« ForrigeFortsett »
1805. who on the 1st day of January, 1804, was charged It* £7parte Pr'SOn> ft"* tne rton-paynient of debts, See. which
Kino. did not on the whole amount to a greater sum than 1,5001. and whose name shall be inserted in any snch 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, slated- that King was first imprisoned in the Fleet, in execution, for the sum of 2,3001. and upwards. In April, 1802, be was declared a bankrupt, and in Trinity term, 1802, Messrs. . Pollard and Co. charged him in execution for 1,15fi k 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 l,152l. 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, before Tt dividend was made, they signed his certificate', and thereby made their election. On the 23d of Janttnry,- 1805, the defendant obtained a judge's summons to i*he\v cause whv he should not be discharged ont of custody, at the suit of Messrs. Po-llards, for 1,1321. debt and costs, and an order was accordingly made the 2 3d of January, 1S05, whereby, " by consent of the / attorney for the plaintiff's, it was ordered that the de
fendant should he discharged out of custody at the surt of-the plaintiff* for such sum," they the plaintiffs having proved their debt, and signed the certificate under his commission. The defendant A"t«g.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 himrhe having been actually in custody on the 1st of January, 1804, charged in execution for a greater sum than the sum oi 15001. mentioned in the act.
Erskine, for the prisoner King, now contended 1805.
that the plainiilTs, Messrs. Pollards, having signed the _
certificate and elected to proceed under the commis- Ki*o. sion before the 1st of January, 1804, to which period the discharge upon the judge's summons in (805 must have relation, King was not legally in custody at their suit on that day, and therefore was not legally in custody for mote than 1,5001, and was entitled to his discharge, for there was an end of 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 ;t bankrupt out of custody upon one person's having signed his certificate, hut upon all or the greater part of the creditors signing, and the certificate being allowed. That order ought to be set aside."
Lord Ellenborougii, C. J. "All that was necessary to be stated in the order was the consent of the plaintiffs attorney ; all the rest is surplusage. Then was it not actually a debt at law, under which the prisoner King was in execution at the suit of Pollard and Co. f He was therefore in execution for a greater sum than 1,5001.- on the 1st of January, 1H04: although, by the consent of the parties, at a future time, be 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.
** Justly indebted to the plaintiff in 100/. upon and by virtue prac(|ce of a certain bill of exchange drawn by the defendant, and Affidavit uf. long since due and unpaid,'' is sufficiently certain to hold . "tto bail, and it is not necessary to state whether the plaio.
. tiff is payee or indorsee.
18*5. »pins was a rule to shew cause why the defendant isioiiiAW" should not be discharged out of custody upon fil
■j'.ius iuji common bail, upon the following objection to the' affidavit, to hold to ban, viz. that the affidavit stated that " the defendant was justly and truly indebted to the plaintiff in the sum of 100U and upwards, upon and by virtue of a certain bill of exchange, drawn by the said defendant, and long since due and unpaid."
Espinasse shewed cause> and cited Coppinger v, Beaton,* where an affidavit of debt for money had and received " to the use of the plaintiff," omitting " by the defendant," was held good.
By the Court. "The affidavit sufficiently stales the cause of action, and it is unnecessary to state the particular character in which the plaintiff holds the bill. If he is not entitled to hold it, the affidavit is , false."
Anonymous. Attachment.—Nov. 28.
frr*etice. At- A rule nisi for an attachment cannot be obtained on the lasl tuchiut'iit. Last , ,
<Uy of term. day of term.
J^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 lit understood the practice to be, that on the last day of term, a rule to shew cause for an attachment might be obtained, although it could not be obtained absolutely.
Thfe Master certified to the Court that it was not twunl to grant it, even nisi, on the last day of term.
* 8 Tem, Rep. 33S.
f On the last day of Hilary Term, 1806", Espinasst Inquired, again, the practice, in this respect, of Mr. Card, the
Rebs againit Manners.—Nov. Q.y.
Coram Ellen Borough, C. J. at Nisi fr^us, at
J contract zcith an advertising tat/lor for four suits a year, Assumpiit.
Semble, // includes a contract for mending the suits.'
npHE plaintiff declared for goods sold and deliver- R"> * ed, &.c. namely for divers suits of clothes and M1nsu^ materials, with other counts for work and labour, 8tc. 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 Ellenbohough, 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 theendoftlieyear,the^/aj«ri^r cannot recover on the declaration which he has now proceeded upon. There is also a charge for mending, and it will bea question whether a man who contracts thus by
deputy clerk of the rules, wh.o returned for answer that a rale nisi had leen allowed in Lord Kknxo.v's time, but (bat they actice ii otherwise now.
the year is not also to mend. The defendant was to have four suits a year at seven tee i guineas. One of the witnesses says, ihat Mr. Rres accepts nobody as a customer that will not pay quarterly ; but it does not appear that It was so in this case, only that it was his usual practice. The plaintiff then endeavours to shew that the defendant made a promise to pay something before the year expired, and to gwe a bill at GO 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 pqctum. The action should have been brought, in special qssumpiit, at the expiration of the year (whereas this is in the middle of the year) \o recover 17l. 17s. for the use and hire of the clothes, and also the value pf the clothes which were not returned. I do not believe there was a quarterly agreement that is not proved; hut if there was afterwards a promise to pay quarterly, not being previously liable, it could not be a good promise in this case." .
Verdict for the defendant.
END OF MICHAELMAS, TF,RM, 1805.