Wilbraham v Snow
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1845 |
| Date | 01 January 1845 |
| Court | Court of the King's Bench |
English Reports Citation: 85 E.R. 624
COURT OF KING'S BENCH
Adopted, In re Davies 1872, L. R. 7 Ch. 317. Referred to, Fowler v. Hollins 1872-1875, L. R. 7 Q. B. 626; L. R. 7 H. L. 775. Distinguished, England v. Cowley, 1873, L. R. 8 Ex. 132. Referred to, R. v. Wynn, 1887, 56 L. T. 750; The Winkfield [1902], P. 55; Murphy v. Midland Great Western Railway of Ireland [1903], 2 Ir. R. 30.
l(ft: /ai"J~ [47] 5. wilbraham against snow. Hil. 20 & 21 of King Charles the 2cl, Roll 1540. [Adopted, In re, Dames, 1872, L. R. 7 Ch. 317. Referred to, Fowler v. Hollins, 1872-1875, L. R. 7 Q. B. 626; L. R. 7 H. L. 775. Distinguished, England v. Cmdey, 1873, L. R. 8 Ex. 132. Referred to, R. v. JVynn, 1887, 56 L. T. 750; The Winkfield [1902], P. 55 ; Murphy v. Midland Great Western Railway of Ireland [1903], 2 Ir. R. 30.] S. C. 1 Lev. 282. 1 Sid. 438. 1 Vent. 52. 1 Mori. 30. 2 Keb. 588. A sheriff may maintain an action of trespass or trover against any person who takes away goods which he has seized in execution. S. P. 6 Mod. 291. Trover, upon special verdict, the case was this ; the plaintiff, being sheriff, seized goods in execution by virtue of the writ of fieri facias; and afterwards, and before they were sold, the defendant took and carried them away, and converted them to his own use; for which the plaintiff brought his action. And on the first argument it was adjudged that the action well lies; and that the plaintiff, being sheriff, has 2 WMS. SAUND. 47. HIL. 21 AND 22 CAR. II. REGIS 625 such a property in the goods, by seizing them in execution, that he may maintain an action of trespass or trover at his election ;(1) and judgment was given for the plaintiff nisi, &c. but it was not moved afterwards. Sympson for the plaintiff; Wilmington for the defendant. See 34 H. 6, 36 a.(2) and the case of Ayre v. Aden in Moor, 737. Cro. Jac. 73. Dalt. Office of Sheriff's, case 2, fol. 19, which case was adjudged aa reported in those books, against the report of Yelverton, 44, and the roll is in Easter 44 Eliz. Rol. 318,(3) (1) S. P. 6 Mod. 292, Clerk v. Withers; for he is answerable to the plaintiff to the value of the goods taken under the writ of fieri facias; and the defendant is discharged from the judgment and all further execution, if the sheriff has taken goods to the amount of the debt, although he does not satisfy the plaintiff; 2 Roll. Eep. 57, Slie v. Finch. 6 Mod. 292, 299, Clerk v. Withers. S. C. 1 Salk. 323; or has not returned the writ; and it will be a bar to a scire facia* oti the judgment. Cro. Eliz. 237, Mountney v. Andrews. S. C. 4 Leon. 150. S. P. 2 Ld. Eaym. 1072, Clerk v. Withers.(a) But to prevent improper conduct in the sheriff, it will be prudent for the plaintiff, or defendant, (for either may do it,) to rule him to return the writ, if he has not already done so.(6) And now in practice it has become a frequent action ; thus (among many others which might be mentioned), the case of Bamfard v. Baron, cited in 2 T. E. 594, Edwards v. Harben, note (a), was an action of trover by the late sheriff of the county of L. against the defendants, who had seized the goods in question, which formerly belonged to one H., after they had been taken in execution at the suit of a creditor, to ivhom the sheriff hiul paid the value, and no objection taken to the form of the action. In that case it was stated, that the sheriff had paid the value, but that does not appear to be necessary ; for if he had not paid the value, it seems, from the determination in the principal case, he might have maintained the action, because by the seizure he acquired a special property in the goods, and was responsible to the plaintiff for the value of them.(fi) () But one obligor cannot plead that the goods of his co-obligor were seized under &fi. fa.; for it is no actual satisfaction of the debt: the plea is confined to the party whose goads are taken, 2 Show. 394, Dyke v. Mercer. See pout, 344, note (3). (b) So the defendant may rule the sheriff to return the writ, although there has been no sale, but the defendant has paid the money ; 7 Taunt. 5, Edmunds v. Watson. 2 Marsh. 330, S. C. [2 Dowl. 532, France v. Clarkson.] But when a compromise ia entered into by the parties, neither of them can rule the sheriff: 5 T. E. 470, Alchin v. Wells ; [nor can the defendant rule him until after the object of the writ has been effected, except on special grounds. 2 G. & D. 751, Daniels v. Gomperlz. 2 Dowl. N. S. 904, Williams v. Webb. The Law of Sheriff's, by Watson and Willes, 80.] The Court will not compel the sheriff to specify in his return the price at which each particular article has been sold. 6 Taunt. 576, Willet v. Sparrow. 2 Marsh. 293, S. C. [Before the passing of the stat. 1 & 2 W. 4, c. 58], if the property in the goods were disputed, the Court, on the application of the sheriff, suggesting a reasonable doubt, would enlarge the time for making the return, till the right were tried between the parties, or one of them indemnified the sheriff; 7 T. E. 174, Wells v. Pickman. 1 Taunt. 120, Tfiurston v. Thurston. Tidd. 1034. Chitty's Eep. 294, Ledlrury v. Smith. Ibid. 643, Sex v. Sheriff' of Devon ; or would stay the proceedings in an action against the sheriff. 4 Taunt. 585, M'George v. Birch. 7 Taunt. 294, King v. Bridges. 1 B. Moore, 43, S. C. Chitt. Eep. 577, Probinia v. Roberts. It is entirely discretionary with the Courts whether they will interfere to protect the sheriff, or not, and on what terms. 7 T. E. 177, per Lord Kenyon C.J. [Now, however, a much more effectual relief is afforded to the sheriff in such cases by interpleader, under the statute above mentioned.-As to which, see 2 Chitt. Arch. 1004, et seq. 7th ed.] (c) However, the sheriff must continue in possession in order to maintain any action against a person taking them; for where the sheriff's officer seized a table in the name oi all the goods in a house, and locked up his warrant in the table drawer, and left the house, it was held that the possession was abandoned by the sheriff, and that no action lay by him against the landlord, who afterwards distrained the goods. 1 M. & S. 711, Blades \. Arundale. But a landlord who has distrained goods cannot 626 WILBRAHAM V. SNOW 2 WM8. SAUND, 4T. In order to maintain trover it- is necessary that the plaintiff should have either an absolute or a special property in the goods which are the subject of the action. 7 T. B. 398, Webb v. Fox, per Lawrence J. He who has an absolute or general property may support this action, although he has never had the actual possession; for it is a rule of law, that the properly of personal chattels draws to it the possession, so that the owner may bring either trespass or trover at his election against any stranger who takes them away. Thus if A. in London gives J. S. his goods at York, and another takes them away before J. S. obtains actual possession, J. S. may maintain trover or trespass for them. Bro. Trespass, 303. Latch, 214, Hudson v. Hudson.(d) So where a man has wreck by prescription or grant, and another takes it away, he may bring trover or trespass before seisnre. F. N. B. 207. D. 7th ed. 2 Wils. 23, Biddulph v. Arthur.(e) And upon this principle it was held, on the trial of an ejectment for a mine, that recovery in trove)' for a parcel of lead dug out of the mine, was no evidence of the plaintiff's possession of the mine. Bull. N. P. 33. Also where A. is indebted to C. and B. to A., and it is agreed between them that B. shall give goods in his possession, which were the goods of A. to C., in satisfaction of A.'s debt; if B. coverts them, C. may maintain trover against him, although he never had possession ; for by the agreement, the right of property was in him, and the conversion is a wrong to him. Bull. N. P. 35. So where an executor declares upon the possession of his testator, and of a conversion by the defendant after his death, it is held to be sufficient, because the property is vested in the executor, and that draws after it the possession in law. Latch, 214. 7 T. K. 13, Gordon v. Harper, per Lawrence Justice. In like manner a man who has delivered goods to a carrier, or other bailee, and so parted with the actual possession, may maintain trover for a conversion by a stranger; for the owner has still possession in law against a wrongdoer, and the carrier, or other bailee, is no more than his servant. 7 T. R. 12, Gordon v. Harper. But it is said that if the bailee, or other person who has oidy a special property, sells and delivers the goods to another, as his own bmul fide, and without notice, the general owner cannot maintain this or any other action against the vendee, because by such a sale by a person who has a special property in, and possession in fact of, the goods, the property of the general owner is altered. Bro. Trespass, 210, 295.(/) However there must exist a right of possession, as well as of property, to maintain trover for them; for he has no property in them, but has them only as a pledge with a power to sell by statute. Mone.ur. v. Gtirvham, Selwyn's N. P. 1303. Parker, 112, Rex v. Cotton. [M''C1. & Y. 118, Whitley v. Robert*, per Hullock B. See also 12 Price, 369, 385, 386, Si/mons v. Hearson.] (d) The attention of the Court does not appear to have been directed to this case in 2 B. & A. 551, Ironx v. Smallpiecu, in which it is laid down by Abbot C.J. that "by the law of England, in order to transfer property by gift, there must either be a deed (or instrument) of gift, or there must be an actual delivery of the thing to the donee." It is presumed that the word "instrument" means an instrument under seal. The case was one of an action of trover by the donee against the executors of the donor for two colts verbally given to the plaintiff by the deceased six months before his death, but never delivered to him, and was likened to a donatio mortis causa, in which it is clear that there must be an actual delivery to the donee or some one for...
To continue reading
Request your trial
- Robinson v Midland Bank, Ltd
-
Hocking v Director-General of the National Archives of Australia
...123 Australia, Senate, Parliamentary Debates (Hansard), 2 June 1983 at 1183, 1184. 124 Wilbraham v Snow (1670) 2 Wms Saund 47 at 47 n (1) [ 85 ER 624 at 628]; Robertson v French (1803) 4 East 130 at 136–137 per Lord Ellenborough CJ [ 102 ER 779 at 782]; Jeffries v Great Western Railway Co (......
- Robinson v Midland Bank, Ltd
- Glen v Lewis
-
The Scope of Conversion: Property and Contract
...3 06,308; 80 ER 1143,1146. Statements to this e¡ect have been repeated in numerousother cases egWi lbra ham vSnow (1669) 2 WmsSau nd 47, 85ER 624; Bloxam vSanders (1825) 4 B &C 941,107ER 1309; Milgate vKebble (1841)10 LJ CP 277.36 n 1above at [309](Baroness Hale).37 ibid.Simon Douglas335r20......