Hudson, Assignee of Henry, a Bankrupt, v M'Allen

• Jurisdiction: Ireland
• Judgment Date: 25 November 1841
• Date: 25 November 1841
• Court: Exchequer of Pleas (Ireland)

Exch. of Pleas.

HUDSON, assignee of HENRY, a bankrupt,

and

M'ALLEN.

Wymer v. KembleENR 6 B. & C. 479.

Wiggins v. M'AdamENR 3 Y. & J. 1.

Taylor v. TaylorENRHRC 5 B. & C. 392; S. C. 8 D. & R. 159.

Notley v. BuckENR 8 B. & C. 160; S. C. 2. Man. & R. 68.

Moreland v. PellattENR 8 B. & C. 722.

Woodland v. Fuller 11 A. & E. 859.

Stead v. GascoyneENR 8 Taunt. 527.

Kitchen v. Campbell 3 Wils. 307.

Baker v. PettigrewUNK 2 Ir. Eq. Rep. 151.

Wymer v. KembleENR 6 B. & C. 479.

Taylor v. TaylorENR 5 B. & C. 392, 394.

Notley v. BuckENR 8 B. & C. 160.

Groves v. CowhamENRENR 10 Bing. 5; S. C. 3 M. & S. 352.

Balme v. HuttonENR 2 C. & J. 19.

Garland v. CarlisleENRENRENR 4 Bing. N. C. 7; S. C. 4 M. & Sc. 24; 11 Bligh, 421.

Giles v. GroverENR 2 M. & Sc. 311.

Baker v. PettigrewUNK 2 Ir. Eq. Rep. 151.

Cooper v. ChittyENR 1 Burr. 201.

Taylor v. TaylorENR 5 B. & C. 392.

Giles v. GroverENR 1 Cl. & Fin. 77.

Woodland v. Fuller 11 A. & E. 859.

Wymer v. KembleENR 6 B. & C. 479.

Morland v. PellattENR 8 B. & C. 722.

Garland v. CarlisleENR 10 Bing. 452.

Balme v. HuttonENR 2 C. & J. 20.

Notley v. BuckENR 8 B. & C. 160.

Balme v. HuttonENR 9 Bing. 471.

Groves v. CowhamENR 10 Bing. 5.

Keely v. Minter 1 Scott, 620.

Notley v. BuckENR 8 B. & C. 160.

Wymer v. KembleENR 6 Barn. & Cress. 479.

Moreland v. DickensENR 8 Barn. & Cress. 722.

Notley v. BuckENR 8 Barn. & Cress. 160.

Giles v. Grover 1 Clerk & Fin. 72.

Jones v. FrostENR 9 Barn. & Cress. 764.

Kelcey v. Minter 1 Scott, 616.

Notley v. Buck 8 B. & Cr. 160.; 2 M. & Ryl. 68.

Groves v. CowhanENR 10 Bing. 5.

Whitforth v. CliftonENR 1 M. & Rob. 534.

438 CASES AT LAW. HUDSON, assignee of HENRY, a bankrupt, v. WALLEN. THIS was an action of trover brought by the plaintiff as the assignee of John Henry, a bankrupt, to recover the value of certain goods which had been sold by the Sheriff of Armagh, under an execution issued at the suit of the defendant, upon a judgment by confession obtained against Henry on a warrant of Attorney. The case was tried before Mr. Justice Torrens at the Armagh Spring Assizes for the year 1841, when it appeared that Henry, who was by trade a printer, had committed an act of bankruptcy on Monday the 30th of December 1839, by leaving his usual place of residence in the city of Armagh about ten o'clock at night, with the view of avoiding his creditors. It further appeared that about seven or eight o'clock on the same evening, the goods in question, which belonged to the bankrupt, had been seized by the Sheriff under the execuÂtion at the suit of the defendant. The sale took place on Wednesday the 1st of January 1840, and the amount of the execution was subsequently paid over by the Sheriff to the defendant M'Allen, the plaintiff in the exÂecution ; but there was no evidence to shew that at the time the proceeds of the sale were so handed over, either the Sheriff or the execution creditor had notice of the bankruptcy. A commission of bankrupt was afterwards issued against Henry, and the plaintiff duly appointed his assignee. No witnesses were produced on the part of the defendant, but his Counsel contended that inasmuch as it appeared that the goods of the bankrupt had been seized by the Sheriff under the execution at the defendant's suit previous to the act of bankruptcy, such seizure was lawful, and, therefore, that the plaintiff had not sufficient title to the goods sold under the execution, to enable him to maintain an action of trover for their value ; they further contended that the plaintiff had misconceived his. action, and that instead of trover, it ought to have been an action of asumpsit for money had and received. The learned Judge overruled the objection, giving it as his opinion that the action was maintainable in point of law, and told the Jury that if upon the evidence they believed that Henry had departed from his residence on the night in question with the intent of defeating or delaying his creditors, they should find a verÂdict for the plaintiff. His Lordship, however, reserved the objection taken by the defendant's Counsel for the consideration of the Court above. Verdict for the plaintiff. On the 26th of April, pursuant to the leave reserved, a conditional order had been obtained to set aside the verdict, which it was now sought to make absolute. CASES AT LAW. 439 Mr. Holmes, and Mr. Tomb, in support of the order.-The question 'turns upon the construction of the 126th section of the Irish Bankrupt Act, 6 W. 4, c. 14.* The first clause of that section contains an exception ; and the proviso in the conclusion is an exception out of an exception. It must be admitted that the defendant's case falls within the proviso ; and the only question is, whether the assignee can maintain trover for the goods sold by the Sheriff, neither the Sheriff nor the execution creditor having had notice of the bankruptcy before the sale. As the act of bankruptcy was subsequent to the seizure, although prior to the sale, the seizure was lawful, and the defendant cannot be considered a tort-feaser, or held liable in trover, which is an action founded on a tort; if any action lies, it is assumpsit for money had and received. In Wymer v. Kemble (a), the plaintiff was held not to be "a creditor having security for his debt ;" and Lord Tenterden there says,-" The seizure " and sale were perfect and complete before the act of bankruptcy." So in Wiggins v. M'Adam (b) it was held that a plaintiff in execution upon a judgment by confession ceases to be a creditor having security for his debt within the 6 G. 4, c. 16, s. 108, when the goods seized under that execution are sold, even although an act of bankruptcy be committed before the return of the writ. The 126th section of the Irish Act does not render the execution in all cases void, but merely enacts that the plaintiffio such execution shall share rateably with the other creditors ; Taylor v. Taylor (c). The Sheriff was bound to sell in compliance with the exigency of the writ, the execution having been legally laid on. Notley v. Buck (d) shows that the proper form of action is assumpsit for money had and received.-[PENNEFATHEn, B. That case certainly establishes the right of the assignee to bring an action for money had and received, but is there any thing in it that negatives his right to maintain trover ?]-Lord Tenterden entertained considerable doubts whether any action at all was sustainable. Moreland v. Pellatt (e) (a) 6 B. & C. 479. (b) 3 Y. & J. 1. (a) 5 B. & C. 392 ; S. C. 8 D. & R. 159. (d) 8 B. & C. 160; S. C. 2 Man. & R. 68. (e) 8 B. & C. 722. • The 126th section enacts-" That no creditor having security for his debt, or "having made any attachment in Dublin, or any other place, by virtue of any custom " there used, of the goods and chattels of the bankrupt, shall receive upon any such " security or attachment more than a rateable part of such debt, except in respect of " any execution or extent served and levied by seizure upon, or any mortgage of, or "lien upon, any part of the property of such bankrupt before the bankruptcy ; provided "that no creditor, although for a valuable consideration, who shall sue out execution "upon any judgment obtained by default, confession, or nil dicit, shall avail himself of " such execution to the prejudice of other fair creditors, but shall be paid rateably " with such creditors." 440 CASES AT LAW. was also an action for money had and received. After the produce of the sale has been paid over by the Sheriff to the execution creditor withÂout notice of the bankruptcy, it would be a measure of injustice and hardship to hold either of them accountable in trover for the full value of the goods. If the Sheriff and the execution creditor were not tresÂpassers or wrong-doers at the time of the sale, what has since made them so ? or when did they first become so ? In Woodland v. Fuller (a) trover was brought by the assignees of an insolvent against execution creditors. The assignee took possession of the insolvent's property under a vesting order, and afterwards the Sheriff seized it under a writ lodged with him before the vesting order was made; and it was held that the seizure was proper,-Patteson, J., observing, " That the general property is in the "plaintiffs, and they had possession under it ; but the Sheriff was not a " wrong-doer when he seized in right of the execution creditor ; and, "therefore, trover could not be maintained." Mr. Gilmore, Q. C., and Mr. Napier (with whom was Mr. Whiteside), contra. It would tend " to the prejudice of the bankrupt's other fair creditors" if in a case like this, trover were not maintainable, and the assignee were confined to an action for money had and received against the execution creditor at whose suit the goods were sold. Upon a Sheriff's sale, goods are always sold to disadvantage, and it would be a strong inducement to the execution creditor to hurry the sale in all cases where insolvency was apprehended, were he thereby to incur no greater responsibility than that of being obliged to refund the proceeds of the sale ; while on the other band, a salutary check would in such cases be interposed, were the plaintiff in the execution to be made liable for the full value of the goods, irresÂpectively of the price for which they may have been sold by the Sheriff. First, considering the question on principle-the Sheriff, it is true, is justified in seizing, because the property is then the bankrupt's ; but by the act of bankruptcy, the property is changed, and the right of the Sheriff to retain is at an end ; the goods become the property of the assignee, and a sale of what belongs to the assignee is clearly a conversion. In the next place, considering the case upon the authorities ;-the law at one time fluctuated, but it is now settled that the Sheriff, who sells goods after an act of bankruptcy by the owner, is liable in trover ; and if so, can it be said that the...