Tibbits, Assignee of Francis Thompson, an Insolvent Debtor, against George
| Jurisdiction | England & Wales |
| Judgment Date | 13 June 1836 |
| Date | 13 June 1836 |
| Court | Court of the King's Bench |
English Reports Citation: 111 E.R. 1107
IN THE COURT OF KING'S BENCH.
S. C. 6 N. & M. 804; 2 H. & W. 154; 6 L. J. K. B. 255. Referred to, Parish v. Poole, 1884, 53 L. T. 38.
5.JLD.&E.107. TIBBITS V. GEORGE 1107 [107] tibbits, Assignee of Francis Thompson, an Insolvent Debtor, against george. Monday, June 13th, 1836. M., owing 4041. to T., became bankrupt. Defendant advanced 1051. to T., who was then solvent, on a bonfi fide verbal agreement that he should be repaid out of the debt from M. to T., and the dividends thereon ; and A., the solicitor to M.'s commission, was privy to the bargain ; but it did not appear that A. acted for M.'s assignees in the transaction, or communicated it to them, or that they knew of it, till after T. was taken in execution on a judgment recovered against her in an action commenced more than three months after the time of the agreement. Within three months before the arrest, and before the verdict in the action but after its commencement, T. gave defendant a written order on M.'a assignees to pay the 1051. to defendant. After the verdict, but before the arrest, T. assigned in writing to the defendant the debt due to her from M,, and the dividends; and, on the same day, T., for the first time, proved her debt against M.'s estate. The dividends amounted to 801., which defendant received from M.'a assignees. Afterwards T. was discharged by the Insolvent Court, and her assignee sued defendant for money had and received. Held (1.) That the transfer to defendant of the right to part of the debt;due from M. to T. was not void, under stat. 7 G. 4, c. 57, s. 32, the bona tide verbal agreement being sufficient to pass it, and the assent of M., or his assignees, not being necessary to give the defendant an equitable title. (2.) That the legal property in such part of the debt was not in the plaintiff, the defendant being equitably entitled to that specific part at the time of the imprisonment, although a contingent residue of the whole debt might ultimately come to the plaintiff. (3.) That the whole debt was not in the disposition of the insolvent, under stat. 7 G. 4, c. 57, s. 30, the knowledge of A. being tantamount to the knowledge of M.'s assignees. Judgment for defendant. [S. C. 6 N. & M. 804 ; 2 H. & W. 154 ; 6 L. J. K. B. 255. Referred to, Parish v. Poole, 1884, 53 L. T. 38.] Assumpsit. First count for money had and received to the use of, and on an account stated with, the insolvent before her discharge, with promise to the insolvent before her discharge. Second count for money had and received to the use of the plaintiff as assignee, and on an account stated with him as assignee. Plea, non assumpsit. On the trial before Littledale J. at the Northamptonshire Spring Assizes, 1835, the plaintiff proved that on the 22d of April 1833 he commenced an action against the insolvent for 221., on which a verdict was recovered on the 8th of July 1833, the Judge certifying that execution should issue on the 20th of August. On August 27th the insolvent was taken in execution on a ca. sa. in that action, and she was conveyed to the county gaol on the 29th : on the 17th of September she petitioned the Court for the Relief of Insolvent Debtors, and on the same day executed her assignment to the provisional assignee ; on October 30th [108] she signed her schedule ; and on November 30th she was discharged by that Court, and the plaintiff was appointed sole assignee. On the 8th of November 1833, William Proe, the surviving assignee of James Mercer a bankrupt, paid to the defendant 801. 17s. 6d. as the dividend on a debt proved by the insolvent against Mercer's estate. The defendant proved that Mercer had become bankrupt in the early part of June 1832, and that, at that time, he was indebted to the insolvent in about 4041., for which she held a mortgage : that in the same month the defendant advanced 1051. to her, on a verbal agreement that he should be repaid out of the debt owing from Mercer, either under the commission, or through the mortgage: that, on June 19th 1833, the insolvent signed a written authority directed to the assignees...
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