SAMUEL LINDSAY, Assignee of WILLIAM Oƒ€™CALLAGHAN, v SAMUEL GOING

• Jurisdiction: Ireland
• Judgment Date: 16 June 1849
• Date: 16 June 1849
• Court: Court of Exchequer Chamber (Ireland)

Exchequer Chamber.

SAMUEL LINDSAY, Assignee of WILLIAM Oƒ€™CALLAGHAN,

and

SAMUEL GOING.

Cooper v. ChittyENRUNK 1 Burr. 20; S. C. 1 Sm. L. C. 220.

Balme v. HuttonENR Ex. Ch. 9 Bing. 471.

Garland v. Carlisle 4 Scott, 587.

Groves v. CowhamENR 10 Bing. 5.

Kelcey v. Minter 1 Scott. 616.

Cheston v. GibbsENR 1 D. & Low. 420; S. C. 12 M. & W. 111.

Becke v. SmithENR 2 M. & W. 191.

Binns v. Towsey 3 N. & P. 88.

Squire v. Huetson 1 Q. B. 308.

Whitmore v. GreeneENR 13 M. & W. 104.

Lord Ashtown v. Burke L. & T. 338.

Garland v. CarlisleENR 2 Cr. & M 69.

Sims v. SimpsonENR 1 Bing. N. C. 306.

Woodland v. Fuller 11 A. & E. 850.

White v. BartlettENR 9 Bing. 378.

Hudson v. Mƒ€™Allen L. & T. 316.

Becke v. SmithENR 2 M. & W. 191.

Banks v. Angell 3 N. & P. 93.

T. T. 1849. Exch. Chum. (f4rbtquer ebtintber.* SAMUEL LINDSAY, Assignee of WILLIAM O'CALLAGHAN, v. SAMUEL GOING. May23, 28, (Error from the Court of Exchequer.) June 16. A in 1843 hay- TnovEn, against the defendant, as Sheriff of the county of Tipperary. ing confessed a judgment to The declaration stated that William O'Callaghan, before he became B, B in Faster Term 1845 insolvent, and before the making by the Court for the Relief of issued arr. fa. Oil this I urlg- Insolvent Debtors of an order vesting the real and personal estate .4 • m of ent, ue William O'Callaghan in the l i which end S the Sr She- and effects oam 'aagan n e provisiona assgnee to , riff seized the wit, on the 23rd of April 1845, at &c., was lawfully possessed as of goods of A, and sold ties-m his ownproperty of (describing the property), and being so possessed, on the 23ra of May .P45. the said W. O'Callaghan afterwards, and before the making of the After the seiz ure and ;.,3fore said vesting order, casually lost the said goods out of his possession, the sale A was arrested under and the same afterwards, and before the making of the said vesting the direction of the defendant order as aforesaid, to wit, on the 23rd of April 1845, then came to the on a ca. sa., and filed a peti- possession of the defendant by finding ; yet the defendant, well knowÂtion un:':er the Insolvent Deb- ing said goods to be the property of W. O'Callaghan, before the tors et. anti a vesting. order making of the vesting order as aforesaid, and of right to belong to was thereon made on the q_1, and appertain to the plaintiff as his assignee, since the making 16th of Juhe 1845. The In- of said vesting order as aforesaid, but contriving and fraudulently solvent intending to injure the said W. O'Callaghan, before the making of ors Act pro vides that the said vesting order as aforesaid, and the plaintiff as assignee as w hen any per- son whose aforesaid, since the making of said vesting order in this behalf, estate sl. all have been ves ted in the provisional assignee shall have executed any warrant of attorney to con fess a judgment, no person shall after the commencement of the imprisonment of such person avail himself of any execution on any judgment obtained on such war rant by sale of the property seized, but shall be a creditor for his demand under the Act. Held, that the intention of this enactment was to prevent the preference of creditors, and that the Sheriff was liable in an action of trover for selling the goods he had seized after the imprisonment of A. * Alsentil,us PIGOT, C. B aid LEFRO v, B. CASES AT LAW. 457 hath not, although often requested so to do, as yet delivered to them or either of them the said goods, or any part thereof, but hath hitherto wholly neglected and refused so to do ; and afterwards, and after the commencement of the imprisonment of the said William O'Callaghan, to wit, on the 21st of May 1845, converted and disÂposed of the same to his own use, to wit, at &c. Plea-Not guilty. At the trial the jury found the following special verdict :-That William O'Callaghan was in the year 1843 a shopkeeper carrying on business in the town of Tipperary. That on the 13th of June 1843 he executed to a person named Jane Ryan a bond and warÂrant of attorney to confess judgment thereon, bearing date the 13th of June 1843, upon which judgment was entered in the Common Pleas within twenty-one days after the execution of such warrant ; that Jane Ryan revived this judgment in Easter Term 1845, and issued a fieri facias thereon against the goods of William O'Callaghan, under which the defendant seized the goods and stock in trade of William O'Callaghan on the 23rd of April 1845. That after the seizure, and on the 16th of May 1845, and before the sale which took place on the 23rd of May, William O'Callaghan was arrested under a ca. sa. issued at the suit of John Millner. The special verdict further found that the arrest under this ca. sa. was made under the directions of the defendant, and that after his arrest and while William O'Callaghan was still in custody under said writ, on the 23rd of May 1845, the defendant did under the writ of fieri facias sell the stock in trade and goods so seized, and convert the same into money which he received. That William O'Callaghan afterÂwards, on the 15th of June 1851, while in custody under the writ of sa., petitioned the Court for Relief of Insolvent Debtors in Ireland for his discharge : upon which petition a vesting...