Heathfield Young, - Plaintiff in Error; Richard H. Billiter-Defendant in Error
| Jurisdiction | England & Wales |
| Judgment Date | 03 August 1860 |
| Date | 03 August 1860 |
| Court | House of Lords |
English Reports Citation: 11 E.R. 596
House of Lords
Mews' Dig. xiv. 299. S.C. 30 L.J. Q.B. 153; 7 Jur. N.S. 269; 3 L.T. 196; and, below, 6 E. and B.1; 4 W.R. 369. Cited in Marks v. Feldman, 1870, L.R. 5 Q.B. 282; Heilbut v. Nevill, 1870, L.R. 5 C.P. 483; Clough v. L. and N. W. Ry. Co., 1871, L.R. 7 Ex. 33.
Warrant of Attorney - "Fraudulent and Void" - 1 and 2 Vict. c. 110 - Assignee - Trover - Pleading - Practice - Venire de Novo.
[682] HEATHFIELD YOUNG,-Plaintiff in Error; RICHARD H. BILLITER - Defendant in Error [June 25, 26 ; July 6 ; August 3, I860]. [Mews' Dig. xiv. 299. S.C. 30 L.J. Q.B. 153 ; 7 Jur. N.S. 269 ; 3 L.T. 196; and, below, 6 E. and B. 1; 4 W.R. 369. Cited in Marls v. Feldman, 1870, L.R. 5 Q.B. 282 ; Heilbut v. Nevill, 1870, L.R. 5 C.P. 483; dough v. L. and N. W. By. Co., 1871, L.R. 7 Ex. 33.] Warrant of Attorney-"Fraudulent and Void"-1 and 2 Viet. c. \\Q-Assignee- Trover--Pleading---Practice-Venire de Novo. The words " fraudulent and void as against the assignee of such " persons contained in the 59th section of the 1 and 2 Viet. c. 110, s. 59, do not mean fraudulent and void absolutely, but only as to the assignee, so that a transaction forbidden by that section, and declared " fraudulent and void as to the assignee " may be valid as to other persons. Where therefore F., a debtor, intending to petition the Insolvent Debtors' Court, voluntarily gave Y., one of his creditors, a warrant of attorney on which Y. entered up judgment, and issued execution, and the sheriff seized and sold the goods; and F. afterwards presented his petition, and an assignee was appointed: Held, that the assignee could not treat the transaction as void from the beginning, and maintain trover against Y. on an alleged wrongful conversion at the time of the seizure. The assignee brought trover, alleging in the first count, that the creditor Y. wrongfully deprived F. of the goods. Y. pleaded not guilty, and also the warranty of attorney and the execution under it. The assignee replied, that after the 1 and 2 Viet. c. 110, and within three months before F.'s imprisonment, F., being in insolvent circumstances did, with the intent of petitioning the Court, etc., voluntarily, fraudulently, and contrary to the statute, charge his estate in favour of Y., a creditor, by means of a warrant of attorney, fraudulent and void within the statute, whereby Y. obtained execution, etc. : Held, that on this pleading trover was not maintainable against Y. 596 YOUNG V. BILLITER [i860] VIII H.L.C., 683 Qu. Whether under such circumstances as these there could be any form of action by which the assignee could obtain redress? Qu. also, whether judgment having been entered for the Plaintiff in the Court below, the House had power to do more (except by consent) than to reverse the judgment, and order a venire de novo ? This was an action of trover for goods, brought by Billiter, as the assignee of Flint. The first count alone is material to be stated. That count charged the Defendant with converting, or disposing to his own use, or wrongfully depriving Flint, the insolvent, of the goods in [683] the first count mentioned. The Defendant pleaded several pleas, of which only two require to be noticed: not guilty; and, for a fourth plea, that before Flint became insolvent, the Defendant recovered judgment against him, and took his goods in execution, and that such taking, and the sale thereof, were the conversion complained of. The replication of this fourth plea alleged, that after the 1 and 2 Viet. c. 110,* and within three months before Flint's imprisonment, he, Flint, being in insolvent circumstances, did, with the intent of petitioning the Court for the relief of insolvent debtors, voluntarily and fraudulently, and contrary to the statute, charge his estate in favour of Young, then being a creditor, by means of a warrant of attorney, fraudulent and void within the statute, whereby, and not otherwise, Young obtained the judgment and execution aforesaid, which were fraudulent and void. The cause was tried at Lewes at the Spring Assizes of 1853, before Mr. Justice Coleridge, when it appeared that on the 20th February 1852, Flint gave to Young a warrant of attorney to secure payment of £230, with interest, at a time specified; that on the 10th March 1852, judg-[684]-ment was signed on this warrant of attorney; on the 23d March, a fi. fa. was issued to levy £235; that the writ was delivered to the Sheriff, who seized the goods on the following day, and sold them on the 26th; and on the 16th April made a return to the writ that he had levied £128 8s. 4d. On the 19th April, Flint was arrested by a creditor; on the 23d April he filed his petition; and on the 24th, April the vesting order was made, vesting the estate of the insolvent in the provisional assignee. On the 5th June 1852, Billiter was appointed the creditors' assignee. No demand and refusal were proved, but this action was commenced on the 25th November 1852. In the course of the trial, the Plaintiff offered in evidence an adjudication of the Insolvent Court, by which Flint was remanded for one year for having charged or mortgaged his property fraudulently, with, the intent of diminishing the sum to be divided among his creditors. The Defendant's counsel objected to the contents of the adjudication being read, but the objection was overruled. The learned Judge left the case to the jury, on the question, whether the giving of the warrant of attorney was a voluntary preference; observing, that it was for the Plaintiff to establish that fact, and that there was evidence upon it for the consideration of the jury. Exceptions were taken to the admission of the contents of the adjudication, and to the direction of the learned Judge. A verdict was found for the Plaintiff, and judgment entered for him, after which proceedings in Error were taken, and the judgment was affirmed in the Exchequer Chamber (6 Ell. and Bl. 1). The case was then brought up to this House under the Common Law Procedure Act, 1852. * 1 and 2 Viet. c. 110, s. 59. "If any prisoner shall, before or after his imprisonment, being in insolvent circumstances, voluntarily convey, assign, transfer, charge, deliver, or make over any estate, real or personal, security for money, bond, bill, note, property, goods, or effects whatsoever, to any creditor, or to any person in trust for, or to or for the use, etc. of any creditor, every such conveyance, assignment, transfer, charge, delivery, and making over shall be deemed, and is hereby declared to be, fraudulent and void as against the provisional or other assignee or assignees of such prisoner appointed under this Act: Provided that no such conveyance, assignment, transfer, charge, delivery, or making over shall be so deemed fraudulent and void unless made within three months before the commencement of such imprisonment, or with the view or intention, by the party so conveying, assigning, transferring, charging, delivering, or making over, of petitioning the said Court for his discharge from custody under this Act." 597 VIII H.L.C., 686 YOUNG V. BILLITER [i860] [685] The Judges were summoned, and Lord Chief Baron Pollock, Mr. Justice Wightman, Mr. Justice Williams, Mr. Justice Crompton, Mr. Baron Channell, and Mr. Justice Blackburn attended. Mr. Vernon Harcourt, for the Plaintiff in Error.-Trover is not maintainable here by the assignee. The person who alone can maintain it must have, at the time of the alleged conversion, the possession of the goods, or the right of possession, Williams' Saunders (Vol. II., p. 47). There was no such right in the insolvent at the time of the seizure, for he had voluntarily done that which was a mode of delivery of them to the creditor; and there was no such right in the assignee, for, until after the insolvency and the vesting order, the property of the insolvent did not vest in him, and when it did, there was nothing in the 1 and 2 Viet. c. 110, which operated by relation backwards, to give him any property in goods already disposed of by the insolvent. The security here was not void, but only voidable. The word " void " in a statute has often received such a construction: the Lincoln College case (3 Co. Rep. 53, 59). So in Bryan v. Child (5 Exch. 368), the words " null and void," in the 12 and 13 Viet. c. 106, s. 137, received the construction of voidable only. But even if the words should be strictly construed, and the security be null and void, trover is not maintainable. The act done may be utterly void, but still there may not have been any wrongful conversion of the goods which were the subject of that act: Horwood v. Smith (2 Term Rep. 750). There property that had been stolen had been bona fide purchased in market overt by the Defendant, and by him sold again, and it was held, that the Defendant was not [686] liable in trover. In Peer v. Humphrey (2 Ad. and El. 495), the Defendant had bona fide purchased some stolen property, but as he did not purchase! it ini market overt, trover was held maintainable against him, but that was because no property had passed by the sale. Here it did pass, and the question is, whether what was complete and valid at the time can afterwards be in this manner rendered invalid. The judgment in Stephenson v. Newnham (13 Com. Ben. Rep. 285, 302) shows that it cannot. In order to maintain trover, there must be some act of wrongful conversion at the moment: Wilmshurst v. Bowker (5 Bing. N.C. 541), Nixon v. Jenkins (2 H. Bl. 135). There was a period here during which the transfer was good, and the property had passed; the assignee, therefore, cannot claim it back in trover from the person who, at the moment he disposed of it, had a valid title to do so. In Nicholson v. Gooch (5 Ell. and Bl. 999), a member of the Stock Exchange, under engagements with other members, wrote to the secretary to say that he could not fulfil his...
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