absurd to impute such an intention when it is considered that the effect would be to revest the property in the bankrupt; and if it be said, that although the instrument is not by default of inrolment rendered absolutely invalid, yet there can be no evidence given of it by the assignee; the result would be, that the property would continue in him, without the power of disposing of the goods, or recovering them from a wrong-doer, in all cases in which the instrument should have been destroyed or entirely lost. The court would be very reluctant to adopt such a construction of a clause evidently intended for the benefit of the creditors, either by preserving evidence of the title of the assignee, and making it more secure, or perhaps affording a more easy mode of proving it; though the latter object, if it existed, has been defeated by a decision of this court in the case of Gomersall v. Serle (a). We do not, however, feel any difficulty in saying that the words of the section in question require no such construction; and that they mean only that the assignment itself, if offered in evidence, shall not be received, unless it shall have been first entered of record, but that any other legal evidence is admissible. If, therefore, the assignment is capable of being produced, it must be given in evidence, and must in fact be recorded; but if it is not capable of being produced, its contents may be proved by secondary evidence. The construction insisted on by the plaintiffs would be productive of most mischievous consequences, and would leave it in the power of fraudulent or negligent (a) 2 Y. & J. 5, where it was held, that if the assignment be produced, it is still necessary to prove its execution by the subscribing witness, Hunt . Connor, Guildhall, 27 Nov. 1827, per Lord Tenterden, 1 Chitty's Statutes, 110, n. acc. But see Tucker v. Barrow, Moody & M. 139, n. decided by the same Chief Justice. Also sect. 97 of 6 Geo. 4. c. 16, making office copies evidence, and restraining the production of the originals. 1834. GILES V. SMITH. 1834. GILES V. SMITH. assignees to defeat the interests of the creditors, by destroying or losing the commission or assignment. We think, for these reasons, that the evidence was properly received, and that the rule to enter a verdict for the plaintiff must be discharged. Rule discharged. See 5 Geo. 2. c. 30. s. 41. as to lost or mislaid commissions, depositions, proceedings, &c. not re-enacted in 6 Geo. 4. c. 16. s. 92., or 2 & 3 Will. 4. c. 114. s. 7.; ante, Vol. IV. 534, 542. In Re Levett, 1 Mont. & Ayr. R. 308, the court of review directed a new fiat to be issued where the original had been lost, adding, that a duplicate fiat had never been heard of. YOUNG against BECK. sued since 2 A capias is- TRESPASS. First count, for assaulting the plaintiff on 27th November 1833, and arresting him (when 2 W. 4. under colour of a supposed writ of capias issued out of Νου. 1832, c. 39. the uni formity of pro- the King's Bench, and imprisoning and detaining the cess act, came plaintiff in prison. Second count, for assault and false into operation) and following imprisonment generally. Third count, for a common the form pro- assault. Pleas: first, the general issue, not guilty; vided by that act, is not irre- second, as to the assaulting, imprisoning, and detaining gular, though the said plaintiff in prison, as in the first count men issued on an affidavit sworn on a previous day before the deputy signer of the bills of Middlesex in the King's Bench. (See 3 & 4 W. 4. c. 67.) In trespass for assault and false imprisonment, the defendant pleaded that the plaintiff being indebted to him, he sued out a capias, under which the plaintiff was detained. Replication, that no affidavit of the defendant's said cause of action was made before the officer who issued the said writ or his deputy, and filed, &c. Rejoinder, that an affidavit was made by defendant of his said cause of action before the deputy of the signer of the bills of Middlesex, and which signer, &c. was the officer who issued the writ. Surrejoinder, that the affidavit was so made by the defendant before the said deputy signer, on 15th Oct. 1833; and that the said signer was not, at the time of the making the said affidavit, an officer whose office it was or who had power to issue the said writ. Quære, if that was a departure ? tioned, the said defendant says, that before the time when &c., to wit, on the said &c., the said plaintiff was indebted unto him the said defendant in a certain sum of money, to wit, the sum of 25l. 13s. 8d. for goods sold and delivered by him the said defendant unto the said plaintiff, and the said plaintiff then and there undertook and promised the said defendant to pay to him the said sum of money whenever afterwards he should be thereunto requested; but the said sum being wholly unpaid to the said defendant, and the said undertaking and promise wholly unperformed, hè the said defendant, for the recovery of his damages by him sustained on occasion of the not performing of the said promise and undertaking of the said plaintiff, afterwards, to wit, on the day and year aforesaid, prosecuted out of the court of our lord the king, before the king himself, (the said court then and still being holden at Westminster in the county aforesaid,) against the said plaintiff a certain writ of our said lord the king, by which said writ our said lord the king commanded the sheriff of Middlesex that he should not omit by reason of any liberty in his bailiwick, but that he should enter the same and take the said plaintiff if he should be found in his said bailiwick, and him safely keep until he should have given him bail or made deposit with him according to law, in an action on promises at the suit of the said defendant, or until the said plaintiff should by other lawful means be discharged from his custody; which said writ, afterwards, and before the delivery thereof to the said sheriff of Middlesex to be executed as hereinafter mentioned, was duly marked and indorsed for bail for 251. 13s. 8d. according to the form of the statute in such case made and provided. And afterwards, at the said time, when &c., whilst the said writ was in full force, to wit, on the day and year aforesaid, the said plaintiff being then in custody of the 1834. YOUNG v. BECK. 1834. YOUNG บ. BECK. said sheriff of Middlesex at the suit of other person or persons, the said writ so indorsed was delivered to the said sheriff of Middlesex by way of detainer against the said plaintiff, and in due form of law to be executed; and the said sheriff thereupon detained the said plaintiff for the cause aforesaid, as he lawfully might, which is the supposed trespass in the introductory part of this plea mentioned, whereof the said plaintiff hath in his said first count above complained against him. Verification. Replication. Similiter to first plea. And the plaintiff, as to the plea of the defendant by him secondly above pleaded as to the said several trespasses in the introductory part of that plea mentioned, and therein attempted to be justified, saith, precludi non, because he saith that at the time of the said sheriff detaining the plaintiff for the cause aforesaid, as in the said plea alleged, there was no affidavit of the defendant's cause of the said action in that plea alleged made before any judge or commissioner of the said court of our lord the king before the king himself, authorized to take affidavits in the said court, or before the officer who issued the said writ, or his deputy, and filed according to the form of the statute in that case made and provided; nor was there any order, rule, or authority, of or from the said court, or of or from any one or more of the judges thereof, or of the judges of the court of our lord the king of the bench, or of the barons of our lord the king's Exchequer at Westminster, authorizing or empowering the defendant, or the said sheriff, or any other officer or person, to make the said detainer. Verification and prayer of judgment (a). Rejoinder. And the said defendant, as to the said (a) These pleadings were framed before Reg. Gen. Hil. 4 Will, 4. No. 9. replication of the said plaintiff to the said second plea of him the said defendant, says, actionem non, because he says that before the suing out of the writ in the said plea mentioned, to wit, on the day and year aforesaid, an affidavit and affirmation of the said defendant's cause of the said action in that plea alleged, was made by the said defendant before the deputy of the signer of the bills of Middlesex, and which signer of the bills of Middlesex was the officer who issued the said writ, in and by which said affidavit and affirmation the said defendant (being one of the people called quakers) then and there solemnly affirmed that the said plaintiff was then justly and truly indebted unto him the said defendant in the sum of 25l. 13s. 8d. for goods sold and delivered by the said defendant to the said plaintiff, and at his the said plaintiff's request. And the said affidavit and affirmation so made as aforesaid, was then and there filed in the office of the said signer of the bills of Middlesex, commonly called the bill of Middlesex office, and was and continued to be so there affiled at the time of the sheriff so detaining the said plaintiff as aforesaid for the cause aforesaid, to wit, on the day and year aforesaid, in the county aforesaid. Verification and prayer of judgment. Surrejoinder. And the said plaintiff, as to the said rejoinder of the defendant to the said replication of the said plaintiff to the said second plea of the said defendant says, that the said affidavit and affirmation of the said defendant's cause of the said action in that plea alleged was so made by the said defendant before the said deputy signer of the bills of Middlesex on the 15th October 1832, and the said signer of the bills of Middlesex was not at the time of the said defendant's making the said affidavit and affirmation as aforesaid, an officer whose office or duty it was to issue, or who 1834. YOUNG V. BECK. |