Taylor against Taylor
| Jurisdiction | England & Wales |
| Judgment Date | 02 May 1826 |
| Date | 02 May 1826 |
| Court | Court of the King's Bench |
English Reports Citation: 108 E.R. 146
IN THE COURT OF KING'S BENCH.
S. C. 8 D. & R. 159. Referred to, In re Pearce, 1885, Q. B. D. 970.
taylor against taylok. Tuesday, May 2d, 1826. The Court will not set aside an execution issued upon a judgment obtained by default, confession, or nil dicit, and served and levied by seizure upon the property of a bankrupt before his bankruptcy, the statute 6 G. 4, c. 16, s. 108, not rendering the execution in such case void, but merely enacting that the plaintiff in such execution shall share rateably with the other creditors. [S. C. 8 D. & R. 159. Referred to, In re Pearce, 1885, 14 Q. B. D. 970.] The defendant, by warrant of attorney of the 4th of November 1825, authorized certain attornies therein named to appear for him and suffer judgment by nil dicit as of last Trinity term or Michaelmas term then next for 40001., with a/defeasance to be void on the payment of 20001. on demand. Judgment for 40001. by nil dicit was signed by the plaintiff on the 22d of March 1826, and a writ of fieri facias thereon issued, directed to the Sheriffs of London, returnable on Wednesday next after fifteen days of Easter, commanding him to levy 20411.; and under that writ the sheriff seized the goods of the defendant, and was in possession on and before the 7th of April. On that day an act of bankruptcy was committed by, and a docket was struck against the defendant, and on the 10th a commission issued, and on the llth he was duly declared a bankrupt, and a provisional assignment executed. On the 10th of April notice of the docket and commission was served on the sheriff. A rule nisi had been obtained for setting aside the execution in this case, and for a stay of proceedings in the mean time, on the ground that by the statute 6 Gr. 4, c. 16, s. 108, under the circumstances of this case the execution creditor was [393] not entitled to avail himself of the execution. That section enacts, "That no creditor having security for his debt, or having made any attachment in London or any other place by virtue of any custom there used, of the goods and chattels of the bankrupt, shall receive upon such security or attachment more than a rateable part of such debt, except in respect of any execution or extent served and levied by seizure upon, or any mortgage of or lien upon, any part of the property of such bankrupt before the bankruptcy. Provided that no creditor, though for a valuable consideration, who shall sue out...
To continue reading
Request your trial
-
Graham and Others, Assignees of the same Bankrupts, against Lynes
...304; 1 Dowl. & L. 501. 7Q. B.H5 THE QUBKN V. WILL ATS 583 aside that particular execution. Accordingly, this Court, in Taylor v. Taylor (5 B. & C. 392), refused to set aside such a writ as being void; and again, in Notley v. Buck (8 B. & C. 160), thia Court refused to decide whether the she......
-
Hudson, Assignee of Henry, a Bankrupt, v M'Allen
...assignee of HENRY, a bankrupt, and M'ALLEN. Wymer v. KembleENR 6 B. & C. 479. Wiggins v. M'AdamENR 3 Y. & J. 1. Taylor v. TaylorENRHRC 5 B. & C. 392; S. C. 8 D. & R. 159. Notley v. BuckENR 8 B. & C. 160; S. C. 2. Man. & R. 68. Moreland v. PellattENR 8 B. & C. 722. Woodland v. Fuller 11 A. &......
-
Cheston and Others, Assignees of Charles Savin and Eugene Le Roy, Bankrupts v Gibbs and Another
...first instance an application was made to the Court in their behalf to set aside the execution, but without success : Taylw v. Taylor (5 B. & C. 392 ; 8 D. & R. 159). Afterwards they succeeded in an action for money had and received against the sheriff, who had paid over the proceeds to the......
-
Higgins, Assignee of Cartmell (A Bankrupt) v McAdam
...Hi, s. 108, upon which several cases have already occurred. The first question arose in the case of Tat/lor v, Taylor (8 D. & It. 159 ; 5 B. & C. 392), where the Court of King's Bench refused to interfere upon a summary application to set aside an execution issued upon a judgment by itil di......