IN THE EXCHEQUER CHAMBER.

(In Error from the Court of Common Pleas) (a).

GARLAND V. CARLISLE, Assignee of G. V. LEONARD, a

Bankrupt.

THIS case was brought by writ of error from the Court of Common Pleas into the Exchequer Chamber, and was there argued in Trinity Term last, by F. Pollock, for the plaintiff in error, and by Bompas, Serjt., for the defendant in error. The Court took time to consider; and, there being a difference of opinion amongst the Judges, they now delivered their opinions seriatim.

GURNEY, B.-This is an action of trover by Thomas Carlisle, assignee of the estate and effects of George Valentine Leonard, a bankrupt, against George Garland, late high sheriff of the county of Dorset, in which the jury have found the following special verdict:—

That the within-named George Valentine Leonard, at the time of the committing of the act of bankruptcy and the issuing of the commission hereinafter mentioned, was a trader within the intent and meaning of, and subject to the statutes made and then in force concerning bankrupts, and that there was then a good petitioning creditor's debt. That the said George Valentine Leonard, on the 15th day of October, 1824, committed an act of bankruptcy. That, on the 15th day of December, in the same year, a writ of

(a) See 5 Moore & Payne, 102; S. C. 7 Bing. 298.

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Exch. Chamber, fieri facias issued out of his Majesty's Court of King's Bench, tested the last day of Michaelmas Term preceding, returnable on Monday next after eight days of St. Hilary then next, and directed to the sheriff of Dorset, commanding him, that, of the goods and chattels of the said George Valentine Leonard, he should cause to be levied, as well a certain debt of 6047., which Joshua Payne had recovered against him in the Court of King's Bench, as also sixty-five shillings for his damages, as well by reason of the detaining of that debt as for his costs and charges; which said writ was indorsed to levy 306l. 1s. 6d., besides sheriff's fees, poundage, officers' fees, and all other incidental expenses. That, on the 16th day of the said month of December, the said writ was delivered to Mr. William Parr, at that time under-sheriff to the defendant, who was then sheriff of Dorset, by John Williams, an agent of the said Joshua Payne, together with a letter from Green & Ashurst, his attornies, a copy whereof is as follows:

"Sambrook Court, Basinghall Street, 15th December, 1824.

"Sir,-The bearer, Mr. Williams, will deliver a writ of fieri facias to you, which we have issued against the goods of Mr. George Valentine Leonard, and upon which you will be pleased to grant a warrant to an officer living near to Lyme. We authorize you and the officer to take Mr. Williams' directions on the subject of this execution, and to withdraw from possession, if he shall think fit to request you so to do. We are,

"Mr. Parr."

"Green & Ashurst.

And on the 17th of that month the defendant issued his warrant, directed to William Restarick, his bailiff, reciting the said writ, and commanding him to levy of the

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CARLISLE.

goods and chattels of the said George Valentine Leonard, Exch. Chamber, as required by the said writ, that the said sheriff might have the money, as by the same he was commanded. That the said warrant was delivered by the said John Williams, the agent of the said Joshua Payne, to the said William Restarick, together with a letter from the said William Parr, as under-sheriff as aforesaid, to the said William Restarick, a copy of which is as follows:

46

"Poole, 16th Dec. 1824.

"Payne v. Leonard.

Sir,- Enclosed is a warrant to levy on the defendant's property, which I send you by Mr. Williams, whose directions you will take in the execution of the warrant; and if he requests you to withdraw the execution, you will do so, on his giving you a written authority.

"Wm. Parr."

That Restarick, on the 17th day of December, in the year last aforesaid, entered the said George Valentine Leonard's house and premises at Lyme, in the county of Dorset, and there seized and took divers goods, in the declaration mentioned, which were the goods of the said George Valentine Leonard, but which, by the subsequent commission of bankrupt and assignment, became the property of the plaintiff, by relation from the act of bankruptcy, of the value of 450l., under and by virtue of the same writ, putting Robert Gascoigne, his assistant, in possession, and leaving with him the warrant, and he kept possession of the same till the 24th day of the same month. That, whilst the said Robert Gascoigne was so in possession as the assistant of the said William Restarick, divers goods, parcel of the said goods in the said declaration mentioned, of the value of 4457., which were the goods of the said George Valentine Leonard, but which, by the

VOL. II.

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EX.

Exch. Chamber, subsequent commission of bankrupt and assignment, be

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came the property of the plaintiff, by relation from the act of bankruptcy, were made up into thirteen packages, which the said William Restarick understood were packed for the purpose of satisfying the levy, in pursuance of an arrangement made between the said John Williams and the said George Valentine Leonard, eight of them to pay the debt due from the said George Valentine Leonard to the said Joshua Payne, and the remaining five of them to be sold by the said Joshua Payne for the sheriff's poundage, officers' fees, and other expenses, which the said John Williams, as such agent, should have incurred, or might incur, in and about the said levy; the surplus balance to be remitted to the said George Valentine Leonard. The greatest part of these goods had been originally purchased by the said George Valentine Leonard of the said Joshua Payne; but some few of the goods so purchased having been sold, the value of them was made up out of the said George Valentine Leonard's stock; but the said Joshua Payne had not by this arrangement any more than his just debt. That, after such arrangement had been so made between them on the 24th day of the same month of December, the said John Williams, agent for the said Joshua Payne, delivered to the said William Restarick two letters, one dated the 23rd day of December, 1824, signed by the said George Valentine Leonard, and directed to the said William Restarick, as follows:

"I request and empower you to take goods instead of cash to the amount of the levy in the above cause."

And the other, dated Lyme, 24th December, 1824, signed by the said John Williams, as follows:

"I hereby authorize and request you to quit possession, the plaintiff having been satisfied the whole debt and costs in this action."

The said execution was afterwards, on the said last

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mentioned day, wholly abandoned; and the said Robert Exch. Chamber, Gascoigne and the said William Restarick quitted the premises of the said George Valentine Leonard, leaving all the said goods thereon; the said Robert Gascoigne going to Bridport, and taking the said warrant with him, and the said William Restarick to the Cups Inn, at Lyme. That, two hours after, the said John Williams, the agent of the said Joshua Payne, came to the said William Restarick, at the Cups Inn, to settle with him for the sheriffs' poundage, and his the said William Restarick's expenses for inventory, holding possession, levying, and other expenses, which was done, and was the first time they had been adjusted; and the said John Williams paid to the said William Restarick the whole thereof, except 57., which he did not pay; but, instead thereof, he, the said John Williams and the said William Restarick agreed that the said John Williams should cause goods to the amount of 51. to be packed up and send them to Bridport, to the said William Restarick, to be deposited with and kept by him till the said 5%. should be remitted to him. That a quantity of goods, of the value of 5l., being the residue of the goods mentioned in the declaration, was accordingly fetched from the shop of the said bankrupt, by Dudley and by Farrant, a shopman of the said bankrupt, and sent to the Cups Inn, and was afterwards, on the following Monday, the 26th of December, in the same year, received by the said William Restarick, at Bridport, by the Lyme carrier. That the said 57. were about two months after paid to the said William Restarick, who forwarded the said package of goods about the same time that the money was paid, by the van to London, to the said Joshua Payne. That the said William Restarick, at the time he received the same quantity of goods, knew that they were part of the goods which had been so seized as aforesaid. That the said thirteen packages of goods were, after the said execution