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1834.

clauses of the

ditors have been served with notice.

Act extends to the case of a

3001.?

GROVE v. PARKER. The motion for HUMFRE Y opposed, in the first instance, a motion bringing up a prisoner under made by Petersdorff under the 32 Geo. 2, c. 28, s. 16, to the compulsory

compel defendant to come into Court and deliver a scheLords' Ac!,

dule according to that act. He contended, first, that must be supported by an the notice given was not sufficient. The notice merely express affidavit that all the cre- was, that an application against her under the act would

be made on the first day of the term; but the act re

quires notice of an intention to apply to the Court, and Quære, whether the Lords' also requiring the defendant to give in upon oath an ac

count in writing of the estate of the prisoner in the manprisoner who is

ner pointed out by the act. Until such notice has been in execution for debts under given the prisoner is not bound to give in a schedule, and 3001., and also for debts above

the Court has no power to swear the prisoner. Here they have applied to the Court in the first instance. Secondly, the defendant is in custody on several executions under 3001., and also on other executions for more than 3001. As to the latter, she cannot have the benefit of the act; for the 32 Geo. 2, c. 28, s. 16, is expressly limited to cases where the prisoner is committed or charged in execution for any debt or damages not exceeding 1001, besides costs of suit; that act was first extended to debts of 2001. by the 26 Geo. 3, c. 44, s. 2, and afterwards to 3001. by the 33 Geo. 3, c. 5, s. 3. The point was discussed in the case of Chapple v. Astley (a), where it was held, that, though the aggregate of all the debts for which the defendant was in prison was more than 3001., he was yet liable to be brought up at the instance of any one individual creditor whose debt did not amount to 3001., and might be compelled to deliver up his property for the benefit of the creditors at large: but in that case there was no one creditor whose debt amounted to 3001. And in the subsequent case of Bar

(a) 1 D. & R. 25; 5 B. & Ald. 537, S. C.

1834.

GROVE

PARKER.

ker v. Slater (a), it was held that the debtor could not be brought up by a creditor whose debt exceeded 3001.; and Abbott, C. J., said, that the act must be limited to the case of a creditor whose debt does not exceed 3001. Here, there are creditors the amount of whose respective debts exceeds 3001., as against whom the debtor could not be discharged. There is, therefore, no mutuality. The benefit to the debtor ought to be co-extensive with the remedy given to the creditor; but here the defendant may be compelled to give up all her property for the benefit of a few of her creditors, leaving her exposed to the more serious claims without any thing to meet them. The act was not intended to apply, and does not apply, to such a case, The Court has no jurisdiction if the debt amounts to more than 3001. The compulsory clauses ought to be construed in connection with what are called the voluntary clauses; the latter are evidently intended to apply to those cases only where there are no debts of any considerable amount; for the act recites that it is for the ease and relief of persons in execution for debts not exceeding a limited amount. Any other construction would impose extreme hardship on the debtor.

Vaughan, B.—The voluntary clauses certainly are for the relief of the debtor. The compulsory clauses are founded on the supposition that persons in execution might choose to waste their substance in prison, in preference to giving up their property.

Lord LYNDHURST, C. B.—According to your argument, the debtor is not discharged as to 3001. creditors, if they do not choose to come in; but if they consent to come in, then the debtor would be discharged. In that case it matters not whether the debts are 3001. or 5001., he would

(a) 2 D. & R. 165.

1834.

be equally discharged; the hardship, therefore, is the same.
There is nothing in the other objection; the notice is in
the form given in Tidd's Appendix.

GROVE

v.

PARKER.

Humfrey.—There is another objection. By the 16th section notice must be given to all the creditors at whose suit the defendant is detained or charged in custody. The affidavit only states that several creditors were served.

Petersdorff, in support of the rule.--As to the latter point, I have a list of all the causes in which Lady Parker is in custody; it is a formal list obtained from the clerk of the papers at the King's Bench Prison. There is an affi. davit of service on each; all the names correspond; and I submit it was sufficient for us to give notice to all the creditors we could get intelligence of, and those are the persons on the books at the King's Bench Prison.

VAUGHAN, B.--That list is not verified by affidavit.

Lord LYNDHURST, C. B.- I think that is a fatal objection.

Humfrey applied for costs. The motion is for a rule, not for a rule to shew cause.

Lord LYNDHURST, C. B.- It is contrary to the usual practice to give costs where cause is shewn in the first instance. If the rule had been obtained, and you had succeeded in setting it aside, you would have had the costs.

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1834.

for a new trial

it is sufficient to

der-sheriff's

STEPHENS v. Pell. This was an action on a guarantie in this form :-“As as- Upon moving signee of the estate and effects of R. L., a bankrupt, I here- of an inquiry of by undertake, in consideration of Mr. Stephens's withdraw. damages under ing the person put into possession of Mr. Li's effects, un- upon demurrer, der a distress for the sum of 3501. for rent due to Mr. Ste- produce the unphens, that the said sum of 3501. shall be paid to Mr. Ste

notes verified by phens out of the sale of the produce of the same effects.” affidavit.

Upon a judge The defendant pleaded specially, that he was assignee of ment by default the bankrupt at the time of giving the guarantie, and that the contract or he had given it in his character of assignee; that the fiat contracts are ad; of bankrupt under which he was appointed assignee had in the declarabeen since superseded, and that he was no longer in pos- dence to session as assignee, and was not bound by the agreement which would The plaintiff demurred, and the defendant joined in the be good under

the general isdemurrer. The plaintiff had judgment in that demurrer, sue, ought not

to be admitted. and, upon the trial before the sheriff, the plaintiff obtained 1s. damages.

tion, and evi

tradict them,

Humfrey having obtained a rule nisi for a new trial

Follett shewed cause.—The rule was obtained on an affidavit verifying the under-sheriff's notes: it ought to have been drawn up on reading the notes.

Parke, B.-It was done to save expense; if the rule had been drawn up otherwise, office copies of the notes must have been taken.

Follett.-We say that the notes do not contain a full report of the evidence. The plaintiff's own affidavit states that he produced evidence of facts not stated in the notes. We are not bound by the under-sheriff's notes as we are by a Judge's notes. Our affidavits shew that the debt for which the action was brought was secured by a mortgage,

1834.

STEPHENS

PELL.

and that there were prior executions, which, if they were satisfied out of the goods to which the guarantie applied, would have exhausted them. Suppose no rent was due, would the plaintiff be entitled to a verdict for the full amount? It is a case of the greatest hardship upon the defendant, who undertook to pay the debt on the security of goods which have been since taken from him.

PARKE, B.-The defendant engaged to pay the rent, and is bound to do so. The plaintiff is entitled to the full amount. If the facts are as you represent, it would have been an answer under the general issue, but not upon this inquiry. The engagement is to pay, if the goods are sufficient.

Rule absolute (a).

(a) In a special action on the in trover. The defendant suffered case, the first count alleged that judgment by default. At the the defendant was master of a trial before the under sheriff, the ship, and was employed by the plaintiff proved merely the value plaintiff to carry certain cases of of the goods and the expense he biscuits to Madras, and that it had been put to. It was objected, was his duty to carry them with- on behalf of the defendant, that, out any unnecessary deviation or without proof of the loss of the delay, but that, contrary to his goods and the damage, the plainduty, he unshipped the goods at tiff was only entitled to nominal an intermediate place, and the damages: that the plaintiff could goods were delayed in their voyage only go upon one count, and that to Madras for a long space of the special damage alleged in a detime; by reason whereof certain claration was not admitted by persons to whom the goods were suffering judgment by default. consigned for sale refused to ac- The jury, under the direction of cept them, and the plaintiff lost the under-sheriff, found for the all the profit he would have made plaintiff 1901. 2s. for the value of by the adventure, and all the ex- the goods, and 71. for expenses. pense of shipment, insurance, and

Platt, in this terin, moved for a conveyance; and that the goods new trial, renewing the objections were wholly lost to the plaintiff. made at the trial. F. Pollock and Other special counts varied the Hughes shewed cause. The Court statement of the duty of the de- discharged the rule.—Livingston fendant as captain of the ship, v. Douglas, K. B., Easter Terin, and concluded with the same spe- 1834. cial damage. The last count was

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