« ForrigeFortsett »
1805..who on the 1st day of January, 1804, was charged in
any prison, for the non-payment of debts, &c. which Ex parte
did not on' the whole amount to a greater sum than 1,5001, and whose name shall be inserted in any sach list to be delivered in as aforesaid, taking the oaths thereby directed to be taken, and performing what on his part is required to be done, shall be discharged out of custody," &c and have the benefit of that act. The affidavit, on the part of King, stated that King was first imprisoned in the Fleet, in execution, for the sum of 2,3001. and upwards. In April, 1802, he was declared a bankrupt, and in Trinity lerm, 1802, Messrs. Pollard and Co. charged him in execution for 1,152 ). debt and costs due before the bankruptcy. Upon petition to the Lord Chancellor in, April, 1803, Messrs. Pollards were allowed to prove this debt of 1,152). being for part of the sum for which King was in execution, if they should elect so to do before the first dividend. This debt was proved before the first of January, 1804. On the 12th of December, 1803, bes fore a dividend was made, they signed his certificate, and thereby made their election. On the 23d of January, 1805, the defendant obtained a judge's summons to shew cause why he should not be discharged ont of custody, at the suit of Messrs. Pollards, fur 1,1521. debt and costs, and an order was accordingly made the 23d of January, 1805, whereby, “ by consent of the attorney for the plaintiff's, it was ordered that the defendant should be discharged out of custody at the suit of the plaintiff's for such sum,” they the plaintiff's having prored their debt, and signed the certificate under his commission. The defendant King-applied to the court of quarter sessions to be discharged under the Insolvent Act, statute 44 Geo. III. c. 108; but the court held, that they had not the power to discharge him, he having been actually in custody on the Ist of January, 1804, charged in execution for a great. er sum than the sum of 15001. mentioned in the act.
ERSKINE, for the prisoner King, now contended that the plaintiffs, Messrs. Pollards, having signed the certificate and elected to proceed under the cominission before the 1st of Januory, 1804, to which period the discharge upon the judge's summons in 1805 must havé relation, King was not legally in custody at their suit on that day, and therefore was not legally in custody for more than 1,5001, and was entitled to his discharge, for there was an eud uf Pollard and Co.'s proceedings at law when they signed the certificate.
LAWRENCE, J.:“ How could that order, in strictness, have been obtained ? A judge never discharges a bankrupt out of custody 'upon one person's having signed bis certificate, but upon all or the greater part of the creditors signing, and the certificate being allowed. That order ought to be set aside."
Lord ELLENBOROUGH, C.J. “ All that was necessary to be stated in the order was the consent of the plaintif's attorney'; all the rest is surplusage. Ther was it not actually a debt at law, under which the prisoner King was in execution at the suit of Pollard and Co.? He was therefore in execution for a greater sum tban 1,5001. on the 1st of January; 1804 : although, by the consent of the parties, at a future time, he might have become indebted in a less sum. I do not see any reason to interfere by mandamus with the magistrates.
BRADSHAW against SADDINGTON.-Nov. 28.
H. Justly indebted to the plaintiff in 1001. upon and by virtue
Practice. of a certain bill of exchange drawn by the defendant, and Affidavit of. long since due and unpaid,” is sufficiently certain to hold Debt. to bail, and it is not necessary to state whether the plaintiff is payee or indorsee.
1885. THIS was a rule to shew cause why the defendant ZRADSHAW
should not be discharged out of custody upon file versus ing common bail, upon the following objection to the SADDINGTON.
* affidavit, to hold to bail, viz. that the affidavit stated that “ the defendant was justly and truly indebted to the plaintif in the sum of 100l. and upwards, opon and by virtue of a certain bill of exchange, drawn by the said defendant, and long since due and unpaid.”.
ESPIŅASSE shewed cause, and cited Coppinger v, , 'Beaton,* where an affidavit of debl for money had and received “ to the use of the plaintiff," omitting" by the defendant,” was held good.
By the Court. « The affidavit sufficiently states the cause of action, and it is unnecessary to state the : particular character in which the plaintif holds the bill. If he is not entitled to hold it, the affidavit is false."
· RULE DISCHARGED.
ANONYMOUS. ATTACHMENT.-Nov. 28. Practice. Ato A rule nisi for an attachment cannot be obtained on the last tachment, Last day of term.
se day of term. Anonymous. T SPINASSE moved for a rule to shew cause why
an attachment should not issue against an attorney for non-payment of costs. And he stated that he understood the practice to be, that on the last day of term, a rule to shew cause for an attachinent might be obtained, although it could not be obtained absolutely.
The Master certified to the Court that it was not usual to grant it, even nisi, on the last day of term.
* 8 Term, Rép. 338.
+ On the last day of Hilary Term, 1806, Espinasse inquired, again, the practice, in this respect, of Mr. Card, the
Rees against Manners.--Nov. 29,
Pleading. and to return the old suits, is not prove able under a count Content
**Contract for: for goods sold ; it is a special assumpsit.
. clothes by the Semble. It includes a contract for mending the suits.
He plaintif declared for goods sold and deliver RERS 1 ed, &c. namely for divers suits of clothes and MANNERS, materials, with other counts for work and labour, &c. He was an advertising taylor, and one of his bills was produced with the following head :-" The nobility, gentry, and the public served with new clothes at the following low rates per annum, on the return of those left off.”
And it was proved that the defendant contracted by the year for four suits per annum, at seventeen guineas. The plaintiff also proved some mending done. The defendant was arrested shortly after the first three or four months of the year.
Lord ELLEN BOROUGH, C. J. gave the following charge to the jury. “If it be a contract for the use or wear and tear of four suits of clothes per annum, paying either quarterly, or at the end of the year, the plaintiff cannot recover on the declaration which he has now proceeded upon. There is also a charge for mending, and it will be a question whether a man who contracts thus by
deputy clerk of the rules, who returned for answer that a sule nisi had been allowed in Lord Kenyon's time, but that they actice is otherwise now.
1805. the year is not also to mend. The defendant was to
have four suits a year at seventeej guineas. One of REES
versus the witnesses says, that Mr. Rees accepts nobody as a MANNERS
customer that will not pay quarterly ; but it does not appear that it was so in this case, only that it was bis
usual practice. The plaintiff then endeavours to shew · that the defendant made a promise to pay something
before the year expired, and to give a bill at 60 days;
but, if there was no liability to pay, that would not give • a right to demand on the part of the plaintiff', for in
that case, his promise was nudum pactum. The action should have been brought, in special assumpsit, at the expiration of the year (whereas this is in the middle of the year) to recover 171. 17s, for the use and hire of the clothes, and also the value of the clothes which were not returned. I do not believe there was a quarterly agreement that is not proved; but if there was afterwards a promise to pay quarterly, not being previously fiable, it could not be a good promise in this case."
VERDICT for the defendant,
END OF MICHAELMAS, TERM, 1805.