assignee, and a verdict was found for the defendant, with leave to move to set it aside and enter a verdict for the plaintiff. Bompas, Serjt., having obtained a rule accordingly- Pollock and Bonsor now shewed cause. It was not necessary to the defendant's case that the assignment should he proved, and if it was necessary there was sufficient evidence given. After a trading, petitioning creditor's debt, and an act of bankruptcy have been proved, although it is necessary to go further where a party claims as plaintiff, and sets up a title in himself under a particular assignment, yet it is otherwise with regard to a defendant, [464] who may rest his case upon the fact of the title having passer! out of the plaintiff'. In answer to him, it is sufficient to shew, as here, a valid commission ; for upon that commission it must be presumed that there has been an assignment to some one, and it is quite immaterial whether the property has passed to the defendant in the suit, or to some one else. [Parke, 13. Is the title gone out of the bankrupt before assignment?] It is difficult to say it is gone, and (a)1 Where a fiat had been accidentally lost, the Court of Review directed a new fiat to be issued, observing that a duplicate fiat had never yet been heard of. In re Levett, 1 Mont. & Ayr. 308. (l ) By the 6 Geo. 4, e. 16, a. 96, it was enacted, "that, in all commissions issued after this act shall have taken effect, no commission of bankruptcy, adjudication of bankruptcy by the commissioners, or assignment of the personal estate of the bankrupt, or certificate of conformity, shall he received as evidence in any Court of law or equity, unless the same shall have been h'rst so entered of record as aforesaid ; and the person so appointed to enter matters of record as aforesaid, shall be entitled to receive for such entry of such commission, adjudication of bankruptcy, assignment, or order for vacating the same respectively, having the certificate of such entry indorsed thereon respectively, the sum of two shillings each ; and for the entry of every certificate of conformity, having the like certificate indorsed thereon, six shillings ; and every such instrument shall be so entered of record upon the application of or on behalf of any party interested therein, and on payment of the several fees aforesaid, without any petition in writing presented for that purpose ; and the Lord Chancellor may, upon petition, direct any depositions, proceedings, or other matter relating to commissions of...
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Jacob v Sir W. Hungate
...rule differently. There was a (a) See tihis case reported as to the admissibility of any secondary evidence of an unrecorded assignment, 1 C. M. & R. 462. WATTS V. ERASER 1 M. & BOB. 448 subsequent case of Heath v. Sansom (2 B. and Adol. 291), where some of the Judges were of opinion that w......