Whitmore and Others, Assignees of J. S. Viret and T. R Kitching, Bankrupts, v Robertson
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1841 |
| Date | 01 January 1841 |
| Court | Exchequer |
English Reports Citation: 151 E.R. 1121
EXCH. OF PLEAS.
S. C. 1 Dowl. (N. S.) 135; 5 Jur. 1088.
£463] wmitmore and others, Assignees of J. S. Viret and T. E. Kitching, Bankrupts,?). RoBERTHON.(tt) Exch. of Pleas. 1841.-Where an execution by fieri facias on a judgment on a warrant of attorney (not given by way of fraudulent preference) was executed by seizure, after a secret act of bankruptcy, but not completed by sale of the goods seized before the issuing of the fiat, which was subsequent to the passing of the 2 & 3 Viet. c. 2!):-Held, that the execution creditor was riot entitled to the benefit of it, as against the assignees of the bankrupt ; the stat. 2 & 3 Vicfc. c. 29, not having had the effect of rendering valid such executions, so as to entitle the execution plaintiff to the benefit of them as against the assignees, nor repealed the lOSth sect, of 0 Goo. 4, c. 16. [S. C. 1 Dowl. (N. S.) 135; 5 Jur. 1088.] Trover for certain goods and chattels, of which the plaintiffs, after the bankruptcy, were lawfully possessed as of their own property as assignees. Plea. That at the time of the recovery of judgment by the defendant as thereinafter mentioned, the said goods and chattels in the declaration mentioned were the property .and in the possession of the said J. S. Viret and T. B. Kitching, before they became {bankrupts \ that before the date and issuing of the fiat against the said J. S. Viret and iT. R. Kitching, under which the said plaintiff's were appointed assignees as in the said 'declaration mentioned, and whilst the said J. S. Viret and T. R. Kitching were so ipossessed, as of their own property, of the said goods and chattels, the said J. S. Viret and T. R. Kitching were justly and truly indebted to the defendant in a large sum of money, to wit, the sum of £2500 and upwards, and that afterwards and whilst the said J. S. Viret and T. R. Kitching were so indebted as aforesaid, and after the making and passing of a certain act of Parliament, made and passed in the second and third, years of the reign of our Lady the now Queen, " For the better Protection of Parties dealing with Persons liable to the Bankrupt Laws," and before the date and issuing of the said, fiat, to wit, on the '24th of July, 1840, in the Court of our Lady the Queen before the Queen herself, at Westminster, in the county of Middlesex, the defendant, by the consideration and judgment of the said Court, recovered against the said J. S. V. and T. R. K. as well a certain debt of £5000, as also Hi. 10s. for his damages, [setting forth the £464] judgment]. And the defendant further says, that the said judgment being in full force, and the said debt and damages remaining unpaid and unsatisfied, (a) The judgment in this case was not delivered until Michaelmas Term, but the Reporters have thought it right to publish it thus early, on account of its great importance. Ex. Div. vii.-36 1122 WHITMORE V. ROBERTSON 8M.&W.MB. afterwards, and after the making and passing of the said act of Parliament, and before the date and issuing of the said fiat, and before he had any notice of any act of bankruptcy by the said J. S. V. and T. R. K., or either of them, committed, and before the said time when &c. in the said declaration mentioned, to wit, on the said 24th day of July, 1840, he the said defendant, for the obtaining satisfaction thereof, sued out and prosecuted out of the said Court of our said Lady the Queen, before the Queen herself, at Westminster aforesaid, a certain writ of our Lady the Queen, called a fieri facias, directed to the sherifl's of London, [setting forth the fieri facias for the debt, damages and interest], which said writ afterwards, and before the delivery thereof to the said sherifl's as hereinafter mentioned, was indorsed with a direction to the said sheriffs to levy 25101. 6s. 5d., with interest on 25001. 6s. 5d., part thereof at the rate and from that date last aforesaid, together with sheriffs' poundage and all legal charges, and which said writ so indorsed was afterwards, and before the return thereof, and before the date and issuing of the said fiat, and before the defendant had any notice of any act of bankruptcy by the said J. 8. V. and T. R. K., or either of them committed, to wit, on the day and year last aforesaid, delivered to Wm. Evans, Esq. and John Wheelton, Esq., who then and from thence until and at the time of the execution thereof as hereafter mentioned, were sheriff's of London, to be by them executed in due form of law, by virtue of which said writ the said W. E. and J. W., as such sheriffs, did afterwards and after the passing of the said act of Parliament, and before the date and issuing of the said fiat, and before the defendant or the said sheriffs had any notice of any act of bankruptcy by the said J. S. V. and T. R. K., or either of them committed, to wit, on the said 24th day of July, 1840, seize and take in execution [465] the goods and chattels in the declaration mentioned, the said goods and chattels then being in the actual possession of the said J. S. V. and T. K. K., for the purpose of satisfying the debt, damages, and interest aforesaid. And the defendant further says, that after the said sheriffs had so seized and taken in execution the said goods and chattels in the said declaration mentioned, and whilst the debt, damages, and interest, so recovered by the said defendant as aforesaid, remained wholly unpaid and unsatisfied, to wit, on the 22nd day of August, A.r . 1840, by a certain deed-poll then made by the said W. E. and J. W. as such sheriffs under their hands and seals (profert) the said W. E. and J. W., as such sheriffs, for and in consideration of the sum of £1646 to them by the defendant paid, did bargain, sell, assign, and set over to the said defendant, his executors, administrators, and assigns, all the said goods and chattels in the declaration mentioned, and so by them, the said sheriffs, seized and taken in execution as aforesaid, To have and to hold the said goods and chattels unto the said defendant, his executors, administrators, and assigns, as his and their own proper goods and chattels absolutely for ever. And...
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