1806. versus The BISHOP of churchwarden, the right to elect does not reside The KING wholly with the parishioners, but there must be a custom contrary to the common law. In Needham's case in Tremayne 469, a custom is stated for the two churchwardens to be elected by the parish. Where a mandamus states that, which if it be true, is not a sufficient title, that is defective and ought to be quashed. The rector is here patron of the vicarage, a religious house are the rector and patron of the vicarage, and it was a mere slip, that cause was not shewn against the rule for the mandamus." ABBOTT, on the same side. Supposing this were a declaration we should be here upon a demurrer, and if the title be only defectively stated, the action may be sustained; but if a defective title be stated, the party cannot recover. Now the cases are all clear, that an appointment by the inhabitants is not sufficient; but there must be either the consent of the rector or an immemorial endowment giving a right of freehold, The cases are those of Lecturers, but they are the same in principle, and an immemorial endowment is taken as evidence of the assent of the vicar and rector, and the ordinary, Rer v. the Bishop of London." And he referred to the precedents in Tremayne, 505, et al. for a mandamus to grant probate, and the case of the King v. the Justices of the West Riding of Yorkshire.* Lord ELLENBOROUGH, C. J. "This is a writ by which a party is required, to do that which he has hitherto forborne to do in breach of some duty. The facts to be stated in the writ are, therefore, those which constitute the duty. It ought to state such facts as prima facie throw the obligation upon him to do what is required of him. This writ states only that whereas he was duly appointed by the inhabitants to be enrate, * 7 Term Rep. and by virtue thereof was entitled,' &c.; but it states no custom which entitles him by virtue of such mere nomination, to be licensed, nor no endowment, but lays it as a mere inference from such a nomination, that he ought to be licensed by the bishop. Is that stating a good prima facie case? In the King v. the Bishop of London, it is laid down that the rector has the full title to the pulpit, and no person can be entitled to use it, unless there is some custom, or some competent agreement which entitles him to it. The inhabitants may certainly, subject to the right of the rector to licence him to officiate afterwards, appoint him to act as curate. But, in order to lay a prima facie title, they ought to shew a custom which may render that agreement unnecessary, or that there is an endowment. As to the cases of debito modo electus, it follows of course, that if a man is debito modo electus, he is entitled to be sworn in. Nor is there any analogy to a declaration founded upon possession; for that is a sufficient title to that which has generally gone with the plaintiff's house or mill. This writ does not state a sufficient prima facie title to call upon the bishop for a return, and therefore it must be quashed." RULE ABSOLUTE, 1806. The KING versus The BISHOP of ROBERTSON against LIDDELL.-April 24th. Stat.1 Jac. I c. 15. Departing Quere. Whether if a trader depart from his dwelling-house Bankrupt. with a clear intent to delay creditors, it be not an act of bankruptcy, although no creditor be delayed. See statute 1 from dwelling Jac. I. c. 15. house. *Ut supra. 1806. ROBERTSON versus LIDDELL, N this case, which was tried before Chambre, J. at the last assizes for Durham, the question turned solely upon the bankruptcy of one Walmsley, under a joint commission against Milborne, Hollow, and Walmsley. It was proved that they were all in bad circumstances and all left their dwelling-house to go over the river from Durham into the county of Northumberland, to avoid being arrested, that, at the house to which they went, they sent for their attorney,and stated to him their situation. The attorney remonstrated with them and said, that it was a clear act of bankruptcy, and advised them to return home immediately and call their creditors together. They returned accordingly in the evening of the same day, and it did not appear that a creditor was actually delayed. The learned Judge, upon the whole of the evidence, said he had considerable doubt whether Walmsley even meant to depart with: intent to delay creditors, and he left it to the jury, that, although they should find he had that intent, yet, upon the construction of the statutes of bankruptcy, they ought to find also that some creditor was actually delayed. The jury found a verdict for the defendant, and consequently that Walmsley was not a bankrupt. COCKELL, in Michaelmas term last, obtained a rule to shew cause why the verdict should not be set aside and a new trial had, as for a misdirection of the learned Judge, and contended that there was clear evidence of departing the house with intent to avoid arrest and therefore to delay creditors; and that, when that departure with such intent was clearly proved, it was unnecessary to show the actual delay of creditors, for the statutes were in the alternative" with intent or where, by a creditor may be delayed."* TOPPING and HULLOCK, now shewed cause. "There * 13 Eliz. c. 7. 1. Jac. I. c. 15. heing a joint commission against the three partners, the question is now whether Walmsley left the house with intent to delay creditors? and next, whether any one creditor was actually delayed? From the report of the learned Judge, it is clear that he left it to the jury upon the two grounds to say whether he departed the house with intent to delay creditors, and further whether a creditor was actually delayed; with a particular direction that they were not bankrupts, if the insolvent persons had not actually delayed some creditor, although they might have gone away with the intent to delay them. The learned Judge was very correct in leaving that question to the jury, and they have ' accordingly found, in effect that there was no actual delay of creditors. In order to make a man a bankrupt under the statute 1 Jac. c. 15, the party must depart with intent or whereby a creditor may be delayed.'. In Fowler v. Padgett, the party left his dwellinghouse, in order to secure certain property for his family, and it was held that or should be construed and; and, that it was necessary that he should leave his house with intent to delay, and that a creditor should be actually delayed. So in Barnard v. Vaughan,† it was held that actual delay was not sufficient, unless there was an intent to delay. Here it was to avoid the arrest that the bankrupts went over to South Shields; they went on the contrary side of the river; they went into another county for fear of being arrested, and all three went for that purpose." LAWRENCE, J. "In the case of Barnard v. Vaughan, Mrs. Barnard left one house and it did not appear but that she went to the other house."I 1806. ROBERTSON versus LIDDELL :. 7 T. Rep. 509. + 8 Term Rep. 149. In the re port of the case it appears that she first quitted one house and never went back to it. 1805. DAMPIER, amicus curia now observed that the ques ROBERTSON tion was there whether the leaving of the second house Versus was an act of bankruptcy, and that the case was decidLIDDELL ed entirely upon the ground that the fieri facias was an execution in rem. LAWRENCE, J. "In Fowler v. Padget, I thought it was determined only that unless there was an intent to delay creditors as well as an actual delay of creditors there was no act of bankruptcy. If a man merely denied himself at his hour of dinner or werely from any bodily infirmity, it should not make him a bankrupt; otherwise it would render every trader's situation too precarious. An intent is clearly necessary." LE BLANC, J. "From the case in the Common Pleas, Judine v. Dacossen, it does not appear whether the ereditor was actually delayed." [Upon this it was mentioned from the bar that BAY LEY, Serj. citing that case in the court of Exchequer, upon the argument in the case of the extent on the bankruptcy of Castell and Co. bankers, said that there was no creditor delayed. And Cockell, Serjt. thereupon added, that, from his recollection of the evidence, it was so, for the bankrupt went to Walworth from his counting-house, and the servant proved, that, during that time, no creditor called.] HELLOCK, on the same side, cited Wilson v. Nor mant where the act of bankruptcy relied upon was the absenting himself from his house to avoid be ing arrested, and a witness proved that he came to his house to conceal himself, and it being object 4 Bas. and Pull. 234. + Montague on the Bankrupt Laws, Appendix 162. 1 Espin. 334. |