Morgan and Another, Assigness of George Knight, a Bankrupt, v Charles Knight
| Jurisdiction | England & Wales |
| Judgment Date | 20 January 1864 |
| Date | 20 January 1864 |
| Court | Court of Common Pleas |
English Reports Citation: 143 E.R. 947
IN THE COURT OF COMMON PLEAS AND IN THE EXCHEQUER CHAMBER
S. C. 33 L. J. C. P. 168; 9 L. T. 803, 12 W. R. 428. Followed, Ex parte Watson, 1879, 12 Ch. D. 380. Refferred to, Barker v. Furlong, [1891] 2 Ch. 180. Applied, In re Clark, [1894] 2 Q. B. 395.
[669] morgan and another, Assignees of Cleorge Knight, a Bankrupt, v. charles knight. Jan. 20th, 1864. [S. C. 33 L. J. C. P. 168; 9 L. T. 803, 12 W. E. 428. Followed, Ex parte Wahon, 1879, 12 Ch. D. 380. Referred to, Barker v. b'miowj, [1891] 2 Ch. 180. Applied, In re Clark, [1894] 2 Q. B. 395.] A second fiat against a trader who has not obtained his certificate under the first, is not void. Therefore, the assignees under the second fiat may maintain an action against a third person for the conversion of property acquired by the bankrupt after the date of the first fiat,-the assignees under the first fiat not intervening. Thia was an action brought by the plaintiffs as assignees of George Knight, a bankrupt, to recover the value of certain furniture and fixtures which were claimed by the plaintiffs as part of the bankrupt's estate. The cause waa tried before B ram well, B., at the last Summer Assizes at Lewes. The facts which appeared in evidence were as follows:-George Knight, who carried , on business at Brighton, became bankrupt in the year 1850, but did not obtain a certificates, He, however, continued to trade; and in the months of February, March, and April, 1862, he obtained from tradesmen in Brighton the goods in question, for the purpose of furnishing a house and shop at Worthing for his son, the present 948 MORGAN V. KNIGHT 15 C. B. (N. S.) 670. defendant, of which house and shop the latter had taken a lease. The parties by whom the goods were supplied drew bills upon George Knight, which were dishonoured and renewed: and ultimately, in November, 1862, George Knight again became bankrupt. He afterwards went to reside at Worthing ; but did not reside at his son's house. The son's name was over the door; and it did not appear that the father exercised any control over the property there. ' On the pkrt of the plaintiffs, it was submitted that the transfer of the goods to the son was a fraudulent transfer, and void. For the defendant, it was attempted to be shewn that he had paid his father for the goods; but this was negatived by the jury. It was then contended on the part of the defendant, that the plaintiffs had no [670] right to recover; for that, George Knight being an uncertificated bankrupt at the time of the adjudication under which they were assignees, all his property both present and future was vested in the assignees under his former bankruptcy, and the latter bankruptcy was void. It did not appear that the assignees under the first fiat against George Knight made any claim. The learned judge directed the verdict to be entered for the defendant, reserving leave to the plaintiffs to move to enter it for them for 1001., if the court should be of opinion that they were in a position to maintain the action. Lush, Q. C., in Michaelmas Term last, obtained a rule, nisi accordingly. He submitted that an uncertificated bankrupt might possess property until his assignees interposed; and that it was not competent to a wrong-doer to set up the jus tertii. He referred to Herbert v. Mayer, 5 C,). B. 9G5, Dav. & M. 723, and He. Big.ifM'n Trust, 25 Law J., Chan. 323. Montagu Chambers and Prentice, on a former day in this term, shewed cause. The question is, whether after-acquired property of an uncertificated bankrupt can be made the subject of an action at the suit of the assignees under a second fiat. It is submitted that it cannot. The second fiat is altogether void, and no property passes to the assignees under it. By the f & 2 W. 4, c. 56, s. 25, it was enacted that, " when any person hath been adjudged a bankrupt, all his personal estate and effects, jn'esant and future, which by the laws now in force may be assigned by commissioners acting in the execution of a commission against such bankrupt, shall become absolutely vested in and transferred to the assignees or assignee for the time being, by virtue of their appointment, without any [671] deed of assignment for that purpose, as fully to all intents as if such estate and effects were assigned by deed to such assignees and the survivor of them:" and the 141st section of the 12 & 13 Viet. c. 106, in even more extensive language, enacted...
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