Higgins, Assignee of Cartmell (A Bankrupt) v McAdam
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1829 |
| Date | 01 January 1829 |
| Court | Exchequer |
English Reports Citation: 148 E.R. 1068
EXCHEQUER OF PLEAS.
REPORTS of CASES ARGUED and DETERMINED in the COURTS of EXCHEQUER and EXCHEQUER CHAMBER, at Law, in Equity, and in Error, from Hilary Term, 9 and 10 GEO. [V. to Hilary Term, 10 and 11 GEO. IV. both inclusive. By EDWARD YOUNGE, and JOHN JERVIS, of the Middle Temple, Esqrs., Barristers-at-Law. Vol. III. London, 1830. [1] reports of cases argued and determined in the court of exchequer, [N hilary term, 9 & 10 geo. IV., and the settings abter. memoranda. On the first day of this Term, Thomas Denmati, Esquire, took his seat within the bar of this Court, having, in the previous vacation, received a patent of precedence. During the Term, Edward Goulburn, Esquire, was raised to the decree of the Coif, and gave rings with the motto:-"Nulla retrorsum." exchequer op pleas. hiogins, Assignee of Cartmell, a Bankrupt, -v. M'AoAM. 18:39.-The act of bankruptcy by lying iu prison twenty-one days under the statute 6 Geo. 4, c. 16, s. 5, does not relate to the time of the arrest.-The twenty-one days during which a trader must lie in prison to constitute an act of bankruptcy under the statute G Geo. 4, c. 10, s. 5, are reckoned inclusively.-A plaintiff in execution upon a judgment by confession ceases to be a creditor having security for his debt within the statute 6 Geo. 4, c. 16, s. 108, when the goods seized under that execution are sold, even though an act of bankruptcy be committed before the return of the writ.-The acts of a special bailiff' appointed by a plaintiff in execution, who indemnifies the Sheriff, are equivalent to the acts of the plaintiff himself; and therefore, where a plaintiff in execution upon a judgment by confession, appointed a special bailiff who seized and sold goods during two days, for part of which he received the money, and for the rest gave credit, before an act of bankruptcy was committed by the defendant, it was held that the plaintiff was entitled to retain theiproceeds of those sales against the assignees, although the ft. fa. was not returnable before the act of bankruptcy. This was an action for money had and received to the [2] use of the assignee of Robert Cartmell, a bankrupt. The defendant pleaded the general issue. The cause came on to be tried at the last March assizes for the county of Lancaster, before iMr. Baron Hullock, when a verdict was found for the plaintiff, with 2411. 4s. lid. damages, subject to the opinion of the Court on the following case. " The plaintiff in this action is assignee ol the estate and effects of Robert Cartmell, late of Penrith, gunsmith and iron dealer, under a commission of bankrupt, 1008 3Y. &J.3. HIGGINS V. M'ADAM 1069 dated August 30th, 1827. The trading and a sufficient petitioning creditor's debt were proved. The act of bankruptcy was committed by the bankrupt lying in gaol more than twenty-one days upon an arreat for debt. He was arrested for debt on the 4th July, 1827, under a Capias ad reapondendum at the suit of a creditor, and remained in custody on that arrest until the 5th July, when lie was taken to the county gaol, where he continued in prison upon the same arrest until the commencement of this suit. The action is brought to recover 2411. 4s. 1 Id. as the proceeds of the stock in trade and other effects of the bankrupt, sold under a writ of fi. fa. directed to the Sheriff of Cumberland, grounded on a judgment by confession entered up on a warrant of attorney given by the bankrupt to the defendant. The warrant of attorney was given on the 18th June, 1827, and was tiled on the 29th of the same month, when judgment was signed, and a writ of ti. fa. was issued; and, on the evening of July 3rd, 1827, the seizure of the bankrupt's effects was made. The sale of the effects under the execution began on the 23rd, and continued during the 24th and 25th days of July. The goods were sold by auction, some i n the 2;!rd, for prices amounting to 941. 13s. 8d., others on the 24th, for 801. 8s. lid., and others on the 25th July, for ()( !. 2s. 4d. A son of the defendant's attorney, who was his clerk, attended the sale as clerk of the sale, and received the money, which was paid to him as clerk of the sale, to the amount of 501. on the 23rd, [3] about 501. on the 24th, and the remainder on the 25th July and subsequently, and he paid over the whole to the defendant a fortnight afterwards. "In the county of Cumberland, it is the practice for the Sheriff not to have bound bailiffs, but each warrant is made out by the Sheriff and delivered to a special bailiff, appointed by the party requiring the warrant, on an indemnity given on liis behalf to the Sheriff. On the present occasion, the warrant on the ti. fa. was directed to a special bailiff appointed by the defendant's attorney, who gave his own indemnity to the Sheriff. The special bailiff seized the effects and kept possession until and during the sale. The defendant's attorney attended at the sale on behalf of the defendant. " The question for the opinion of the Court is,- Whether the plaintiff is entitled to recover the whole or any part of the sum of 2411. 4s. lid. If the Court shall be of opinion that he is entitled to recover, the verdict is to be entered for such sum as the Court shall direct; if not, a nonsuit is to be entered." [n Michaelmas term the case was argued by Parke, J., for the plaintiff. The plaintiff is entitled to recover the full amount for which the goods were sold ; or, at all events, the proceeds of the last day's sale. He is entitled to recover the whole : first, because the act of bankruptcy, by relation to the day of the arrest, was complete before any part of the goods was sold; and secondly, because even if the act of bankruptcy had no relation, it was complete on the 24th July, when the twenty-one days had expired, before the proceeds of the sale were paid over to the defendant. The first branch of this proposition depends upon the true construction of the fifth section of the new Bankrupt Act, 6 Goo. 4, c. 10.(a) Some difficulty [4] may arise from the obscure wording of this enactment, which differs from the statute 21 Jac. 1, c 19, s. 2, by the provisions of which the act of bankruptcy had relation back to the day of the arrest; but it is nevertheless consistent with the enactment, that the relation should take effect, and it may be so read by suspending tbe sense, and considering each provision to he a member of the same sentence. In the ordinary construction of the clause, there would seem to be a distinction between lying in prison and an escape. But there is no reason in principle for sueh a distinction, the object of a relation beitig to prevent the intermediate disposal of property, which is alike applicable to either case. The absurdity of a contrary construction may be easily illustrated. Suppose a trader to be arrested, and tq lie in prison for twenty-one days : then, according to that construction, he would i he a bankrupt from the last day of his imprisonment; but should he lie in prison for a longer period, say twenty-two days, and then escape, the act of bankruptcy would have relation to the day of the arrest. A construction involving such an absurdity should be avoided, particularly where, by suspending the sense to the last part of the sentence, the words "from the time of suoh arrest," may be rendered applicable to every member of the sentence, the intention of the legislature may be effectuated, and all absurdities may be avoided. By the provisions of the old act (fl) See the enactment, in the judgment of the Court. 107JO htgcuns v, m'adam sy. &j.s. (21 Jac. 1, c. 19, s. 2), there was no relation in the event of an escape. It would be singular to take from the one case such a provision, and to apply it to another alternative, to which before no sunh enactment was applicable. That could not be the intention of the Legislature; but, on the contrary, it is clear that the object of a relation waa to prevent an...
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