Skey v Carter and Another, Assignees of Smith, a Bankrupt
| Jurisdiction | England & Wales |
| Judgment Date | 18 May 1843 |
| Date | 18 May 1843 |
| Court | Exchequer |
English Reports Citation: 152 E.R. 933
IN THE EXCHEQUER CHAMBER.
S. C. 2 Dowl. (N. S.) 831; 12 L. J. Ex. 511; 7 Jur. 427. Referred to, Cheston v. Gibbs, 1843, 12 M. & W. 126; Whitmore v. Greene, 1844, 13 M. & W. 111.
skky v. carter and another, Assignees of Smith, a Bankrupt. Exch. Chamber. May 18th, 1843.-The assignees of a bankrupt are entitled to recover in trover goods bonS, fide seized by an execution-creditor under a fieri facias on a judgment upon a warrant of attorney, after a secret act of bankruptcy, but not sold until after the date and issuing of the fiat, and notice thereof; and the stat. 2 & 3 Viet, c. 29, does not protect such an execution. [S. C. 2 Dowl. (N. S.) 831; 12 L. J. Ex. 511 ; 7 Jur. 427. Eeferred to, C/teston v. Gibbs, 1843, 12 M. & W. 126 ; Whitman v. Greene, 1844, 13 M. & W. 111.] The pleadings in this case were precisely the same as those in the case of Whit-more \. Robertson (8 M. & W. 463). Judgment having been signed in the Court of Exchequer for the plaintiffs below, a writ of error was brought thereon into this Court, which was argued in Michaelmas vacation, 1842,(6) by the Attorney-General, for the plaintiff in error, and by R. V. Richards, for the defendants in error. The Court took time to consider; and their judgment was now delivered by tindal, C, J. This was an action of trover by the defendants in error, as assignees of Thomas Smith, a bankrupt, against the plaintiff in error us one of the registered public officers of the Gloucestershire Banking Company, for the conversion by the company of certain goods belonging to the defendants in error as such assignees, The question raised by the pleadings was, whether a sale by the sheriff of the goods mentioned in the declaration under an execution at the suit of the banking company, was protected by the late statute of 2 & 3 Viet. [572] c. 29. The facts admitted by the pleadings were, that the banking company had entered up judgment against the bankrupt by nil dicit-in an action not commenced adversely-on a warrant of attorney given to them by the bankrupt, but not by way of fraudulent preference; that a writ of fieri facias had been issued upon such judgment; that afterwards, and after a secret act of bankruptcy of which the banking company had no notice, but before, and not within two months of, the date and issuing of the fiat, the goods in question were really and bona h'de levied by the sheriff...
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