affords a remedy (b), for it directs that in that case the Insolvent Court shall re-hear the matter, and if necessary, shall annul the original adjudication. Again, the 42d section enacts, that notice of the petition and schedule shall be given to those creditors only whose debts amount to 57. The plaintiff has not shown that his debt amounts to that sum. The averment that he has had no notice, is ambiguous; it may mean that he has had no personal notice; but it is consistent with the replication that he may have been aware of the filing of the petition, and that notice of it may have been left at his dwelling-house.— [Alderson, B.—For any thing that appears to the contrary, he may have been in the Insolvent Court during the entire hearing of the case.]-Again, this may be a description of debt for which notice in the Gazette is sufficient, and yet the meaning of the plaintiff may be, that he has had no personal notice. Hoggins, for the plaintiff.-In this case, the defendant was not entitled to his discharge, until due notice of his petition and schedule had been given to the creditors, Sharpe v. Gye (c) Pugh v. Hookham (d). It was unnecessary for the plaintiff to aver that the debt from which the defendant was discharged amounted to 57., since the declaration states a debt of 100%., and the defendant, by his pleadings, must be taken to have admitted that more than 57. is due. -[Lord Abinger, C. B.-The defendant admits no more to be due than may be found due after a writ of enquiry.-Parke, B.-He admits that something is owing, but claims to be discharged from it, whatever may be the amount.] Per Curiam.-The plaintiff may amend on payment of costs, otherwise, there will be judgment for the defendant. (b) Section 67, enacts, "that every such adjudication as aforesaid by the said Court, commissioner, or justices as aforesaid, in the matter of any prisoner's petition, and the order thereupon so made as aforesaid, shall be final and conclusive, and shall not be reviewed by the said Court, unless the said Court shall hereafter see good and sufficient cause to believe that such adjudication has been made on false evidence, or otherwise improperly made, or fraudulently obtained, in which case it shall and may be lawful for the said Court, upon application of such prisoner, or of Rule accordingly. any creditor of such prisoner, to order SAMUEL v. DUKE, Knt., FORD, and Another. TROVER against the sheriff, the execution creditor, and another, for converting the goods of the plaintiff. Pleas-First, not guilty. Second, that the plaintiff was not possessed of the goods and chattels in the declaration mentioned, Exchequer. TROUP v. BOFFI. Where a creditor has sued out a writ of fi, fa. against the goods of his debtor, and has afterwards abandoned it, he cannot under the same writ, take the goods of the debtor in the hands of a bona fide purchaser. In an action of trover brought by the bona fide purchaser of goods against the sheriff and the execution creditor, for seizing under a fi. fa. which had been abandoned by the creditor, the defendants pleaded jointly not guilty, and that the plaintiff was not possessed of the goods as of his own property. Held. that as the plaintiff had a right to treat the seizure as the act of conversion, the sheriff could not, under those pleadings, shew that he had a right to seize the property. Exchequer. SAMUEL v. DUKE. At the trial before Lord Abinger, C. B., at the London Sittings after Hilary Term, 1838, it appeared that one Browning being indebted to the defendant Ford, gave him, on the 6th September, 1836, a warrant of attorney for the amount of the debt, which was to be paid by instalments. The debt remaining unpaid, the defendant Ford issued a writ of fi. fa., and on the 10th December in the same year, delivered it into the hands of the sheriff, the other defendant. This writ was executed, and certain property which was proved to belong to the sister of Browning, was taken in execution. Subsequently, on the 5th January, 1837, the sister gave the defendant Ford a warrant of attorney, payable by instalments, to secure her brother's debt; upon which Ford told Browning that he had obtained a warrant of attorney, and that the goods seized were released from the execution. On the 5th January, 1837, Browning applied to Ford for another advance of money, to be made on the security of furniture at Browning's chambers; no advance, however, was made. Ford afterwards found in the sheriff's office the old writ under which the goods of Miss Browning had been taken in December, 1836, and in June, 1837, delivered it to the defendant, the sheriff, who seized at the chambers the furniture which was then claimed by the plaintiff under a bill of sale, bearing date the 15th April, 1837. The learned Chief Baron directed the jury to consider whether the defendant Ford, by taking the warrant of attorney and by his declaration that the goods were released, had not evinced an intention of abandoning the writ of 10th December, 1836. The jury found a verdict for the plaintiff, damages 4851. 198. Platt having obtained a rule to shew cause why this verdict should not be set aside and a nonsuit entered, F. Kelly and R. V. Richards shewed cause.-The sheriff was not justified in seizing the plaintiff's property under a writ which had been abandoned by the execution creditor.-[Parke, B.-The question is, whether a creditor who after execution has agreed to abandon his writ, can afterwards enforce it so as to avoid mesne incumbrances, or whether it must not be considered a new writ from the time that he attempts to enforce it.]—Prima facie, the goods are bound from the delivery of the writ to the sheriff, and the debtor cannot alienate them, but this inability to alienate them cannot last for ever, and must be held to have terminated in this case as soon as the defendant Ford evinced an intention of abandoning his writ. The delivery of the writ does not take the goods absolutely from the debtor until the writ has been executed. Payne v. Drewe (a) shews that a writ of sequestration, which resembles a fi. fa., does not bind the goods absolutely so as to prevent the sheriff from selling under a writ subsequently directed to him. In that case, the writ of sequestration remained unexecuted eighteen months, and that circumstance was one ground on which the Court decided that the goods were not absolutely bound by the first writ. In the present case there is an interval of six months between the suing out of the writ and its execution, in addition to the declaration of the defendant Ford, that the goods were released. Again, the defendants cannot avail themselves of their present defence under the pleadings on this record, for as the property is not by the writ divested out of the plaintiff, and the defendants possess, at most, a mere right of seizure without any right of property, they ought to have pleaded specially. Owen (a) 4 East, 523. v. Knight (b) differs from this case, because there the defendant was entitled to the possession of the property in dispute. Here the seizure by which the defendants obtained the goods, is treated by the plaintiff as the act of conversion. Platt, and J. Bayley, contrà.-The effect of the delivery of the writ to the sheriff is, to take from the debtor the right of assigning his property, except in market overt; and the rule is reasonable, because it is the duty of a purchaser to ascertain at the sheriff's office whether any writs have been issued against the property that he is about to purchase.-[Alderson, B.-Your argument goes to this extent, that if the present plaintiff had sued a third person for taking these goods, that person could set up the writ and execution as a defence.]-No one, except the sheriff and the creditor, could avail himself of this defence.-[Alderson, B.-Then if the property passes as against some parties, but not as against others, does not that matter require to be specially pleaded.-Parke, B.-According to your argument, if a man possessed goods worth 10,000/., and a writ was sued out against him for 1007, he could not pass away the smallest portion of those goods.]-Owen v. Knight shews that the present defendant was not bound to plead specially.-[Parke, B.-If the seizure did not constitute the conversion, the sheriff may say that at the time of the conversion he had a right of possession, and under these pleadings may give in evidence his right to seize; but where, as in the present case, the plaintiff treats the seizure itself as the act of conversion, can you argue that the pleadings are correct? In Owen v. Knight the defendant who held the deed was entitled to the possession by virtue of his lien; had the sheriff in this case any right of possession before the seizure, and if he had, ought he not to have pleaded it ?] Lord ABINGER, C. B.-I think there was evidence for the jury that Ford had abandoned the execution, and if he had done so, it would not afterwards revive. It was in the power of the sheriff to put forward a separate defence, and the plaintiff might then have been able to prove that the sheriff had notice of the abandonment of the execution; but the time for that defence has passed; the two defendants now stand on the same ground, and the abandonment of the execution by Ford, affects the sheriff as well as himself. I am of opinion that the property is not absolutely changed by a writ of fi. fa., but only so far bound as to allow an execution creditor to pursue it when in the hands of another. The case of Payne v. Drewe decides, that property is not changed until a sale has actually taken place. The effect of that doctrine is, that property may be assigned, subject to certain obligations. And as in this case the property did pass to the plaintiff, notwithstanding the writ of fi. fa., I think this rule must be discharged. PARKE, B.-The point reserved for our consideration is, whether the transfer which was made to the plaintiff after the delivery of the writ, is to be considered as absolutely void. It is clear from the Equity Cases Abridged, that subsequently to a writ of fi. fa. a party may convey property, subject to the right of seizure, under that writ. In this case, the property passed to the Exchequer. SAMUEL DUKE, Knt. Exchequer. SAMUEL บ. DUKE, Knt. plaintiff, but the sheriff was justified in seizing it under the writ. But Mr. Platt goes further, for he says, that the sheriff was at liberty, not only to seize, but to sell the property. The answer to that argument is, that Ford had agreed to abandon the execution; and as there was sufficient evidence of the abandonment, I think that Browning might have disposed of the goods and have brought an action against any one who took them away; and, therefore, that a purchaser from him might do the same. If a distinction could have been taken between Ford and the sheriff, the latter might have defended himself against this action, because he was bound to look at the writ only, and to seize all the goods that belonged to Browning at the time of delivery of the writ, unless he received a countermand from Ford; but no such distinction was taken at the trial, and if such defence had been attempted, the plaintiff might have been able to shew a countermand from the defendant Ford. But it is unnecessary to give an opinion on this point, as I think the sheriff could not have offered that justification under these pleadings. It was necessary for him to shew that he had a lawful possessory right to this property, and he could not do that in a case where the seizure itself constitutes the conversion. BOLLAND, B., and ALDERSON, B., concurred. Rule discharged. Where the de- A fendant is bound to accept short notice of trial, and the plain tiff omits to entitled to the DIGNAM V. IBBOTSON. RULE had been obtained calling upon the plaintiff to shew cause why the verdict obtained by him should not be set aside for irregularity, under the following circumstances: on the 11th November, 1837, the defendant obtained an order for four days' time to plead, on condition of "pleading issuably, rejoining gratis, and taking short notice of trial, if necessary, whether before the sheriff or not." The defendant resided in Yorkshire. On the 3d and 5th January, 1838, two short notices of trial were delivered to his attorney, both of which were returned to the plaintiff. On the 17th, another short notice of trial, before the sheriff, was sent to the defendant's attorney and retained by him. The cause was afterwards tried as undefended, and the plaintiff obtained a verdict. It appeared that the sheriff is in the habit of sitting twice in each week for the trial of causes. C. Jones, now shewed cause, and contended, that the words, " if necessary," gave the plaintiff the option of delivering short notice of trial or otherwise; and that as the defendant had obtained the indulgence of four days' time to plead, he was bound to accept short notice, Le Fevre v. Molineux (a), and that at all events, he had waived the irregularity by keeping the notice. Per Curiam. The only difficulty in this case is, that there is no mention of any specific time for which notice of trial ought to be given. The case however must be governed by the rule that applies to notice of trial for sittings after term, where if a party, after giving notice, suffers one sittings to elapse, (a) 6 Dowl. P. C. 153. he must then give the regular notice. The defendant therefore was entitled to the usual notice of trial, and we do not think he has waived his right by keeping the notice that he received. The rule must be made Absolute with costs. Exchequer. DIGNAM บ. IBBOTSON. ELLIS V. THOMPSON and KEBBEL. ASSUMPSIT. The declaration stated, that it was agreed between the plaintiff and the defendants, that the plaintiff should sell, and the defendants should buy two hundred tons of lead, deliverable in the river Thames, at 227. per ton. That within a reasonable time after the making of the promise, the plaintiff was ready and willing, and tendered and offered to the defendants to deliver to them the said two hundred tons of lead, but that the defendants would not accept or pay for the same; by reason whereof, the plaintiff was forced to sell the lead at a lower price than the defendants had agreed to pay him, to the plaintiff's damage, &c. Pleas :—First, non assumpsit; Second, that the plaintiff did not tender, or offer to deliver the lead to the defendants within a reasonable time, and issue thereon. At the trial before Lord Abinger, C. B., at the Sittings in London after Michaelmas Term, 1837, the following facts appeared in evidence. The plaintiff was part owner of a lead mine, in the county of Salop, called the Bog Mine; the defendants were lead and iron merchants in the city of London. The Bog Mine is distant about sixteen miles from Shrewsbury, and the practice of the plaintiff was to send the lead ore to be smelted at a place midway between the mine and the town of Shrewsbury. When the lead was smelted, it was conveyed to Shrewsbury, to be shipped from thence to Gloucester or Liverpool, the ports nearest to that place, both of which are nearly equidistant from London. The greatest part of the lead when ready for delivery, was kept at Shrewsbury, but there was a small depôt at Gloucester. On the 22d March, 1837, the following contract, on which this action was brought, was made between the plaintiff and the defendants, and was inserted in the bought and sold notes, thus, "Bought for account of Messrs. Wm. Thompson and Co. of Mr. Thos. Ellis, two hundred tons of Bog Mine lead, deliverable in the river Thames." After the verbal making of the contract and before the bought note was written, the broker told the plaintiff that the lead was ready for shipment; the broker believed, but had no certain knowledge, that the lead was lying at Shrewsbury, and he stated at the trial, that Gloucester and Liverpool were the "ports" from whence Bog Mine lead was generally shipped. On the 25th March, the broker informed the defendant Kebbel that if the lead was shipped from Liverpool or Gloucester, the plaintiff would allow the expence of freight or insurance from either of those places. On the 5th April, the defendants ordered the lead to be sent to London; it was forthwith shipped at Shrewsbury on board small craft, to be conveyed along the canal to Gloucester, and after being transferred to larger vessels, was forwarded to London. But owing to the want of water between Shrewsbury and Gloucester, considerable delay took place, and the lead did not reach London till the 27th May. When it arrived, the defendants refused to receive it as a fulfilment of the contract, |