Heane against W. E. Rogers and J. G. Lloyd
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1829 |
| Date | 01 January 1829 |
| Court | Court of the King's Bench |
English Reports Citation: 109 E.R. 215
IN THE COURT OF KING'S BENCH.
heanb against W. E. rogers and J. G. lloyd. 1829. In an action of trover brought by a person against whom a commission of bankrupt had issued, against his assignees, to recover goods which they had, as such assignees, sold, it appeared that the bankrupt had assisted the assignees by giving directions as to the sale of , the goods, and that, after the issuing of the commission, he gave notice to the lessors of a farm which he held, that he had become bankrupt, and that he was willing to give up the farm, and in consequence, the lessors received the lease, and accepted possession of the premises: Held, first, that the interference of the plaintiff in the sale of his goods was referable to an intention on his part to take care of the property, and see that the most was made of it, and that it did not amount to an assent to the sale, and that he was not thereby estopped from bringing an action against his assignees. Secondly, that he was not estopped by the act of having given up his lease to bis lessors, the assignees not being parties or privies to that transaction. The plaintiff, about two years before the issuing of the commission, had entered into an agreement for the purchase of five acres of land; one of the terms of the agreement being, that 4s. for every 1000 bricks made on the land should be paid to the vendor, in part of the purchase money. The plaintiff made bricks from clay dug from the land. During part of the time he was in partnership with two others, who had no legal or equitable interest in the land, but that partnership had been dissolved before the issuing of the commission : Held, that the plaintiff was not a person liable to the bankrupt laws within the meaning of the 6 G. 4, c. 16, s. 2. Trover for goods and chattels. Plea, not guilty. At the trial before Gaselee J., at the Summer Assizes for the county of Gloucester 1828, it appeared that in August 1826 a commission of bankrupt had [578] issued against the plaintiff, under which he was declared a bankrupt. The defendants were his assignees, and in that character had possessed themselves of and sold the goods mentioned in the declaration. The action was brought to try the validity of the commission, the plaintiff contending that he was not a trader within the meaning of the bankrupt laws. The evidence as to the trading was as follows: It appeared by the plaintiff's examination before the commissioners that on the 10th of May 1824, he had purchased of one Colonel Olney a piece of land (near Cheltenham) containing five acres, or thereabouts, for 24001. The purchase-money was to be paid in five years, with interest at 4 per cent. The land was intended for the making of bricks, and it was agreed that 4s. per 1000 should be paid to the vendor in part liquidation of the purchase-money, and an agreement was signed by the plaintiff to that effect; 1001. deposit was to be paid in six months. A memorandum of agreement to this effect was drawn and signed by Colonel Olney and the plaintiff; and at the same time instructions were given to prepare a regular agreement on a stamp, which was not done. It appeared further that the plaintiff during the years 1824, 1825, and 1826, made bricks from the land in question, and sold them. The bricks were made in the usual way from soil dug from the land which the plaintiff had agreed to purchase. In June 1825 the plaintiff entered into partnership with Packwood and Edwards in the brickmaking business. They were to take two-thirds of the land, but there was no agreement in writing between them. That (a) Hmce v. Palmer, 3 B. & A. 321. Hanson v. Armitage, 5 B, & A. 559. Carter v. Toussaint, 5 B. & A. 855. Tempest v. Fitzgerald, 3. B. & A. 680. 216 HEANE V. ROGERS 9 B. & C. 579. partnership was carried on till the 28th of June 1826, when it was dissolved; and notice of that dissolution, signed by the plaintiff and Packwood and Edwards, was, [579] on the 30th of June 1826, inserted in the Gazette. Before May 1824, the plaintiff carried on the business of a builder at Cheltenham, and it was insisted on his part that the five acres of land had been purchased with a view to that business; and if so, that he was not subject to the bankrupt laws. The defendants contended that even if the plaintiff was not a trader within the meaning of the bankrupt law, he was estopped by his conduct from disputing the validity of the commission. The evidence as to that point was as follows : About a week before the sale of the goods the plaintiff, the auctioneer, and the assignees, met and consulted together as to the best means of disposing of the property. The plaintiff, at the time when the commission issued, was in possession of a farm, which he held under a lease from Messrs. Wilkins, at an annual rent of 3501., for a term of which more than a year and a half was unexpired. The farm had not yielded him any profit for the two preceding years. On the 12th of September 1826, the plaintiff, pursuant to the statute 6 G. 4, c. 16, s. 75, gave the following notice to W. Wilkins, Esq. and W. Wilkins, Esq. the Younger:-" I, the undersigned James Heane, of the City of Gloucester, brickmaker, dealer and chapman, a bankrupt, do hereby give you notice...
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