1835.

MUNK

V.

CLARK.

a petition to the Chancellor to enlarge the time for his surrender-Mercer v. Wise, 2 Esp. 219. The object of a surrender is, to avoid the highly penal consequences awaiting a neglect to surrender (a). In Watson v. Wace, the bankrupt had precluded himself from disputing the validity of the commission, by having obtained his discharge from custody on the ground that his detaining creditors had proved under the commission. So, in Goldie v. Gunston, 4 Camp. 381, the bankrupt having obtained his discharge out of custody in an action (by a judge's order) on the ground of his bankruptcy, it was held that he was precluded from afterwards contesting the validity of the commission in a court of law. In the present case, there is nothing to indicate an acquiescence by the plaintiff in the commission against him: on the contrary, it appears that he uniformly disputed its validity. It is clear that the court are not bound by an estoppel where the matter appears upon the record. As to the alleged necessity for a demand-many actions are brought against assignees for the purpose of disputing the validity of commissions without any previous demand being thought requisite. I also think that the fact of the defendant setting up an adverse title is a decisive argument on this point: it was in effect a waiver of a demand. The demand, if made, clearly never would have been complied with. There is no hardship in the case. The assignee is undoubtedly to be protected, as Lord Hardwicke says: but that is only where he has done his duty. The defendant

(a) Bayley, J., in delivering the judgment of the court, in Heane v. Rogers, says (4 M. & R. 496) : "We are of opinion that the bankrupt was not in point of law estopped by his notice and proposal of surrender; and, indeed, it appears to us that it would be a very great hardship upon him if he

were so estopped. It is quite clear that his merely surrendering under the commission is no estoppel-Mercer v. Wise, 3 Esp. 219; and upon the soundest principles, for, it would be a perilous thing indeed for a bankrupt to dispute a commission and try its validity by such means."

might have applied to the Chancellor for protection against the consequences of this action, if he could have gone with clean hands. But he has failed in his duty, in having omitted to pay the money received by him into the Bank.

BOSANQUET, J.-I am of opinion that the plaintiff is entitled to judgment. Two points have been discussed before us upon the present occasion-the one, whether an official assignee is subject to the same measure of liability as the assignees appointed by the creditors are-the other, whether under the special circumstances of this case the action is maintainable. The first point was determined on the former occasion-see Munk v. Clarke, 3 M. & Scott, 463, 10 Bing. 106. With respect to the second point, it is contended that the plaintiff has acquiesced in the commission, and procured or acquiesced in the appointment of the defendant as official assignee. It seems to me that the circumstances that are relied on as leading to an inference of acquiescence must be laid out of the question; for, the special verdict finds expressly that the plaintiff was not subject to the bankrupt laws. Independently of that, the facts are not such as to warrant the inference of an acquiescence. The special verdict finds, that, at the time of issuing the commission, the plaintiff was not indebted to Foster [the petitioning creditor] in the sum of 1007.; that, after the issuing of the commission, the plaintiff disputed the validity of the commission on the ground of the alleged insufficiency of the petitioning creditor's debt; that, on the 23rd January, 1831, the plaintiff applied to one of the commissioners of the court of bankruptcy to appoint an official assignee to the said commission, as well for the purpose of investigating the said petitioning creditor's debt as for the purpose of taking care of the property of the estate; and that the said commissioner, on the application of the plaintiff for the appointment of such official assignee, appointed the defendant an official trustee of the

1835.

MUNK

v.

CLARK.

1835.

MUNK

V.

CLARK.

estate and effects of the plaintiff under the commission for the purposes aforesaid." If these facts had been in evidence before a jury, they would not warrant them in finding that the plaintiff in any manner acquiesced in the commission: nor do I think he can be held so to have procured the appointment of the defendant as official assignee to receive the money in question, as to estop him from maintaining the present action for its recovery. The case is in this respect clearly distinguishable from Like v. Howe, where the plaintiff actually canvassed for votes in order to secure the appointment of the defendant as assignee. Here the defendant was appointed in the usual course by the commissioner: he took the office clothed with its ordinary authorities and subject to its ordinary liabilities—subject to be sued for the monies coming to his hands if the party against whom the commission issued should turn out not to have been bankrupt. It is not found by the special verdict that the defendant was served with any demand or notice to pay over the money to the plaintiff before action brought. But, if the defendant stands in the same situation as an ordinary assignee, such notice or demand was not requisite. The plaintiff not being a bankrupt, the money still remains his money. If we were at liberty to draw any inference from the special verdict, I think it would be impossible to avoid seeing that the defendant has set up a title to the money adverse to the plaintiff, and thus rendered a previous demand unnecessary. Without, however, the aid of inference, my opinion is that no demand was necessary, and that the plaintiff is entitled to recover, first, because there is no difference in point of liability between an official and another assignee, and secondly, because the circumstances of this case are not such as ought to be held to limit the defendant's liability.

Judgment for the plaintiff.

1835.

MOON & Another, Assignees of J. H. FISHER, a Bankrupt, v. RAPHAEL and Another.

signees of a bankrupt

against the sheriff for seizing under a fi. fa.

goods of the

bankrupt after

THIS was an action of trover, brought by the plaintiffs In trover by asas assignees of James Hurtle Fisher, a bankrupt, to recover certain goods that had been seized by the defendants, as sheriff of Middlesex, under a writ of fi. fa. The defendants pleaded-first, not guilty-secondly, that the plaintiffs were not possessed of or entitled to the goods and an act of bankruptcy commitchattels in the declaration mentioned as of their own pro- ted, it appeared, that, in conseperty, as such assignees as aforesaid, in manner and form &c.-thirdly, that the said James Hurtle Fisher did not become bankrupt according to the form and effect of the statute in force concerning bankrupts, in manner and form &c.

ap

quence of the sheriff's posses

sion, the goods became liable to

the landlord for

a quarter's rent of the bankrupt's premises, and

incurred for a

messenger that otherwise would

not have been

necessary; and that the goods

had, after the

commencement

of the action,

been delivered

up to, and unconditionally

The cause was tried before Gaselee, J., at the Sittings charges were at Westminster after the last term. The facts that peared in evidence were as follow:-On the 21st November, 1834, a writ of fi. fa. against the goods of Fisher, at e the suit of one Ridgway, for 3007. debt, and 65s. damages, and indorsed to levy 1517. 10s., was lodged at the sheriff's office. On the following day, the sheriff's officer went to Fisher's house, but, expecting that the action would be settled, he did not leave a man in possession, merely sending occasionally to see that the property remained there. The action not being settled, the officer resumed possession on the 21st January, 1834. On the 21st January, another person came upon the premises and took possession under a mortgage alleged to have been made by Fisher on the 4th September, 1834, for a debt of 2901.;

accepted by, the plaintiffs in a perfectly undeteriorated con

that the plaintiffs were not

dition:-Held,

entitled to re

cover the rent

and charges so

incurred, by way of special damage; there being no aver

ment of special damage in the declaration. Quære, whether such rent and charges were so necessary a consequence of the wrongful conversion as to entitle the plaintiff to recover them in trover, even with an averment of special damage.

A plea of denial of bankruptcy (under the new rules) does not dispense with the necessity of the notice to dispute required by the 6 Geo. 4, c. 16, s. 90.

In trover against the sheriff, the officer who seized, being called to prove the warrant, stated that he entered on a certain day under a warrant in the usual form, but that he had lost the warrant:-Held, sufficient to fix the sheriff.

and on the 23rd the landlord distrained for rent, and left his man in possession. On the same day, viz. the 23rd January, a docket was struck against Fisher, and the messenger took possession of all his effects, and notice was given to the sheriff's officer to withdraw, notwithstanding which he retained possession until the 2nd of May. When the sheriff withdrew, both the mortgagee and the messenger were still in possession. The sheriff had no notice of an act of bankruptcy having been committed by Fisher before he made the levy. To prove their title to the goods as assignees, the plaintiffs offered in evidence the proceedings under the fiat against Fisher; whereupon it was objected, on the part of the defendants, that, inasmuch as the bankruptcy of Fisher was put in issue by the third plea, the proceedings were not evidence, but the plaintiffs must prove the trading, petitioning-creditor's debt, and act of bankruptcy, in the usual way. For the plaintiffs, it was contended that the 90th section of the 6 Geo. 4, c. 16 (a), makes the proceedings evidence, unless notice be given of the defendant's intention to dispute the trading, the petitioning-creditor's debt, or the act of bankruptcy-Trimley v. Unwin (or Uwins), 6 B. & C. 537, 9 D. & R. 548; and a plea simply denying the bankruptcy clearly cannot be held to be equivalent to a notice under the statute: the plea must, at all events, be as explicit as the notice was required to be. The proceedings were read. The act of bankruptcy was on the 17th July, 1834.

(a) Which enacts, "That, in any action by or against any assignee, or in any action against any commissioner or person acting under the warrant of the commissioners, for any thing done as such commissioner, or under such warrant, no proof shall be required at the trial of the petitioning creditor's debt or debts, or of the

trading or act or acts of bankruptcy respectively, unless the other party in such action shall, if defendant, at or before pleading, and, if plaintiff, before issue joined, give notice in writing to such assignee, commissioner, or other person, that he intends to dispute some and which of such matters," &c.