Kitchener and Others, Assignees of Dean, a Bankrupt, against Power
| Jurisdiction | England & Wales |
| Judgment Date | 09 May 1835 |
| Date | 09 May 1835 |
| Court | Court of the King's Bench |
English Reports Citation: 111 E.R. 401
IN THE COURT OF KING'S BENCH.
S. C. 4 N. & M. 710; 1 H. & W. 174; 4 L. J. K. B. 190.
kitchener and others, Assignees of Dean, a Bankrupt, against power. Saturday, May 9th, 1835. Under the Bankrupt Act, 6 G. 4, c. 16, s. 92, the depositions taken before the commissioner are evidence of the petitioning creditor's debt, the trading, and the act of bankruptcy, in an action of trover brought by the assignees, though the declaration states a conversion in the time of the assignees only, if the cause of action be one for which the bankrupt himself might have sued. For ascertaining whether or not the case is within sect. 92, the criterion is, whether the bankruptcy be only a formal step in the evidence, or whether it be so essentially a part of the ground of action that, without proof of it, no party could recover in respect of the alleged cause. This is to be decided by the Judge, upon the opening of evidence at the trial. [S. C. 4 N. & M. 710; 1 H. & W. 174; 4 L. J. K. B, 190.] Trover for bacon and lard. The declaration contained two counts,-one stating the possession to have been in the bankrupt before, the other in the assignees after, the bankruptcy, but both laying the conversion after the bankruptcy. Plea, the general issue. Notice was given of disputing the petitioning creditor's debt and the act of bankruptcy. On the trial before Lord Denman C.J. at the sittings in London after Hilary term, 1834, the plaintiffs' case was, that the defendant, assuming to be a creditor of the bankrupt, and knowing him to be in insolvent circumstances, had fraudulently contracted for the goods, and obtained them upon the express terms of paying for them in cash, but with the intention of setting off the price against his own demand. And it was contended, for the plaintiffs, that this being a fraud upon the bankrupt, and no contract, he might, but for his bankruptcy, have maintained un action to recover the goods back ; and, consequently, that the depositions taken before the commissioners of bankrupt were conclusive evidence of the petitioning creditor's debt and act of bankruptcy, by stat. 6 G. 4, c. 16, [233] s. 92 (a). On the other hand (a) 6 G. 4, c. 16, s. 92, "And be it enacted, that if the bankrupt shall not (if he was within the United Kingdom at the issuing of the commission) within two calendar months after the adjudication, or (if he was out of the United Kingdom) within twelve calendar months after the adjudication, have given notice of his intention to dispute the commission, and have proceeded therein with due diligence, the depositions taken before the commissioners at the time of, or previous to the adjudication of the petitioning creditor's debt or debts, and of the trading and act or acts of bankruptcy, shall be conclusive evidence of the matters therein respectively contained, in all actions at law or suits in equity, brought by the assignees for any debt or demand for which the bankrupt might have sustained any action or suit." 402 KITCHENER V. POWER 3 AD. & B. 231. it waa alleged that, as the only conversion in the declaration was laid to have taken place after the bankruptcy, this, upon the face of the record, appeared not to be an action which the bankrupt could have maintained, and, therefore, the depositions were inadmissible. The Lord Chief Justice, upon the authority of Jones v. Fort (M. & M. 196), expressed himself of this opinion, and the plaintiffs, being unable to prove their case without the depositions, were nonsuited. A rule nisi was obtained, in the following term, for a new trial, on account of the rejection of evidence. In Hilary term last, Sir F. Pollock, Attorney-General, shewed cause (e). The evidence was not admissible, because the action waa not one which the bankrupt could have maintained before hia bankruptcy. This appears, first by the declaration. The first count states, in effect, that the goods belonged originally to the bankrupt, but now belong to the assignees ; and that, since the bankruptcy, the defendant converted them. The conversion ia the gist of the action. The second count does not allege [234] any possession by the bankrupt at all. The assignees cannot, after so stating their case, insist that there was a conversion in the bankrupt's...
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Doe d. Johnson v Liversedge
...The 90th section is altogether new, as to the dispensing with strict proof of the requisites of the bankruptcy. In Kitchener v. powkt (3 Ad. & E. 232 ; 4 Nev. & M. 710), these clauses were a.ll treated as one code of law, giving a new kind of evidence. [Parke, B. Reading the 90th section, a......