White, Assignee of Catling, Insolvent, v Bartlett
| Jurisdiction | England & Wales |
| Judgment Date | 22 November 1832 |
| Date | 22 November 1832 |
| Court | Court of Common Pleas |
English Reports Citation: 131 E.R. 657
IN THE COURT OF COMMON PLEAS
S. C. 2 Moo. & Sc. 515; 2 L. J. C. P. 43.
[378] white, Assignee of Catling, Insolvent, v. bartlett. Nov. 22, 1832. [S. C. 2 Moo. & Sc. 515; 2 L. J. C. P. 43.] Defendant, an auctioneer, was employed by C., a person in embarrassed circumstances) to sell his property ; Defendant sold, and paid the proceeds to C.'s order : C. having shortly afterwards been declared insolvent, Held, that the Defendant was not liable to C.'s assignee, although the Defendant, when he sold the property, was aware of C.'s embarrassment. Assumpsit for money had and received to the use of Catling, and upon an account stated with him before he petitioned the insolvent debtor's court for his discharge, and also for money had and received to the use of the Plaintiff as White's assignee. In December last, the Defendant, an auctioneer, was employed by Catling, then in embarrassed circumstances, to sell his household furniture, with a view that the proceeds should be applied in discharge of his debts. The Defendant accordingly circulated an advertisement that the goods would be sold for the benefit of creditors, and the sale took place December 27. At the time of the sale, the Plaintiff, one of Catling's creditors, gave the Defendant notice not to pay over the proceeds, alleging that Catling had committed an act of bankruptcy. The next day, December 28, the Plaintiff arrested Catling, and sent him to gaol. On the 17th of February following, Catling filed his petition under the insolvent debtors' act. But On the 31st of December and 4th of January, the Defendant, upon receiving an 658 WHITE V. BARTLETT 9 BING. S79. indemnity, by Catling's order paid the proceeds of the sale partly to Catling's attorney, and partly to one of Catling's creditors, after deducting the usual amount for the expenses of sale, &c.: whereupon the Plaintiff sought to recover the amount of the proceeds in this action. The learned Judge who tried the cause having nonsuited the Plaintiff on this state of facts, A rule nisi was obtained for setting aside the nonsuit [379] on the ground that the Defendant, as appeared by his advertisement, having been privy to the embarrassed circumstances of Catling, the payment of the proceeds of the sale to Catling's attorney was a fraud upon the creditors. Jones Serjt. shewed cause. Catling; had full dominion over his property till the filing of his...
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