Whitmore and Another, Assignees of Laughton, a Bankrupt v Greene, Esq., and Cottam
| Jurisdiction | England & Wales |
| Judgment Date | 07 June 1844 |
| Date | 07 June 1844 |
| Court | Exchequer |
English Reports Citation: 153 E.R. 43
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C. 2 D. & L. 174; 13 L. J. Ex. 311; 8 Jur. 697. Referred to, Baylis v. Bishop of London, [1913] 1 Ch. 141.
[104] whitmore and another, Assignees of Laughton, a Bankrupt v. greene, esq., and cottam. June 7, 1844.-A sheriff, who seizes and sells under a fi. fa. the goods of a debtor, after a secret act of bankruptcy, of which at the time of the seizure the execution creditor had no notice, is not liable in trover at the suit of the assignees in bankruptcy of the debtor, although before the sale the execution creditor had notice of the act of bankruptcy; both the seizure and the sale being before the fiat.-The execution creditor is not liable in trover for a seizure and sale by the sheriff after notice of a prior act of bankruptcy committed by the debtor unless he personally intermeddles in the execution. [S. G. 2 D. & L. 174; 13 L. J. Ex. 311; 8 Jur. 697. Eeferred to, Baylk v. Bishop of London, [1913] 1 Ch. 141.] Trover by the plaintiff's, as assignees of J. Laughton, a bankrupt. Each of the defendants separately pleaded pleas of not guilty and not possessed ; on which issues were joined. At the trial, before Lord Abinger, C. B., at the Middlesex Sittings after last Hilary Term, it appeared that the bankrupt, Laughton, on the 22nd of May, 1843, gave a warrant of attorney to the defendant Cottam, on which judgment was entered up on the 24th, and a fieri facias sued out on the 26th, of May, and delivered to the defendant, as Sheriff of Cambridgeshire, bo be execubecl. On the same day Laughtuti committed an act of bankruptcy. On the 27th, at nine o'clock A.M., the sheriff, by his officer, seized the goods in Laughton's house, under the fi. fa. At ben o'clock on bhe same morning the defendanb Cottam had notice of the act of bankruptcy. The goods were sold by the sheriff on the 8th and 9th of June. On the 12th of July a fiat issued against Laughton on the above-mentioned act of bankruptcy. The defendant Cottam indemnified the sheriff, and received the proceeds of the sale, but interfered no further with the execution. It was contended for the defendanbs, that neither of them was liable in this action ; the defendant Cottam, on the ground that the execution creditor, merely as such, could not be liable in trover to the assignees in bankruptcy of the debtor; and the sheriff, because he was not a wrong-doer by selling after notice merely to the execution creditor of a prior act of bankruptcy committed by the debtor. The Lord Chief Baron directed a verdict for the plaintiffs for the amount of the levy, 1631. 10s. (id., leavo being reserved to the defendants to move to enter a nonsuit or a verdict for them. [JL05] In Easter Term, Byles, Serjt., for the sheriff, and Peacock, for the defendant Cottitm, obtained rules nisi accordingly; against which, in the same term (April 27 and 30), Watson and Bovill shewed cause. The first and main question which arises in this case is as to the effect of the 108th section of the Bankrupt Act, 6 Heo. 4, c. 16, taken together with the provision of the 2 & 3 Viet. c. 29. That question is, whether the sheriff is protected, who sells under an execution goods of a person who had previously committed an act of bankruptcy, after notice of the act of bankruptcy given to the execution creditor, but before the fiat. In Whibmwv v. Huberlaon (8 M. & W. 463), and Skey v. Carter (11 M. & W. 571), the sale was after the fiat, and this point did not arise. The question is, was the defendant Cottam, at the time of the notice, a 44 WHITMORB V. GREENE 13 M. & W. 106. creditor having security for his debt, within the meaning of the 108th section, which those cases decide not to have been repealed or affected by the 2 & 3 Viet. c. 29'{ Where the execution is upon a judgment founded on a verdict, it is protected, notwithstanding a previous act of bankruptcy ; but where it is upon a judgment founded on a warrant of attorney, and the sale does not take place until after an act of bankruptcy committed by the debtor, the assignees are entitled to recover the value of the goods ioj trover against tho sheriff. The deciding point in such case is the act of bankruptcy. The word "...
To continue reading
Request your trial
-
Higgins against Thomas
...in fact; and, under that plea, it cannot be shewn that the conversion was not wrongful. It is true that, in Whitmoi'e v. Greene (13 M. & W. 104, 107), Parke B. said : " We came to an erroneous conclusion in the case of Standife v. Hardwick (2 C. M. & K. 1, 5 Tyrwh. 551), that the new rules ......
-
Ringham against Clements
...to the former doctrine, as appears in Wilkinson v. JPhalley (5 Man. & G. 590, 597) (judgment of Cresswell J.); Whitmore v. Greene (13 M. & W. 104, 107), where Parke B. said : "We came to an erroneous conclusion in the case of Stancliffe v. Hardwick (2 Cro. M. & R. 1. 5 Tyr. 551), that the n......
-
Follett and Another, Assignees of J. G. Ufford, a Bankrupt, v Hoppe and Others
...to him. Here, the sheriff cannot be considered as the agent of the defendants, and he had no indemnity from them. WTiitmore v. Greene (13 M. & W. 104, 2 Dowl. & L. 174) shews the difference between a case where a party actually instructs the sheriff, and where he merely delivers the writ to......
-
MICHAEL MURPHY and CHARLES HENRY JAMES, Official Assignees, and JAMES WHELAN, Trade Assignee of JOHN SKELLY a Bankrupt. v JOHN KEEFE
...Law Rep. 233. Aireton v. DavisENR 9 Bing. 740. Wilson v. Whitaker Moo. & Mal. 8 Ward v. Clarke Moo. & Mal. 497. Whitmore v. GreeneENR 13 M. & W. 104. Cooper v. Chitty 1 W. Bl. 65. Smith v. MillsENR 1 T. R. 475. Farrow v. Mayes 18 Q. B. 516. Acraman v. Herniman 16 Q. B. 998. Hitchin v. Campb......