White v Morris, Gibson, Wheatley, Taylor, and Thompson
| Jurisdiction | England & Wales |
| Judgment Date | 28 January 1852 |
| Date | 28 January 1852 |
| Court | Court of Common Pleas |
English Reports Citation: 138 E.R. 778
IN THE COURT OF COMMON PLEAS
S. C. 21 L. J. C. P. 185; 16 Jur. 500. Approved, M' Mahon v. Lennard, 1858, 6 H. L. C. 1012. Adopted, Barker v. Furlong, [1891] 2 Ch. 179.
[1015] white v. moreis, gibson, wheatley, taylor, and thompson. Jan. 28, 1852. [S. C. 21 L. J. C. P. 185; 16 Jur. 500. Approved, M'Mahm v. Lennard, 1858, 6 H. L. C. 1012. Adopted, Barker v. Furlong, [1891] 2 Ch. 179.] Where good's are assigned as security for an advance of money, upon trust to permit the assignor to remain in possession of them until default in payment at the time stipulated, and upon further trust to sell them upon such default being made,-the assignee has a sufficient possession to enable him to maintain trespass against a wrongdoer.-Such an assignment, though void as against creditors, is good as between the parties, and as between either party and a stranger.-A bailiff of a county-court claiming to seize goods on behalf of a judgment-creditor is a stranger within that rule, unless he proves the legal authority under which he seized on behalf of such creditor, viz. the judgment.-In trespass against an execution-creditor and a bailiff of a county-court, for seizing goods under such circumstances, the plaintiff put in the warrant of execution, with the indorsement thereon by the officer that he had taken the goods under it:-Held, that the bailiff, as well as the execution-creditor, was bound to prove the judgment; and that the warrant, reciting the judgment (though put in by the plaintiff) was no evidence of such judgment.-Held also, that the circumstance of the bailiffs having, in taking the goods, acted under an indemnity from the execution-creditor, did not deprive him of the protection of the 138th section of the county-court act, 9 & 10 Viet. c. 95, which entitles him to a notice of an action for anything done by him in pursuance of the act. This was an action of trespass for taking certain goods alleged to belong to the plaintiff. The three first-named defendants, Morris, Gibson, and Wheatley, pleaded not guilty, and not possessed. The defendants Taylor and Thompson (the former of whom was the high-bailiff and the latter an under-bailiff of the county-court of Sunderland) pleaded,-first, not guilty,-secondly, not possessed,-thirdly, that the alleged trespasses were committed in pursuance of the county-courts act, 9 & 10 Viet. c. 95, and that no notice of action had been given to them under s. 138,-thirdly, that the alleged trespasses were committed in pursuance of the 9 & 10 Viet. c. 95, and that the action was not commenced within three calendar months next after the supposed cause of action accrued. Upon each of these pleas issue was taken. The cause was tried before Williams, J., at the last assizes at Durham. The facts which appeared in evidence were as follows:-One Eobinson, who had carried on business as a draper at Sunderland, becoming insolvent, assigned all his household furniture and stock in [1016] trade to trustees for the benefit of his creditors. The trustees took possession, and sold the goods to Eobinson and one Story, the latter of whom paid for them partly in money and partly by bills. The bills becoming due, UC.B.1017. WHITE V. MORRIS 779 and Story being unable to meet them, the present plaintiff, White, agreed to lend Eobinsori and Story 1201. upon the security of the goods in question : and the goods were accordingly assigned to White by a deed bearing date the llth of October, 1850. By this deed, which recited the agreement for the loan, Eobinson and Story covenanted to pay White the 1201. on a given day, with interest in the meantime at the rate of 71. per cent, per annum, and assigned to White all the goods in a certain shop and dwelling-house (the goods in respect of which this action was brought), to hold to White, his executors, administrators, and assigns, as his and their own proper goods and chattels,-upon trust to permit and suffer Eobinson and Story, their executors, administrators, and assigns, to hold the goods and premises assigned until payment of the money which should become due under the deed should be demanded, and with a power to White to sell upon default in payment. This deed was left upon the premises in the hands of one of Eobinson and Story's shopmen. Morris, Gibson, and WTieatley, who were manufacturers at Manchester, were creditors of Eobinson at the time of the first assignment. They declined to concur in that deed, and, after the trustees had sold the property to Eobinson and Story, they sued Eobinson in the Sunderland county-court, and obtained a judgment against him. Execution having issued upon that judgment, Taylor, the high-bailiff, and Thompson, the under-bailiff, of the county-court, entered upon the premises for the purpose of seizing the goods; but, on finding that the goods had been assigned to White, they withdrew. Subsequently, however, upon receiving an in-[1017]-demnity from the execution-creditors, they re-entered, and seized and sold the goods. The only evidence of the seizure and sale was, the production of the writ or mandate directed to the high-bailiff, with hfs indorsement of the levy thereon. It was submitted, on the part of the plaintiff, that the execution-creditors were not in a position to contest, the validity of the assignment, without first proving the judgment, inasmuch as the statute 13 Eliz. c. 5, only makes the conveyance void as against creditors; and that Taylor and Thompson, having acted under an indemnity, were not entitled to the protection of the 9 & 10 Viet. c. 95, s. 138. The learned judge left it to the jury to say whether or not the mortgage to White was a bona fide transaction, and also whether Taylor and Thompson were indemnified, and whether, though indemnified, they acted bona fide, believing that they were authorised to do as they did under the statute. The jury found that the transaction was not bona fide; and that Taylor and Thompson were indemnified; but that they acted bon, fide. The learned judge directed the verdict to be entered for Morris, Gibson, and Wheatley, on both issues; and, as against Taylor and Thompson, for the plaintiff on the first issue, and for those defendants upon all the other issues,-reserving to the plaintiff leave to move. Watson, in Michaelmas Term last, accordingly moved for a rule to shew cause why a verdict should not be entered for the plaintiff upon all the issues, with damages 851. or 551. as the court might think fit; or for a new trial, on the ground that the verdict was against evidence. He submitted, that, the assignment not being in any event void except as against creditors, the three first-named defendants were bound to shew that they were [1018] creditors, by producing the judgment,-citing Lake v. Billers (1 Lord Eaym. 733) and Martyn v. Podger (5 Burr. 2631). [Maule, J. Where you have recourse to the statute to avoid the conveyance, you must shew that you are a creditor. But, here, the jury found that the whole was a sham.] There was no evidence to warrant that. [Maule, J., referred to Glave v. W&ntwmih (6 Q. B. 173, n.).] As the officers acted, not under the authority of the statute, but under the indemnity they had received, and thereby indentified themselves with the parties, it was not competent to them to claim the protection of the statute. In Bradley v. Carr (3 M. & G-. 221, 3 Scott, N. E. 521), it was held that the steward of a court baron is a judicial officer, and therefore is not responsible for the acts of the regular bailiffs of the court to whom process is directed ; but that he is responsible where he directs the process to bailiffs specially nominated by the party who sues it out, taking an indemnity. [Jervis, 0. J. Do you mean to lay it down as a proposition of law, that a man cannot act bona fide if he is indemnified ?] Certainly. [Jervis, C. J. I cannot see why the officer is to be deprived of a right which the statute has given him, because he has taken an indemnity. Suppose the statute had said that the officer should have double costs; according to your argument, he would lose them if he were indemnified.] 780 WHITE V. MORRIS 11C.B.1019. Undoubtedly. [Jervis, C. J. That would be in effect repealing the statute.] Being indemnified, the officers were not acting...
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