Richard Henry Billiter against Heathfield Young
| Jurisdiction | England & Wales |
| Judgment Date | 09 February 1856 |
| Date | 09 February 1856 |
| Court | Court of the Queen's Bench |
English Reports Citation: 119 E.R. 765
IN THE COURT OF QUEEN'S BENCH AND EXCHEQUER CHAMBER
Reversed in House of Lords, see 8 H. L. C. 682; 11 E. R. 596 (with note).
REPORTS of CASES ARGUED and DETERMINED in the COURT of QUEEN'S BENCH, and the COURT of EXCHEQUER CHAMBER on Error from the Court of Queen's Bench. By THOMAS FLOWER ELLIS, of the Middle Temple, and COLIN BLACKBURN, of the Inner Temple, Esqrs., Barristers at Law. Vol. VI. Containing the CASES DETERMINED in Hilary Vacation, Easter Term and Vacation, Trinity Term and Vacation, and Part of Michaelmas Term, 1856. XIX. and XX. VICTORIA. [1] cases argued and determined in hilary vacation, XIX. victoria. The Court of Queen's Bench sat in Bane in this Vacation on the 23d of February, for the purpose of giving judgments only. in the exchequer chamber. (error from the queen's bench.) bichard henry billiter against heathfield young. Saturday, February 9th, 1856. Trover by the assignee of F., an insolvent debtor, for a conversion in the time of the insolvent. Pleas, amongst others, Not guilty, and a plea justifying the conversion as being a seizure under a fi. fa. issued before the insolvency on a judgment against F. in favour of the defendant. Replication : that F., within three months before his imprisonment, being in insolvent circumstances, with a view of petitioning the Court, fraudulently charged his estate in favour of defendant, being a creditor, by a warrant of attorney void within stat. 1 & 2 Viet, c. 110, s. 59, and that the judgment was on that warrant of attorney. Issue was taken on the replication. The verdict was found for the plaintiff on all the issues ; and he had judgment. Error was brought on the record, and also on a bill of exceptions, which set forth the evidence. By this it appeared that the judgment was on a warrant of attorney, voluntarily given with a view of petitioning the Court, and that defendant had disposed of the goods seized before the insolvency. The Judge ruled that this was evidence of a conversion, to which ruling there was an exception.-Held, by Jervis C.J., Alderson B., Cresswell J. and Martin B., with whom Sir W. Maule, before his retirement from the Bench, agreed, that the warrant of attorney was, under stat. 1 & 2 Viet. c. 110, s. 59, wholly void, and not merely voidable; that the assignee might sue; and that trover for a conversion of F.'s goods before the insolvency was a proper form of action; that therefore the judgment was right, and the ruling unexceptionable. -Held, by Williams J. and Crowder J., with whom Lord Wensleydale, before his 766 BILLITER V. YOUNG 6 EL. * BL. 2. retirement from the Bench, agreed, that the warrant of attorney waa not absolutely void, but valid till the assignee elected to avoid it. That there was consequently no wrongful conversion before the insolvency; and that the plaintiff, if entitled to recover at all, could not recover in trover; and that there ought to be a venire de novo on the bill of exceptions on the ruling as to Not guilty, and judgment non obstante veredicto on the insufficiency of the replication to the special plea. -On the bill of exceptions, it appeared that the plaintiff had tendered in evidence an adjudication of the Insolvent Court, discharging F. after he had been in custody for one year, and had proved that immediately afterwards he was allowed to go free by the defendant, who was bis only detaining creditor. The defendant's counsel offered to admit that such an order was made, but objected to its being read. The Judge ruled that it might be read ; to which the defendant excepted. It waa read ; and it stated the detainer for a year to be on the ground that the warrant of attorney was a fraudulent preference.-Held, by the whole Court, that the adjudication was admissible, not as evidence of the truth of the ground on which it purported to be made, but because that adjudication, followed by the immediate discharge of F., was evidence of defendant's complicity with F.-And that the plaintiff was not bound to take the defendant's admission of its effect. -Judgment affirmed. [Eeversed in House of Lords, see 8 H. L. C. 682; 11 E. E. 596 (with note).] This was a proceeding on error suggested by the defendant. The case was argued in the Exchequer [2] Chamber, by Willes for the defendant, and Bovill for the plaintiff,1 before Jervis C.J., Cresswell aud Williams Js., arid Parke, Platt and Martin Bs., in Easter term 1854 (May 4). The argument was not completed on that day ; and the cause was again argued by the same counsel in Michaelmas term 1854 (November 17), before Pollock C.B., Maule, Williams and Crawder Js., and Platt, Parke and Alderson Bs.; when the Court took time to consider of the judgment. A fresh argument was ordered; and the cause was again argued, by Vernon Harcourt for the defendant, and Bovill for the plaintiff, in Trinity term 1855 (May 26), before Jervis C.J. Pollock C.B., Maule, Cresswell, Williams and Crowder Js., and Parke, Alderson, Platt and Martin Bs. Cur. adv. vult. The state of the record and the arguments sufficiently appear by the judgments, which were now delivered seriatim, there being a difference of opinion on the Bench. [3] Crowder J. This case has been twice argued in the Exchequer Chamber. The first argument was before the Lord Chief Baron, Parke B., Platt B., Williams J., Martin B. and myself : and, the Court so constituted being equally divided in Opinion, a second argument was desired, which was accordingly had before the Lord Chief Justice of the Common Pleas, the Lord Chief Baron, Parke B., Alderson B., Maule J., Cresswell J., Platt B., Williams J., Martin B. and myself. After the fullest consideration, I am of opinion that the plaintiff in error is entitled to our judgment. I entirely concur in the view taken of this case by Lord Wensleydale, who has favoured Lme with the written judgment which he had prepared before be quitted the Bench : and, as I am desirous of adopting all his arguments and reasoning, I think, in order to give them their full effect, I ought to use his own words. I shall therefore take leave to deliver my opinion in the very language in which he has expressed himself. This is a writ of error from the Queen's Bench. The declaration is by the plaintiff as assignee ol Benjamin Flint, an insolvent, and contains two counts. The first is, in the usual form of an action of trover, against the defendant for converting to his own use, or wrongfully depriving Flint, the insolvent, of the use and possession of, certain goods described in the declaration. The second for converting to his own use, or wrongfully depriving the plaintiff, as assignee as aforesaid, of certain goods of the plaintiff as assignee, of the like description. Thera were several pleas. 1. Not guilty. 2. That the goods were not Flint's. 3. That they were not the goods of the plaintiff as assignee. 4. That the [4] defendant, before the insolvency, by the judgment of Her Majesty's Court of Queen's Bench, recovered against the said Benjamin Flint bis debt of 4601., and also 31. 10s. for bis damages; and, for having execution of the said judgment and recovering the gajd sums, the defendant caused to be sued out a writ of fi. fa. directed to the sheriff 6 El. ft BE, 1 BILLITEH V. YOUNG 767 of Sussex, commanding him to levy of tbe goods and chattels of the said Benjamin Flint 4601. and 31. 10s., so recovered as aforesaid, with a direction to levy 2351. and 5s., betides &c. And that the defendant caused the said writ to be delivered to the laid sheriff to be executed, and the said sheriff, in execution of tbe said writ, ;and under and by virtue of the same, and before the insolvency, seized and took the said goods in the said first count mentioned and sold tbe same, and levied thereout parcel of the moneys by the said writ and the said indorsement so directed to be levied; and the said seizure, sale and levy were and are the said conversion or wrongful deprival, in the said first count mentioned. To this plea there was a replication that, after stat. 1 Viet. c. 110, and within three months before the commencement of the imprisonment of the said insolvent, being such imprisonment as is in such Act in that behalf mentioned, the said insolvent, being then in insolvent circumstances, did, with the view and intention by him of petitioning the Court for his discharge from custody under such Act, voluntarily, fraudulently and contrary to such Act, charge his estate to and in favour of the defendant, he then being a creditor of such insolvent, to wit by means of a certain warrant of attorney, fraudulent and void within the true intent and meaning of the last mentioned statute: whereupon and whereby, and not otherwise, afterwards, [5] the defendant obtained the said judgment and execution as aforesaid, which were and are fraudulent and void. And on that replication the defendant took issue. The jury found, by direction of the learned Judge, my brother Coleridge, before whom the cause was tried, the 1st issue as to the 2d count for the defendant; the 2d issue for the plaintiff, the 3d for the defendant: and no question arises upon any of these findings. The question arises entirely on the plea of Not guilty to the 1st count, and on the issue as to the replication to the 4th plea. On the trial a bill of exceptions waa tendered to the ruling of the learned Judge on these latter issues. Tbe bill of exceptions gets out a great deal of evidence of the insolvent circumstances of Flint; of has conduct towards the defendant and the defendant's towards him; the warrant of attorney, and the judgment and execution thereon ; the vesting order of the 24th April 1852, vesting the estate in the provisional assignee, and the appointment of tht plaintiff as creditors' assignee on the 5th June 1852. It then states that the counsel far the plaintiff tendered in evidence an adjudication made in the matter of the petition on the 18th May...
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