Court Of Common Pleas, Fr...
The Times, 1824-11-27T00:00:00

This was an action of trespass, tried before Mr. Baron Hullock at the last Summer assizes for the town of Newcastle. A fill retpore of it appeared at the time in our journal, and we shall, therefore only recapitulate those features in it vwhich are ntecessary to the ur,- deritanding of the point of law wlhicb has arisen out of it. The plaintiff, who was originally a hosier at Newcastle, obtained his dis- clharge fromn prison, under the act for the relief of insolvent debtors, on the 20th of August, 18-22, and the defendant Marshal], a glover in London, was then appointed assignee to his estate. In May, 1823, Marshall, in consequence of somc circumstances which had come to his knowledge, moved the Insolvent Court for a re-hearing of the plaintiff's case, and upon such rc-hearing got him semnaBdeti to prison for 12 nionths, from the day on which it took place. lix the interval between his discharge from, and his recomnyitment to prisont, the plaintiff had taken the Half Mloon Inn at Newcastle, anld had furnished it withi wine and spirits, of which part were proved to hatve been obtained duriag that interval, upo.n security offered by his friends, and of hich the remainder vats proved to have not been paid for at al, at the time of the triaL The defend_ ant, hearing that t.he plaintiff had established his family in this inn, and waIs thus obtaining a livelihoosl for it during his in;prisonment, authorized the tw.o other def'endant., Feil and lons, to enter uport the 1,laintir) premises, and to seize and sell upevery tiling they found upon them. It was proved at the trial, that on tee first day of last December, the two last-mentioned defensants did enter wit! consider.ble violence upan the plaintiff's premises-that they de- prived his wife of the uscof every thing in the heuse_that they took awary and sNold fronm under her, the beds upon which she and her four youngchildrenslept-thatthtey left her and her family tosleep on the barebedsteads for upwardsofa formight,atthatperiodofthe year; ard that the plaintiff's family condnued to bleep in that exposcd manner until after thie sale of his goods, when some of his neighbours, lear- iug of the circumstance, sent back the goocds they had bought under tlte execution. It was hkewise proved that the goods which tle de- fendants seized sold for 851., but that the insolvent's estate, instead of being benenitted by that sum, was brought in debtor to the de_ fendant Fell for the expenses of the seizure, in the sum of 21. 12s. 6d. The defendant Al-rshall justified the proceedings of himself and 1:is co.defendants, by putting in the assignment made by the plaintiff, on obtaining his discharge from prison under the Insolvent Act, os; the2lth ot Aug ust, 1822, and contended that the 4:b, 17th, and 25th sections of the 1st of Goo. IV. c. 119, gave hin, in point uf law, power to seize under that assignment, not only the goode which the plaintiff had at the time of mnaking it, but also all these which he min,ht acquireatanysubsequent pened. The learnedJudgerefuserr to deEermine at 7tiai prii the point of law raised upon the construc- tion of the Insolvent Act; and lelt it to the Jury to decide-first, .whether the property sold under the execution sent in by the dec fendant MarshaU was acquired by the plaintiff subsequently to his discharge; and secondly, if it were, to what amount oi damages he was entitled. 'Thc Jurv returned i verdict for the plaintifl; dlamages 1251.;and the learnedJttlgegave the detendantsleave to nsove to set aside the verdict, and enter a Sonwuit against the plaintiff; if the Court should be of opinion tisat the defendant had a justification in point of law nuder the nlsolveat ACL On a former day Mr. Sergeant VAUGtOAN appeared for the dc- fendant, and obtitined a rule to shov cause wlhy the verdict had in tiS case should not be set aside as cont?ary to the right couurtuction of the Insolvent Act; and yesterdlay Air. sergeant Wilde appeared in support of the verdict. *Mr. Justice GASELEE read Mr. Baron Bullock's notes of tbe trial. The LoRnD CHIEF J USTICE said, that if he kinderstood the matr ter rigl!tly, the point upen which the parties to this action desired the dectsion of this Court was this-had Marshall, as assignee, , ri ht to take under the assignment madc by the plaintifithe property of nhich he becamne possessed after his first discharge, and be-fore his second commitment to prison 5 Mr. Sergeant WI'LDE repliecd, that such was the e-c,y poittt to which he was anxious to call the attention of the Cortu r Tie w wole question would turn upon the construction of two or three cluses in the Insolvent Act. He had to contend, that the arsignment made by the insolvent on applying for his discharg:, was only intended to transfer te his credtlirs his thAn existing property. That sauc was the intention of the act, was evident from the words of the assign., mrcnt itself and froni the only construction that could be put upom1 the 4th, 6t1, and 7tb section of tlle act. That no control was given to that assignmenit by the Insolvent Act. over the insolvent's subse. quently acquired property, was also evident from the 25th section, w hich gave a lien to the Court ever his future assets. The sections relied on by the other side only related to the punishment which might be iiflicted on the person of the insclvent, and had no connex_ ion whatever with his property. The first section to -which heshoulg beg leave to direct the attention of the Court was the 4tb, which stared that a " prisoner shoulid, at the time of subscribing his peti. tion,doly execute a conveyaece and assignment, in such manner and form as .tbe (Court should dkrect of ail his real and per. sonal estatec and sefects, except nxs wearing apparel, bedding, and otber necessaries, not exceeding in the vwhois the value of 20L1. so as to vest all suclh real and personal estate and} efibcts sm the providional assignee of the Court - sebrect to a provision, that in case such prisoner should not oblairr }i15die. charge by virtue of' tha.tact, such conveyanee and asslignenent sihouig front and after the GiSmnission of the petidon of such prisoner be null ned void to all inten ts and purposes."i TIhe six th section pro,, vided thtat the ussisonler should mn:keout.and deliver so the Courtt wvithin 14 days oF his signotureof this2zssignments, sagshediale coj~ tainirg a full and true accofint of all hids staite32rd .sfieets, real end personal, inl pessession, revcrsion,.remainder, and expectancy, &c &c., in order to give the Court an eduddations as to-the property. whiielspaesed undee- the assgnmnent; and -the 7th section mnerel - ietd i ste in certain trustees, without CSntaining a single EKr! lable as to the dispesal of any future estate he inight happen to , rain. lIe therefore contended that she assignmlent passed noehij - but what tube schedule contained, atnd it wils clear tbat the schedtdl: could contawin nothing hut the prisoner's then esisting property. fl next caune to thie25th section of the act, which vens framcd wish tin guler cautiona and deliberation, and wbich showed at onee mia mnercy, justice, aud wisdoma of the ILegislature. It tas e the insolst..nt a chaneg of re.estubllshiag himrself in the world alter bs ieas turnd, bltre ft0o the wallg of his pAsoni; it sCclied the first earninp of his industry to his new creditors in preference to his old, whose claims it def er ; and it rczereed to tihe old creditors, if the insolvent be- Caie ProsPeriusl,. the: means of recovering tlhelirdebts under the sC cton and by the aid of the Comrnissione err of te IntolWent, Court. Th6 25th section enacted, that wihet an order for thedischargeof any pHsoner should be mrde, the Insolvent Court might order judgmtent tWbe entered up against him in some one of the superior courti of Wes tminter in the name of his assigness, for the armount of the debts fron which fie was discharged; that the prisoner should exe- cute a warrant of attorney to authorize the entering up such judg- aGent, and that the order of the Court should be consideredi as a aufficient authority to the proper offlcer for entering it up. It furthei Provided, that vihen it should appear to the satisfactien of the Insol- vent Court, that the prisoner was of ability to pay his debts, or any part of them, the Court might permit execution to be taken out up- on such judgment for such sum of money, ,ss, under all the cireum- salnces of tie prisoner, it; might think proper. It likewise ordered. that the sum so obtained should be distributed rateably among thl creditors, and that further p?,ceedings should be had, accerding to the discretion of the Court, from time to time, until the wimoleof the prisoner's debts should be fully paid. and satisficed. Now it was evi- dent, from the various parts of this clause, that no assignee, by vir- tue of his assigneeship, had a right to issue an execution against the aubsequensly acquired property of an insolvent. He musl apply by specific rmotion to the Court, for leave to issue it; and the Court must judge, before it granted it, how far the insolvent was of ability to pay the debts from which he had been dischargel. It was right tbat such discretion should be intrusted to the Court, for otherwise there would be daily instances, like the present, of in- dividtals breahing up the growing fortunes of their debtors, selling ot' 1001. or 2001. worth of their goods, and returning only lbs. or s9,. to their insolvent's estate. It was right, too, that the new cre- ditors should be protected; else the old creditor would be perpe- tually coming in vwith his execution, and sweeping away the pro- perty which thiey had intrusted to the insolvenit. Their lordships 'ould remark, that even when the prisoner was in possession of pronerty the Court was not obliged to Issue out executioll against the whole of it: it was to issue out execution for such a sum as, under all the circumstanccs, it might think proper; and that, too, from time to time, until all the insolvent's debts were fully sa- tihfied. The allowing judgment to be entered up in the name of the AtSignee, was not to give him the power of seizing all the p.operty Of the insolvent, but only such part of it as the Court might order; and It therefore appearedI to him quite abstird to contend, as had in this case been contended, that the assignment gave to the assignee that power which he did not receive from the juidgment wlhich the insolvent confessed to him. Thece was another section-he meant the 29th,-which showed that the assignment only passed the then existing property. It was a section which provtded, that if e prisoner after hist diacharge became entitled to stock in the public funds, or any other property which by law could not be taken in execution under the ju gagent abovementioned, and should refuse to transfer it to a3dify that ju(dgment, the Court should have authority to. retnand mlvo custody within the walls of the prison from which he was dis. chM,nd,A untit he sbould have transferred it, or so much of it ias the <onRfthould direct, to she general benefit of his different creditors. Ar. Sergeant VAUGHAN this dav appeared to support his rule. He would not, ke said, contend against the principle laidl down by his learned brother (Wilde), but he would maintain, that from the act (1L Geo. IV.) it waR most clear that the law intended to protect the insolvent on a full sad entire surrender of bis effects * but it could not be meant to shield any propertv which he might fraudu- lently conceal, By the 4th section of that act, an uisolvent vwas de- clared entitled, on hiis petition, to be discharged from i' all further proceedings against his person," on his complying with alI the formsB t ere prescribed, and vesting whatever property he rsight possess in the hands ef a trustee. The question then was, whether any pro- perty acquired after steil first discharge, and before his final dis- charge, shotuld or shoultd not become the property of his creditors ? The l,ORD CHIEP JUSTrcE.-What do you call a final dis- charge, brother Vaughan ? Mr. Sergeant VAUGHAN .-By final disclarge, nmy Lord, I inean a discharge fromn his debts. Ilr. Justice PAUL.Y--OU mean, as I understand you, from the debts due by him at the period of his arrest and insolvency ? and that all property of which he mnight become possessed between that period and what you call his final discharge, shall be liable to his original creditors: is it not so? Mr. Sergeant VAUGHAN answered In the affirmative; and con- tended that if an insolvent should become possessed of 40,0001., or o,f 001.1 by bequest or otherwise, it would be ludicrous to suppose that sucu property would not be liable to tbe payment of his original debts. The LORD CHIEF JUSTICE said, that in granting the rule to slhoV cause, the Court thought that it could not be ultimately main- tained; but as it related to the construction of an act of Parliament of very great general importance, as it might affect creditors or in- solvents, they were anx!ous that it should be maturely conshilered before a decinon was pronounced. Whether under the bankrupt laws or the Insolvent acts, it was quite clear it was never intended that the creditor had no right to take possession of the property of his debtor except under execution. The learned Sergeant (Vaughan), to support this rule, shouild show that the assignee had a power vested in hisi by the insolvent acts. to act as the defendant in this case had acted. He (the Lord Chief .Justiea) hadt looked into all tite clauses of the act, and he found nothing in theni which vested after-acquired property in assignees. The situation of an insolvent was like that of an uncertificated bankrupt; for all the property of vwhich he inight becomie possessed was still liable to the emania of his original creditors; except sueh part as was necessarv to cover his recent debts. W hat didi the 4th section of the act orler ? That the pers;on applying for his discharge should vest his property, real and personal, except his wearing apparel, in assignees. Now it ap. peared to hins, that that coula only mean such property as the in- solver,t possessed at the tirne of making the assignment. By the - bankrupt laws, all the property of an unicertificated bankrupt, as v:ell that in his inmmediate possession as that which he might af- terwards acquire, became vested in his assignees; but that was not the CeeC here. The learned Sergeant (Vaughan) had endeavourci to distinguislh between provisional and final assignee, but he (the Lard- Chief aadcysaw -no ground foe such disVnctien. The act said, the property assignfel to the provisional assignee shall be convey- ed to the final assignee, and that he can be possessed of no other property than that so conveyed. By the seventh section of the act, when an insolvent is discharged, the C.ourt is directed to appoint a rit aiid proper person as assignee, to whom all the property of the insolvent shall be conveyet. But it rnakes no such distinction as the learned Sergeant (Vaughan) contended for; for it restricted the assignment to the powrers already vested in the provisionial assignee. There was nothing in the act, as it appeared to him, which at all afcted after-acquired property, and tne assignee had no right to meddle with any pronerty except that of which the insolvent was possessed at the time of filing his petition and of making the assign. ment. It was undoubtedly true that the Cotemissioners of the In. solvent Court had power to imprison for fraud, and it appeared that the conduct of the plaintiff in this case had been fraudulet; but the Clauses made no mention of the after-acquired property. They only went to the detention of the insolvent's person for a certain time, according to the discretion of the Court. But his after-acquired property was left untouched by them. The only difference between the bankrupt and the insolvent laws was, as to the person s-ho was to have control of the debtor's after- ocquired property. By the fomier the assignee had power to seize all the bankrupt's acquired personal property, withouL appleing to the Court. Bit under the insolvent acts it was different. The act directed, that judgment should be enitered up against the debtor, it the Court siould be coavinced that property had been acquired by himn, and then execution should be granted against such property uetil he should have paid twenty shillings in the pound. But tLe- Legislature wisely foresaw, that iF the insolvent should apply hifmself to industry after his discharge, and acquire new pro- perty, he might a3so ncquire new debts ; and it enacted that such property should, in thie first instance, be liable to those new debts, and could never be madle applicable to the payment of the old debts until the new debts were discharged. If the doctrine laid down by the learned Sergeant (Vaughan) were true, that provision would be altogether frustrated, and the new crcditors might be deprived of their property to satisfy the claims of the old. This would be ia- nifestly unjust, and yet this would be the effect of teting aside the vedict in the present case. For these re:.sons, he was of opinion that the verdict Yhotild stand. The otlher Judges concerred, and the rule wvas ordered to be tlis- chasfeee. COURT OF COMMUON PLEAS. FnTT,.,v- XIv 9A HEPPER V. MARSHALL AVn AtFlR