Moore and Another Assignees of Tompkins, a Bankrupt v Phillipps, Esq
| Jurisdiction | England & Wales |
| Judgment Date | 29 January 1841 |
| Date | 29 January 1841 |
| Court | Exchequer |
English Reports Citation: 151 E.R. 879
EXCH. OF PLEAS.
S. C. 9 Dowl. P. C. 294; 10 L. J. Ex. 129.
moore and another, Assignees of Tompkius, a Bankrupt -a. PtULLirrs, esq. Exch. of Pleas. Jan. 29, 1841.-The stat. 2 & 3 Viet. c. 29, s. 2, does not apply to a case where the assignees in bankruptcy were appointed before its passing. [S. C. 9 Uowl. P. C. 294; 10 L. J. Ex. 129.] This was an action of trover against the sheriff of Herefordshire, to which he pleaded, that a writ of fieri facias was directed to him as such sheriff, commanding him to levy a certain sum on the goods and chattels of the said Henry Tompkins, by virtue of which writ, after the bankruptcy of the said H. Tompkins, and before the issuing of the fiat, to wit, on the 5th of April, 18IS9, the defendant took in execution the goods and chattels in the declaration mentioned, and sold them : that on the 4th of May, 1839, a fiat in bankruptcy issued against the said H. Tompkins, ufider which he was adjudged a bankrupt, arid that the plaintiffs, on the 20th of June, 1839, were appointed his assignees ; that the said writ of fieri facias so issued against the said H. Tompkins, was bona fide [537] issued, and levied by the defendant, before the date and issuing of the fiat, and that neither the execution creditor nor the defendant, at the time of executing and levying the same, had notice of any prior act of bankruptcy committed by the said Henry Tompkins. Replication, that the plaintiffs were appointed assignees of the said H. Tompkins, and that the defendant committed the grievances in the declaration mentioned, before the passing of the statute 2 & 3 Viet. c. 29. Verification. General demurrer, and joinder. The point marked for argument on the part of the defendant was, that the stat. 2 & 3 Viet. c. 29, was retrospective, and gave the law to this case. Shee, Serjt., in support of the demurrer.(a) The object of the stat. 2 & ,'i Viet. & 29 was to destroy altogether the doctrine of relation, by which the title of the assignees, having reference back to the act of bankruptcy, would defeat a bona fide execution levied afterwards, although before the fiat. The first case in which a con-sjtruction was put upon the statute, was that of Edmunds v. Lawley (6 M. & W. 285). That case differs from the present, because there the fiat issued after the passing of tihe act, although the execution was levied before it. Parke, B.. there...
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