1829. DELAFIELD v. FREEMAN. The 57th sec- Wilde, Serjt., objected. He is not a witness. The discharge is only of the person, and keeps all the debts afloat, as debts which he is liable to pay out of his future property. An insolvent is not allowed to be bail, on the ground that his future property is liable. tion of the Insolvent Debtors' Act, 7 enacts, "That before any adjudication shall be made in the matter of the petition of any prisoner, the Court or Commissioner, &c. shall require such prisoner to execute a warrant of attorney, to authorize the entering up of a judgment against such prisoner, in some one of the superior Courts at Westminster, in the name of the assignee or assignees, or of the provisional assignee, &c., for the amount of the debts stated in the schedule, to be due or claimed to be due, from such prisoner, or so much thereof as shall appear, at the time of executing such warrant of attorney, to be due and unsatisfied; and the order of the said Court for entering up such judgment shall be a sufficient authority to the proper officer for entering up the same, and such judgment shall have the force of a recognizance; and if at any time it shall appear to the satisfaction of the said Court, that such prisoner is of ability to pay such debts, or any part thereof, or that he or she is dead, leaving assets for that purpose, the said Court may permit execution to be taken out upon such judgment, for such sum of money as, under all the circumstances of the case, the said Court shall order; such sum to be distributed rateably among the creditors, &c., and such further proceedings shall and may be had upon such judgment, as may seem fit to the discretion of the said Court, from time to time, until the whole of the debts due to the several persons against whom such discharge shall have been obtained, shall be fully paid and satisfied." From this it appears, that the insolvent is not discharged from his debts; he has, therefore, the most direct interest that his assignee shall recover as much property as possible, because he is not free till they are all discharged. The judgment ope rates on his future property. The recovery here will pay debts which otherwise must be paid out of his future effects. The release of the surplus amounts to nothing, because we are not looking at something which he has to receive, but at something which he will have to pay. Taddy, Serjt., in support of the witness.-It is only a contingent interest which may arise, not any present interest; and such an interest is not sufficient to exclude his testimony. Comyn, on the same side.-By the act of Parliament, the insolvent is relieved from all actions, and the property is under the direction of the Court. TINDAL, C. J., was of opinion that the witness was not admissible (a). The case proceeded, and there was a nonsuit, on the ground that the petition of the insolvent, being that which gave the Court its jurisdiction, ought to be produced, and was not. This nonsuit proceeded upon the 76th section of the act of Parliament; but it was afterwards set aside by the Court, and a new trial granted, on the ground, that, by the 19th section, an authenticated copy of the assignment was all that was required to prove the right of the assignee to sue. The Court refused to grant the rule for a new trial on the point as to the competency of the insolvent to be a witness. Taddy and Andrews, Serjts., Comyn, and Currie, for the plaintiff. Wilde and Jones, Serjts., for the defendant. [Attornies-A. R. Cocker, and In Person.] (a) Vide the case of Rudge v. Fergusson, Carr. & P. 253, in which the same question arose, and was decided in the same man- 1829. DELAFIELD V. FREEMAN. 1829. Oct. 26th. PERRING and Another v. TUCKER and Another. Where two de- TROVER for a mortgage deed. The defendants were Dr. Tucker and a Mr. Smyrdon, they had appeared and fendants appear, and plead by one attorney, but, at the trial, pleaded by one attorney. counsel appear only for one de fendant, and the other defendant appears in per son, the counsel only will be allowed to address the Jury, but the defendant who has no counsel, may cross-examine the witnesses. At the trial, Taddy, Serjt., and Chitty, appeared for Smyrdon, and Dr. Tucker appeared to conduct his defence in person. Upon this being stated to be the case by Taddy, Serjt., when he rose to cross-examine the first witness for the plaintiff Wilde, Serjt., objected to the arrangement, and the question was then discussed. Chitty. A man may appear by attorney, and afterwards defend in person; his means may diminish: and if he were not in such case allowed to defend himself, he would not be able to make any defence at all. TINDAL, C. J., inquired if there was any authority on the subject. Wilde, Serjt., replied in the affirmative. Taddy, Serjt.-There is no case where the party himself has required it. The Court may make rules with respect to Counsel, who are, in a certain sense, officers of the Court, but a defendant is in a different situation. If there were no Counsel and several defendants, all of them would be allowed to speak, although they had appeared by the same attorney. Dr. Tucker said-That his defence was different from that of the other defendant. Wilde, Serjt., referred to the case of Chippendale v. Mason (a). TINDAL, C. J.-I can only take it, that the two defendants have thought proper to entrust their defence to one attorney, who has put one defence, joining them, on the record. If he has acted improperly, he will be answerable. I think, that as Counsel are engaged for one defendant, the other defendant cannot be heard, and that upon a principle of public policy. Under the circumstances, I do not think it proper that two speeches should be made to the Jury. Then, with respect to who is to be preferred, I think I must hear my brother Taddy, because he is a Serjeant, and his duty requires him to appear. The case then proceeded, and Dr. Tucker was not permitted to address the Jury, but he was allowed to cross-examine the witnesses. It appeared, in the course of the argument, that application had been made to Mr. Justice Park, at chambers, to allow the defendants to sever in pleading, but his Lordship said, that as the only object was to have two speeches, he did not think it proper to grant the application. Wilde and Bompas, Serjts., and Follett, for the plaintiff. [Attornies-Fyson & B., and Tucker.] (a) 4 Camp. 174. That case decides, that where several defendants appear by separate attornies, and have separate counsel, if they are in the same interest, only one counsel can be heard to address the Jury, and the witnesses are to be examined by one counsel on See the case of Doe v. Tindale, 1829. PERRING V. TUCKER. 1829. Oct. 31st. A. signed a guaranty on the by which he agreed to be answerable to B. for the amount of five sacks of flour, KAY V. GROVES. ACTION on a guaranty. The first count of the de18th November, claration stated, that, in consideration that the plaintiff, at the special instance and request of the defendant, would sell and deliver to one William Taylor on certain credit, to wit, one month's credit, divers, to wit, five sacks of flour, he, the said defendant, undertook, and then and there faithfully promised the said plaintiff, to be answerable to him for the price of the said five sacks of flour; and that he, confiding in the said promise, did then and there sell On the 21st, he and deliver to the said William Taylor, on the said credit, to be delivered to C., payable in one month. On the 19th, B. delivered five sacks to C. delivered five the 24th, 3 sacks more. On five sacks of flour, the prices thereof amounting together sacks, 4 bushels, to a certain reasonable sum, to wit, 177. 10s., &c. There and 18 lbs., part were counts for goods sold, &c. Plea-Non assumpsit. of the first five sacks, were returned as of improper quality, and an equal quantity of different flour was The guaranty was in the following form: "I hereby agree to be answerable to Mr. Kay for the amount of five sacks of flour, to be delivered to Mr. W. sent in:-Held, Taylor, Gray's Inn Lane Road, payable in one month. (Signed) Thomas Groves. that A. was not answerable on his guaranty for any more than that part of the first five sacks which was retained. Dated 18th November, 1828." It was proved by the carman of a Mr. Waters, a flour factor, that, on the 19th of November, 1828, five sacks of flour were delivered at Mr. Taylor's, by the order and on the account of the plaintiff; on the 21st, five sacks more were delivered; on the 24th, three sacks, four bushels, and eighteen pounds, were fetched away by the plaintiff's order, it having been objected to by Taylor as not of a proper quality; and on the same day the same quantity of other flour was sent in.-A sum of 37. 17s. was paid into Court. Wilde, Serjt., addressed the Jury for the defendant.— Groves is Taylor's landlord; Kay has grossly deceived the defendant; he induced him to enter into the guaranty, by representing to him that another person had agreed to guarantee five sacks, and he was going to trust him for five |