Perkins and Another, Assignees of Hughes v Smith

JurisdictionEngland & Wales
Judgment Date01 January 1790
Date01 January 1790
CourtCourt of the King's Bench

English Reports Citation: 96 E.R. 796

COURT OF KING'S BENCH

Perkins and Another, Assignees of Hughes
and
ers. Smith

perkins and another, Assignees of Hughes vers. smith. A servant is answerable for a tortioua act done for the benefit of his master, although it be done by the command of his master. In a special verdict, in an action of trover, it wag stated ; that the defendant was a riding clerk to Garraway, a tradesman ; that he went to the house of Hughes, in order to receive some money due from Hughes to Garraway; that Hughes, before the defendant went to his house, had absconded ; that his shop was at that time shut up, and that he was afterwards declared a bankrupt; that after Hughes had committed an act of bankruptcy, but before he was declared a bankrupt, he delivered certain goods which were in his house to the defendant, who removed the goods from the house of Hughes, and sold them for the use of Garraway; that the defendant afterwards accounted to the assignees of Garraway, who likewise became a bankrupt, for the money arising from the sale of the goods ; and that in all these transactions the defendant acted as servant to Garraway, and not otherwise. The question was, whether the plaintiff ought to recover the value of the goods? [41] It was holden, upon great consideration, that they ought. And by Lee Ch.J.-As the property in the goods was, upon Hughes's being declared a bankrupt, vested in the assignees from the time of his committing the act of bankruptcy, the delivery of them to the defendant was a mere nugatory act. It ia equally a conversion, to sell the goods of another person, which have been delivered to the seller by one not having a lawful authority to deliver them, as it is to take the goods of the other person and sell them; and it makes no difference, that the goods are, in such case, sold for the benefit of a third person ; the owner being as much deprived of his goods, as if they had been sold for the benefit of the seller. It has been said; that as the verdict finds, that the defendant in all the transactions stated acted as servant to Garraway, and not otherwise, he is not liable to the present action ; the remedy of the plaintiffs being against Garraway or his assignees : but it is not...

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