John Butler, Surviving Assignee of James Bakewell, a Bankrupt, v Hobson

800 BUTLEE V. HOBSON 4 BING. (N. C.) 290. [290] john butlee, Surviving Assignee of James Bakewell, a Bankrupt, v. hobson. Jan. 29, 1838. [Referred to, Engleback v. Nixon, 1875, L. E. 10 0. P. 656. For subsequent proceed ings see 5 Bing. N. C. 128.] 1. In trover by the assignee of a bankrupt, a plea that Plaintiff is not assignee puts in issue the petitioning creditor's debt and the act of bankruptcy.-2. Goods allowed to be in the order and disposition of a bankrupt as reputed owner, by the consent of his assignee, are liable to be seized, upon a subsequent insolvency, by the assignee of the Insolvent Debtors' Court. Trover, on the possession of the Plaintiff as assignee of Bakewell, a bankrupt. Pleas : first, not guilty : issue thereon. Second, that the Plaintiff was not assignee, &c, of Bakewell: issue thereon. Third, that the Plaintiff was not possessed as of his property as assignee, &c. of the said goods, &c : issue thereon : and Fifth, that the Plaintiff and Thomas Owens were assignees of Eakewell's effects, under a commission dated 19th of April 1828, and so continued until Owens' death, when the Plaintiff continued to be. surviving assignee till this suit: that Bakewell surrendered himself according to notice, &c., and duly obtained a certificate of conformity, which was duly allowed by the Lord Chancellor: that he afterwards became a trader, and indebted, and bankrupt, and a fiat was issued under which the Defendant was chosen assignee: that Bakewell had the possession, order, and disposition of the goods in question, as reputed owner, by consent, &c. of the Plaintiff as surviving assignee, the true owner; wherefore the Defendant justified disposing of them for the benefit of the creditors under the fiat. The replication to the fifth plea stated, that a commission of bankrupt was issued on the 1st of January 1815 against the said James Bakewell and James Bakewell senior, on the petition of George Smith, under which the said J. Bakewell duly obtained his certificate of conformity, which was duly allowed; that the said J. Bake-well's estate was insufficient to pay 15s. in the pound on the commission mentioned in the fifth plea; and that [291] the goods &c. in question were part of the said J. Bakewell's after-acquired estate, and therefore vested in the Plaintiff as surviving assignee. Rejoinder, that before the petitioning creditor's debt, on which the fiat issued, the said J. Bakewell's estate had produced sufficient, after all charges, to pay every creditor 15s. in the pound. Upon which issue was joined. The Defendant gave notice to the Plaintiff of his intention to dispute the petitioning creditor's debt and act of bankruptcy, on which the commission of 1828 was founded. At the trial before Coltman J., last Liverpool assizes, the Plaintiff contended that the second plea put in issue the fact only of the Plaintiff's being the assignee of Bakewell, and not the validity of his claim to that character; and after proving that he had been duly appointed such assignee, he failed to add such proof of a petitioning creditor's debt and act of bankruptcy as could enable the jury to find those facts in his favour. Upon the fifth plea the Defendant proved, that after the commission of bankruptcy in 1828, Bakewell, with the consent of the Plaintiff as assignee under that commission, was allowed to carry on at Manchester, for several years, a trade in which he turned 20,0001. a year. Upon the replication the Plaintiff proved that, at the time of Bakewell's obtaining his certificate under the commission of 1828, his estate was insufficient to pay 15s. in ihe pound. The Defendant's fiat was issued on the 8th of November 1836, upon an act of bankruptcy committed on the 12th of October 1836. It appeared that Bakewell had been arrested for debt on that day; had been committed to prison on the 29th; had petitioned the Insolvent Debtors' Court for his discharge on the 21st of [292] December; had made an assignment of his estate and effects the same day to the provisional assignee of that Court; and had obtained his discharge on the 27th of February 1837. Upon the rejoinder to the replication to the fifth plea, it was proved, that subsequently to the date of his certificate under the second commission, Bakewell had property enough to have paid the creditors under that commission 15s. in the pound...