Warner and Another v Barber
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1817 |
| Date | 01 January 1817 |
| Court | Court of Common Pleas |
English Reports Citation: 171 E.R. 204
IN THE COURT OF COMMON PLEAS
[175] warner and another v. barber (A trader having business both in England and in Spam, has a right to go to the latter country to look after his concerns, and though his creditors are thereby delayed, it is no act of bankruptcy. But if he likewise goes abroad from the fear of arrest^ though it concur with the justifiable motive, that of looking after his foreign business, it is an act of bankruptcy.) This was an action of trover brought by the assignees of one Pellowe a bankrupt, and the only question was, whether Pellowe had committed an act of bankruptcy ? It appeared that the bankrupt and one Toy were in business at Falmouth ; Toy was at this time at St. Jean de Luz for the purpose of disposing of some goods, and Pellowe was carrying on trade at Falmouth. In April 1814, he expressed to a witness his apprehensions that he should not be able to meet certain bills which were becoming due ; that Toy had disappointed him of remittances to provide for those bills, and that he should be obliged to leave England, and to go to St. Jean de Luz to obtain effects. He left Falmouth by the packet on the 24th of April, 1814. It was publicly known that Pellowe was about to sail three weeks before he went: he stated in the news-room that he was going abroad. Some letters were produced from the bankrupt, in which he expressed a fear of being seen openly in the town least he should be arrested , and a correspondence between Pellowe and Toy was read. In one letter Pellowe declares his inability to provide for the bills becoming due, and adds, " I fully intend coming out; I know not that I was ever so uneasy in my life ; I cannot stop here whilst so many bills are becoming due every day. [1T4] * Vide Chippendale v. Tontlinson, Cooke's Bankrupt Laws. 518 , Stlk v. Osborne, I Esp N P. 140 ; Webb v. fox, 1 T. E. 391 ; Webb v. Ward, 1 T. R. 296 , Ex parte Proudfoot, I Atk. 253. But it is a good plea to an action on a promissory note, and money had and received, that the plaintiff is an uncertificated bankrupt, and that his assignees required the defendant to pay to them the money claimed by the plaintiff; and it is no good replication, that the cause of action accrued after the plaintiff became bankrupt, and that the commissioners had not made any new assignment of the note and money. For the assignment passes to the bankrupt's assignees all his after-acquired, as well as...
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