1827.

SYKES

V.

Ross.

in the possession of the defendant or his tenants, Patteson, Exch. of Pleas, on a former day, obtained a rule nisi to discharge him, on filing common bail; and contended, that the affidavit to hold to bail was defective, as it did not state that the premises had been conveyed; and that it was like the cases in which it had been held, that affidavits to hold to bail for goods bargained and sold, Hopkins v. Vaughan (a), or for goods sold only, without saying that they were delivered, Loisada v. Moryoseph (b), had been held to be insufficient.

Parke now shewed cause.-The defendant is in possession of the estate, although the affidavit is silent as to whether a conveyance has, or has not, been executed. That fact, however, distinguishes this from the cases relied upon when the rule was obtained. In those cases the party had the security of the goods; and there was no reason why, at the same time, he should have the security of the defendant under arrest; but here the defendant is in possession of the estate. Where goods are pledged, although the pawnee has the security of the goods, he may compel a prompt payment by arrest. It is inconsistent with the positive averment of a debt in the affidavit, that the transaction is merely in fieri.

Patteson, contra.-This comes, in principle, within the cases cited, and is, at all events, a case, in which the plaintiffs should have applied to a Judge for leave to hold the defendant to bail; it being consistent with the affidavit, that the defendant may be in possession of the property as tenant only, and not by virtue of the sale.

[Hullock, B.-The defendant may be in possession of the premises, and, from the default of the plaintiffs, the

(a) 12 East, 398.

(b) 8 Moore, 366; S. C. 1 Bing. 357.

Exch. of Pleas, conveyance may never be completed; for instance, they

1827.

SYKES

v.

Ross.

may not be able to make a good title.]

Per Curiam.-The affidavit is insufficient: let the rule be made

Absolute.

Thursday, Nov. 15th.

of a lease were interchangeably executed, and the part in the

not interfere to

compel the defendant to permit the plaintiff to inspect and take a copy of

WOODCOCK and Another v. WORTHINGTON.

Where two parts THIS was an action, brought by the plaintiffs, to recover from the defendant money paid by them to him, under a mistake as to the effect of a lease, two parts of which had possession of the been executed, one by the plaintiffs, and the other by the plaintiff was lost, the Court would father of the defendant, and one part delivered over to the attorney of the plaintiffs, It appeared further, by the affidavit, that the attorney of the plaintiffs was since dead, and that search had been made among his papers for the lease, without effect; that the plaintiffs had applied to the defendant's attorney for inspection of that part, which he admitted to be in his possession, and had been refused; and that the plaintiffs could not safely proceed to trial without an inspection and copy of the counterpart of the lease. Upon these facts,

that part which was in his pos

session.

Parke moved for a rule, calling upon the defendant to shew cause why the plaintiffs should not be at liberty to inspect, and, at their own charge, to take a copy of the counterpart of the lease in the custody and possession of the defendant or his attorney.

HULLOCK, B.-I confess I do not understand the principle upon which the Courts have been so shy in interfering in cases of this description, but there is a rule of practice in these cases, from which we cannot deviate. Where

1827.

WOODCOCK

v.

WORTHING

TON.

one part only is executed, the inspection may be obtained Exch. of Pleas, against the party who has the custody of it, who is considered to be a trustee of the other party (a); but where two parts have been executed interchangeably between the parties, the rule is different: and I remember having made an application to the Court of King's Bench, in a similar case, without success. There is also a case in the Court of Common Pleas, in which that Court, under like circumstances, refused to grant the inspection (b).

VAUGHAN, B.—This case has been twice before me at chambers. On the first application, I was struck with the strictness which has prevailed in the practice of the Courts upon this subject; and, upon the second, I still entertained doubts, and directed the parties to apply to the Court. The rule, as laid down by my Brother Hullock, is that which prevails in all the Courts; and I think we should not be justified in departing from it.

GARROW, B., concurred; and

Parke took nothing by his motion.

(a) See Morrow v. Saunders, 3 B. Moore, 671; Blakey v. Porter, 1 Taunt. 386; Cooke v. Tanswell, 1 B. Moore, 465; King v. King,

4 Taunt. 666.

(b) Street v. Brown, 1 Marsh. 610; S. C. 6 Taunt. 302.

GOMERSALL and Others, Assignees, &c. v. SERLE. ASSUMPSIT by the plaintiffs as assignees of a bankrupt, against the defendant, as acceptor of a bill of exchange. Plea-The general issue.

Friday, Nov. 16th.

The 96th section of the bankrupt act, 6 Geo. 4, c. 16, which enacts that the proceedings in bankruptcy shall

not be received in evidence, unless the same shall have been first entered of record, does not dispense with proof of the execution of the assignment.

Exch. of Pleas, 1827.

GOMERSALL

v.

SERLE.

The plaintiffs, at the trial, which took place at the Middlesex Sittings after Easter Term, were unable to prove the execution of the provisional assignment by the subscribing witness; upon which it was contended, by their counsel, that such proof was unnecessary, the proceedings becoming records by the act of registration, in pursuance of the statute 6 Geo. 4, c. 16, s. 96; to which it was answered, that that section merely superadded the registration, but did not dispense with the ordinary and usual proof of the execution. The learned Chief Baron saved the point, giving the defendant leave to move to enter a nonsuit; subject to which the Jury found a verdict for the plaintiffs.

In Trinity Term Jones, D. F., obtained a rule to shew cause why that verdict should not be set aside, and a nonsuit entered (a); against which

Jervis and Parke shewed cause.-Whether the assignment was or was not properly admissible in evidence, the subscribing witness not having been called, will turn entirely upon the construction of the statute 6 Geo. 4, c. 16, which is clearly in favour of the plaintiffs. By the 95th section authority is given to the Lord Chancellor to appoint a proper person to enter of record all matters relating to commissions. And by the 96th, the proceedings, and, amongst other things, the assignment, are not to be received in evidence, unless the same shall have been first so entered of record; of which entry a certificate is to be indorsed, which, upon production, is to be received as evidence of the enrolment. The proceedings are to be entered of record, and by the enrolment become records, which it is not necessary to prove. Indeed, it is difficult to assign a reason for this enactment, if it were not intended to save expense, by dispensing with all other proof than that of the assignment by the indorsement upon the

(a) Other points were made, upon which the judgment did not proceed.

1827.

v.

SERLE.

proceedings; which construction has already been put Exch. of Pleas, upon the clause, by a learned Judge upon the northern circuit. It may be suggested, that the officer whose duty GOMERSALL it is to enrol the proceedings, has no means of ascertaining whether the assignment has been properly executed, and that therefore the act of enrolment should not be conclusive; that objection, however, cannot prevail in contravention of the clear provisions of the statute.

Jones, Serjt., in support of the rule. Before the late act of Parliament, the assignment must have been proved in the usual way, and the question here is whether there is any thing in that act which renders such proof unnecessary. This question must be decided upon principle merely, for there is no case which can be said to govern it. By the letter even of the act of Parliament, the bare act of enrolment does not make the proceedings evidence; and had it been the intention of the Legislature to have done so, such intention would have been clearly declared: but the only object was to give publicity to the proceedings. If the arguments of the counsel for the plaintiffs were to prevail, the assignment would not be evidence. That would not be the record, but the enrolment only, which alone could be admissible. It is to be observed, however, that the words are not, that when enrolled the proceedings shall be received in evidence; but that no proceedings shall be admissible until they be enrolled, which, the words being merely negative, clearly shews that it was the intention of the Legislature to superadd the enrolment to the other usual proof, as is the case in many other instances of statutory regulation. Thus, the statute 27 Hen. 8, c. 16, requires the enrolment of bargains and sales to remain among the records of the county, in respect of which such enrolment shall be made; and yet the enrolment of a deed is not a record, because it is not the act of the Court, but only a private act, authen