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whereof eleven years and upwards were yet to come and unexpired), of a certain messuage or dwelling-house, with the appurtenances, situate in the parish of St. George, Hanover Square, in the county of Middlesex, in which said messuage or dwelling-house, with the appurtenances, the plaintiff and his family during all the time aforesaid inhabited and dwelt; and that the plaintiff had for and during all the time aforesaid used, exercised, and carried on, and still did exercise and carry on the profession of doctor of medicine and physician at and in the said messuage or dwelling-house. That the defendants before and at the time of committing the said grievance, and from thence hitherto, were possessed of certain workshops, and of a certain manufactory for the working of iron, and for the making and manufacturing of ironmongery goods, situate near to the said messuage or dwelling-house, with the appurtenances of the plaintiff; nevertheless, the defendants being so possessed of the said workshops and manufactory, and well knowing the premises aforesaid, but contriving, and wrongfully and unjustly intending to injure the plaintiff, and to interrupt, disturb, disquiet, and annoy him and his family in the peaceable and quiet possession, use, occupation, and enjoyment of the said messuage or dwelling-house, with the appurtenances, and also to injure, interrupt, and disturb him in *135] the exercise of his profession aforesaid, whilst the plaintiff was so possessed of his said messuage or dwelling-house, with the appurtenances, and so inhabited and dwelt therein with his family, and whilst he so used, exercised, and carried on his said profession therein as aforesaid, to wit, on the 20th of July, 1831, and on other days and times between that day and the commencement of this suit, wrongfully and unjustly made and caused to be made in their said workshops and manufactory divers large fires, and also divers loud, heavy, jarring, varying, agitating, hammering, and battering sounds and noises, although they the defendants were on those several days and times aforesaid urged and requested to desist therefrom; by means of which said several premises, the plaintiff and his family were greatly disturbed and disquieted, incommoded, interrupted, and annoyed in the peaceable and quiet possession, use, occupation, and enjoyment of the said messuage or dwelling-house with the appurtenances; and the said messuage and premises of the plaintiff had been, and were by means of the several premises aforesaid greatly lessened in value; and also by means of the said several premises, the plaintiff for and during all the time aforesaid had been greatly disturbed, interrupted, and prevented from exercising and carrying on his said profession in so ample and beneficial a manner as he otherwise might and would have done.

Plea. That the defendants were possessed of their said workshops and manufactory in the declaration mentioned, long, to wit, for the space of ten years, before the plaintiff became possessed of his said term of and in the said messuage or dwelling-house, with the appurtenances, in the declaration mentioned; and that the defendants always, from the time at which they so became possessed of their said workshops and manufactory down to and until the plaintiff became so possessed of his messuage or dwelling-house, with the ap*136] purtenances as aforesaid, *used, exercised, and carried on the said trade and business of ironmongers, and worked iron, and made and manufactured ironmongery goods in their said workshops and manufactory without any let, suit, interruption, molestation, or complaint, by or on the part of the owners or occupiers of the said messuage or dwelling-house now of the said plaintiff; and that the defendants, from the time the plaintiff so became possed of his said messuage or dwelling-house, hitherto, had continued to use, exercise, and carry on the said trade and business of ironmongers, and to work iron, and make and manufacture ironmongery goods in their said workshops and manufactory, in the same manner as they had always, from the time of their becoming possessed of their said workshops and manufactory, down to and until the time when the said plaintiff so became possessed of his said messuage or dwelling-house been used and accustomed to do, and without making or

causing to be made in their said workshops and manufactory larger fires, or louder, heavier, more jarring, varying, or agitating, hammering, or battering sounds or noises, than the defendants had during all the previous time been ac customed to do, or than were necessary and requisite to enable them to carry on their said trade and business, in and upon their said workshops and premises, in the same manner as they had always heretofore been used and ac customed to do.

Replication. That though true it is that the defendants were possessed of their said workshops and manufactory in the declaration mentioned before the plaintiff became possessed of his said term of and in the said messuage or dwelling-house, with the appurtenances in the declaration also mentioned, nevertheless such term as aforesaid was created and granted long, to wit, for the space of four years, before the said defendants were possessed of their said workshops and manufactory in *the declaration mentioned; and before [*137 they used, exercised, or carried on the said trade and business of ironmongers, and worked iron, and made and manufactured ironmongery goods therein as aforesaid; and that the defendants since the plaintiff became possessed of the said term of and in the said messuage or dwelling-house, with the appurtenances as aforesid, to wit, on the several days and times in the decla ration mentioned, committed the said several grievances therein mentioned and above complained of.

Demurrer and joinder.

Hoggins, being called on to support the plea, contended that as the plaintiff, by his own shewing on the replication, had come to the nuisance, he could not succeed in this action: Leeds v. Shakerly, Cro. Eliz. 751: But

THE COURT intimating that the defendants should at least have alleged a holding of twenty years' duration, judgment was given for the plaintiff, with leave, however, to the defendants to amend, upon their producing such an af fidavit as should satisfy the Court they had a right to plead. When the case was mentioned again, no affidavit being produced, the Court directed the judg ment to be entered for the plaintiff. Judgment for the plaintiff.

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*GROOM and Others, Assignees, &c. of GEORGE DIACK, a Bank

rupt, v. MEALEY.

[*138

To a declaration in debt by the assignees of a bankrupt for money received by defendant to the use of plaintiffs as assignees, plea, that the bankrupt before his bankruptcy was indebted to defendant in a greater sum upon an account then stated between them, and that defendant was willing to allow plaintiffs to set-off against such debt the debt claimed in the declaration, Held ill.

THE plaintiffs declared that the defendant on the 1st of January 1835 was indebted to the plaintiffs, as assignees of George Diack a bankrupt, in 100%. for money before them received by the defendant for the use of the plaintif as such assignees as aforesaid; and in 1007. for money then found to be due from the defendant to the plaintiffs as such assignees, on an account stated be tween the defendant and the plaintiffs as such assignees; by means whereof, and of the same two several sums of money being and remaining due and unpaid, an action had accrued to the plaintiffs, as assignees as aforesaid, to de mand and have of and from the defendant the same two several sums of money, making together the sum of 2007. yet the defendant, though often requested so to do, had not as yet paid the sum of 2001. or any part thereof, to the plaintiffs, assignees as aforesaid, but has wholly refused and still refused, to the damage of the plaintiffs, as assignees as aforesaid, of 100%.

The defendant pleaded, that the said George Diack before and at the time of

his becoming bankrupt, was indebted to the defendant in 3007. for money before then found to be due from the said G. Diack to the defendant, upon an account before then stated between them; which said sum of 3007. was still wholly unpaid; and the plaintiffs as assignees as aforesaid, before and at the commencement of this suit, were and still continued indebted to the defendant in the amount thereof; which said sum of money so due from the plaintiffs, as assignees as aforesaid, to the defendant, exceeded the amount of the

*139] debt owing from the defendant to the plaintiffs as aforesaid; and the defendant thereby offered to set off and allow to the plaintiffs as such assignees, the full amount of the said debt in the declaration mentioned out of the debt so due from the plaintiffs, as assignees as aforesaid, to the defendant, according to the form of the statute in such case provided; and that, the defendant was ready to verify, wherefore he prayed judgment, &c.

Demurrer and joinder.

Henderson, in support of the demurrer.

The plea is ill: for a debt due from the bankrupt before his bankruptcy cannot by law be set off in an action brought by assignees on a contract with themselves and in the character of assignees. Ridout v. Brough, Cowp. 133.

Mansel, contrà. There is nothing in the declaration to shew that the sum for which the plaintiffs sue was not received by the defendant before the bankruptcy of Diack: for supposing it to have been received by the defendant for Diack before his bankruptcy, it would, after his bankruptcy, remain in the hands of the defendant, as money received to the use of Diack's assignees. And according to the fiftieth section of 6 G. 4, c. 16, every debt proveable under the commission may be the subject of set-off against any demand on the part of the bankrupt.

Henderson. The money which the defendant is charged with having received, if received before the bankruptcy of Diack, must have been received on a fraudulent preference; otherwise it could not be described as received to the *140] use of the assignees. It is therefore, even on the supposition now started, a debt due to the assignees in their own right; and there is no mutuality in the way of set-off between such a debt and a debt accruing to the defendant from the bankrupt before his bankruptcy.

TINDAL, C. J. The first point is, what is the import and meaning of the right in which the plaintiffs claim a sum as money received by the defendant for the use of the plaintiffs as assignees? Primâ facie, those words import that the money was received by the defendant after the bankruptcy of Diack. But it is also true that, under some circumstances, the plaintiffs might recover money received by the defendant before the bankruptcy, as money received to their use. If such was the case here, it had been easy for the defendant to have said that the sum for which the plaintiffs sue was received by him before the bankruptcy. As the plea is not restricted, I think it is bad.

The rest of the Court concurred in giving

Judgment for the plaintiffs.

BECK, One, &c. v. MORDANT, Executor. June 12.

A defendant in an action on an attorney's bill being let in to plead on an affidavit of merits after suffering judgment by default, is not permitted to plead that no bill has been delivered pursuant to the statute.

THIS was an action on an attorney's bill. The defendant, after suffering judgment by default, being let in to plead upon an affidavit of merits, pleaded, VOL. XXIX.-31

first, non assumpsit; secondly, no bill delivered *pursuant to the statute: thirdly, a composition between defendant and his creditors; fourthly, [*141

a set-off.

Whereupon

A judge's order having been obtained to confine defendant to his first, third, and fourth pleas,

A rule nisi was granted to set aside this judge's order; when

Stephen, Serjt., and Waddington, shewed cause upon an affidavit which dis closed that the greater part of the plaintiff's demand was for items not taxable, and that his bill, though not formally signed according to the statute, had been delivered three months before the action, and no objection had been made.

Under these circumstances they contended that the second plea was foreign to the merits of the cause, and therefore ought not to be allowed, when the defendant had been let in to plead after a judgment by default.

W. H. Watson, contrà, argued that this was a plea to the merits, for the legislature would not have required a formal delivery of an attorney's bill, if the affording an opportunity of taxation had not been deemed essential to the merits of an action by an attorney for the amount. But

THE COURT being clearly of opinion that under the circumstances this was not a plea to the merits, the rule for setting aside the judge's order was

Discharged.

*BOWDIDGE v. SLANEY. June 12.

[*142

An application to stay proceedings on payment of debt and costs must be made within four days after service of process.

THE writ of summons in this case was served on the defendant on the 11th of April, and the amount indorsed to be paid for debt was 8l. 10s. The plaintiff sued in assumpsit.

The cause of action stated in the declaration was the damage incurred by the breach of an engagement to pay to one Richmond a sum of 447. 10s., which the plaintiff had placed in the defendant's hands to discharge a debt and damages which Richmond was seeking to recover from the plaintiff.

On the 22d of May, the defendant obtained a judge's order to stay all further proceedings in this cause upon payment of 87. 10s., the sum indorsed upon the writ of summons, together with costs to be taxed.

Channell, obtained a rule nisi to rescind this order, on the ground that the sum indorsed on the writ of summons was the balance of the debt due from the defendant to the plaintiff, but that the plaintiff sought also to recover as damages, expenses occasioned to him by the defendant's breach of promise. He further objected that the order had been obtained too late, the rules Mich. 3 W. 4, and Hil. 2 W. 4, prescribing that "upon the copy of any process served for the pay ment of any debt, the amount of the debt shall be stated, and the amount of what the plaintiff's attorney claims for the costs of such suit or process, arrest, or copy and service, and attendance to receive debt and costs; and that, upon pay ment thereof, within four days, to the plaintiff, or his attorney, further proceedings will be stayed."

Bayley, shewed cause. Although the proceedings in this cause [143 should be stayed, the plaintiff will not be precluded from recovering, in another action, any sum unpaid to which he may be entitled. Seddon v. Tutop, 6 T. R. 607, Young v. Munby, 4 M. & S. 183, Bagot v. Williams, 3 B. & C. 235. But the plaintiff's application amounts in substance to an application to amend the indorsement on the writ of summons, which cannot be done; Trotter v. Bass, 1 New Cases, 516. As to the date of the judge's order, the rule is directory only, not imperative.

TINDAL, C. J. The rule under which proceedings are to be stayed on payment to the plaintiff or his attorney of the amount of debt and costs stated upon the copy of process served on the defendant is limited by the condition that the payment be made within four days:

Here the order for payment was not obtained till after a much longer period. The present rule therefore must be made

Absolute.

GREEN v. GLASSBROOK. June 12.

Where plaintiff's attorney after he had ceased to act for plaintiff entered into the service of defendant, and caused the under-sheriff to return on a fi. fa. a sum as levied for plaintiff greater than had come to plaintiff's hands, the Court directed the return to be amended according to the fact.

UNDER a writ of fi. fa. in this cause, indorsed to levy 4507 15s., the sheriff seized property of the defendant to the amount of 3137. 11s., at which price the defendant's landlord purchased it upon the plaintiff and defendant's consenting that 967. 4s. 6d. due from the defendant to his landlord for dilapidations, should be deducted from the 3137. 11s.

*144]

This was done accordingly, and after a further deduction for the sheriff's expenses, 1937. 4s. 6d. was paid to the plaintiff's attorneys as the net proceeds of the levy.

In September, 1834, the plaintiff paid his attorneys all costs due to them, and under a judge's order required them to deliver up the judgment paper and fi. fa.

in this cause.

This was not done; but in February, 1835, the same attorneys, acting for the defendant, without any authority from the plaintiff, and without apprising the under-sheriff that they were no longer the plaintiff's attorneys, caused the undersheriff to indorse on the fi. fa. that he had levied 3137. 11s., and had accounted for the same to the plaintiff after deducting sheriff's expenses, notwithstanding the under-sheriff suggested to them that the return should state only 2177. 6s. 6d. to have been levied.

The plaintiff having commenced a fresh action to recover the remainder of the sum due on the above judgment,

Bompas, Serjt., upon affidavit of these facts, obtained a rule, calling on the defendant and his attorneys to shew cause why the fi. fa., with the sheriff's return thereto, should not be taken off the file of this Court; and why the entry thereof on the roll should not be erased; or why the return and entry should not be amended.

Taddy, Serjt., who shewed cause, objected to the application as being of the first impression. The sheriff ought to have been made a party to the rule, and the plaintiff's remedy was by action against him, if the return to the writ were *145] false. But the return was *correct; for the 967. 4s. 6d. which was paid to the defendant's landlord with the consent of the plaintiff, must be considered as money levied to the use of the plaintiff. And the Court had no authority to alter the return without the consent of the sheriff. But

THE COURT, observing that the plaintiff's attorneys, after they had been called on to deliver up the judgment paper and fi. fa., had no authority to take any step in the cause, directed the return to be amended pursuant to the suggestion originally made by the under-sheriff. Rule absolute.

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