Sims and Another, Assignees of Barnard, an Insolvent, v Simpson
| Jurisdiction | England & Wales |
| Judgment Date | 19 November 1834 |
| Date | 19 November 1834 |
| Court | Court of Common Pleas |
English Reports Citation: 131 E.R. 1134
IN THE COURT OF COMMON PLEAS
[306] sims and another, Assignees of Barnard, an Insolvent, v. simpson. Nov. 19, 1834. Where no fraud has been committed, the assignment by an insolvent debtor to his provisional assignee under 7 G-. 4, c. 57, passes only such property as the insolvent has at the time of the assignment. In July 1831, Barnard took from the Defendant, under a lease, certain premises at a rent of 3231. 5s. a year. He also paid down 1001. as a deposit, by way of security for the rent. On the 13th of April 1832, he went to prison insolvent; On the 14th, he surrendered to the Defendant the premises he had occupied as above, and sold to him certain fixtures at a valuation of 601. Is. 4d.; 1 KING. (N. C.) 307. SIMS V.SIMPSON 1135 On the 18th, upon his petition to the Insolvent Debtors Court, his estate and effects were assigned to the provisional assignee of that Court; And, in the following October, to the Plaintiffs; who by this action of assumpsit for fixtures sold, and for money had and received, sought to recover the above 601. Is. 4d., the value of Barnard's fixtures transferred by him to the Defendant, and the 1001. deposited with the Defendant as a security for rent. In one count it was alleged that the fixtures were sold by Barnard; in another, by the assignees. The Defendant pleaded, and established, a set-off for rent due to him from Barnard, to a greater amount than 1601. Is. 4d, It was objected, on the part of the Plaintiffs, that the assignment under the Insolvent Debtors Act had a relation to the first day of the insolvent's imprisonment ; it being enacted by sects. 30 and 32 of 7 G. 4, c. 57, " that if any person, who shall petition the Court for his or her discharge from imprisonment under this [307] act, shall, at the time of his or her arrest, or other commencement of such imprisonment, by the consent and permission of the true owner thereof, have in his or her possession, order, or disposition, any goods or chattels whereof such prisoner was reputed owner, or whereof he or she had taken upon him or her the sale, alteration, or disposition as owner, the same shall be deemed to be the property of such prisoner so petitioning, so as to become vested in the provisional assignee of the said Court, by the conveyance and assignment executed in pursuance of this act."-" If any prisoner, who shall file his or her petition for his or her discharge under this act, shall, before or after his or her imprisonment, being in insolvent circumstances, voluntarily convey, assign, transfer, charge, deliver, or make over any estate real or personal, security for money, bond, bill, note, money, property, goods, or effects whatsoever, to any creditor or creditors, or to any person or persons in trust for, or to or for the use, benefit, or advantage of any creditor or creditors, every such conveyance, assignment, transfer, charge, delivery, and making over, shall be deemed and is hereby declared to be fraudulent and void, as against the provisional or other assignee or assignees of such prisoner appointed under this act: provided always, that no such conveyance, assignment, transfer, charge, delivery, or making over, shall be so deemed fraudulent and void, unless made within three months before the commencement of such imprisonment, or with a view or intention by the party so conveying, assigning, transferring, charging, delivering, or making over,'of petitioning the said Court for his or her discharge from custody under this act." Whereupon, A verdict was taken for the Defendant, with leave for the Plaintiffs to move to set it aside, and enter, instead, a verdict for the Plaintiffs. [308] Andrews Serjt. having obtained a rule nisi accordingly, Wilde and Atcherley Serjts. and Butt shewed cause. 1st, The Plaintiffs, having sued in assumpsit, are precluded from objecting that the insolvent had not authority to sell the fixtures in question. To have raised that objection, they should have sued in trover. By suing in assumpsit, they have affirmed the contract with the Defendant, and let in his set-off; Smith v. Hodson (4 T. R. 211), Thorpe v. Thorpe (3 B. & Adol. 580). 2dly, The insolvent was the real, not the merely reputed owner of the fixtures; the Plaintiffs have no claim, therefore, under sect. 30. Nor under the thirty-second, because the transfer, being unaccompanied with fraud, and for a valuable consideration, was not voluntary within the meaning of that section. By the eleventh section, the prisoner...
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