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1834.

bringing up a
prisoner under
the compulsory
clauses of the
Lords' Act,
must be sup-
ported by an
express affidavit

[blocks in formation]

The motion for HUMFREY opposed, in the first instance, a motion made by Petersdorff under the 32 Geo. 2, c. 28, s. 16, to compel defendant to come into Court and deliver a schedule according to that act. He contended, first, that the notice given was not sufficient. The notice merely was, that an application against her under the act would be made on the first day of the term; but the act re

that all the cre

ditors have been

served with notice.

Quære, whe

Act extends to

the case of a prisoner who is in execution for debts under 3007., and also for debts above 3007.?

quires notice of an intention to apply to the Court, and ther the Lords' also requiring the defendant to give in upon oath an account in writing of the estate of the prisoner in the manner pointed out by the act. Until such notice has been given the prisoner is not bound to give in a schedule, and 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 3007., and also on other executions for more than 300%. 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 100%. 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 3007. 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 300%., he was yet liable to be brought up at the instance of any one individual creditor whose debt did not amount to 300%., 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 3007. And in the subsequent case of Bar

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

ker v. Slater (a), it was held that the debtor could not be brought up by a creditor whose debt exceeded 300%.; and Abbott, C. J., said, that the act must be limited to the case of a creditor whose debt does not exceed 300l. Here, there are creditors the amount of whose respective debts exceeds 300%., 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 3007. 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 3007. 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 300l. or 500l., he would

(a) 2 D. & R. 165.

1834.

GROVE

v.

PARKER.

1834.

GROVE

บ.

PARKER.

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.

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 affidavit 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 sons on the books at the King's Bench Prison.

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

per

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.

Rule refused.

1834.

STEPHENS v. PELL.

for a new trial

of an inquiry of damages under upon demurrer,

a judgment

it is sufficient to
produce the un-
der-sheriff's
notes verified by
affidavit.
Upon a judg-
ment by default
or on demurrer,

THIS was 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 hereby undertake, in consideration of Mr. Stephens's withdraw. ing the person put into possession of Mr. L.'s effects, under a distress for the sum of 3501. for rent due to Mr. Stephens, that the said sum of 3501. shall be paid to Mr. Stephens out of the sale of the produce of the same effects." The defendant pleaded specially, that he was assignee of the bankrupt at the time of giving the guarantie, and that he had given it in his character of assignee; that the fiat of bankrupt under which he was appointed assignee had been since superseded, and that he was no longer in possession as assignee, and was not bound by the agreement. The plaintiff demurred, and the defendant joined in the demurrer. The plaintiff had judgment in that demurrer, and, upon the trial before the sheriff, the plaintiff obtained 1s. damages.

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,

the contract or contracts are ad

mitted as stated

in the declara

tion, and evi

dence to conwhich would be good under

tradict them,

the general is

sue, ought not

to be admitted.

1834.

STEPHENS

v.

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.

(a) In a special action on the case, the first count alleged that the defendant was master of a ship, and was employed by the plaintiff to carry certain cases of biscuits to Madras, and that it was his duty to carry them without any unnecessary deviation or delay, but that, contrary to his duty, he unshipped the goods at an intermediate place, and the goods were delayed in their voyage to Madras for a long space of time; by reason whereof certain persons to whom the goods were consigned for sale refused to accept them, and the plaintiff lost all the profit he would have made by the adventure, and all the expense of shipment, insurance, and conveyance; and that the goods were wholly lost to the plaintiff. Other special counts varied the statement of the duty of the defendant as captain of the ship, and concluded with the same spe

cial damage. The last count was

Rule absolute (a).

in trover. The defendant suffered judgment by default. At the trial before the under sheriff, the plaintiff proved merely the value of the goods and the expense he had been put to. It was objected, on behalf of the defendant, that, without proof of the loss of the goods and the damage, the plaintiff was only entitled to nominal damages that the plaintiff could only go upon one count, and that the special damage alleged in a declaration was not admitted by suffering judgment by default. The jury, under the direction of the under-sheriff, found for the plaintiff 1907. 2s. for the value of the goods, and 71. for expenses. Platt, in this term, moved for a new trial, renewing the objections made at the trial. F. Pollock and Hughes shewed cause. The Court discharged the rule.-Livingston v. Douglas, K. B., Easter Term, 1834.

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