Cooper v Chitty: 1756

An action of trover was brought by the assignees of the bankrupt against the Sheriffs of London who had taken and sold the bankrupt’s goods under a writ of fi. fa. The debtor committed an act of bankruptcy on 4th. December 1753. On the 5th. December a creditor obtained judgment against the debtor and issued a writ of execution. The sheriff thereupon seized goods belonging to the debtor. On 8th. December the debtor was declared bankrupt and the commissioners executed an assignment. The sheriff afterwards sold the goods. Counsel for the plaintiffs posed two questions: (1) whose property the goods were when they were seized by the sheriffs? and (2) whose property they were when sold by the sheriffs? As to the first he submitted that ‘After the act of bankruptcy, they ceased to be the property of the bankrupt himself; wheresoever else the property might be between the act of bankruptcy and the assignment. . . Here the plaintiffs have declared as assignees under the commission of bankruptcy: therefore their interest vests as from the time of the act of bankruptcy.’ Counsel for the defendants submitted that ‘The property is in the bankrupt till assignment: and the subsequent sale cannot make the sheriff a wrong-doer by a fictitious relation.’
Held: In favour of the plaintiffs. ‘Two things are necessary to be proved to entitle the plaintiff to recover in this kind of action: 1st, property in the plaintiff; and 2dly a wrongful conversion by the defendant. As to the first, it is admitted in the present case that the property was in the plaintiffs as on and from the 4th. December (which was before the seizure) by relation. This relation the statutes concerning bankrupts introduced to avoid frauds. They vest in the assignees all the property that the bankrupt had at the time of what I may call the crime committed (for the old statutes consider him a criminal): they make the sale by the commissioners good against all persons who claim by, from, or under the bankrupt after the act of bankruptcy and against all executions not served and executed before the act of bankruptcy. Dispositions by process of law are put on the same foot with dispositions by the party: to be valid, they must be completed before the act of bankruptcy. Therefore as to the first point, it is most clear that the property was in the plaintiffs as on and from the 4th. December when the act of bankruptcy was committed’


Lord Mansfield


(1756) 1 Burr 19


England and Wales

Cited by:

CitedRe Dennis (A Bankrupt) CA 22-May-1995
A joint tenancy was severed (under the former law) on the event of an act of bankruptcy, and not only by the later actual adjudication of bankruptcy. The vesting of the debtor’s property in the trustee which occurred on adjudication was automatic; . .
CitedSmith v Stokes 1801
After a bankruptcy goods belonging to his partnership were received by the defendant Stokes. The commission in bankruptcy then issued. His partner died and his will was proved by Stokes and another. The assignees under the commission then brought an . .
Lists of cited by and citing cases may be incomplete.


Updated: 07 December 2022; Ref: scu.186744