HOLMES v. MENTZE. King's Bench. value of the goods. That circumstance does not change the duty of the Sheriff. He is bound to sell such interest as the defendant, the debtor, has. Under the old law, the Sheriff must seize the goods, and would become a tenant in common with the partner. If he seizes the goods, and offers to sell them, suggesting, at the same time, that another person has an interest in them as a partner, and any one should offer to purchase them, he must do his best to ascertain what is the real interest of the debtor in them. There is not any one here who can be called an adverse claimant. My brother Coleridge says, that the course in the Court of Common Pleas is, to require the Sheriff to show that there are adverse claims, and that some communication has been made with the adverse creditor, respecting the nature of his claim. Then it is suggested, that as the execution creditor has required the Sheriff, since this claim was made, to sell the goods, he should indemnify the Sheriff; and we think that, supposing that he does insist on the Sheriff selling these goods as the goods of the defendant, and denies that they are partnership property, he should indemnify the Sheriff against the claim of Heap. PATTESON, J.-There is no difficulty in the case. If it is conceded that these are partnership goods, then the old law applies; but if it is not so conceded, then the Sheriff is between two fires. If he treats them as the individual property of the debtor, he is liable for selling the goods of the partner: and if he does not sell, the execution creditor may come upon him for a false return; so that he ought to have time to return the writ, unless one of the parties claiming will indemnify him. But this rule itself must be discharged. The affidavits should however be filed. Rule discharged. Knowles, on a subsequent day (November 16th), referring to the former application in this case, obtained a rule nisi on behalf of the Sheriff for a rule to enlarge the time for making the return to the writ. The affidavits showed that the plaintiff had ruled the Sheriff to return the writ, and on an application by the Sheriff to know whether he meant to admit that Heap was a partner or not, he refused to give any answer. The Attorney-General and Montagu Chambers showed cause. -In Parker v. Pistor (a), the Court of Common Pleas refused an application like the present; and in Chapman v. Koops (b), the Court refused to allow it to be referred to the Master to inquire what was the defendant's interest in the effects seized, observing, that "the Court had no right to restrain the plaintiff from taking advantage of the execution which he had issued." PATTESON, J. (c).-We have not the least difficulty about this case. It is said that the Court will not interfere in this summary manner, unless there is misconduct on the part of the execution creditor. Here, we think that there has been misconduct on his part: he has misconducted himself with respect to this Court, for when on a former occasion there was an application made (a) 3 Bos. & Pul. 288. (b) Id. 289. (c) Lord Denman, C. J. was absent. HOLMES v. MENTZE. under the Interpleader Act, the execution creditor said, that he did not King's Bench. dispute the partnership, and on that ground we discharged the rule. Now he comes to demand that the Sheriff shall sell the goods as the individual property of this person; he does not ask that the Sheriff may sell the debtor's share of the goods, but that he may sell the goods without reference to the question of partnership. The execution creditor has therefore been guilty of great misconduct towards the Court, and upon that ground the Court will interfere. If the question was, whether these were partnership goods or not, the Court would grant an issue; but as the execution creditor has here disclaimed disputing the partnership, we think that he is bound by that disclaimer, and we will interfere for the protection of the parties. Per Curiam. Rule absolute. BAYLIS V. HAYWARD. ing by scire facias ruptcy of the that the bank at such a time SCIRE FACIAS on a judgment in assumpsit, recovered by the plaintiff 1. In a proceedagainst the defendant, for the sum of 567. 10s. The declaration stated a on a judgment, sci. fa., tested on the 3d November, 1834, returnable on the 12th November, a plea of bankwith a return of nihil and non est inventus, and then an alias sci. fa., return- plaintiff must able on the 20th November. Pleas: First, nul. tiel. record ;—secondly, that show distinctly the plaintiff, before and on the 20th December, 1831, and from thence continu- ruptcy happened ally until the issuing of the commission thereinafter mentioned, was a printer, that the defendant &c., that he became and was a bankrupt, and that thereupon afterwards, to had no opporwit, on the 3d January, 1832, a commission of bankruptcy was duly awarded, the fact to the tunity of pleading &c., and issued against the plaintiff, and he was duly declared a bankrupt. Averment that afterwards, and after the commencement of the 1 & 2 Wm. 4, and before the issuing of the writ of sci. fa., and before the commencement of the proceedings in the sci. fa., to wit, on the 16th January, 1832, certain persons, named Charles Martyr, Christopher Magnay, and Peter Harris Abbott, were duly chosen and appointed assigness of the estate, &c. of the plaintiff'; and thereby all the estate, &c. of the plaintiff became vested, and are now vested in the assignees, &c. original action. 2. A plea which left it uncertain whether the banksubsequently to the judgment, was special demurrer. ruptcy happened held bad on 3. Nothing can be pleaded to a scire facias on a judgment, which might have been original action. Replication to the first plea, alleging a record. Special demurrer to the said last plea for that it is not in or by the said pleaded to the plea stated with sufficient certainty, what was the nature of the causes of action, for and in respect of which the said judgment was so recovered as aforesaid; whether they were for a debt, or for liquidated or unliquidated damages, or what else in particular; and also for that it is not stated with sufficient certainty whether the said judgment, so recovered as aforesaid, was before or after the plaintiff so became bankrupt as aforesaid. That it must be presumed and taken as the fact, that the said causes of action were not for debt, or for liquidated damages, but were for unliquidated damages; and also that the plaintiff became a bankrupt, as aforesaid, after the said judgment was so recovered as aforesaid; and that being so, and the plea not stating that the plaintiff's aforesaid assignees interposed, or claimed the benefit to be derived from the said causes of action, or the said damages so recovered as aforesaid, or any part thereof, such plea is insufficient; and also for that the said plea does not state or show that the BAYLIS v. HAYWARD. King's Bench. said assignees have made any claim whatsoever to the said damages so recovered as aforesaid; and also for that it is a maxim in law, that no defence can be pleaded which existed anterior to the recovery of the judgment. Nevertheless the said plea sets up such a defence, the said Charles Martyr, Christopher Magnay, and Peter Harris Abbott, having, as will appear from the said plea, become such assignees as aforesaid long before the recovery of the said judgment, and before the verdict was given and obtained in the said action; and also for that the said plea sets up matter in pais against the said record, and is in other respects insufficient, &c. Joinder in de murrer. Alexander, in support of the demurrer.-The question in substance is, whether a cause of action, accruing within three days of the bankruptcy, can be taken advantage of by the assignees. That which could be pleaded in bar of the action, cannot be pleaded in bar of the scire facias on the judgment; Cooke v. Jones (a). The bankruptcy of the plaintiff should have been pleaded puis darrein continuance. If that had been done, it might have been in bar of the action, but not having been so pleaded, it cannot be pleaded now. It is not shown whether the demand was for debt, or liquidated or unliquidated damages; it must therefore be presumed to have been for unliquidated damages. The intendment with respect to a plea is most strong against the pleader, who is bound to exclude from his pleadings any reasonable doubt; Com. Dig. (b). If therefore the nature of the action is not shown with sufficient certainty on the face of the pleading, it is bad. The action here might have been for the recovery of unliquidated damages in contract, which would pass to the assignees; Wright v. Fairfield (c); or for unliquidated damages for a personal tort, the right to sue for which could not have passed to the assignees ;—the nature of the claim ought to have been shown with certainty. Again, it is not stated with sufficient certainty whether the damages were recovered before or after the bankruptcy. If not recovered till after the bankruptcy, the answer to this scire facias must be founded on an interference by the assignees. That interference ought to have been distinctly shown; Drayton v. Dale (d). Mansel, contrà. If the cause of action is complete at the time of the bankruptcy, it must go to the assignees. It was so here. The Court gave judgment for the plaintiff in the original action. The damages were something additional, which he obtained by that judgment, and they could not be made the subject of a plea in bar to the original action. The damages clearly pass to the assignees; yet here the plaintiff claims them as his own. The judgment here was after the bankruptcy. [Coleridge, J.- But it is not so stated in your plea.] No, but it clearly was so. In Kinnear v. Tarrant (e), it is said by Lord Ellenborough, that the plea of bankruptcy is a legal bar which the Court cannot set aside; and the opinion of Lord Mansfield, in a case there stated, is cited to the same effect. It is clear that the proceeding by sci. fa. is an action. The defendant may plead to it, as to any other action, payment or any other answer. Here the plea is, that the right of (a) Per Lord Mansfield, Cowp. 728; 2 Wms. Saund. 72, t. (b) Pleader, (E 6.) (c) 2 Barn. & Adol. 727. BAYLIS V. action claimed by the plaintiff, was legally vested in other persons, and that King's Bench. it became so vested by the plaintiff's bankruptcy. While the bankruptcy continues, the plaintiff cannot claim any beneficial interest arising from that right. The right to recover at law has passed to the assignees, and therefore the plaintiff is not entitled now to have the sci. fa. The damages in the original action were a part of his personal estate, and as such vested in his assignees. Alexander, in reply.--The case of Kinnear v. Tarrant is not in point ;-that was a sci. fa. on a recognizance of bail, where there having been a sci. fa. and an alias sci. fa., a bankruptcy had occurred between the two: and the question there was, whether the bankruptcy might then be pleaded. The circumstances there were not at all like the present. PATTESON, J. (a)-This is a proceeding upon a scire facias, brought by a person who has recovered a judgment in an action of assumpsit. The defendant has pleaded in substance, that the plaintiff became bankrupt, but he does not state when. The plea begins by saying, that on a certain day, to wit, on &c.,-the day is immaterial, of course,--he became and was a bankrupt; but it is not averred whether this was before or after the particular time of the judgment. It is alleged, that from the 20th December, 1831, to the time of the commission issuing, the plaintiff was a trader, but in the latter part of the plea it is said, that "afterwards and before the issuing of the writ of sci. fa., and the commencement of the proceedings in sci. fa., to wit, on the 16th January, 1832, the plaintiff then and there continuing a bankrupt, the commission being in full force and effect;"-assignees were appointed, and that all the estate and effects of the plaintiff, and all the causes of action, arising before the bankruptcy, vested in the persons so appointed. But still it does not appear but that this bankruptcy was before action brought, and still more, it does not appear but that it was before judgment given, so that the defendant might before have had the opportunity of pleading this very bankruptcy to the original action. Now there is no rule clearer, than that you cannot plead to a sci. fa. on a judgment, that which might have been pleaded in defence of the original action. I have looked into the authorities to see how this point has been raised;-as far as those stated in the note to Williams's Saunders (b) go, it appears in every one of them affirmatively, that the defendant could have pleaded the matter before. In this case it does not appear to be so; but as the defendant has not pleaded that plea, unless the fact be that he had not an opportunity before of pleading it, it is incumbent on him to state the time when the judgment was obtained, that we might see whether he had or not. If he had stated, that after the judgment the plaintiff had become bankrupt, we should have seen that he could not have had an opportunity of making that defence at an earlier period. It seems to me that the cause of demurrer, which is here specially stated, that it is not averred with sufficient certainty when the judgment was recovered, is a good cause of demurrer. I do not know whether it would or not be a good cause of general demurrer, but it is certainly good upon special demurrer. HAYWARD. King's Bench. BAYLIS v. HAYWARD. WILLIAMS, J.-I am of the same opinion. If the bankruptcy did occur before the judgment, there was an opportunity of pleading it in defence, and it should have been pleaded ;--the cases are numerous to that effect. Here the matter is left in uncertainty. Coleridge, J.—I concur with the rest of the Court, on this short ground, -the plaintiff has sued upon a cause of action, has got a judgment, and must prima facie be presumed entitled to the fruits of that judgment; yet he is now sought to be deprived of that which clearly appears to be his right, by the defendant's plea, that the plaintiff has become a bankrupt, and that all his rights have become vested in his assignees. That may or may not be a defence, according to the time when the bankruptcy happened. That time should have been distinctly shown. He who alleges a state of things to take away a right from another party, is bound to make the case perfectly clear, and is not at liberty to state things which may be consistent with one issue or another, but must state distinctly what is his right. PATTESON, J.-In the case in 15 East, it appears negatively that the party could not have pleaded before, for it is a sci. fa. on a recognizance of bail. Judgment for plaintiff. A warrant of attorney was given, subject to an agreement that judgment was not to be entered up and execution issued until a certain time, unless in the mean BIDDLECOMBE v. BOND. THE defendant, on 6th December, 1834, gave a warrant of attorney to the plaintiff to secure the sum of 1707. By the defeasance, it was agreed between the plaintiff and the defendant, that no judgment should be entered up, or execution issue, unless, or until default should be made in payment of the said sum of 170l. by three several instalments of 56l. 13s. 4d. each, payable respectively on three several days agreed upon. On 30th March, 1835, a short time before the first instalment became due, an agreement was ant became bank- entered into, by which an extension of time was given. The agreement was to the following effect : time the defend rupt or insolvent: -Held, that the word" insolvent" could not be re the benefit of the Act, but that the plaintiff might proceed on the warrant of at torney, on the defendant being in such a situation as "Memorandum of agreement entered into the thirtieth day of March, strained to taking one thousand eight hundred and thirty-five, between William BiddleInsolvent Debtors' combe, of Southampton, draper, of the one part, and Thomas Bond, of Southampton, hatter, of the other part. Whereas Thomas Bond has by his warrant of attorney secured unto William Biddlecombe the sum of one hundred and seventy pounds, payable by three equal instalments, the first whereof becomes payable on the sixth day of April next. It is hereby agreed between the said parties, that, in consideration of thirty pounds, to be paid by the said Thomas Bond, in pursuance of his acceptance for that amount, at three months' date from this day, and of his hereby agreeing to pay the further sum of twenty-six pounds on or before the twenty-ninth day of September next, and the remainder of the debt by instalments of various small sums, according to his ability, so that the whole shall be discharged with interest on or before the first day of April, one thousand eight hundred and thirty-six then, unless the said Thomas Bond shall in the meantime to owe more than he had assets to pay with. |