Graham and Others, Assignees of the same Bankrupts, against Lynes
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1845 |
| Date | 01 January 1845 |
| Court | Court of the Queen's Bench |
English Reports Citation: 115 E.R. 574
QUEEN'S BENCH
S. C. 14 L. J. Q. B. 290. Explained and followed, Congreve v. Evetts, 1854, 2 C. L. R. 1262. Not applied, In re Pearce, 1885, 14 Q. B. D. 971.
[491] GBAHAM AND others, Assignees, &c. of Thomas Seddon and George Seddon, Bankrupts, against george witherby and william henry witherby. graham and others, Assignees of the same Bankrupts, against lynes. 1845. B. entered up judgment on a warrant of attorney, and sued out a fi. fa,, under which the sheriff seized. W. afterwards lodged a fi. fa. with the same sheriff in a bona fide adverse action against the same debtor; and the sheriff delivered a warrant, in W.'s action, to the officer already in possession. The goods seized were sufficient only to satisfy B.'s execution. Before any sale, a fiat in bankruptcy issued against the debtor. The assignees claimed the goods; and, on an interpleader rule, this Court directed an issue between B. and the assignees, to try whether B. was entitled to the proceeds of the goods, which, by direction of the Court, were in the mean time sold, and the produce paid into Court. The issue was decided in favour of the assignees, on the ground that B.'s writ was founded upon a judgment on warrant of attorney, and had not been executed by sale before the fiat. Held that the issuing of the fiat rendered B.'s writ void; and, thereupon, W.'s writ, having already attached upon the goods provisionally, became, in effect, the first writ, and W. was entitled to have his execution satisfied out of the proceeds ; and that the assignees could not first claim any part of them under stat. 6 G. 4, c. 16, s. 108, for rateable distribution among the creditors. The sheriff, while holding the goods of T. and G. under B.'s writ, received a fi. fa, at the suit of L. in a bonS fide adverse action, and delivered a warrant, under that writ, to an officer not holding any warrant under B.'s writ; and the officer, before fiat issued, seized goods, the separate property of T., in bia private house, which goods, if applicable to B.'s execution, would have been exhausted by it. Held, as between L. and the assignees, that L. was entitled to priority, as in the case above stated. [S. C. 14 L. J. Q. B. 290. Explained and followed, Gmgreve v. Emits, 1854, 2 C. L. R. 1262. Not applied, In re Pearce, 1885, 14 Q. B. D. 971.] In Graham v. Witherby a special case was stated for the opinion of this Court by order of a, Judge, in a proceeding under the Interpleader Act (a). The material facts were as fallows. On 21st October, 1840, Thomas and George Seddon executed in favour of Thomas Bennett a warrant of attorney dated of that day and year, to appear and suffer judgment in an action of debt. A copy of the [492] warrant of attorney, &c. was duly filed; and, on January 18th, 1842, judgment was entered up thereon against the bankrupts for 50,0001. and damages. On the same day, a fi. fa. was issued on the judgment, directed to the Sheriff of Middlesex, to levy the said sum and damages, which writ, indorsed to levy 20,0001., was delivered to the sheriff: and he, on the same day, before the return of the writ, the delivering to the sheriff of the fi. fa. after mentioned, or the issuing of the fiat in bankruptcy, seized, under the writ, goods of T. and G. Seddon, which were not sufficient, if sold, to satisfy Bennett's execution : and the sheriff remained in possession of the said goods until after the issuing of the fiat. An action on promises, iu which the now defendants George Witherby and William Henry Witherby were plaintiffs, and T. and G. Seddon, defendants, was, on November 19th, 1841, commenced, adversely and not by collusion for the purpose of fraudulent preference, in the Court of Common Pleas, by writ of summons tested on that day. (o) 1 & 2 W. 4, e. 58. And see stat. 1 & 2 Viet. c. 45, s. 2. 7Q. B. 493. GRAHAM V. WITHERBY 575 The declaration was by the said G. and W. H. Witherby as indorsees, against T. and G. Seddon as acceptors, of a bill of exchange. T. and G. Seddon traversed the acceptance ; and issue was thereupon joined : but, under a Judge's order made by consent on January 7tb, 1842, T, and G. Seddon withdrew their plea; and on the same day final judgment was signed for 1381. 11s., the damages in the action and costs. No part of that sum being paid, G. and W. H. Witherby sued out a testatum fi. fa., commanding the Sheriff of Middlesex to levy the 1381. 11s., with interest, &c. On 27th January, 1842, and whilst the sheriff' was in possession of the goods so seized as aforesaid, the last mentioned writ of fi. fa., indorsed to levy [493] 1381. 11s., and interest, &c., was delivered to and lodged with the said Sheriff of Middlesex for execution; and, on that day, a warrant thereon was granted and delivered by the said sheriff to hia officer for execution ; which officer was the officer in possession under the said execution at suit of Thomas Bennett: and the said sheriff remained so in possession of the said goods thenceforth until he withdrew as hereinafter mentioned. The fi. fa. in the last mentioned action was issued by the now defendants G. and W. H. Witherby, and delivered by them to the Sheriff of Middlesex as aforesaid, and executed as aforesaid, bona fide: and they the now defendants had not, at the time of the issuing of the said writ of fi. fa. therein, or of the delivery thereof to the sheriff as aforesaid, or of the making and delivery of the said warrant thereon as aforesaid, notice of any prior act or acts of bankruptcy by the above named T. and G. Seddon, the defendants in the same action, or either of them, committed. Whilst the said goods were still in the possession of the sheriff unsold, namely on 3d February, 1842, the said T. and G. Seddon having become bankrupts according to the statutes, &c., a fiat in bankruptcy, founded on a sufficient trading, petitioning creditor's debt and act of bankruptcy, was duly issued against them, bearing date the day and year last aforesaid ; under which fiat the said T. and G. Seddon were, on the 4th day of the same month, duly declared bankrupts; and such proceedings were thereupon had that on llth February, 1842, the plaintiffs were duly appointed, and tbence hitherto have been, and still are, assignees of the estate and effects of the said T. and G. Seddon. [494] On February 19th, 1842, and while the sheriff remained in such possession as aforesaid, an order was made by Coleridge J., on the application of the sheriff, in the causes of Bennett v. Seddon and Wiiha-by v. Seddon, and in three others (one of which was the cause of Lynes v. Seddon, after mentioned), directing (among other things) that the sheriff should withdraw from possession ; that the assignees should sell the goods and pay the proceeds into Court; "that an issue be commenced by writ in the Queen's Bench, in which the assignees be plaintiffs and Bennett, the plaintiff in the first action, be defendant; that the same be settled between the counsel, and tried at the next Kingston Assizes: that the questions in the four last actions do stand over until the decision of the issue :" &c. The sheriff withdrew accordingly: and the goods were sold by the assignees for 74131. 7s. 3d., which was much less than sufficient to satisfy the execution at the suit of Bennett: and that sum was paid into Court, also in obedience to the same order. The issue directed by the said order between the plaintiffs and Bennett has been proceeded with (a)1, and was, on 27th June, 1843, determined in favour of the said assignees, on the ground that, the fi. fa. at the suit of Bennett being founded on a judgment by warrant of attorney, and being a writ under which the sheriff had seized only, but not sold, at the date of tbe said fiat, the said Bennett was a creditor having security for his debt within stat. 6 G. 4, c. 16, s. 108, and only entitled to he paid rateably with other fair creditors in pursuance of that provi-[495]-sion (a)2: in all other respects the said execution of the said Bennett was valid. On July llth, 1843, and after the determination of the issue, ati order was made in the aaid five causes (b) by Patteson J. : "That the sum of 61501. be paid out of (a)1 The case did not state the terms of the issue. (a)2 The case was argued on demurrer to pleas, May 30th, 1843, by Willes for the plaintiffs and Gurney for the defendant, before Lord Denman C.J., Patteson, Williams and Coleridge Js.; and after time taken for consideration, was held not to be distinguishable from Whitmore v. Robertsort., 8 M. & W. 463, and Skey v. Carter, 11 M. & W. 571. (J) Bennett v. Seddon, Lynes v. Seddon, Wiiherby v. Seddon, Gorney v. Seddon, Same v. Same. 576 GRAHAM V. WITHKRBY 7 Q. B. 496. Court to George John Graham, the official assignee, and that cases be stated for the opinion of the Court as regards the actions of Lynes v. Seddon and Another, and JFitherby and Another v. Seddon and Another, with liberty to turn them into special verdicts if the Court should think fit; the plaintiffs being ab liberty to enter claims in bankruptcy without prejudice : and let the last two actions stand over until these cases are determined, the plaintiffs agreeing to be bound by their determination as to matters of law ; all questions of fact as to these actions being reserved." The...
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