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1827.

BREWER

SPARROW.

bankrupt shut up, and upon his arrival he took possession thereof, and also of the stock in trade, household furniture and effects, and re-opened the shop, and continued the business, assisted by his son and the apprentice of the bankrupt, by selling the stock, in the same manner as had been done by the bankrupt. While the defendant continued in possession, and was conducting the business, but before the issuing of the commission, the plaintiff Brewer arrived at Cheltenham, and went upon the premises and there saw the defendant and his son, and the apprentice, carrying on the business, and selling the stock of the bankrupt; and at the same time looked over the house and shop, and took an inventory of the household furniture, and went into the cellar with the defendant, and there examined the stock of wine left by the bankrupt; and afterwards returned to London, leaving the defendant in possession, conducting and carrying on the business, which he continued to do until the 13th November following, when he and his son quitted the premises, leaving the apprentice in possession. On the 15 h November, a messenger, by virtue of a warrant issued by the commissioners under the commission, at the instance of the plaintiff Brewer, arrived at Cheltenham, and took possession of the premises, the household furniture and effects, and the stock in trade, which consisted partly of stock which had belonged to the bankrupt, and partly of stock which the defendant had purchased during the time he continued the business, and which had been mixed up and in part sold with the bankrupt's stock, for the general benefit of the trade of the shop, and to enable the defendant to sell the bankrupt's stock more beneficially than he otherwise could have done. From the 15th November, the business of the shop was continued and carried on under the direction of the plaintiff Brewer, with the same stock so taken possession of by the messenger; until on or abuut the 24th January, 1826, when the plaintiff Brewer caused the stock in trade then remaining undisposed of to be sold by public auction ; together with all

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1827.

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V. SPARROW.

the household furniture, and other effects of the bankrupt mentioned in the declaration, and in the particulars of the plaintiffs' demand, and received the produce of such sale. The goods so purchased by the defendant amounted to 2121. and upwards, which he paid for out of the monies received by him in the sale of the general stock in trade. He conducted the business fairly, and with the same care and attention as if it had been his own individual concern: He kept a daily account of the sale and purchase of the stock bought and sold, of all monies received and paid, and of all incidental expenses during the time he continued in possession; and such account was a just and true account: and at the time of his quitting possession, he left with the apprentice of the bankrupt, who remained on the premises until the sale by auction, the balance of such account, amounting to 201. 6s. 3d., which sum the

apprentice duly paid to the messenger, who duly paid and accounted for the same to the plaintiff, before the commencement of the action. On the 21st January, the defendant being summoned before the commissioners, delivered a copy of the account so kept by him to the plaintiffs. The action was commenced on the 4th April following The defendant did not intermeddle with, or dispose of any part of the bankrupt's goods, chattels, or effects, except his stook in trade. The defendant acted in all things touching and concerning the taking possession, and selling, and disposing of the stock in trade of the bankrupt, and purchasing other stock, and conducting the business, and in all other matters relating to or concerning the subject matter of the action, bonâ fide, and solely for the benefit of all the creditors of the bankrupt.

The arbitrator then awarded, that if the Court should be of opinion that the action could not be maintained, a verdict should be entered for the defendant; but if otherwise, for the plaintiffs.

The question for the opinion of the Court was, whether, under the circumstances stated in the award, the action

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1827.

was maintainable against the defendant for taking possession of the bankrupt's effects; or, whether, the arbitrator having found that the defendant, after having taken such possession, acted in all respects for the benefit of the creditors, that could be considered a good defence to the action.

BREWER

SPARROW.

Hutchinson, for the plaintiffs. This action is maintainable in point of law. The conduct of the defendant amounted to such an interference with the effects of the bankrupt, as gave his assignees a right of action. Such an interference was tortious, it was in effect a conversion of the goods. The defendant assumed the right of selling, and actually did sell, the bankrupt's effects as his own, without having received the slightest authority from the assignees so to do. The bankrupt absconded from Cheltenham, where he had carried on his business, on the 2nd of October. A meeting of his creditors was held in London on the 4th, and it was there agreed that the defendant should go down immediately to Cheltenham. But that was no sanction of the defendant's subsequent conduct, because the plaintiff Brewer, who was one of the creditors present at that meeting, was not then appointed assignee, and therefore had no power or authority to sanction any such proceeding. The plaintiff Brewer afterwards went to Cheltenham himself, and saw the defendant in possession ; but that also was before the commission issued, therefore that visit cannot be considered as any sanction of the defendant's proceedings : and, on the contrary, the plaintiff Brewer evidently meant to repudiate those proceedings; for the very next step he took, was to return to London, and sue out the commission. But even if the plaintiff Brewer had intended to sanction all that the defendant did, still, as he was not then assignee, he had no authority to do so, and having now become assignee, he may maintain an action against the defendant for acts of his amounting to a conversion. That the defendant has been guilty of a converson is quite clear, for he is

1827.

BREWER

V. SPARROW.

guilty of a conversion who takes the property of one person by assignment from another, who has not any authority to dispose of it. That was decided in M Combie v. Davies (a), and upon that principle it seems necessarily to follow, that this action is maintainable.

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BAYLEY, J.-I am of opinion that, both by law and justice, the defendant in this case is entitled to a verdict. That the justice of the case is on his side, no human being, I think, can doubt ; and I am happy in being able. to come to the conclusion, that the law of the case is with him also. It is perfectly clear that, from first to last, the plaintiff Brewer assented to all that the defendant did. I do not put the case upon the ground that he had a right to give his assent to what was done, because he was not then acting in the character of assignee. But there is no doubt that the assignees of a bankrupt have a right, if they chuse, to affirm the acts of a person interfering with the bankrupt's estate, even though his acts are such as would otherwise amount to a conversion of the effects; for though they have a right to treat him as a wrong-doer, they may, if they think fit, waive that right, and treat him as their agent. It is found here, by the award, that the defendant, in the disposition of the bankrupt's goods, acted for the benefit of all the creditors jointly, and not for his own individually. The assignees were at liberty to affirm, or to disaffirm, that disposition of the bankrupt’s goods, as they chose ; and which course have they adopted ? They have most clearly affirmed the defendant's acts, and that in their character of assignees; for the defendant having mixed up goods and money of his own among those of the bankrupt, the balance of the account forming the remaining produce of the bankrupt's goods, was paid by the defendant to the messenger, and by the messenger to the plaintiff, after

(a) o East, 533. Et vide Baldwin v. Cole, 6 Mod. 221.

1827.

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SPARROW.

the assignment to him and his co-assignee, and was received by him, without any objection. I think that was a complete recognition by the assignees of all that the defendant had done, and having once affirmed and adopted his acts, they cannot now turn round, and by bringing this action, disaffirm and repudiate them. This is no new doctrine. Smith v. Hodson (a), and a variety of other cases, have decided, that the assignees of a bankrupt cannot affirm the same transaction in one part as a contract, and disaffirm it in another as a tort; and the present decision is perfectly in unison with that principle. For these reasons I am of opinion, that the defendant is entitled to judgment.

HOLROYD, J.-I think there was a complete confirmation of all the defendant's acts by the plaintiff Brewer, in his character of assignee; and that being the case, it would be contrary both to law and justice to allow him to repudiate those acts now.

LITTLEDALE, J.-I am entirely of the same opinion.

Judgment for the Defendant.

(a) 4 T. R. 211. Vide Mont. B. L. 473; Selw. N. P. 7th ed. 224,

and the cases there collected.

The King v. The INHABITANTS of TROWBRIDGE.

7. Bo? 452 Two Justices, by their order, removed Matthew Acorn,

The fact of Elizabeth his wife, and their two children, from the a poor child

being first parish of Trowbridge, in the county of Wilts, to the found in a par

ticular parish, parish of Chatham, in the county of Kent; and the is no evidence

of his having been born there; and his being maintained by that parish for several years, and afterwards occasionally relieved by them for several weeks together, does not amount either to an admission, or to conclusive evidence, of his being settled there.

Semble, that relief given to a pauper is no evidence of his being settled in the relievirg parish.

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