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Davis v. Living and Others.

July 6.

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tion of tort

THIS was an action against the assignees and 1. In an aemessenger under a commission of bankrupt against seve

ral, if there be against Davis the elder. The plaintiff had suc- evidence ceeded to his father's business, and lived in a shop only, and nune which had been taken in his father's name; but he against others, carried on trade in his own name. The father was tionary with

the Judge at a bankrupt, and had not obtained bis certificate. The Nisi Prius, assignees under his commission, suspecting that the will direct thie goods in the plaintiff's shop belonged to the father, sachi'defend. and that the son was only a colourable owner, ants, against seized them under the commission against the fa- no evidence, ther; and the present action was brought by the the plaintiff's son for the trespass. It was proved on the part of case, for the the plaintiff, that one of the assignees was present making them with the messenger when the goods were taken ; the co-defendbut the witness did not know the messenger's name, an intermeand could not swear that he was one of the de- is not a matter fendants.

fendants' counsel can

claim of right. Best, serjeant, insisted, that all the defendants 2. An uncer should be acquitted, except the assignee, who was rupt hires a

shop; goods are supplied in the name of bis son, but principally upon the father's guarantee : Held, that his assignees were liable to an action of trespass at the suit of the son, for seizing them as the goods of the bankrupt.

ants. But such

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which the de


proved to have directed and made the seizure: this, he stated, was for the purpose of making the messenger a witness for the other defendant.

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GIBBS, C. J.-I do not think I am called upon to direct the Jury to acquit them in this state of the cause. It is not a matter of right which the defendant's counsel can claim; it is discretionary with the Judge. And were I, in this stage of the proceedings, to direct the Jury to acquit the messenger who is joined as defendant, I am not certain that, when acquitted, and called as witness, he might not prove himself a trespasser.

It appeared in the course of the plaintiff's case, that Richard Davis, the father, had taken the shop in his own name ; that he had brought with him, the old customers from the shop in which he carried on trade when he became a bankrupt ; that he lived in the shop with his son ; that he ordered and selected the goods, though the purchases were made in the name of his son, and credit was alone given to his son ; but, in one or two instances, the father had guaranteed the payment.

Best, serjeant, contended, that these were circumstances, from which the Jury might collect that the plaintiff had only a colourable title ; and that the property seized was virtually the bankrupt's property.

Gibbs, C. J.-It is a hard rule of law upon persons in the condition of an uncertificated bank



rupt, that the assignees should be authorized to seize goods in his possession, and divide them

Davis amongst bis creditors, although such goods have been subsequently acquired, upon his own credit, Living and from persons who have chosen to run the risk of

Others. trusting him. But, in the present case, whoever owned the shop, the goods were supplied upon the credit of the plaintiff; and, admitting that the father guaranteed payment to the persons who supplied the goods, he could not thereby acquire any property in them, of which the assignees can possess themselves.

Verdict for the plaintiff.

Lens serjeant, and Comyn, for the plaintiff.

Best and Vaughan, serjeants, for the defend



July &

TOWNSEND and Others v. Inglis, REED,

IRVINE, and Co.

A. is em

THIS ployed by B.

VIS was an action of trover, brought to re& Co. as their cover the value of nine casks of hare skins. sells goods the Taylor and Co. were employed by Reed, Irvine, property of his and Co, as their brokers. On the 27th of Decemprincipais, ly. ing in the Lon- ber, 1814, they sold to the plaintiffs, on account of C., and draws Reed, Irvine, and Co. nine casks of hare skins, at a bill of exchange in his 30s. per dozen, then in bond in the London Docks, which t'ac. payable by a bill of four months; or two and a cepts for the half per cent. discount for money ; prompt, fouramount, and jays. A. be teen days. On the 7th of January, 1815, Taylor comes a bankrupt; B. and obtained the delivery note, for the purpose of havCo, disavow the transac

ing the skins numbered, and to ascertain the sum tion, and call for which the bill was to be drawn. The note upon C. for payment ; C. was in these words:refuses to pay, alleging that he had already paid the brok

London, 7th of January, 1815. er, and brings trover for the goods against

“ To the Superintendant of the London B. and Co., and the Trea

Docks; please to weigh, deliver, transsu er of the London

fer, or re-house, to the order of Messrs. Docks. Held,

Townsend and Co. the under-mentioned that, inasmuch as B, and Co. had suffered their broker, upon some occasions, to draw bills in his own rame, without mention of them, as bis principals, they were bound by the payment which had been made to bim by C. in the present case: that the action well lay against B. and Co. but that the Treasurer of the Dock Company was entitled to an acquittal,


goods ; they paying charges to the 10th
" Signed for Reed, Irvine, and Co.


TOWNSEND and Others,


A bill of parcels was then made out, in the usual form, to the plaintiff's ; but the skins were not sorted until the 9th of February. Taylor and Co. then drew a bill in their own names, and payable to their own order, upon the plaintiffs, for the price of the skins. The plaintiffs accepted the bill, which bore date the 10th of January, being the expiration of the prompt, and paid it when it became due. Taylor and Co. discounted the bill, applied the proceeds to their own use, and became bankrupts on the first of March following. Reed and Co. then disavowed the act of the brokers, and countermanded the delivery of the goods. The skins continued in the docks till September 1815, when they were delivered by the Company to the order of Reed and Co. The plaintiffs did not make a formal demand of the Company till Junu

ary 1816.

It was in evidence that Taylor and Co., in several instances during the course of their dealing's with Reed, Irvine, and Co., had drawn bills in their own names for goods which they had sold on their account; that they sometimes indorsed the bills over to their principals immediately upon their being accepted; at other times, they kept them till their maturity, and paid the money at the expiration of the tiine.

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