Rose and Others, assignees of Smart, v Hart
| Jurisdiction | England & Wales |
| Judgment Date | 09 June 1818 |
| Date | 09 June 1818 |
| Court | Court of Common Pleas |
English Reports Citation: 129 E.R. 477
IN THE COURT OF COMMON PLEAS, AND OTHER COURTS
S. C. 2 Moore, 538. Discussed, Gibson v. Bell, 1 Bing. N. C. 754. Followed, Young v. Bank of Bengal, 1836, 1 Moo. P. C. 168; Naoroji v. Chartered Bank of India, Australia and China, 1868, L. R. 3 C. P. 449. Considered, Astley v. Gurney, 1869, L. R. 4 C. P. 722. Commented on, Booth v. Hutchinson, 1872, L. R. 15 Eq. 33. Referred to, In re Winter, 1878, 8 Ch. D. 229; Elliott v. Turquand, 1881, 7 App. Cas. 87; Palmer v. Day, [1895] 2 Q. B. 621. Considered, In re Daintrey, [1900] 1 Q. B. 557.
i -[499] rose and others, Assignees of Smart, v. hart. June 9, 1818. [S. C. 2 Moore, 538. Discussed, Gibson v. Bell, 1 Bing. N. C. 754. Followed, Young v. Bank of Bengal, 1836, 1 Moo. P. C. 1G8; Naoroji v. Chartered Bank of India, Australia and China, 1868, L. K. 3 C. P. 449. Considered, Aslhy v. Gurney, 1869, L. R. 4 C. P. 722. Commented on, Booth v. HutrMnmn, 1872, L. R. 15 Eq. 33. Referred to, In re Winter, 1878, 8 Ch. D. 229; Elliott v. Turquand, 1881, 7 App. Cas. 87; Palmer v. Day, [1895] 2 Q. B. 621. Considered, In re Vaintrey, [1900] 1 Q. B. 557.] Trover for cloths deposited by the bankrupt previously to his bankruptcy with the Defendant* a fuller, for the purpose of being dressed : Held, that the Defendant was not entitled to detain them for his general balance for such work done by him for the bankrupt previously to his bankruptcy ; for that there was no mutual credit within stat. 5 G. 2, c. 30, s. 28. Trover fur cloths deposited by the bankrupt, previously to his bankruptcy, with the Defendant, who was a fuller, for the purpose of being dressed. Afc the trial, before Holroyd J., at the Salisbury Spring assizes, 1817, it appeared, that when the cloths were so deposited, there was a debt due from the bankrupt to the Defendant, for other cloths dressed by the latter. After the bankruptcy, the Plaintiffs tendered the sum due for dressing the cloths in question to the Defendant, who refused to deliver them up, without payment of the whole debt due to them from the bankrupt. They then brought their action. For the Defendant it was contended, that the case came within 478 ROSE V. HART 8 TAUNT. BOO. the principle laid down in Olive v. Smith (5 Taunt. 56), and that he was entitled to retain the cloths for his general balance. The jury found a verdict for the Plaintiffs; and, Holroyd J. having reserved the point, Pell Serjt. in Easter term, 1817, moved for a rule nisi to set aside the verdict and enter a nonsuit, on the ground urged at the trial, and he cited Exparte Deeze (1 Atk. 228), as in point, and observed, that the principle of the cases which contradicted the doctrine there laid down was vicious, inasmuch as it went to destroy the law of lien. gibbs C. J. You are aware of the case of Green v. Farmer (4 Burr. 2214), which by the bye I may say has been frequently disregarded. In a case in which I have the [500] brief, and in which case Lord Ashburtou was, a special custom for dyers to have their general lien was proved ; and, notwithstanding Green, v. Farmer, that custom was acted upon in that case, and has been many times since recognised. The ease Exparte Deeze is certainly contradictory to the case Exparte Ockenden (1 Atk. 235), subsequently decided. The question is of the utmost importance, and we are quite open to hear it discussed. Take your rule. Eule uiai granted. In the following Trinity teim cause was...
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